DUI Law - Illinois Dismisses Illegal DUI Stop from Anonymous Call

Congratulations goes out to Earl Vergara, NCDD member and Illinois attorney who handled this matter on appeal. In People of Illinois v. Smulik, --- N.E.2d ----, 2012 IL App (2d) 110110, 2012 WL 34367 (Ill.App. 2 Dist.) the police received a call of "a possible DUI with complainant following." The police located the vehicle that fit the description parked in a gas station. The police pulled behind the vehicle, but the officer believed she did not block in the defendant's car. After speaking with defendant, Johnson spoke with the complainant, who had followed defendant to the gas station. The complainant told Johnson that she had seen defendant drinking wine and vodka. The trial court found that a seizure had nevertheless occurred, and that the seizure was unsupported by reasonable suspicion. 

The appellate court affirmed the motion to quash arrest, writing:

“A particular encounter constitutes a seizure for fourth amendment purposes when, considering all the surrounding circumstances, the police conduct would have communicated to a reasonable person that the person was not free to decline the officer's requests or otherwise end the encounter. [Citation.] Additionally, either the police must use physical force or the defendant must submit to the assertion of police authority.” Village of Mundelein v. Minx, 352 Ill.App.3d 216, 219 (2004).

 In City of Highland Park v. Lee, 291 Ill.App.3d 48 (1997), we held that, when a police officer activates his or her emergency lights to curb a vehicle, a reasonable person in the driver's position would not feel free to decline the encounter with the officer. Id. at 54. In Minx we extended the rule to cases such as this one, where, with his or her vehicle's emergency lights activated, a police officer pulls up behind a parked vehicle. Minx, 352 Ill.App.3d at 220; see also Lawson v. State, 707 A.2d 947, 951 (Md.Ct.Spec.App.1998) (“Few, if any, reasonable citizens, while parked, would simply drive away and assume that the police, in turning on the emergency flashers, would be communicating something other than for them to remain.”). When Johnson pulled in behind defendant's vehicle with her own vehicle's emergency lights activated, defendant made no attempt to drive off. He therefore submitted to the encounter and was seized at that point. Minx, 352 Ill.App.3d at 220 (“when [the defendant] noticed the emergency lights, he submitted to them and did not leave”).

Applying the above law to the facts of this case, the court stated:

"At the point at which the seizure occurred, Johnson had no personal knowledge of any facts suggesting that defendant was committing or was about to commit a crime. In Linley, we summarized the general principles that apply when a Terry stop is based on facts not personally known to the officer who effects the stop. We observed:

“An investigatory stop need not be based on personal observations by the officer conducting the stop (or by those officers whose knowledge is imputed to the officer conducting the stop). [Citation.] A stop may also be based on information received from members of the public. [Citation.] However, the informant's tip must bear “ ‘some indicia of reliability’ “ in order to justify the stop. [Citation.] ‘[A] reviewing court should consider the informant's veracity, reliability, and basis of knowledge.’ [Citation.] Whether a tip is sufficient to support a stop is not determined according to any rigid test but rather depends on the totality of the circumstances. [Citation.]

"The nature of the informant is relevant. All other things being equal, information from a concerned citizen is ordinarily considered more credible than a tip from an informant who provides information for payment or other personal gain. [Citation.] Another significant factor in determining the reliability of a tip received from a member of the public is whether, prior to conducting a Terry stop, the officer is aware of facts tending to corroborate the tip. [Citation.] This court has observed that ‘[c]orroboration is especially important when the informant is anonymous [citation] and is even more important when the anonymous tip is given by telephone rather than in person.’ [Citation.] There is authority, however, that a tip conveyed via an emergency telephone number—a 911 call for instance—should not be considered ‘truly anonymous,’ even if the caller does not specifically identify himself or herself. [Citation.] The rationale is that such a caller is likely aware that, because the authorities often record emergency calls and have the means to instantly determine the telephone number from which a call was placed, they may therefore be able to determine the caller's identity. That an informant has placed his or her anonymity at risk may be considered in assessing the reliability of the tip. [Citations.]” Linley, 388 Ill.App.3d at 750–51.

Concluding that the stop was illegal, the court concluded:

"Here the stop was based on a tip received from an informant .FN2 The tip was conveyed to Johnson by a dispatcher; it does not appear that Johnson spoke with the informant until after initiating the Terry stop by parking her police car, with its emergency lights activated, behind defendant's vehicle. Accordingly, only the information relayed by the dispatcher to Johnson is germane to the question of whether the stop was supported by a reasonable suspicion that defendant had committed or was about to commit a crime. What Johnson knew based on the dispatch was that the informant had observed an individual drinking at an establishment called Redstone. The informant thought that the subject of the tip was “drunk,” and she was “concerned about him driving.” The subject was driving a silver Jeep, and the informant, who was following him, advised police of the vehicle's location and license plate number. There is no evidence that the informant provided her name or that she contacted the police through an emergency number. Thus the tip must be treated as an anonymous one, and its reliability hinges on the existence of corroborative details observed by the police. In this regard, the evidence falls short."

