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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PARENTS, BEWARE!: THE ILLINOIS LAW ON SOCIAL HOSTING OF TEEN DRINKING PARTIES

Posted on April 25, 2011 by mdkeenan

With high school graduation and prom parties in the offing, you may be tempted to let your senior hold a party in your home. You always enjoy a drink at parties, and you don’t see why your own child can’t have some spiked punch. Unfortunately, the Illinois law on social hosting poses stiff penalties to parents who host under-aged drinkers. Parents who host face possible criminal and municipal charges as well as civil liability.

The Criminal Law: Under Illinois law, it is a Class A Misdemeanor, punishable by up to one year in jail and/or a $1000 fine, if you knowingly provide alcohol to someone under the age of 21 other than your own child. If serious injury or death occurs, you can be charged with a Class 4 felony punishable by up to 3 years in prison and a $25,000 fine. You are considered to have knowingly authorized the use of alcohol if you fail to control access to the liquor cabinet in your residence. Therefore, under Illinois law, you could be at fault simply for leaving your liquor cabinet available while you were away.

To address social hosting even more directly, a new law has passed the Illinois House and is currently before the Illinois Senate. The new law would make it a Class A Misdemeanor punishable by up to one year in jail and a mandatory minimum $500 fine if you permit a gathering of two or more people on premises under your control, where at least one person is underage and you should have reasonably known that they were consuming alcohol. If someone is injured, you can be charged with a Class 4 felony.

The Municipal Law: In addition to state criminal charges, many municipalities have their own penalties. For example, in Skokie, you may not allow an underage person who has drunk alcohol in your home to leave except in the care of their guardian. In Wilmette, you may allow your own child to drink in your home, but you may not allow that child to leave while still under the influence of alcohol. Furthermore, in Wilmette, you cannot allow someone else’s child to remain on your premises while possessing or drinking alcohol. In Evanston, you may not knowingly permit a gathering of two or more minors to possess or drink alcohol. You cannot intentionally, knowingly, recklessly or negligently give or deliver alcohol to a minor or invite someone under age 18 to have alcohol on your premises. If you know there is a substantial probability that your child may drink, you must restrain him or her from driving or from committing other illegal acts, such as theft or vandalism.

The Civil Law: If someone is injured or killed because you willfully provided alcohol, you may be sued in civil court for damages that could total millions of dollars. Furthermore, you can be assessed punitive damages, and you may not claim contributory negligence as a defense. Recent Illinois case law includes a 2009 Lake Forest case, which reached a partial $2.5 million settlement in civil damages after a teen became paralyzed in an alcohol-related crash. The mother in that case did not even know the teens had smuggled beer into her home, but the parents’ homeowner’s insurance forced a settlement. In a 2006 Deerfield case, an 18-year-old was killed after leaving a party at a friend’s home. The host parents were sentenced to probation on the criminal charges and one was sentenced to 14 days in jail. The Illinois Supreme Court held, as of May 19, 2011, that the parents were not civilly liable since they did not voluntarily undertake a duty to prohibit the drinking. This ruling notwithstanding, host parents should be careful. Whether you are deemed to have voluntarily undertaken this duty may be a question of fact for a jury to decide.

What can you do? If you are charged with providing alcohol to minors, seek the advice of an attorney immediately. Do not give any statements to the police or anyone else. What you think is a reasonable explanation might be enough to convict you later. Refrain from discussing this matter in person or electronically via texts, email or any Facebook-type pages.

Because of the possible civil lawsuit, it is critical that you vigorously defend any criminal charges. A guilty verdict in a criminal case can become a foregone conclusion in a civil matter, which has a lower burden of proof. An experienced attorney can help develop a strategy for your defense.

If you have any questions about your situation, please do not hesitate to contact Matt Keenan at 847-568-0160 or matt@mattkeenanlaw.com.

