TAKING THE BREATHALYZER IN ILLINOIS: WHAT IF YOU DON’T HAVE ENOUGH AIR?

Posted on March 23, 2015 by mdkeenan

The police pulled you over under suspicion of DUI. You knew you’d only had one drink, so you agreed to take the breathalyzer. But somehow you didn’t blow enough air into the machine.

After several tries, the police officer marked you down as having refused the test. Because of that, the Secretary of State doubled the length of your automatic driver’s license suspension.

What can you do?

Although it’s a long shot, an experienced DUI attorney can investigate whether you have a physical inability to submit to the test. A physical inability is a defense to refusing to take the test. Such inability might include asthma or a heart condition that prevents you from blowing enough air into the machine.

If you can prove you were physically unable to comply, the court might throw out the suspension of your license. Be aware, however, that most Illinois appellate law has ruled against the driver, generally finding the driver’s evidence of inability to be insufficient.

If you are charged with DUI, contact an experienced attorney immediately. An experienced attorney can evaluate your case to present your most favorable defense. Was there probable cause to stop you? Did the squad car video show you had signs of impairment? Even if the evidence against you is overwhelming, an experienced attorney who is respected in the courthouse may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related Illinois DUI, criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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BIG TROUBLE: DRIVING ON A REVOKED LICENSE IN ILLINOIS

Posted on February 25, 2015 by mdkeenan

Illinois is serious about enforcing its laws about driving on a revoked license when the underlying offense involves drugs or alcohol.

Recently, a DuPage County judge sentenced a defendant to 8 ½ years in prison for two counts of driving on a revoked license. The man’s license had been revoked after a 2001 DUI accident involving the death of a young woman. (See 8 ½ Years for Driver With Long Record)

Illinois may soon be stiffening its penalties for these offenses. Currently, the sentence for a first-time driving on a revoked is 30 days community service or 10 days imprisonment. Under the proposed law, a driver could no longer get community service and must serve jail time. Jail time would also be mandatory for driving on a statutory summary suspension (the nearly automatic suspension imposed by the secretary of state after a DUI) if any alcohol or illegal drugs are found in your system.

If you are charged with this or a similar offense, contact an experienced DUI attorney immediately. An attorney can review your case for your best possible defense. Did police have a legal reason to stop you? If not, your attorney can ask the court to have the evidence from your arrest suppressed. Even if the police acted properly, an attorney who is respected in the courthouse may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.


(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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“THEY JUST FOLLOWED ME:” POLICE STOPS IN ILLINOIS

Posted on February 9, 2015 by mdkeenan

You pulled out of the gas station and set off on your way home. You’d just had a few beers after work. A couple blocks later, you noticed a squad car behind you. The car continued following you and then pulled you over for no apparent reason. Eventually, you were arrested for DUI.

Can they do that?

In Illinois, the police may generally follow you but cannot stop you without a reasonable, articulable suspicion that you have committed or are about to commit a crime. The stop must be justified from the beginning. Police may not simply go on a fishing expedition to see if you might have been drinking or might have drugs in the car. The officer must point to specific, articulable facts which, taken together with rational inferences, reasonably warrant stopping to investigate you. The stop must be based on more than a hunch.

In a recent Illinois Appellate court decision, the court threw out a DUI arrest where the officer had followed the driver simply looking for violations. (See People v Bozarth.) The driver had not done anything wrong. Because the officer approached her car with his gun drawn, a reasonable person would not have felt free to leave. The officer was then required to have a reasonable suspicion of wrongdoing before making the stop. The officer testified he was looking to see if something “might happen.” As a result, the stop was illegal, and the defendant’s arrest was suppressed and her conviction reversed.

An officer may stop you if he or she is performing a community caretaking function. For example, if your tire is flat and the officer stopped you to let you know about it or if you were sleeping in a parked car. If the officer then sees something wrong, the arrest may be legal.

If you are charged with DUI or a similar offense, contact an experienced DUI attorney immediately. An attorney can review your case for your best possible defense. If the officer acted improperly, an attorney may ask the court to suppress your arrest or the evidence resulting from it. Even if the police acted properly and the evidence against you is overwhelming, an experienced attorney who is respected at the courthouse may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.


(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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PROVING THE BREATHALYZER IN ILLINOIS

Posted on January 19, 2015 by mdkeenan

You had always heard that if you were stopped for DUI, you should refuse to take a breathalyzer. But when the time came, you went right along with police and blew over the limit.

What can you do?

When you are stopped for DUI in Illinois, the officer may ask you to perform some tests and then blow into a portable breathalyzer. If the officer arrests you, you will be asked to take a second breathalyzer at the police station.

While the portable breathalyzer result is not admissible in court at trial, the result at the police station may be used as evidence if it meets certain requirements. A certified operator must perform the test according to Illinois Department of Public Health standards. The breath machine must be an approved model that is tested regularly for accuracy. The officer must observe you for 20 minutes before the test to insure you do not smoke, regurgitate or drink during that time. (The police need not have unbroken eye contact but may use their other senses to observe you. See People v Chiaravalle.) The print out results must be identifiable as yours.