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DUI Law - Illinois Sanctions Loss of Videotape

In People v. Kladis, 2011 IL 110920 (decided December 30, 2011) the Illinois Supreme Court affirmed a trial court ruling, barring any evidence that was contained on a videotape that was negligently erased after it had been requested by defense counsel.  The facts established that within 5 days after the defendant had been arrested for DUI (and 25 days prior to the first court date) the defense filed and hand delivered a discovery request for inter alia, any and all videotapes of the stop and arrest of the defendant.

On the first court date, the State failed to produce the tape. After confirming with the arresting officer that the incident was videotaped, the matter was continued so that the state could obtain a copy of the video for the defense. At the next court date, it was learned that the police department, pursuant to policy, had automatically purged the tape (25 days after the request was handed to the prosecutor and hours prior to the 1st court date). The trial court barred introduction of any evidence that would have been on the tape, including the driving of the car, the field sobriety tests, and the manner in which the defendant exited the vehicle.

The Supreme Court first dealt with the State's argument that the video was not 'discoverable' because discovery for misdemeanors is extremely limited, and videotapes were not included on the list of things that a defendant can seek in a misdemeanor DUI, based on an old 1974 decision on discovery. The Supreme Court in the instant case stated that the 1974 decision was merely a review of the status of custom and practice at that time, and was not intended to remain static, nor was it intended to "not take into account the fundamental changes which have occurred in law or society since that ruling."

"In sum, we conclude that the routine video recording of traffic stops has now become an integral part of those encounters, objectively documenting what takes place by capturing the conduct and the words of both parties." The Suprem Court therefore held that videotapes were discoverable.

In terms of the propriety of the sanctions incurred for failing to comply with discovery, the court found the sanctions proportionate to the violation. "Here, the court properly exercised its discretion in choosing from the spectrum of available options and narrowly tailoring its sanction to bar the State from introducing testimony regarding what was contained in the video recording."

Congratulations go out to Attorney Ed Maloney, partner to new NCDD member Thomas Moran.

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DUI Law - Illinois Suppresses Blood Test Without Preservatives

In People v. Hall, --- N.E.2d ----, 2011 IL App (2d) 100,262, 2011 WL 6175606 (Ill.App. 2 Dist.), the defendant (who happens to be a county judge) was arrested for DUI by a police officer named Goldsmith (who is now deceased). During the course of the arrest, the arresting officer, Officer Goldsmith of the Vernon Hills police department, sprayed defendant with pepper spray and pulled defendant from his vehicle. A rescue squad was called to the scene, and emergency medical technicians tended to defendant for about 25 minutes. Defendant was then taken to Condell Medical Center for treatment of his left eye, which had taken the brunt of the pepper spray. While at the hospital, defendant was hooked up to an electrocardiogram, which detected a rapid heart rate. Before defendant was moved from the emergency room and admitted to the hospital, Goldsmith told him to come to the police station to pick up his citations after he was released. Goldsmith then left, and defendant was moved to a hospital room, where, eventually, several vials of his blood were drawn to be tested for heart-related issues. The following afternoon, defendant was released from the hospital and he picked up his citations at the police station.

The Illinois Attorney General took over the prosecution of this case, as the Lake County State's Attorney determined that his office had a conflict of interest.FN1 An assistant Attorney General, with the help of an assistant State's Attorney, learned that several vials of defendant's blood still remained at Condell. On May 14, 2008, the trial court ordered Condell to release the blood samples to the Vernon Hills police department for transportation to the Illinois State Police (ISP) crime lab for testing. FN2 An ISP technician tested the blood for alcohol concentration on May 15 and reported a blood alcohol concentration (BAC) of 0.107. This information was tendered to defendant on June 11, but the test results remained sealed under court order.

Jennifer Poltorak, a toxicologist at the ISP crime lab with bachelor's degrees in chemistry and forensic science, testified that she received three tubes of defendant's blood for testing, including one tube with a purple stopper. She tested two samples from the purple-topped tube, using a head space gas chromatograph; the average result revealed “an ethanol level of 0.107 grams per deciliter.” Poltorak testified that the ethanol reading would not have been affected by the presence of methanol in the blood sample. She also testified that it was not unusual to perform a BAC test on a blood sample that was 18 or 19 days old. Defendant's only witness, James O'Donnell, was a pharmacist and professor with bachelor's and doctorate degrees in pharmacy and a master's degree in nutrition. Testifying as an expert in pharmacology, O'Donnell opined that the tubes of defendant's blood were tainted because of a lack of determination of proper storage and the “significant probability” that microbial growth in blood untreated with preservative would lead to the synthesis of alcohol in the samples and would cause a “false positive” reading. Preservatives do not completely kill such bacteria but limit their growth.

Illinois administrative regulations state:

"Officers shall use DUI kits provided by the Department, if possible. If kits are not available, officers may submit two standard grey top vacuum tubes. (Pursuant to generally accepted industry standards, grey top vacuum tubes contain an anticoagulant and preservative.)"

On appeal, the court found that the failure to comply with this regulation (in that a purple-topper indicates a lack of preservative in violation of the rgulation) rendered the result inadmissible.

Additionally, the state argued that they should only have to 'substantially comply, rather than 'strictly comply' with the regulations.

In rejecting that position, the appeals court stated:

"Here, while there was evidence that the purple-topped tube from which the blood was taken for the BAC test contained an anticoagulant, there is no evidence that the tube contained the required preservative. There was 50% compliance with the requirement that the tube contain both an anticoagulant and preservative; however, there was zero compliance with the requirement that the tube contain a preservative. This is a failure to comply, not “substantial” compliance."

