Monday, January 19, 2009

Attorneys criticize new DUI law

Visit Americas Top DUI and DWI Attorneys at or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now! - A new state law aimed at reducing drunken-driving crashes and deaths has triggered criticism from local defense lawyers who say it may not keep the intoxicated off area roads. The law, less than a month old, requires first-time drunken-driving offenders to install breath-monitoring devices in their vehicles. Similar to the blow tests administered by local police during traffic stops, anyone convicted of a first DUI must blow into these steering wheel-mounted contraptions before the car will start. And at timed intervals on their drives, they must resubmit to breath tests to make sure they cannot thwart the system. But many attorneys don’t think it’s going to be easy to implement and wonder when — not if — the first court challenge to the law will be filed. “It’s the modern-day version of the public stockades. The person, when they wanted to publicly humiliate someone, they would lock you in that for a couple of days. It has that sort of taste to it,” said Donald Ramsell, a noted DuPage County DUI defense lawyer who has handled about 13,000 DUI cases since 1986. “It’s a real overkill.” He said he fully expects a court challenge to the law. So does former Cook County assistant state’s attorney Tracy Gentile, now a criminal defense lawyer and associate attorney at Sam L. Amirante & Associates PC. “I think it’s going to cause further problems in court,” she said, adding judges no longer have discretion to sentence the most-deserving defendants to this particular punishment. Officials within the division of the Illinois Secretary of State’s Office charged with directing the program had hoped to have a maximum of 30 employees by the time the law was in full swing. But budget cuts by Gov. Rod Blagojevich last year shorted the program about $3 million. The breath-alcohol ignition interlock division currently employs just six. “I feel confident we’re going to be able to handle it,” said Susan McKinney, administrator of the division. The equipment, called a Breath Alcohol Ignition Interlock Device, requires a driver to blow into a tube so his or her breath can be tested. The car won’t start if the breath sample registers a 0.025 blood alcohol level or higher. The legal limit in Illinois is 0.08, much higher than this device allows. “The machine should be at 0.08. At 0.05, it will dismantle completely. You have to take the car into the shop,” Ramsell said. “The car won’t start if you blow 0.025. You have to wait half an hour and try it again.” The device also requires samples at random intervals throughout the trip to prevent having someone else blow into the device to get the car started. Gentile said she thinks some defendants will try to skirt the safeguards. “People are just trying to get to work,” she said. “What do you want? People on welfare? I know I would do anything to support my son.” Ramsell said the day may come when a DUI defendant with a little knowledge of wiring finds a way around the device. “Go online. You can find canisters of air to hook up to these things,” he added. Any first-time DUI offender who wants to drive during the time of his or her statutory summary suspension will have to elect into the program. Suspension times also have increased — from six months to 12 months for a driver who refuses testing when they are pulled over and from three months to six months for drivers who take the test and have a BAC of 0.08 or higher. The court will ask the offender if he or she wants a Monitoring Device Driving Permit, then will order the secretary of state’s office to issue one if the offender wants in the program. The MDDP replaces the judicial driving permit, which could be granted by the court and allowed the first-time offender to drive at certain times, such as to get to work and back. A person who is caught driving on a DUI-suspended license without the BAIID can be charged with a Class 4 felony. Until January, the offense was a Class A misdemeanor, said Rich Kim, chief of the traffic and misdemeanor division of the Sangamon County state’s attorney’s office. “Most of the time people are receptive,” McKinney said. “Their concerns are not about any unfairness of the law, but about the difficulty they see in implementing pieces of it.” BAIID is available from one of six certified vendors, and can be installed at any of more than 150 approved sites. No Illinois resident lives more than 28 miles away from an installation site, according to the secretary of state. Summary suspensions aren’t effective until 45 days after the DUI arrest, and the MDDP doesn’t allow any driving at all for the first 30 days of the suspension. If someone was charged with a DUI Jan. 1, the soonest they could obtain an MDDP would be mid-March. Once issued, an offender has 14 days to have a BAIID installed on any and all cars they want to drive during the suspension. The device costs about $100 to install, depending on the type of vehicle and other factors, with an $80-a-month rental fee, both paid to the vendor. There’s also a $30 monthly monitoring fee paid to the secretary of state’s office. Because there is no driving allowed during the first month of the summary suspension, that means the minimum cost to the offender will be about $650. “You could have gotten 1 million free cab rides,” Ramsell said. “I’ve already got people calling me complaining they can’t afford it.” The law also requires an indigency fund to be used for offenders who want the MDDP but can’t afford to pay for the device. The fund will be built from a surcharge added to paying customers’ rental and installation fees. The fund can’t be used to pay the secretary of state’s monitoring fee. Those fees are up to the offender to pay. Indigency and how to determine it is seen as one of the problems with the new law. Judges — who have no say as to whether the MDDP is granted — apparently will be the sole arbiter of whether someone qualifies as indigent. “There is no in-between,” McKinney said. “There is no sliding scale, so someone is either indigent or they’re not. But we have to implement the law the way it is written.” McKinney said she’s working with a group of judges to see if they can come up with some indigency guidelines. “The criteria isn’t the same as for asking for a public defender,” she said. With approximately 40,000 first-time DUI offenders each year in Illinois, Springfield attorney Scott Sabin said he thinks the sheer number of people who will want into the program will be overwhelming. Some estimate that as many as 30,000 first-time offenders could be in the program by the end of 2009. Sabin said he might have had two to three clients a week ask for a judicial driving permit. Ramsell said of about 40,000 first-time offenders, between 1 percent and 3 percent re-offend within the 12-month window the device remains attached to the car. That means between 400 and 1,200 people may try to drive drunk in that time. Of those drivers, about 1 percent to 3 percent may become involved in a car crash if they didn’t have the device on their vehicles. That equals four to 12 crashes that may result in injuries, he explained. “What we’re talking about is pouring $18 million to $36 million into five or six licensed (BAIID) providers for a problem that covers about 1 to 3 percent of the people previously arrested for a DUI,” he said. Previously someone could get court supervision once every 10 years for either driving on a license suspended for DUI or for driving on a license revoked because of DUI. Both were Class A misdemeanors. Now, the new law makes driving with a suspended license a Class 4 felony, while driving on a revoked license remains a misdemeanor and supervision remains an option every 10 years. If violations are found on the device when it is monitored, the offender’s suspension may be extended by three-month increments or eventually canceled. Also, the device doesn’t test for marijuana, for example, just alcohol. But if someone is arrested for driving under the influence of marijuana and their license is suspended, they still have to get the machine to drive, McKinney said. “It’s so early in the program, I don’t know how it’s going to work,” said Brookfield Deputy Police Chief Jeff Leh. “In theory, I think it’s great. Some people never learn. (After convictions) it doesn’t stop them from driving (drunk). I don’t think you can just have somebody blow into it and you’re on your way. If the technology is anything like the (breathalyzer) machines we have, those are very sophisticated.” If successful, there may be fewer drunken-driving fatalities, he said.

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