(In addition to Skokie, Matt Keenan serves the communities of Arlington Heights, Deerfield, Des Plaines, Glencoe, Glenview, Highland Park, Mt. Prospect, Morton Grove, Niles, Northbrook, Northfield, Wilmette and Winnetka.)

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AGGRAVATED DUI IN ILLINOIS: DEFINITION, PUNISHMENT AND DEFENSE

Posted on April 18, 2011 by mdkeenan

You have never been charged with drunk driving. But this time when you left the party, you ran a red light and plowed into another car. You felt really bad that the other person was rushed to the hospital. Then the police started questioning you.

If you caused great bodily harm or permanent disfigurement to someone in an accident while driving under the influence of alcohol or other drugs, you can be charged with aggravated DUI, a Class 4 felony punishable by 1 to 3 years in prison and a $25,000 fine. If the person you injured was under age 16, you can be charged with aggravated DUI even if they were not greatly harmed.

You may also be charged with aggravated DUI if this is your third or higher DUI offense. Even if this is your second DUI, it is aggravated if you had a child with you. A DUI charge can also be enhanced if you have a previous conviction for DUI-related reckless homicide, if you lack liability insurance or a driver’s license, or your license was already suspended for alcohol-related reasons.

Aggravated DUI is not limited to driving automobiles. You can be charged if you were operating a snowmobile, all-terrain vehicle or watercraft that resulted in death. Needless to say, driving a school bus or in a school zone while under the influence is not a good idea and also grounds for the enhanced charge.

If you are charged with Aggravated DUI, you should immediately contact an attorney to help protect your rights and to help with your defense. As in nearly all criminal matters, the State must still prove you guilty beyond a reasonable doubt. Depending on the basis for the charge, an experienced criminal attorney can determine if the state has sufficient evidence against you. Was the injury caused serious enough to qualify as great bodily harm? Did you reasonably believe that you had liability insurance? Can the State prove that you were the one driving or that you were actually under the influence?

Even if the State has more than sufficient evidence to convict you, an experienced attorney may be able to work out a more beneficial plea agreement than you could by yourself.

If you are charged with a Aggravated DUI, you should not speak about your case to the police or anyone else about your case. Any statements that you make can be used against you later. If you are taken into police custody, you must tell them “I wish to remain silent. I wish to have an attorney present,’ In order to protect your Miranda rights.
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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LEAD-FOOTED DRIVERS, BEWARE!: ILLINOIS’S NEW SPEEDING LAW

Posted on March 21, 2011 by mdkeenan

As of January 1, 2011, Illinois drivers with a heavy foot on the pedal face much stiffer penalties for excessive speeding.

The new Illinois law targets drivers who speed more than 31 mph over the limit. What used to be a virtual slap on the wrist plus possible fines is now a potential jail sentence.

Under the new law, a driver who speeds between 31 and 39 mph over the limit can be charged with a Class B Misdemeanor, punishable by up to 6 months in jail and a $1,500 fine. A driver who speeds 40 mph or more over the limit can face a Class A Misdemeanor, punishable by up to one year in jail and a $2,500 fine.

Before the new law took effect, speeding more than 31 miles per hour was considered a moving violation, punishable by court supervision, possible driver safety classes and a fine. Under supervision, the driver was admonished not to violate any further laws within a set time period.

If you are stopped for excessive speeding, please refrain from making any statements to the officer, which can later be used against you in court. While speeding cases can be difficult to challenge, an experienced criminal law attorney can help determine the best strategy for defending your case.

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

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TO BREATHE OR NOT TO BREATHE: TAKING THE BREATHALYZER

Posted on February 26, 2011 by mdkeenan

You had a few drinks after work at the bar. You do not believe you are impaired. On the way home, however, you get pulled over by the police. The officer smells the alcohol and asks you to step out of the car. After fumbling through a couple field sobriety tests, the officer asks you to blow the portable breathalyzer. Should you?

The decision to take a breathalyzer is a personal one that cannot be made lightly. It is important to understand the consequences of taking or refusing this test.