The appeals court also explained when a regulation requires substantial compliance or strict compliance. Quoting from an earlier decision the court explained how, in a case involving the failure to perform a 20 minute observation period (where the defendant admitted that he did not burp regurgitate or place anything in his mouth), substantial compliance might apply, but why here it must be strict compliance :

“The standards exist, not for their own sakes, but in service of the truth-seeking function, which they promote by ensuring that blood, breath, and urine tests are conducted in a manner that produces reliable results. If the standards are to serve this purpose, the rule of substantial compliance must be one that neither blithely ignores the standards nor enforces them in a purely rote manner. We are therefore reluctant to relax the standards when doing so would require inquiry into the scientific basis for a particular standard. However, when it is clear that a particular deviation from the mandated procedures does not pertain to a matter of science, a court is perfectly competent to determine whether, in a given case, the deviation compromised the integrity of the testing process.” People v. Ebert, 401 Ill.App.3d 958 (2010)

Continuing, the appeals court wrote:

"[T]he issue of whether the failure to include preservative in the tube of blood used for defendant's BAC test requires an inquiry into the scientific basis for the requirement. The blood was not tested for almost three weeks after it was drawn; neither the trial court nor this court is “perfectly competent,” in the words of Ebert, to determine whether the failure to include the preservative compromised the integrity of the testing process. See Ebert, 401 Ill.App.3d at 965. The legislature has assigned to the Department of State Police the responsibility to promulgate standards for chemical analyses of blood, urine, and breath and to “prescribe regulations as necessary to implement” section 11–501.2. 625 ILCS 5/11–501.2(a)(1) (West 2006). We will not second-guess the reasoning behind these regulations by considering conflicting testimony regarding scientific matters that are within the purview of the Department of State Police. We cannot conclude that failure to strictly comply with subsection (d) is de minimis. Under the facts of this case, Ebert does not support the State's argument that substantial compliance with the regulation would be sufficient. Instead, the Ebert analysis reinforces our conclusion that the trial court did not err in excluding the BAC evidence because the State did not comply with subsection (d)."

The appeals court then affirmed the suppression of the blood test in this matter.
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Federal suit claiming Naperville pads DUI arrests settled

Federal suit claiming Naperville pads DUI arrests settled

The City of Naperville has settled a federal lawsuit that alleged its police department made a false DUI arrest in order to bolster its arrests numbers for the crime.
Assistant City Attorney Mark Scarloto said the city made a $10,000 offer of judgment in the case brought by David Briddle, a Glen Ellyn man who was pulled over in May 2010 and later arrested for DUI. Briddle blew a 0.0 blood alcohol content reading at the police station, and was later released and never charged. The suit was filed against the city and the arresting officers.
The suit claimed false arrest as well as defamation, after a suburban newspaper reported Briddle was charged with DUI. The newspaper was not a part of the lawsuit.
Briddle’s attorney, Kathleen Zellner, claimed the police department made the arrest in order to pad its DUI arrest numbers, which it is recognized for annually. In 2010, Naperville ranked second in cities outside Chicago with the highest DUI arrest count.
The city paid $10,000 to settle the suit, which came as an offer of judgment, according to Scarloto. An offer of judgment in a federal case can be made by a defendant at the beginning of proceedings. If the offer ends up being higher at the end of the trial than what a judge awards to the plaintiff, the plaintiff’s attorney cannot be awarded legal fees.
Scarloto also said no disciplinary action has been taken against officers for the arrest, and that all legal procedures and rules were followed during the incident. He said the department believes the breathalyzer was not working properly that night.
According to a police report, Briddle did admit to drinking four to five beers that evening, and also had a wine glass and another drink glass in his car that he attempted to hide from officers.
“I think it turned out fairly,” Zellner said, declining to comment on specifics of the case. “We’re fine with it, otherwise we wouldn’t have settled.”

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DUI Appeal - Illinois DUI Drug Law Based on Slightest Amount

In People v. Martin, --- N.E.2d ----, 2011 WL 1499909 (Ill.), the defendant was convicted of Aggravated DUI causing death. The evidence at trial revealed that the defendant crossed the centerline while traversing a curve in the road, hitting another vehicle head-on and killing the 2 occupants. A blood test revealed no drugs in the system. A gas chromatography mass spectrometry test revealed no drugs in the urine. A more specific mass spec test eventually revealed a barely detectable amount of a metabolite associated with methamphetamine. The defendant confided to a friend that “I have done crystal meth before, but I was not on crystal meth that night.” The State presented testimony from Anderson, a State Police forensic scientist, who analyzed two urine samples taken from the defendant that night at the hospital. Anderson stated unequivocally, and to a reasonable degree of scientific certainty, “I found methamphetamine in both of the urine samples that I tested .” Dr. Staubus stated that the urine samples did not contain detectable or realistic amounts of amphetamines, but he did not dispute that there was any amount, even a trace, of methamphetamine in the defendant's urine.

The Supreme Court found that the law does not require the State to prove that the drugs caused or contributed to the accident in order for a defendant to be guilty of the felony charged. rather, all that is required is that the defendant's driving must be a cause of the accident, and that there is some trace amount of a controlled substance in his system.

