THE BREATHALYZER: HOW YOU CAN GET A FALSE READING

Posted on January 17, 2012 by mdkeenan

You just got stopped for DUI. The officer asked you to perform some field sobriety tests and take the portable breathalyzer. You agreed. After all, you figured you only had a couple beers, the result would be well below the limit, and you’d be on your way home.

But to your surprise, the breathalyzer came back reading over .08. How could that happen?

First, let us clarify that you should not be stopped for DUI unless you gave the officer probable cause to stop you. Did you run a stop sign or were you weaving? After the officer approaches you, he or she should not ask you to perform field sobriety tests unless the officer has a reasonable belief that you are intoxicated. If you do not perform well, the officer can ask you to take the portable breathalyzer. Bear in mind that you have the right to refuse all tests.

The result from the portable breathalyzer cannot be used as evidence in court, but it can give the officer the probable cause necessary to arrest you and take you to the police station for the official breathalyzer. Again, you have the right to refuse.

But if you take the breathalyzer, can you get an exaggerated reading even though you drank very little? The answer is yes. Since the breathalyzer is measuring molecules of alcohol in your breath, even a little contamination can affect the result.
A variety of factors can cause a falsely high reading.

Did you rinse with alcohol or mouth wash? The alcohol remaining in your mouth can show up on the test. Did you regurgitate? Did you cut your mouth recently or do you suffer from mouth sores? A cut or sore can leak blood into your mouth. Since your stomach’s contents or your blood is denser than your breath, these substances in your mouth can increase the concentration of alcohol in your breath and throw off the reading. Are you diabetic or dieting? The resulting acetone can register falsely as alcohol. Do you work around solvents? Some of these chemicals can work their way into your blood stream and come out in your breath.

If any of the above factors apply, you may be able to challenge your DUI. An experienced DUI attorney can evaluate these and other defenses to your breathalyzer reading.

If you have questions about your DUI or other criminal or traffic matters, 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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“I HAVE AN ILLINOIS DUI, BUT I LIVE OUT OF STATE. DO I HAVE TO DEAL WITH IT?”

Posted on December 16, 2011 by mdkeenan

You were having a good time visiting friends in Illinois when you got pulled over and charged with DUI. Since you live in another state, coming back to Illinois to fight your DUI is a real hassle. Can you afford to ignore the Illinois proceeding?

The short answer is no.

For starters, if you ever intend to return to Illinois, ignoring your DUI can cause you much grief. If you do not appear for your Court date, the Judge can issue a warrant for your arrest, and you could lose whatever bond you may have already paid. If you later return to Illinois and are stopped by police for any reason, you will automatically be taken to jail. If you are arrested on a Friday night, you could spend your whole weekend in jail before a bond hearing is set.

Because you already failed to appear at Court, the Judge could set a much higher bond, which may be difficult for you to meet. And because, in the Court’s view, you have already shown disrespect for the process, the Judge might subject you to higher penalties, such as a larger fine or more time in jail.

Even if you believe you will never return to the state, an arrest warrant issued in Illinois could be enforced against you in your home state. Plus ignoring your Illinois DUI could still affect your license. If you do not appear for your Illinois DUI, the Judge can also enter a conviction against you in your absence. You would then lose any chance you had at contesting the case and possibly winning a dismissal. The State of Illinois can also report any conviction to your home state. http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=062500050HCh%2E+6+Art%2E+VII&ActID=1815&ChapterID=49&SeqStart=85800000&SeqEnd=86800000.

If you are charged with an Illinois DUI, you should contact an experienced attorney immediately. As with other criminal offenses, the State must prove you guilty beyond a reasonable doubt. An experienced attorney can probe for weaknesses in the state’s case. Did the police have probable cause to stop you or have you take a breathalyzer? Did you show evidence that you were too intoxicated to drive? Even if the evidence against you is strong, an attorney can help you negotiate a better plea agreement than you might get 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. 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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YOUR LICENSE MAY BE TATTLING ON YOU!: LICENSE READING CAMERAS IN ILLINOIS

Posted on November 28, 2011 by mdkeenan

What might have started as a casual trip to the mall could end as a trip to jail in at least one Illinois community. In October, the Belleville, Illinois police department began catching criminals by using an automated camera to read license plates.

