THE PROS AND CONS OF TAKING THE BREATHALYZER

Posted on January 11, 2024 by mdkeenan

You were on your way home from a night out on the town when the police pulled you over for a minor traffic violation.  They asked you to perform some field sobriety tests and take a breathalyzer.  Should you do it?  Here are some pros and cons:

PRO:

(1) Taking the Test Cuts Down on the Length of Your Driver’s License Suspension:  After a DUI arrest, the Illinois Secretary of State will automatically suspend your driver’s license for a certain length of time (although you can try to fight this).  For a first-time DUI, the suspension lasts  six months.  If you refuse the tests, your suspension will be twice as long.

(2) If you’ve had very little to drink, the breathalyzer may show you were well below the limit of .08.  Likewise, if you ace the walk-and-turn and one-leg stand tests, you may win your case at trial. However,  if you drove badly, did poorly on the field sobriety  tests and generally looked lost, a low breathalyzer may not help. Further, you may not be the best judge of how drunk you really are, especially if you’ve had mixed drinks.

CON:

(1) If you take the tests, you may be handing the state the evidence it needs to convict you.  The state can charge you with two types of DUI–impaired driving and blowing over the .08 limit.  If you take the breathalzyer, you could guarantee a conviction on at least one of those charges.

(2) A high breathalyzer result may lead to a more severe sentence than if you hadn’t taken the tests or breathalzyer.

(3)  A high breathalzyer could also lead to longer and more expensive court-ordered alcohol treatment.

If you are charged with DUI or a similar offense, contact an experienced attorney immediately.  An attorney can review the evidence in your case for its best possible defense.  Even if the evidence against you is overwhelming, 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 a question about this or another traffic or criminal matter, please contact Matt Keenan at 847-568-0160 or matt@mattkeenanlaw.com.

 

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THE ABCs of DUI Defense

Posted on December 30, 2023 by mdkeenan

You didn’t see the cop until you went through the stop sign. Or maybe you were in an accident after leaving a party, and the cops were called. Now you are charged with drunk driving.  Can you defend your case?

To be convicted of DUI in Illinois, the State must prove the elements of the offense beyond a reasonable doubt. These elements are: 1) you had too much to drink, and 2) you were driving.

To prove  drinking, the State must show  you were over the legal limit of .08, or that you were so intoxicated that it impaired your driving. Did you take the breathalyzer? Did you perform any field sobriety tests? If the answer is no to both questions, you could still be charged with DUI based on what the police saw, but it may be harder for the state to prove their case.

Suppose you refused the breathalyzer but you took the field sobriety tests? You may still have a defendable case. Most police video their encounters with potential offenders. How do you look on the video? Some defendants manage to ace the one-leg stand and the walk-and-turn tests. If you did well, the state might have a tough time proving you were too impaired to drive.

What if you failed the breathalyzer? If you were only slightly above the .08 legal limit and you looked good on the video, you may still have a defendable case.  Furthermore, in Illinois, a breathalyzer machine is considered accurate if it registers within .009 of the actual result. Therefore, if you blew a .087, there may be some doubt as to whether you or the breathalyzer device were over the legal limit.

What if your breathalyzer result was higher? Can the state then prove you were driving? If you were in an accident and the police arrived after the fact, something still has to place you behind the wheel of the car.

Even if the police saw your driving or had a witness, did they have probable cause to stop you? If you obeyed all traffic laws and  stopped randomly, you may be able to quash your DUI on this basis.

If all else fails (i.e., the police saw you weaving all over your lane, and you failed the breathalyzer and the field sobriety tests), an experienced attorney who is respected in your courthouse may help you negotiate a more favorable plea agreement than you could on your own.

If you have questions about a DUI or other criminal matter, contact Matt Keenan at 847-568-0160 or   matt@mattkeenanlaw.com.

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DID THE OFFICER’S REASON FOR STOPPING YOU DISAPPEAR?

Posted on December 22, 2023 by mdkeenan

You were driving down the road when you thought you saw an animal so you slammed on your brakes.  Then you noticed a police car behind you. After a few blocks, the officer stopped you, even though your driving was just fine despite having had a few beers.  Can the officer still make the stop?

To stop you, an officer needs a reasonable suspicion based on articulable facts present at the time of the stop.  However, under certain circumstances, that reasonable suspicion can disappear or dissipate.  Dissipation usually occurs when suspicion is based (1) on the vehicle’s appearance such as a license plate that at first appears missing, or (2) when information is related to the car’s owner, such as the owner has a suspended license, but the driver is not the owner.

Illinois courts have not fully addressed whether driving well after you aroused an officer’s suspicion is enough to dissipate that suspicion. Some case law suggests that good driving after an officer observes other signs of DUI is not enough to make your stop illegal.  However, a judge might still find that an abrupt stop by itself does not provide reasonable suspicion.