The Court reasoned that requiring the State to prove actual impairment, or that the drugs contributed to or caused the death of the person, was not what was intended by the legislature:



“There is no dispute that the statute is intended to keep drug-impaired drivers off of the road. At the lowest levels of drug ingestion, no one is impaired. At the highest levels, all are impaired. In the vast middle range, however, the tolerance for drugs varies from person to person and drug to drug. In this range, depending on the drug and depending on the person, some will be impaired and some will not be impaired at all. * * ** * * The flat prohibition against driving with any amount of a controlled substance in one's system was considered necessary because ‘there is no standard that one can come up with by which, unlike alcohol in the bloodstream, one can determine whether one is * * * driving under the influence.’ “

Citing to other cases in Illinois and Arizona, the Court continued:

"Indeed, while it is possible to determine scientifically the amount of alcohol that renders a driver impaired, it is not possible to do the same for drugs. Rodriguez, 398 Ill.App.3d at 439, 339 Ill.Dec. 158, 926 N.E.2d 390. “Unlike the blood alcohol concentration test used to measure alcohol impairment, there is no useful indicator of impairment from such drugs because they are fundamentally different from alcohol. Essentially, there can be no meaningful quantification because of the dangers inherent in the drugs themselves and in the lack of potency predictability.” State v. Phillips, 178 Ariz. 368, 873 P.2d 706, 710 (Ariz.Ct.App.1994).

Concluding, the Court stated:

"A driver with controlled substances in his body violates section 11–501(a)(6) simply by driving. When an aggravated DUI charge is based on a violation of that section, section 11–501(d)(1)(F) requires a causal link only between the physical act of driving and another person's death. In such a case, the central issue at trial will be proximate cause, not impairment."

Editors Comments: People v. Martin (found here: http://www.state.il.us/court/Opinions/SupremeCourt/2011/April/109102.pdf) is a complete embarrassment to our state's jurisprudence, in my opinion. Aggravated DUI Causing Death is in fact our state's version of vehicular homicide, as it is referred to in other states. (We used to call it Reckless Homicide) In Martin, the Supreme Court held that a person could be convicted of Aggravated DUI Causing Death when the amount of drug found ONLY in their urine (the blood was clean) was so infinitesimal that it couldn't have impaired anyone (in fact it was so small that it also couldn't be found using a gas chromatography/ mass spectrometry -the gold standard- and had to be found using a more specialized form of mass spectrometry). In other words, if 2 people performed the same act - crossing the center line and negligently causing the death of another - then the driver found with .001 nanogram of a controlled substance goes to jail for 3-14 years, while the other isn't even charged with a crime.

Frankly, the above example IS what People v. Martin is all about - sentencing past drug users to jail as status offenses. An equal protection violation. Can you imagine what will happen when modern science is so accurate that they can find an amount of drug in your system from years ago (they can already use your hair to go back about one month per inch of length)?

Not to mention, that the Supremes erroneously claimed that the legislature intended the proximate cause issue to apply only to bad driving and not to the use of the drug itself. How did they do that? They took another statute - driving with any amount in the system - a misdemeanor - and used that statute to create out of whole cloth the fallacy that these senators also meant that there need not be a proximate cause to the drug use when they passed AN ENTIRELY DIFFERENT SET OF LAWS MAKING AGG DUI DEATH A FELONY.

My understanding of statutory construction in criminal cases suggests that ALL penal statutes are strictly construed in favor of the accused. People v. Martin doesn't even mention this construct, because to acknowledge its existence would force them to apply it.

And here's another insult to both forensic science and intellectual thinking - the Supremes held that, since one cannot tell if a person is impaired from a drug based on the level in their system alone, then we should just presume EVERYONE is impaired. Read that out loud to yourselves slowly - since we don't know who is actually guilty of the crime, we should make everyone guilty of the crime! In fact, there are presumptive levels of drug impairment that are published in medical journals, as well as employed in certain states. Further, there IS a way to determine whether someone is under the influence of drugs - it's called a medical EXAM! That's right - doctors and toxicologists are specifically trained to determine if a person is being 'influenced' by drugs in their system. And Mr. Martin's doctors, as well as ALL of the experts, could not say the defendant was impaired. So what do the Supremes decide is the best course of Illinois Jurisprudence? Find him guilty due to a LACK of REAL EVIDENCE.

People v. Martin takes the concept of strict liability (there is no mens rea for DUI) and combines it with the newest concept (no causation for the actus reus either) and makes Illinois the class clowns of modern forensic/criminal law. Could you imagine if we took all misdemeanors, and turned them into homicides simply because there was a death that was caused by from an unrelated act of negligence? Shame, shame, shame......



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DUI Appeal - Illinois Suspension Reversed Due to Video 'Destruction'

In People of Illinois v. Aronson, --- N.E.2d ----, 2011 WL 941306 (Ill.App. 2 Dist.), the arresting officer's video of the defendant was 'lost' during a technical transfer or download of the video from the squad car to a disc for the court. According to the prosecutor:

“[T]here is a camera in the officer's vehicle. When he returned to the station, there was some sort of download process with the camera. There was a person at the police department, I do not have that person's name and I don't have that person in court with me today. The officer tells me that he is in charge of downloading the videos and things of that nature. This person told Officer Foltyniewicz that the video was unavailable, that it did not work. That being the case, there was a camera, I understand, but there is not an actual video of the stop.”