Perched on top of an unmarked car, Belleville police use the automated license reader to check for matches of license plates associated with arrest warrants or other criminal activity. When a match is found, nearby officers move in to stop the driver.

In its first four hours, the Belleville reader captured seven local and eight out-of-state warrants, led to 56 stops, 13 traffic citations and one arrest for violating an order of protection. And all this for the camera’s low cost of $17,000, which could make it irresistible as a crime fighting tool to municipalities struggling to balance their budgets. Which means that in the future, the automated reader could become as prevalent as the red light cameras are today.

If you are stopped because of a automated reader camera, what can you do? Be courteous, but as with any police stop, the less said the better. If you are taken into police custody, you must say “I wish to remain silent and I want an attorney,” in order to trigger your Miranda rights (or the officers can keep questioning you). Any attempt to explain yourself could unwittingly give police the evidence they need to convict you.

If you are arrested, you should contact an experienced criminal or traffic law attorney immediately. Even if an automated reader made it easier to catch you, the state must still prove you guilty beyond a reasonable doubt. An experienced attorney can probe for weaknesses in the state’s case in hopes of winning a dismissal. Even if the evidence against you is overwhelming, the attorney may be able to obtain a better plea bargain for you than you could get on your own.

If you have questions about this or another related 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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WHAT TO EXPECT ON A FIRST TIME DUI IN ILLINOIS

Posted on November 9, 2011 by mdkeenan

You just got charged for the first time with Driving while Under the Influence, and it’s got you a little shaken up. A million questions are buzzing through your head. Are you going to jail? What happens to your license? What is the procedure? How long does it take? Why are you getting postcards from lawyers you never met? How do you choose the right one? Below are some answers to common questions.

What is the procedure? Once you have been charged with DUI, you will be given a court date for your first court appearance. You will also be given a notice that your driver’s license is suspended by the Secretary of State, usually beginning 46 days after your arrest.

On the first court date, you are best advised to show up with an experienced DUI attorney. The attorney will enter his or her appearance, which tells the court that he or she is your official representative. The attorney will also ask for discovery, which means copies of evidence against you.

If you promptly hire an attorney, that attorney will be able to file a petition against the upcoming suspension of your driver’s license. Even if the attorney cannot win that petition, you may be eligible to drive with a Breath Alcohol Ignition Interlock Device after serving the first thirty days of the suspension.

After evaluating the evidence, the attorney may wish to bring other motions before the court depending on your particular case. Perhaps the police lacked probable cause to stop you, in which case the attorney may petition the court to have the arrest thrown out.

After reviewing the evidence, your attorney can also advise you on whether you have a winnable case or whether you should take a plea bargain. In either case, you will likely be asked to get an alcohol evaluation. In Cook County, only one agency (Central States Institute) is authorized to prepare these reports. Your sentencing may depend on how your evaluation turns out.

If you decide against a plea bargain, your attorney may take your case to trial before a judge or jury.

How long does this take? A DUI court proceeding can take several months. No attorney can get your case finished on the first court date. On average, your case will come before the court once a month. The length of time may depend on whether you take a quick plea agreement or decide to fight the case. While you may want to “just get it over with,” be advised that we have seen many second-time offenders who wish they hadn’t rushed to plea out a winnable first-time offense.

Why am I getting postcards from lawyers and how do I choose a good one? Once you are charged with DUI, some counties will sell the list of new DUI defendants to attorneys who request it. These attorneys often send postcards or letters offering services for a seemingly reasonable fee. While we cannot comment on the quality of all these attorneys, many make their living as “plea mills.” They may represent you cheaply, but they may not be doing you a service. For the limited fee, they may simply show up once to plea you out in court, and frankly, you could probably manage that on your own.

A quality attorney will likely cost you more. But he or she will review your case for possible defenses, prepare you for your alcohol evaluation and attempt to get rid of your driver’s license suspension. Even if a plea bargain is still the way to go, a diligent attorney, who is respected by the court may negotiate a better plea bargain than an attorney who never tries a case. But be aware that no reputable attorney can ever guarantee a particular outcome for your case.