Whether an officer legally stopped you is a highly fact-based issue which different judges may see very differently.  An experienced attorney who is familiar with your courthouse may be able to present your case in its most favorable light to your particular judge.  The attorney can petition the court to suppress your stop which, if successful, at times results in your case’s dismissal.

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.

Reference: People v. Tennort.

(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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CAN AN OFFICER’S PREJUDICE BE A DEFENSE TO DUI?

Posted on December 10, 2023 by mdkeenan

You had an argument with your wife, and the police came to your house.  After you both cooled off, the officer gave you a stern talk but decided not to make an arrest.  The very next night, the same officer pulled you over for DUI on what seemed like a trumped-up excuse.

You believe the officer has it in for you.  Is that a defense to your DUI?

In truth, each DUI case is unique. An officer’s dislike, prejudice or grudge against you could make a difference to a judge.  However, few officers are likely to admit under oath their belief that you or people like you are bad news.

Bear in mind that many villages have a small police force.  As such, it is hardly unusual for the same officer to arrest the same defendant more than once. Therefore, a judge may not be willing to dismiss your case based on repeated arrests by the same officer.

If you have real evidence of bias or prejudice, you could testify about it at trial, or better still, have another witness testify on your behalf.  Did a passenger in your car hear the officer make racist remarks or state that he wanted to “make you pay?”

Even if you can prove an officer had a grudge against you, the outcome of your DUI will likely stand on whether the state can prove beyond a reasonable doubt that your driving was impaired.

If you are arrested for DUI or a similar offense, contact an experienced attorney immediately. An attorney can review your case for your best possible defense.  Did the officer have probable cause to arrest you or was their cause based on prejudice against you?  Can the state prove all the elements of your crime beyond a reasonable doubt?  Even if the officer acted legally and the evidence is overwhelming, 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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CAN POLICE USE THE RESULTS OF A HOSPITAL BLOOD TEST AGAINST YOU?

Posted on November 24, 2023 by mdkeenan

You thought you were safe to drive, but unfortunately, you caused an accident.  An ambulance took you and the other party to the hospital.  At the hospital, the nurse drew your blood to run some tests.  One test was for blood alcohol, which came out clearly over the limit.  Can the state use the results to convict you?

The rules about using a hospital blood test as evidence are often tricky and fact specific.  Generally, compulsory testing of blood and other bodily fluids is a search under the Fourth Amendment.  The Fourth Amendment applies to private individuals such as medical personnel when they act as agents of the state.  Did the nurse draw your blood because officers asked for it, or because the test was needed to treat you?

For example, in People v. Schantz, the defendant turned in front of an oncoming motorcycle, killing the cyclist.  The defendant went to the hospital but did not seek medical care.  There, the nurse drew her blood solely at the officers’ request.  The court found that the nurse was acting as an instrument of the state.

The court then looked at whether the blood draw was otherwise reasonable under the Fourth Amendment.  Did it fall under an exception such as exigent circumstances, or did officers have time to get a warrant?  While the natural dissipation of alcohol could support a blood draw in a specific case, it could not be used as a general excuse to evade getting a warrant. The court found no exigent circumstances. Although there was some delay involved in securing the crime scene and attending the victim, at least one officer could have applied for a warrant while the others investigated. Officers did obtain a warrant for a second blood draw, which the court then upheld.

If you have been charged with a DUI or criminal-related offense, contact an experienced attorney immediately.  An attorney can probe for weaknesses in the state’s evidence.  Was the evidence against you legally obtained?  Different judges may view the facts of your case very differently.  It is important to find an attorney familiar with your courthouse who may be able to present your case in its most favorable light to your particular judge.

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

See our related post Can police test my blood if I am unconscious?

(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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AM I AUTOMATICALLY GUILTY OF AGGRAVATED DUI WHEN THE ACCIDENT KILLED SOMEONE?

Posted on November 12, 2023 by mdkeenan

The answer depends on the evidence against you and how the state has charged your offense.

The state can charge you with aggravated DUI if you were involved in a motor vehicle crash (including with a snowmobile or boat) that killed another person when your DUI was the proximate cause of the death.  To convict you, the state must show that your driving was impaired, and that impairment resulted in the death.

Illinois DUI law, however, has several types of DUI offenses.  The most common may be simple driving under the influence of alcohol, but the state may also charge you for driving with a breathalyzer over the legal limit.  If so, the state need only prove that you had a breathalyzer  or blood result over .08 and that your driving (not your impairment) was the proximate cause of the accident.(Illinois law defines proximate cause as “one that produces an injury through a natural and continuous sequence of events unbroken by any effective intervening cause.”)

If you have been charged with aggravated DUI, contact an experienced attorney immediately.  An attorney can review your case for its best possible defense.  As with most crimes, the state must prove all the elements beyond a reasonable doubt.  Can the state prove that you drove the car?  Did you cause the accident? Did your driving show impairment?  Did you perform well on any field sobriety tests?  Was any breathalyzer taken on a properly certified machine?