The court denied a motion for sanctions, noting that there was no evidence presented that there was an intentional or willful destruction of any evidence. However, the court noted:

“[I]t is something that I think I can and, frankly, I will consider [at the rescission hearing]. There is a video. I have no explanation as to why that video doesn't exist. Again, I am not making any finding that it was willful or intentional, but the impact of that is going to be something that I can and I will consider during the course of the hearing. * * * I will consider that failure to produce that video. I think it was something that was in the possession of law enforcement. It doesn't exist and there is no explanation for that, and that's a factor I can and will consider.”

Officer Foltyniewicz testified that he asked the defendant to step out of the vehicle to determine whether she had consumed alcohol. Foltyniewicz detected the odor of alcohol coming from defendant's breath, and he asked defendant to perform four field sobriety tests. Ultimately, he concluded that she failed three of the tests. Specifically, on the walk-and-turn test, defendant did not stumble or fall, but Foltyniewicz observed that defendant did not touch toe-to-heel, raised her arms more than six inches from her body, and did not follow instructions on the turn. Further, on the one-leg-stand test, defendant put her foot down before Foltyniewicz told her to stop. Finally, on the breath test, defendant formed a tight seal with her lips around the tube, but did not blow as instructed and, therefore, no results were obtained. According to Foltyniewicz, defendant admitted that she had earlier consumed one glass of wine. Foltyniewicz arrested defendant. In his testimony, Foltyniewicz made no mention of the alleged video recording.



Thereafter, defendant, a home health care nurse, testified to her belief that she did not fail the sobriety tests. Specifically, defendant testified that she walked the walk-and-turn test as instructed, including touching heel-to-toe, and that she had her hands at her sides during the one-leg-stand test, but, because she was “very nervous,” lights were shining, and “a lot was going on,” she did not know whether she held her arms more than six inches from her body. Defendant denied telling the officer that she consumed any alcohol that night.



The court granted defendant's petition to rescind the suspension. The court noted that Foltyniewicz was “very credible” in its mind. However the judge stated:

“The concern that I have, the issue in my mind, is the field sobriety tests. Again, I think the officer testified credibly as to the defendant's performance * * *. I found the officer to be more credible [than defendant]. The question I have, and this is troubling to me, is that there is a tape. It was inadvertently not recorded, destroyed, I don't know if you want to call it that, which is what the cases say. But there was a tape recording that we don't have. It wasn't intentional based upon what's been represented to me, but through no fault of the defense, they were diligent in trying to get a tape. I do not think that it automatically warrants reversal. If it was intentional, perhaps it would be different. But that's where I come down.

If it was a case where there was no tape, this call would be easy for me. I think the officer testified more credibly, but the absence of the tape raises a concern in my mind. Again, I don't find that it was intentional, it's inadvertent, but it's in control of the State. There's principles of civil law that indicate that if there's evidence that was in the possession of one party and it's destroyed, whether it's inadvertent or not, there is an inference to be drawn that it was detrimental to that party. Again, I don't know that, but that's the concern that I have is that there was a tape that the defense can't have, through no fault of theirs.

It's for that reason, and I am reluctant to do it, I don't know how to express that any better, reluctantly. The officer testified credibly. I think he behaved like a professional, but because of the absence of the tape, that it was inadvertently not recorded or destroyed, I am going to rescind the summary suspension.” (Emphases added.)

On appeal, the court affirmed the trial court's ruling:

"the court considered that a recording was made on the very issue disputed by the parties, i.e., whether reasonable grounds existed for Foltyniewicz to believe that defendant was driving while intoxicated. That video, which might have held exculpatory value for defendant, was unavailable. The court did not rescind the suspension as a sanction to the State, but it did inherently find that the information presumed to be on the video, coupled with defendant's testimony, outweighed the evidence in the State's favor."

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Is "erratic driving" alone cause for a DWI investigation?

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A few weeks ago we asked a similar question. In that case, an Illinois driver, the son of the local mayor, ran into stationary cars in a parking lot and then drove off from the scene of the accident. When police tracked him down later that evening, a breathalyzer test was not issued since there were no outward signs of intoxication. In a remarkably similar case, a DuPage County Judge, Kenneth L. Popejoy, was likewise not required to submit to a breathlyzer test. As reported in a Daily Herald article, on the evening of June 29th, a number of witnesses allegedly called 911 after seeing Judge Popejoy run into a parked vehicle, run a stop sign and nearly hit a jogger. When police arrived at his home, he refused to answer any questions. According to Glen Ellyn Deputy Police Chief Bill Holmer, because he showed no signs of intoxication, he was not investigated for DUI:

"We can't compel him to take (a breathalyzer test)," Holmer said, adding: "There weren't any of the typical signs of impairment that we look for, such as smell or slurred speech. None of that was apparent."

In the article, Don Ramsell, of our office, agreed with Holmer's assessment of the situation:

Wheaton DUI and criminal defense attorney Donald Ramsell said that while police have a responsibility to investigate why a driver fled without reporting an accident, there's no cause to give a Breathalyzer or field-sobriety test without an odor, impaired speech or some other indication of alcohol.

"It would be improper to administer a breath test if you have no outward sign of alcohol consumption," Ramsell said. "It's illegal to fish for a crime."