If the state fails to meet any of these requirements, the test result may be kept out of evidence. In some cases, it may be difficult for the state to prove their case without the test.

If you are charged with an Illinois DUI or related offense, contact an experienced attorney immediately. An attorney can review your case for your best possible defense. Did police have a legitimate reason to stop your car? Does your driving and performance on the field sobriety tests show that you were not under the influence despite your breathalyzer result?

Even if the evidence against you is overwhelming, an experienced attorney who is respected in the courthouse may be able to negotiate a better plea agreement than you can on your own.

If you have questions about this or another related criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

Source: People v Eagletail.


(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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TAKING THE PLEA FOR DUI IN ILLINOIS

Posted on December 22, 2014 by mdkeenan

In my practice, having my client take a guilty plea is a last resort, not a first option.

When a DUI client comes to me, I first review all the evidence against him or her for any possible defense. Did you show evidence of impairment on the police squad video? Was the arrest based on probable cause? Can the state prove you were driving and that you were under the influence of drugs or alcohol?

But sometimes the state’s case is overwhelming. For example, the police may have you on video swerving all over the road or you may have blown a high score on a properly administered breathalyzer. In those cases, your best option may be to negotiate as favorable a plea agreement as possible.

Before negotiating a plea, you must obtain an alcohol evaluation from a court-approved facility. In Cook County, Central States Institute is the designated agency. After an interview, you will receive a weighted score. This score and your prior DUI history will be factored into any plea agreement.

Depending on the jurisdiction or the courtroom, I will negotiate a plea with either the state’s attorney or village prosecutor. In some cases, the judge may conduct a “402 conference.” In a 402 conference, the prosecutor and I meet with the judge in his or her chambers to discuss your case. At that time, I will advocate for why you deserve a more lenient sentence. The judge will then make a recommendation regarding sentencing.

If you accept the recommendation or offer, you will then plead guilty. In doing so, you agree to give up any rights to confront witnesses, go to trial or present evidence in your defense.

If the recommendation or offer is not agreeable, you can reject it and take your chances at trial.

In negotiating a plea, it helps to have an attorney who is respected at the courthouse and knows the players involved. The prosecutor does not have an incentive to make a good offer to an attorney who never goes to trial. An attorney who is familiar with the prosecutor and judges has a better understanding of what to say on your behalf—or what not to say.

If you have questions about this or another related Illinois DUI or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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FOLLOWING DIRECTIONS: DUI TESTING IN ILLINOIS

Posted on December 8, 2014 by mdkeenan

After leaving the bar, you blew a stop sign. Unfortunately, police were watching and stopped you for DUI. You agreed to take some field sobriety tests. Although you thought you passed, the officer arrested you.

You walked a straight line and held your leg up for more than 30 seconds. So what was the problem?

Maybe you just didn’t follow directions. Police look for signs of impairment and failing to follow directions can provide evidence of DUI. For example, an officer will tell you to take 9 steps before turning for the walk and turn test. What if instead you take 12? Or you don’t walk heel to toe? During the one-legged stand, the officer will ask you to hold your arms at your sides. What if you hold them out instead? These small mistakes can give an officer probable cause to arrest you.

Recently, an Illinois appellate court held that a defendant’s failure to follow instructions when taking the horizontal gaze nystagmus (HGN) was relevant evidence of DUI. (See People v King). The HGN generally requires you to follow an object with your eyes from side to side without turning your head. The defendant in that case instead followed the object, then looked at the officer or else moved his head.

If you are charged with DUI or a related offense, contact an experienced attorney immediately. An attorney can review your case for the best possible defense. Maybe police lacked a legitimate reason to stop your car in the first place. Maybe your overall performance on the tests provides reasonable doubt that you are guilty of DUI. Even if the evidence against you is overwhelming, an experienced attorney who is respected in the courthouse may be able to negotiate a better plea agreement than you can on your own.

If you have questions about this or another related criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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NEW SUPREME COURT LAW ON ANONYMOUS TIPS AND DUI

Posted on November 21, 2014 by mdkeenan

Police are allowed to stop drivers based on anonymous tips. The key question is whether the tip was reliable enough to provide probable cause for the stop.

The Supreme Court just made that job a lot easier for the prosecution. A recent case held that an anonymous tip was reliable where the caller accurately identified the vehicle and its license plate and stated that the driver had run her off the road. See Navarette v California. Previously, the law required police to witness some form of bad driving themselves. This is no longer necessary under the new case.

The court also held that an officer could reasonably conclude that a false tipster would think twice before using 911 because the system has certain technological and regulatory features.

If you are charged with a crime, contact an experienced DUI attorney immediately. An attorney can review the facts of your case to determine your best possible defense. Maybe the anonymous tip was not really reliable even under the newer standards. Or perhaps there was some other problem with how police conducted the stop. If so, an attorney may be able to petition the court to throw out the evidence from the stop.