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.

Reference:   625 ILCS 5/11-501. See also:   Skolnik v. Allied Property & Casualty. And Illinois Pattern Criminal Jury Instruction 4.24

(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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CAN I BE CONVICTED OF RECKLESS HOMICIDE BASED ON  DUI?

Posted on October 25, 2023 by mdkeenan

The answer is not necessarily. That said, the DUI doesn’t help.

You commit reckless homicide when you unintentionally cause a death without lawful justification by recklessly driving a vehicle (including a snowmobile or boat)  in a manner likely to cause death or great bodily harm. A judge or jury could infer recklessness from your DUI, but they are not required to draw that conclusion.  Further, “driving under the influence” requires some proof that you were impaired, not just that you’d been drinking.  If there is no other evidence of impairment, besides perhaps a breathalyzer, you could still win an acquittal.

If you have been charged with reckless homicide or a DUI-related offense, contact an experienced attorney immediately.  An attorney can review your case for your best possible defense.  As with most crimes, the state must prove all the elements of the offense beyond a reasonable doubt.  Can the state prove that you drove the car or that you acted recklessly?  Were you acting in self defense? Even if the state’s evidence is overwhelming, 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  matt@mattkeenanlaw.com.

Reference:  Illinois Pattern Criminal Jury Instructions: IPI 7.09, IPI 7.09Y, IPI 23.13. See

(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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CAN I BE STOPPED BECAUSE OF SOMETHING HANGING FROM MY MIRROR IN ILLINOIS?

Posted on October 13, 2023 by mdkeenan

The answer is yes, but only until January 1, 2024.  As of that date, Illinois has changed its law.

After January 1, you cannot be stopped solely because of that air freshener hanging from your rearview mirror.  However, Illinois law still forbids driving with objects suspended between you and the  rear window, side wings or the side windows immediately adjacent to each side of you which materially obstruct your view.  An officer can still stop you on that basis.   See 625 ILCS 5/12-503.

The change in the law is intended to prevent such a violation being used as a pretext for a police stop and to reduce police interactions based on nonviolent violations. (See Ban on Illinois law enforcement stopping drivers over objects hanging from rearview mirror heads to governor’s desk, Central Illinois Proud, May 4, 2023).

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email mailto: 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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YOUR RIGHT TO COMMUNICATE WHILE IN POLICE CUSTODY IN ILLINOIS

Posted on September 15, 2023 by mdkeenan

Under 725 ILCS 5/103-3.5, you have the right to make three phone calls free of charge with an attorney of your choice and members of your family within three hours of arrival at the first place of detention. You must be given access to a telephone to make the calls. If you are moved to a new place of detention, your right to make three calls within three hours of arrival is renewed.

If police violate these rights, your statements to them are presumed inadmissible as evidence. However, the state may overcome this presumption by showing that your statement was voluntarily given and is reliable based on the totality of the circumstances. The court may consider whether police knowingly prevented or delayed your right to communicate or failed to comply with the law’s requirements.

The three-hour rule does not apply if you are asleep, unconscious or otherwise incapacitated or if an exigent circumstance prevents police from complying. Exigent circumstances include threats to safety. The police report must then document the exigent circumstance. Once the exigent circumstance ends, the right to make three phone calls within three hours resumes.

The police must display a notice of your right to the three calls and must display the public defender’s phone number, where available.  Police must maintain records of the number of calls you made, when you made them, and any reason if you did not make thecalls.

Prior to 1/1/22, police could hold you a “reasonable time” before allowing you to make phone calls.

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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SHOULD I TELL MY BOSS I WAS ARRESTED FOR DUI?

Posted on September 2, 2023 by mdkeenan

Your job involves a bit of driving, and you just got yourself arrested for DUI.  You hope to win your case, but you wonder if your boss needs to know what happened.

There is no one-size-fits-all answer, but the decision to tell may hinge on the following factors:  Do you need to drive to do your job?  Would you have a different way to get to work if your license was suspended?  Does your job require you to report any arrests?  Will it be difficult to appear in court, especially if there are more than three or four court dates?

If you are an office worker who takes the train or telecommutes with flexible hours and your employee manual says nothing about reporting arrests, then you may be able to keep the DUI to yourself.  However, if your job requires driving, you may need to alert your boss.  Bear in mind that the Secretary of State may automatically suspend your driver’s license for at least six months and that driving on a suspended license is a separate offense.

Also note that DUI arrests can go online very quickly because there are sites that post police mugshots.  If the boss is likely to find out, the lesser of two evils may be owning up to your arrest.

If you have been charged with a DUI or related offense, contact an experienced attorney immediately.  An attorney can review your case for its best possible defense.  As with most crimes, the state must prove all the elements of the offense beyond a reasonable doubt.  Even if the state’s evidence is airtight, 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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