Although Judge Popejoy was not charged with any DUI-related offenses, he was charged with charged with reckless driving, failure to give information after striking an unattended motor vehicle and failure to reduce speed to avoid an accident. The investigating police departments contend that preferential treatment was not a factor in the decision not to pursue a DUI investigation, and it is noted in the article that both towns "have handled recent high-profile DUI arrests of public officials, such as those of a Glendale Heights cop and U.S. Supreme Court Justice Antonin Scalia's daughter." Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI satire compliments of The Onion

Here's a priceless piece of vintage satire from the Onion: "DMV Reconsidering 'One For The Road' Driver Relaxation Campaign." Here are a few choice excerpts from the 1997 tongue-in-cheek article:

SPRINGFIELD, IL—With the drunk-driving fatality rate nearly tripling in Illinois in the past year, the state's Department of Motor Vehicles announced Monday it will re-examine its controversial "One For The Road" driver-relaxation promotional campaign...

According to Penn, the One For The Road program had its roots in a DMV study revealing a positive correlation between alcohol consumption and driver confidence.

"We found that people who had consumed at least four beers or two mixed drinks before getting behind the wheel were twice as likely to believe they were in no danger of getting hurt or killed," Penn said. "When operating a serious piece of machinery like a car, that's just the kind of confidence you need."...

In the time since the September 1996 launch of One For The Road, some 2,300 DUI-related fatalities have occurred in Illinois, a 275 percent increase over the previous year.

"Perhaps we need to reconsider certain aspects of the program," said Bill Gerhardt, co-creator of the program. "We need to ask ourselves, 'What parts of this program are not working, and how can we fix them?'"...

While Illinois DUI laws aren't perfect, at least our legislators have a bit more common sense than the fictional characters in this article.

And, if you're so inclined, you can read the entire article here.

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Is a car accident alone evidence of intoxication?

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Does the mere fact that an automobile accident occurred warrant testing to determine if the driver was intoxicated? What if the driver of the vehicle left the scene before police arrived? What if witnesses to the crash claimed that the driver was acting erratic? What if the driver was the mayor's son? These are just a few of the questions that arose from a recent automobile accident that occurred in Elk Grove Village, Illinois. As described in this Daily Herald article, the accident occurred in the parking lot of an apartment complex. Witnesses claim that a pickup truck ran into stationary cars parked in the lot. The driver exited his vehicle and was shaking and talking to himself. He then got back into his vehicle, despite the urging of witnesses to remain at the scene, and drove off. His license plate remained behind, however, and responding police officers were able to determine that the vehicle belonged to Craig Johnson Jr., the son of the mayor. Officers then located him that same evening, brought him into the station, questioned him, and issued him a series of tickets for traffic violations, none of which were DUI-related. He was never given a breath test or asked to perform field sobriety tests. Some claimed that he received special treatment because he was the mayor's son. However, Don Ramsell, of our office, explained that Johnson did not necessarily receive preferential treatment:

Wheaton DUI and criminal defense attorney Donald Ramsell said that while police have a responsibility to investigate why a driver hit three parked vehicles, there's no cause to give a Breathalyzer or field sobriety test without an odor, impaired speech or some other indication of alcohol.

"It would be improper to administer a breath test if you have no outward sign of alcohol consumption," Ramsell said. "It's illegal to fish for a crime."

Still, "it's not like the parked car jumped in front of him," so Johnson should have been asked to provide a satisfactory explanation for the crash, such as bad weather or a sudden obstacle in the road, Ramsell said.

In Illinois, the odor of alcohol combined with an accident is enough probable cause for a breath test, Ramsell said.

So, an accident alone isn't sufficient evidence to support the inference of intoxication. And in this case, there were no allegations that the driver smelled of alcohol, so perhaps the police were justified in not administering a breath test or sobriety tests. A further review of police records would assist in making this determination, but as it stands, based on the facts known at this time, the actions of the police weren't necessarily suspect.

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New state DUI law's success rate remains a source of debate

Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now! By Christy Gutowski | Daily Herald Staff Contact writer It's hailed as Illinois' toughest crackdown on drunken drivers since the state lowered the legal blood-alcohol limit to .08 percent more than a decade ago. As many as 41,500 first-time DUI offenders this year may have to install an alcohol ignition interlock to get back out on the road legally. Illinois is one of eight states where first-time offenders are mandated or highly induced into installing the instrument. Proponents say the device is up to 90 percent successful in curbing a drunken driver while its installed, but even they admit recidivism rates climb again afterward. Its success rate - and the device itself - remains a source of debate. Busted About the size of a cellular phone, the Breath Alcohol Ignition Interlock Device measures a motorist's blood-alcohol content when they blow into it. It allows first-time offenders to drive legally during their suspension period. In Illinois, the length of the suspension also was doubled with the new law, to six months if the motorist cooperated with police but failed breath/chemical testing, or 12 months for a refusal. Motorists still can't drive during the first 30 days of their suspensions. They have the option to apply for the program once they go to court. It replaces the conditional driving permit a judge used to give to eligible offenders so they could legally drive to specific places, such as work, school or the doctor, during the suspension. There are no such restrictions with the new program. "This way, at least they get to drive," said Susan McKeigue, the Illinois executive director of Mothers Against Drunk Driving, which spearheaded the law. "They just don't get to drive drunk." "It's using technology to stop this violent crime," she added. "You get hit by a drunk, it's assault with a deadly weapon." The offender must blow into the instrument to start the car and then again within the first 15 minutes and twice an hour thereafter. The device won't stop the car in mid-drive, but it will honk the horn and flash the lights to alert police. The car will not start if the instrument records a blood-alcohol level of .025 or higher. The motorist will be prompted to wait 10 minutes and try again. The ignition will be locked for 24 hours if there's three such readings in a 30-minute period. The interlock records the results in its internal memory. Every 60 days, the drivers must take their cars to the vendor, which sends the results to the Illinois Secretary of State for review and possible enforcement. The punishment for violations begins with a 90-day extension of the suspension period to license revocation or the car being impounded for 30 days or seized. If drivers are convicted of deliberately trying to skirt the law, such as driving a different car, they face a felony punishable by up to three years in prison. The cost isn't cheap. The offender pays about $85 to install the device, another $80 a month to rent, and another $30 a month in fees that the Illinois Secretary of State charges to administer the program. That's on top of first-time DUI court fines and fees of up to $2,500 and the cost of a good DUI attorney - about $5,000. They also must contribute to a state fund for poor offenders, determined by a judge as unable to afford the program. First-time offenders are eligible for the program if they are at least 18 with a valid license and were not involved in an alcohol-related crash that caused serious injury or death. Those who drive a bus, cab, or truck or otherwise hold commercial licenses are only eligible if the offense occurred off duty in their personal car. The law defines a first-time offender as someone with a valid license who has not had a DUI conviction in the last five years. And therein lies one of many issues critics point to as a problem. Too much, too little? MADD wants all 50 states to pass such laws, arguing it will save more lives, but critics contend it will lead to measures that restrict alcohol policies too much with few lifesaving results. Attorney Donald Ramsell, whose Wheaton law firm specializes in DUI defense, said the new law punishes people before conviction and hurts other family members who are forced to blow into the device to use the same car. He questions what effect it'll have to reduce DUI deaths. By his research, less than 1 percent of first-time offenders arrested in Illinois each year are rearrested within the next 12 months, which is the longest period the device is on the car. So, he argues, after calculating the monthly fees, about $27 million a year is going to a half-dozen private companies authorized to install the instruments to try to stop a small number of people for a short amount of time. And scofflaws who are willing to risk a prison term can try to skirt the law simply by driving a different car or having a sober person blow for them. "It's a baldfaced lie that it's going to be a big accident or death preventer," Ramsell said. "All this money is being dumped into this when there's absolutely no proof it is effective in any way, shape or form. It's pork barrel politics meets DUI." Another staunch critic of interlock laws for first-time offenders is the Washington, D.C.-based American Beverage Institute, a restaurant trade association. The group said it supports "sensible alcohol policies" for repeat offenders and those arrested with high blood-alcohol levels since national transportation data shows those groups are primarily involved in DUI fatalities. ABI Managing Director Sarah Longwell said the laws MADD advocates don't allow judges to distinguish between the social drinker who is within a few sips of .08 and those who are way over the limit. She warned such laws could lead to more draconian measures. "To divert our attention and focus on social drinkers is to take our eye off the ball," Longwell said. "The people who cause fatalities are people who have high BACs and are repeat offenders. If we want to solve the problem, then we have to go after these chronic drunk drivers." And that's exactly what proponents say the new law accomplishes. They point to studies showing one-third of all drunken drivers have a prior DUI conviction. "What we're trying to do is prevent the first-time offender from becoming the chronic offender," said Susan McKinney, administrator of the Illinois Secretary of State's BAIID division. "We know this is not going to end drunken driving, but it's going to help." The success rate in New Mexico, which in June 2005 became the first state to enact a first-offender interlock law, is highly debated. Statistics show a 19 percent drop in DUI fatalities there from 2004 to 2007, but critics say the death rate already was dropping. If viewed during a 10-year span, the decrease is closer to 6 percent, they argue. The American Civil Liberties Union has not weighed in on the ignition interlock laws, but high courts in states where they are in use have upheld them as constitutional. The next frontier So far, one in every 10 DUI offenders nationwide has an interlock device, but that number is expected to climb. Last year, 71 alcohol-ignition interlock bills were considered in 27 states, according to the National Conference of State Legislatures. "It looks like there is a trend," said Anne Teigen, a NCSL policy specialist. "More states are looking at ignition interlocks as a way to reduce impaired driving." Those on the front lines say there will come a day not so far in the future when even this device will be obsolete. They envision every car as its original equipment having a largely invisible device that keeps the vehicle from running if the driver had too much to drink. A five-year research program, sponsored by the National Highway Traffic Safety Administration and the Automotive Coalition for Traffic Safety, is developing the advanced technology so that it is as nonintrusive and affordable as today's air bags. It includes sensors in the wheel or shift lever that measures alcohol in perspiration, so called "sniffers" that check cabin air and a camera that monitors eye movements. The research program, which launched a Web site, dadss.org, short for Driver Alcohol Detective System for Safety, estimates in-vehicle testing of prototypes by 2013. "I personally think we will get drunken driving eliminated in this lifetime," McKeigue said. "Now that's something to be proud of."

