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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CAN THE POLICE SEARCH MY CAR? YOUR RIGHTS DURING A DUI STOP

Posted on January 11, 2011 by mdkeenan

You partied a little too hard, so you were driving extra slowly on your way home. Unfortunately, a police officer spotted you and pulled you over, citing improper lane usage. After taking your license, the officer asked you to step out of the car. Suddenly, he began questioning you about illegal drugs and searching your car. At this point, he turned up a little cocaine you had stashed in the trunk, and you are now on your way to police lock up.

Can the officer do that? What are your rights?

Generally, police can search your entire car without a warrant as long as they have probable cause to believe your car contains evidence of criminal activity. Police can even open small containers. Be advised that making “furtive”movements may be enough to trigger that probable cause, especially if you look like you’re trying to get rid of that package or simply hide it.

Unfortunately, recent U.S. Supreme Court decisions have chipped away at the rights of drivers to guard against police searches. The Supreme Court under Chief Justice Roberts recently held that you do not have a legitimate expectation of privacy in contraband. For example, police are now allowed to have a trained dog sniff your car for narcotics without your consent because you have no privacy right in possessing illegal substances.

Furthermore, under new Supreme Court law, police do not need a reasonable suspicion of criminal activity in order to question you about topics unrelated to your DUI as long as this questioning does not unduly prolong the time you are stopped. Before this decision, police could not change the fundamental nature of a traffic stop by questioning you on unrelated matters without this reasonable suspicion, but this protection was overturned. In other words, if you were stopped for drunk driving, the officer could not question you about burglary tools or weapons unless he or she had a reasonable suspicion that you might be involved in some other criminal activity.

If you are stopped by police, an officer should, but may not always, ask if he or she can search your car. If asked, you should always refuse any request to search. The officer may continue the search even without your consent. Your refusal, however, may later help your attorney suppress the evidence turned up by the search.

You should also refrain from speaking to the police or answering any questions except about your name and address. It is generally advisable to refuse any breath tests or field sobriety tests, although the Secretary of State will penalize you for this refusal by suspending your driver’s license for an extended time. The absence of the tests, however, may make it harder for the state to prove beyond a reasonable doubt that you were driving under the influence.  (See related post “CAN I DRIVE?”: GETTING RID OF YOUR ILLINOIS SECRETARY OF STATE MANDATORY SUSPENSION.)

If you have questions about this or another criminal law matter, please do not hesitate to contact Matt Keenan at 847-568-0160 or matt@mattkeenanlaw.com

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“I WAS PULLED OVER IN A ROADBLOCK!”: WHEN YOU ARE ARRESTED FOR DUI AT A POLICE CHECKPOINT

Posted on December 28, 2010 by mdkeenan

You were driving home from a party. As you approached the intersection near your home, you noticed what appeared to be a police roadblock with flashing lights. Officers were stopping cars and checking IDs. When it was your turn, you flashed your license and tried to act sober. Unfortunately, the odor of alcohol on your breath alerted police and next thing you knew, you were charged with DUI.

What are your rights? What can you do?

In Illinois prior to 1985, police roadblocks to search for drunk drivers were considered a violation of your Fourth Amendment rights. After 1985, the Illinois Supreme Court held that roadblocks or sobriety checkpoints were legal as long as they met certain criteria for reasonableness. First, the intrusion to the driver should be relatively minor. Second, the officers performing the roadblock must follow a set of guidelines established by their police department. Third, the roadblock should give some indication of its official nature, for example a large number of flashing police cars on the scene.

If you are stopped at a roadblock, you may have to show your identification, but you do not have to answer questions or consent to the searching of your vehicle. You may also refuse to take field sobriety tests and the breathalyzer as you would with an ordinary stop for a DUI. Of course, if you refuse these tests, you are subject to an increased suspension of your driving privileges. However, refusing the tests may improve your chances of winning your case.

Once you have been arrested, your attorney can investigate whether a roadblock had been properly conducted. Did the police agency have established guidelines? Were these guidelines followed? Did the officers have too much leeway in the field? Was the stop unduly intrusive for the driver or even for the neighborhood? If so, an attorney may be able to bring a motion to have your arrest suppressed.

If you have questions about DUI or another criminal or traffic offense, feel free to contact Matt Keenan at matt@mattkeenanlaw.com or 847-568-0160.

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