Even if the evidence against you is overwhelming, an experienced attorney who is respected in the courthouse may be able to obtain a better plea agreement for you than you could on your own.

If you have questions about this or another related criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.


(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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LOOKING BACKWARDS: HOW THE STATE PROVES YOUR BLOOD ALCOHOL WAS HIGHER THAN YOUR BREATHALYZER RESULT

Posted on November 3, 2014 by mdkeenan

You had several drinks at the bar before you drove home. Police stopped you for a moving violation and arrested you for DUI.

At the police station, you agree to take the breathalyzer. The reading is .077, just below the legal limit. You think you are home free. But the prosecutor is now claiming your blood alcohol level was actually above .08 when you were driving.

Can they do that? What can you do?

Your body absorbs alcohol on a curve. After drinking, your blood alcohol rises and then starts to fall. These are called the absorption and elimination phases. The prosecutor uses a technique called retrograde extrapolation to calculate where you were on the curve at the time you were driving.

If you were in the elimination phase when you took the breathalyzer, the state can argue that your blood alcohol was actually higher at the time you were driving. The state uses an expert to determine where you were on the curve based on factors such as when and what you drank and whether you ate.

Are you now doomed? Not necessarily. An experienced DUI attorney can review the credentials of the expert, the factors used and look for holes in the expert’s opinion. Maybe the expert is speculating about how much you drank or when. Or the expert is assuming you were in the elimination phase without a real basis for that opinion.

Remember, the state must prove you guilty of all elements of DUI beyond a reasonable doubt. Without a solid expert opinion, the state may be unable to meet its burden of proof.

If you are charged with DUI or a related offense in Illinois, contact an experienced DUI attorney immediately. Even if the expert’s opinion is rock solid, an attorney who is respected in the court house may help you gain a better plea agreement than you could on your own.

If you have questions about this or another related criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.


(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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HOW THE DEFENSE MAY SHOW YOUR BLOOD ALCOHOL IS LOWER THAN YOUR BREATHALYZER

Posted on October 14, 2014 by mdkeenan

You had several drinks at the bar before you drove home. Police stopped you for a moving violation and arrested you for DUI.

At the police station, you blew the breathalyzer. The reading was over the legal limit. Your friend, who was a passenger in the car, swears that you did not show any signs of impairment when you were driving.

With the help of an expert, it may be possible to prove that your blood alcohol was actually lower at the time you were driving. How?

Your body absorbs alcohol on a curve. After drinking, your blood alcohol rises and then starts to fall. These are called the absorption and elimination phases. With the help of an expert, your attorney can use a technique called retrograde extrapolation. The expert will look at a variety of factors such as when and what you drank, your size and whether you ate in order to calculate an approximate blood alcohol result for the time you were driving.

If you were in the absorption phase when you took the breathalyzer, your attorney can argue that your blood alcohol was actually lower at the time you were driving.

Be aware that the state is highly unlikely to dismiss your case based on your expert’s opinion. The state will want their own expert, and you will still have to battle it out in court. But in some cases, it is possible to prove that you were not driving under the influence after all.

If you are charged with DUI or a related offense in Illinois, contact an experienced DUI attorney immediately. Even if the evidence against you is overwhelming, an attorney who is respected at the court house may be able to negotiate a better plea agreement than you could on your own.

If you have questions about this or another related criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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WHEN A TRAFFIC VIOLATION IS NOT A TRAFFIC VIOLATION

Posted on September 22, 2014 by mdkeenan

It’s not hard for police to justify a traffic stop. There are a host of potential traffic violations, and chances are, you’ve violated at least one of them.

But not in every case.

A recent Illinois Appellate case found that a driver had not in fact violated the letter of the law. In People v Gonzalez-Carrera, the court struck down a traffic stop based on a defective tail light. The Defendant was charged with “driving with one red tail light” because of a hole allowing white light to shine through the other light. Police subsequently discovered a controlled substance in the car, charging Defendant with possession with intent to deliver.

The Court looked carefully at the wording of the tail light law. Drivers are required to have two red tail lights turned on from sunset to sunrise, during rain, fog or snow, or when visibility is less than 1000 feet. However, none of these conditions applied at the time Defendant was stopped. Therefore, Defendant wasn’t violating the law, and the police stop was no longer valid.

The above case underscores the importance of carefully examining the facts of each case. If you are charged with a crime involving a traffic stop, an experienced criminal or DUI attorney can review your situation for the best possible defense. If police lacked probable cause to stop you, an attorney may be able to bring a motion to suppress any evidence resulting from the illegal stop.

If you have questions about this or another related criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

UPDATE (Jan. 12, 2015): A recent U.S. Supreme Court decision muddies the waters. The Supreme Court recently upheld a traffic stop where the officer mistakenly understood a North Carolina law to require two working brake lights. The law, however, was subject to varying interpretations, and the Court said its decision to uphold the officer only applied to reasonable mistakes of law. See Helen v North Carolina.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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