2008-2009 Illinois DUI Penalties Chart (For offenses after June 1, 2008)

Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now! 2008-2009 Illinois DUI Penalties Chart (For offenses after June 1, 2008) First Offense Class A Misdemeanor Court Supervision up to 2 years DUI Tech Fee $500.00 Fines of 0-2,500.00 BAC > .16 or greater Mandatory 100 hours community service Mandatory Minimum fine of $500.00 Passenger < under16 years old Subject to 6 months jail or 25 days community service in a program benefitting children Mandatory minimum $1000 fine Up to maximum fine of $2,500.00 If Bodily Harm to Passenger under 16, Class 4 felony, min $2,500.00 to max $25,000.00 plus 25 days community service in a program benefitting children and Mandatory minimum 10 days jail or 480 hours community service [11-501(d)(3)] If suspended, revoked, or no license or no insurance, then Class 4 felony 1-3 years imprisonment or Probation up to 30 months and Mandatory minimum 10 days jail or 480 hours community service [11-501(d)(3)] If driving School Bus with pass < 18, Class 4 felony If driving in a school zone with limit of 20 mph in effect and accident with bodily harm other than great bodily harm, permanent disability or disfigurement Class 4 felony 1-3 years imprisonment or Probation up to 30 months and Mandatory minimum 10 days jail or 480 hours community service [11-501(d)(3)] If Great bodily harm, permanent disability or disfigurement Class 4 felony 1-12 years imprisonment or Probation up to 30 months and Mandatory minimum 10 days jail or 480 hours community service [11-501(d)(3)] and Minimum fine $2,500.00 Second Offense Class A Misdemeanor No Court Supervision - Mandatory Conviction Revocation of Driving Privileges Mandatory 5 days jail or 240 hours community service DUI technology Fee of $1,000.00 Fines of up to $2,500.00 If 2d DUI and prior reckless homicide, then Class 4 felony If BAC >.16 Add additional 2 days jail to above penalties Mandatory minimum fine of $1250.00 If Passenger < 16 years old Class 2 felony 3-7 years imprisonment or probation up to 48 months §11-501(d)(1)(K) and (I) and min $2500.00 plus 25 days community service in a program benefitting children §11-501(d)(1)(K) and (I) and Mandatory minimum 10 days jail or 480 hours community service [11-501(d)(3)] If Bodily Harm to Passenger under 16, Class 2 felony 3-7 years imprisonment or probation up to 48 months §11-501(d)(1)(K) and (I), and min $5000.00 to max $25,000.00 plus 25 days community service in a program benefitting children and Mandatory minimum 10 days jail or 480 hours community service [11-501(d)(3)] If Great bodily harm, disability or disfigurement to any person Class 4 felony, from probation to 1-12 years imprisonment Minimum fine of $5000.00 plus 25 days community service in a program benefitting children (any bodily harm per 11-501(d)(1)(K and I) Mandatory minimum 10 days jail or 480 hours community service 11-501(d)(3) If suspended, revoked, , or no insurance, then Class 4 felony 1-3 years imprisonment or Probation up to 30 months and Mandatory minimum 10 days jail or 480 hours community service 11-501(d)(3) If accident with great bodily harm Class 4 felony 1-3 years imprisonment or Probation up to 30 months and Mandatory minimum 10 days jail or 480 hours community service 11-501(d)(3) Minimum fine $5,000.00 Third Offense Class 2 Felony 3-7 years imprisonment or Probation up to 48 months, and Mandatory minimum 10 days jail or 480 hours community service DUI Tech fee $1,000.00 Fines up to max $25,000.00 If BAC > .16 Mandatory 90 days jail and Mandatory minimum fine of $2500.00 If passenger < 16 years old Mandatory minimum fine of $25,000.00 and Mandatory 25 days community service in a program benefitting children If Great bodily harm, disability or disfigurement Class 2 felony, from 480 community service to 1-12 years imprisonment (note: combining 1-12 years great bodily harm requirement; if any jail then must be minimum 1 year) Fourth Offense Class 2 Felony non-probationable 3-7 years imprisonment and DUI Tech fee $1,000.00 Maximum fine of $25,000.00 If BAC > .16 Mandatory Minimum fine is $5,000.00 If passenger < 16 years old Minimum fine $25,000.00 and Mandatory 25 days community service in a program benefitting children If Great bodily harm, disability or disfigurement Class 2 felony, from 480 community service to 1-12 years imprisonment (note: combining 1-12 years great bodily harm requirement) Fifth Offense Class 1 non-probationable 4-15 years imprisonment DUI Tech fee $1,000.00 Fine up to $25,000.00 If BAC >.16 Mandatory Minimum fine $5000.00 If passenger < 16 years Minimum fine $25,000.00 and Mandatory 25 days community service in a program benefitting children Sixth Offense Class X felony non-probationable 6-30 years imprisonment DUI Tech fee $1,000.00 Fine up to $25,000.00 If BAC >.16 Minimum fine $5000.00 If passenger < 16 years Minimum fine $25,000.00 and Mandatory 25 days community service in a program benefitting children DUI Death If violation of DUI proximately causes death to another Class 2 felony Minimum is probation, or 3-14 years for one death Minimum probation to 6-28 years for 2 or more deaths Judge must find extraordinary circumstances to award probation