To help decide if the attorney is a good one, ask them about how they like to handle cases. How well do they know the courthouse and the judges or prosecutors involved? How often do they take cases to trial? Do they provide a lot of good information when you question them? Are they asking you the right questions? It is important that you feel confidence in any attorney you choose.

Will I go to jail? A first time DUI is a Class A Misdemeanor, punishable by up to one year in jail and a $2,500 fine. Nonetheless, the odds of actually going to jail are limited on a first offense. If you make a plea bargain, you will likely have to take alcohol classes, pay a fine and/or perform community service. If you take the case to trial and lose, your sentence might be harsher but is still unlikely to involve jail. Of course, if the attorney can win your case, you will not have to do any of that.

Can I drive? The Secretary of State automatically suspends your driver’s license when you are charged with DUI. The length of time depends on whether you took the field sobriety tests or breathalyzer. The Secretary of State will mail you a notice that tells you the dates of your suspension. If you hire an experienced DUI attorney promptly, you may be able to get your suspension thrown out. This does not mean that you win your DUI case. Likewise, if you win your DUI, you still might have a suspended license. The Secretary of State and the Court operate on two different levels. A finding in one does not affect the other.

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. 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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SPEEDING IN ILLINOIS: A PASSAGEWAY TO BIG TROUBLE

Posted on October 18, 2011 by mdkeenan

 

Legally, a police officer cannot pull over your car without some reason. This can come in the form of community caretaking, such as when the officer sees you sleeping in your car and checks to see if you are OK. Otherwise, the officer has to have some kind of probable cause.

And speeding can give the officer just the starting point he or she needs to arrest you for something else.

In Illinois, speeding more than 31 miles over the limit was recently made a Class B Misdemeanor, punishable by up to six months in jail and a $1,500 fine. Speeding more than 40 miles over the limit became a Class A Misdemeanor, punishable by up to one year in jail and a $2,500 fine. Too many tickets in too short a time, and you can lose your license.

But besides dealing with what is now a potential misdemeanor, speeding can give a police officer the opportunity to look for evidence of other crimes. Did you have a few drinks? A stop for speeding now turns into a DUI. Were there some marijuana seeds or white powder on the floor of your car? If they were in plain view, you’re looking at drug possession. And once you’re arrested for that, anything else they find in the car could be used against you.

Of course, you can be stopped for other traffic ticket offenses or moving violations besides speeding. “Improper lane usage” is a rather vague term that gives an officer the wedge he or she needs to pull you over.

If you have been drinking, stay away from the steering wheel. But if you are stopped and charged with speeding and/or another crime, you should consult an experienced criminal law attorney immediately. An attorney can evaluate your case to develop the best possible strategy for our defense. If police mishandled the stop, an attorney can bring a motion to have the entire case thrown out.

Do not talk to the police or anyone else about your situation. We have seen clients explain themselves into a conviction. You do have a right to refuse the breathalyzer and field sobriety tests, although the Secretary of State will suspend your license for a greater period of time if you do.

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:
Illinois Compiled Statute 625 ILCS 5/11-601.5

(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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ILLINOIS LAW TIGHTENS ON DUI-RELATED ACCIDENTS

Posted on August 26, 2011 by mdkeenan

On August 21, 2011, Governor Pat Quinn signed a change into Illinois DUI law which requires that a police officer request chemical tests from a suspected DUI driver if the officer has probable cause to believe that alcohol or drugs were a factor in an accident which led to severe injury or death.

Under the prior law, the officer had discretion over whether to require the tests. The new law makes it mandatory. In cases of extreme injury or death, you may not have a right to refuse the test. The definition of extreme injury includes severe bleeding wounds, distorted extremities or wounds requiring that someone be carried from the scene.

If you are charged with DUI involving an accident, you should contact an experienced criminal or DUI law attorney immediately. Even if you were forced to submit to chemical testing, an attorney may be able to help. The police still must prove probable cause before requiring the test.