In Illinois, if you are charged with driving under the influence, the Secretary of State issues an automatic suspension of your driving privileges. If this is your first offense, you can lose your license for six months. If this is your second or later offense, the suspension is one year. If you refuse the breathalyzer or field sobriety tests, however, the length of your suspension is much longer. For a first offense, you can lose your license for one year, and for a subsequent offense, you can lose it for three years.

So why not just take the breathalyzer? First, in order to convict you for DUI, the state must prove beyond a reasonable doubt that you were driving under the influence of alcohol. It is more difficult to prove that your driving was impaired if the state does not have a breathalyzer reading to hand the judge or jury. If you refuse the field sobriety tests, the state has even less to go on.

Second, the portable breathalyzer is less reliable than the breathalyzer at the police station. Therefore, you could have a higher reading in the field than is really the case. Factors such as mouth wash, regurgitation, trace quantities of blood in your mouth and improper calibration of the breathalyzer can affect your reading. If you fail the portable breathalyzer, you will inevitably be arrested. If you refuse the breathalyzer and the officer has nothing else to go on (in other words you passed the field sobriety tests or you refused them), the officer may possibly let you go.

If the officer arrests you, you will then be taken to the police station. The officer must read you a “Warning to Motorists” and observe you for 20 minutes before administering the official breathalyzer test. Even at this stage, you can refuse the test although you may be pressured to take it. Again, refusing the test will increase the length of your license suspension but may improve your chances of winning a trial.

Please see related our related posts “Can I drive? Getting Rid of Your Illinois Secretary of State Mandatory Suspension,” and “The ABCs of Defending Your DUI.” (Even if you are slightly over the Illinois legal limit of .08, you may still have a defendable case.)

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

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WHEN YOU ARE CHARGED WITH DRIVING ON A SUSPENDED LICENSE

Posted on January 31, 2011 by mdkeenan

You plead guilty to a DUI a couple months ago, and your license is now suspended.  Unfortunately, a problem cropped up at work, and you had to get there somehow, so you jumped in your wife’s car and took off.  After you missed a stop sign, the police pulled you over.  You are now charged with driving on a suspended license.

What can happen to you?  What can you do about it?

If you are convicted of driving on a suspended or revoked license due to an underlying alcohol offense, you may be subject to serving a mandatory minimum of 10 days in jail or 30 days of community service on a first offense.  For a second offense, the penalty is increased to at least 30 days jail or 300 hours of community service,  For a third offense, you no longer have the community service option and you may have to serve a minimum 30 days in jail.  After the third offense, the minimum jail term is 180 days.

While your first offense is a Class A Misdemeanor, a second through ninth offense becomes a Class 4 felony, punishable by one to three years in prison and up to a $25,000 fine.  After the ninth offense, you may be charged with a Class 3 felony, punishable by 2 to 5 years in prison and up to a $25,000 fine.

The news gets worse if you could have received a Monitoring Device Driving Permit (MDDP), which allows you to drive with a breath-activated ignition device, but failed to do so, or if you got the MDDP but didn’t use the car with that device.  Then, your first offense escalates to a Class 4 felony and a minimum jail term of 30 days.

In addition to the criminal punishment, the Secretary of State can substantially increase the length of time that your driver’s license is suspended.

Getting caught driving on a suspended license can be pretty dire, but not entirely hopeless.   The state has the burden of proving beyond a reasonable doubt that you were driving, and that your license was suspended or revoked for an underlying alcohol-related offense.  This is not a difficult burden for the state to prove, but you may still have a valid defense.  Did the police have probable cause to stop you?  Was there an emergency that forced you to drive?  Is there some mistake concerning the underlying reason for your suspension?  An experienced criminal law attorney can help you evaluate possible defenses.  Even where there is no credible defense, in many cases, a respected attorney can still help negotiate a more favorable plea agreement than you could on your own.

If you have questions about your situation, feel free to contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com  for advice.

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