As with any criminal matter, do not speak about your case to anyone. Any statements you make may complicate your defense later.

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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“BUT I WAS JUST SITTING IN MY CAR!:” THE “DRIVING” IN DUI

Posted on August 18, 2011 by mdkeenan

If you are stopped for driving under the influence in Illinois, the State must first prove that you were driving a vehicle. Sounds straightforward, but the definition of driving is not as obvious as you may think.

Under Illinois law, “A person shall not drive or be in actual physical control of any vehicle within this State” while under the influence of alcohol or drugs. http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=062500050HCh%2E+11+Art%2E+V&ActID=1815&ChapterID=49&SeqStart=109200000&SeqEnd=111100000
Of course, if you are in the driver’s seat with the keys in the ignition and your foot on the gas, any reasonable person would agree that you were driving. The problem comes in defining the term “actual physical control.”

Under Illinois case law, you can be sleeping off your bender in a parked car and still be considered in “actual physical control” of your car for DUI purposes. Courts look at the specific facts of your case including whether you were in the driver’s seat, whether you had the key and whether you were physically able to start the car. You don’t have to actually drive or even intend to drive. Illinois law only requires that you could drive.

You don’t even have to be in the driver’s seat. If you are sleeping in the backseat with the keys anywhere in the passenger compartment of the car, you could still be convicted. Maybe you only went to your car in front of your home to listen to the radio. A court may still find you guilty.

Even arguing that your car wasn’t drivable may not be a defense. In another Illinois case, a Defendant argued that his car was not a “vehicle” since it was stuck in a ditch, and he could not get it out. The Illinois Court rejected this argument, stating that even though a car is disabled due to bad road or weather conditions, it’s still a vehicle. Another driver who tried to start a damaged car was still found to be guilty of DUI.

If you do need to sleep in your car, it’s best to make sure that your keys are not in the vehicle. Leave them at the party or in the house or in the trunk of the car.

If you are charged with DUI, you should consult an experienced DUI attorney immediately. An attorney can review the facts of your case to develop the best possible strategy for your defense. For example, even if you were sleeping in your car after several drinks with the key in the ignition, a police officer must still have probable cause to stop you. And the State in most cases must still prove that your driving was impaired by the alcohol or drugs.

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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ILLINOIS SUPREME COURT CASE TOUGHENS DRIVING WHILE UNDER THE INFLUENCE OF DRUGS

Posted on August 11, 2011 by mdkeenan

You enjoy smoking pot, but you don’t do it often. About a week after your last toke, you missed a red light and plowed into an oncoming car. The other driver was killed and you were taken to the hospital. After a drug test came back positive for marijuana, you were charged with aggravated DUI, and you now face years in prison.

In the past, in order to enhance DUI charges to a felony, the State had to prove that your use of an illegal drug impaired your driving. Not anymore. Under new Illinois Supreme Court law, the State need only show that your driving caused the accident, and that you used a controlled substance. (People v. Martin) The accident must involve death or if children are involved, severe injury. The drug can be a criminal substance such as marijuana or something as innocuous as your spouse’s prescription painkiller. While a misdemeanor DUI is punishable by up to one year in jail, Aggravated DUI is a Class 4 felony, punishable by 1 to 3 years.

So with the burden of proof made that much easier for the State, is there anything you can do?

Fortunately, there are still some avenues open to defending an aggravated DUI under these circumstances. The State must still prove that you drove and that your driving was the proximate cause of the accident. What is the evidence that you caused the accident? Was there probable cause to arrest you?

The State must also prove that you consumed the drug. Did the State have a legitimate basis to make you submit to the drug tests? Are the drug tests uncontaminated? Could other substances have caused the same readings?

If you are charged with Aggravated DUI, contact an experienced criminal law attorney immediately. Do not make statements to anyone, especially the police, about the incident. Any statements you make can complicate your case and can be used in evidence against you at trial. An experienced attorney can review your case to devise the best possible strategy for your defense. Even if the State has you dead to rights, an attorney can help negotiate a better plea arrangement 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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BUT I WASN’T EVEN DRINKING: FALSE ARREST IN ILLINOIS

Posted on July 25, 2011 by mdkeenan

You were driving home from a social outing early in the morning. You had a couple beers, but that was hours ago. So you were somewhat surprised to be pulled over by police. You were even more surprised when you were asked to take a breathalyzer. You figured you wouldn’t have a problem, so you just blew. The breathalyzer came back a .01, well below the legal limit, but you were taken to the police station anyway.

Because of heightened publicity about drunk driving, police departments are under pressure to show they are serious about the problem. This could lead to your detention even if you were well below the limit, because it can help make DUI arrest numbers look good.

Take a recent case reported in the Chicago Sun Times on July 20, 2011. A man driving home at 1:30 a.m. was stopped by Naperville police because he was allegedly weaving in his lane. The man performed field sobriety tests, which the police report said he failed. He also blew a .00 breathalyzer. The man was still taken and processed at the police station, but later released without charging. After information about his arrest was given to the press, he brought suit against the City for false arrest and defamation. Naperville police have denied he was arrested to pump up their DUI arrest numbers.

The Chicago Police Department has had its own share of scandals and lawsuits. One well-publicized case involved a police officer who was accused of following gays and lesbians from bars and then arresting them for DUI even after they passed field sobriety tests. As a result, the officer was sued and several of his cases were dismissed. http://abclocal.go.com/wls/story?section=news/local&id=7122462

Another Chicago Police officer was honored as a top DUI-enforcer until it was discovered that he had been falsifying reports and committing perjury. http://www.nbcchicago.com/news/local/dui-cop-video-031109.html

If you are arrested without cause, contact an attorney immediately. If you are charged with a crime, an attorney can help defend your arrest. Either way, you may have a claim for false arrest.

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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THE NEW ILLINOIS DRIVER’S LICENSE REVOCATION LAWS FOR DUI-RELATED ACCIDENTS

Posted on June 13, 2011 by mdkeenan

Starting July 1, 2011, Illinois has a new law allowing the Secretary of State to automatically revoke your license after a traffic accident. The new law is geared to stiffen penalties against drunk drivers, but may impact even those who had not been drinking.

Under the new law, if you are in an accident that causes injury or death to another, the Secretary of State can automatically revoke your license for at least one year if you refuse or fail to complete chemical testing following an arrest for driving under the influence (DUI). (625 ILCS 5/1-197.6) This revocation remains in effect even if you are later found not guilty of the offense. And, you can no longer obtain a special driving permit, such as a breath activated ignition device, even if this is your first offense. (625 ILCS 5/6-208.1)

Under the prior law if you were charged with DUI, your license could be suspended for a set period of time, after which you could send in a fee and get your license back. The difference now is that a revocation does not end quite so simply. You must apply for reinstatement with the Secretary of State. If you are fortunate, the Secretary will grant you a restricted driving license on your first attempt. The process to regain your license can be a long, complex and expensive one requiring one or more hearings and is best conducted with the help of an experienced attorney.

To trigger the revocation under the new law, there must be a Type A injury, which is defined as any injury that “requires immediate professional attention in either a doctor’s office or a medical facility. A Type A injury includes severely bleeding wounds, distorted extremities, and injuries that require the injured party to be carried from the scene.” (625 ILCS 5/11-501.1). This language can be subject to some interpretation. A cautious victim may request an ambulance ride to the emergency room even if they are relatively unhurt, yet this may be sufficient to trigger the revocation.

Because of the new changes, you can be revoked without a DUI charge or even drinking, for example, if you left the scene of an accident involving injury or death and then failed to complete chemical tests. (625 ILCS 401).

A first offense for driving under a revoked license is a Class A Misdemeanor, punishable by up to one year in jail and a $2,500 fine. A subsequent offense is a Class 4 Felony, punishable 1 to 3 years in prison along with a fine. The car you drive may also be seized.

If you are charged because of an accident involving injury or death, it has become even more critical that you speedily retain an experienced attorney in order to challenge the revocation of your license. A quickly filed motion might prevent a revocation altogether.

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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