More flawed tests result in wrongful DUI convictions-this time in DC

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First we told you about the faulty DUI lab test results in Pennsylvania, then Colorado, California, and Indiana. The latest is Washington, D.C., where it was recently reported that hundreds of DUI convictions were based on flawed breath test results. The Washington Post reported earlier this month that since the fall of 2008, nearly 400 people were convicted of DUI based on evidence obtained from the faulty machines, and nearly half of the people convicted were incarcerated. The breath test machines were working improperly because the police calibrated them incorrectly. As explained in the Washington Post article:

The District's badly calibrated equipment would show a driver's blood-alcohol content to be about 20 percent higher than it actually was, Nickles said. All 10 of the breath test machines used by District police were wrong, he said. The problem occurred when the officer in charge of maintaining the machines improperly set the baseline alcohol concentration levels, Nickles said.

One of the difficulties in defending DUI cases is that jurors generally presume that scientific results, obtained from blood tests and breath test machines, are accurate and infallible. The truth is, they're not. In the past we've pointed out instances of flawed lab testing where blood tests were determined to be inaccurate long after people were wrongfully convicted of DUI. Now we learn that, like lab test results, breath test results can be inaccurate due to faulty equipment and human error. Innocent people's lives are turned upside down because of DUI prosecutions and convictions. When DUI prosecutions are based on inaccurate scientific results that could have been prevented if more care had been taken, it's an outrage. These errors aren't simply unfortunate--they're travesties of justice. 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!

Tip of the day

Next time, send a cab: Thanks to the Fail Blog. 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!

More DUI convictions suspect--this time in California

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Yet again we're reminded that lab test results used to convict individuals accused of DUI are anything but perfect. Just last week we learned that in Colorado Springs, lab test results were being thrown out due to allegations of hundreds of errors made by a lab technician. This week brings yet another example of the inaccuracy of lab test results in drunk driving cases. This time, DUI convictions in San Francisco, California may turn out to be based on lab testing that was performed improperly. In late May, the Seattle Times reported that a San Francisco coroner's supervising toxicologist, Ann Marie Gordon, had a history of improper conduct in Washington state. It was revealed that prosecutors had previously told a Washington court that, while Ms. Gordon ran the state's toxicology lab, she had been a "perpetrator of fraud." As explained in the Seattle Time article:

From 1999 to 2007, Gordon ran the Washington state toxicology lab, whose main job was to analyze tests in drunken-driving cases. The lab was shut down after state agencies discovered that Gordon had vouched in court for the reliability of alcohol-detection equipment when she had not performed the tests herself.

In San Francisco, Gordon has signed sworn statements verifying hundreds of blood-test results, mostly in drunken-driving cases...since being hired in 2008. She has also testified in trials.

Prosecutors say they were unaware of her Washington history until April.

Because of the accusations against Ms. Gordon, over 100 criminal cases were dismissed in Washington and she quit her job in 2007. Now that her prior history has come to light, pending cases in San Francisco are being subjected to greater scrutiny. This case is yet another example of the problems inherent in many of the crime laboratories across this country. Between tainted tests, sloppy lab work, and improper procedures, the accuracy of the lab test results are questionable at best. Likewise, equally as questionable are the DUI convictions resulting from these tests. We deserve better. 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!

Colorado Springs Crime Lab-Another Case of Sloppy Testing

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Another day, another crime lab making sloppy errors that deprive innocent people of their liberty. This time it's the Colorado Springs crime lab. In April, the Colorado Springs crime lab errors were disclosed to the public. It was revealed that the results of an internal investigation revealed that 167 tests were flawed in 2009 and discovered 39 more flawed tests from 2007. All of the errors were the work of a chemist who had since left the department. District Attorney Dan May explained that "only" 9 of the 206 faulty tests actually affected the rights of those accused of committing a crime. In other words, only 9 people that we know of--people who were potentially innocent of any crime--had their lives ruined because of the egregious errors of Colorado Springs lab technician. Questions still remain following the announcement of the massive string of errors, as explained in this article from the Colorado Springs Independent:

Senior chemist Bobby Striebel frankly says he can't explain how a colleague of seven years made mistakes that boosted the alcohol content of some blood samples by more than 40 percent.

"The error was very difficult to identify," he says, with no apparent pattern or equipment failure to explain.

The lingering uncertainty is uncomfortable. Tim Bussey, a Colorado Springs defense attorney who specializes in DUI cases, puts it bluntly: "If they never really identified the problem, how do they fix it?"

These tests were caused by human error or malfeasance. Who knows how many errors are caused by faulty equipment or materials. The bottom line: blood and breath testing for DUIs is a horribly inaccurate "science" for any number of reasons. The continuing pattern of errors in labs across the country is simply further evidence of that fact. Perfection isn't possible and it's not required, but predictable accuracy is. Until that standard is met, innocent people will be convicted of drinking and driving offenses and injustice will continue to reign supreme. 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!

"Confessed" killer released from prison when victim resurfaces after 10 years

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A recent case of exoneration in China is yet another example of the utter worthlessness of most confessions. As explained in a Reuters article, 10 years after an alleged killer supposedly confessed to the murder of another man, the murder "victim" unexpectedly reappeared--alive--in his hometown. 10 years prior, Zhao Zuohai was accused of murdering the "victim" following the discovery of a headless corpse in the small Chinese town. Zuohai was interrogated by police and purportedly confessed that he'd killed the "victim" during the course of a hatchet fight. Zuohai claims that the confession occurred only after he was tortured by police, an apparently common practice in China, as explained in the article:

Convictions in the Chinese court system are strongly dependent on confessions, motivating police to use force to get a confession and close the case...

The courts conducted an audit of all death penalty cases after a woman in Hubei province reappeared over a decade after her husband, She Xianglin, was jailed for her murder, in a case that also rested on his confession to police.

Relatives who maintained She's innocence were also jailed.

The imprisoned Zhao's brother told the local Dahe Newspaper that police had forced him to drink chili water and set off fireworks over his head to force the confession.

The imprisoned Zhao narrowly escaped being executed for the crime. His sentence was commuted from a death penalty with two years' reprieve.

When the victim reappeared, Zuohai's conviction was reversed and he was released from custody after serving 10 years of a 29-year sentence. While he was incarcerated, his wife left him for another man and 3 of his 4 children were put up for adoption. Surprisingly, this unfortunate case reminds me of a lawyer joke I heard a while back:

A noted criminal defense lawyer was making his closing argument for his client accused of murder, although the body of the victim had never been found. The lawyer dramatically turned to the courtroom's clock and, pointing to it, announced, "Ladies and gentlemen of the jury, I have some astounding news. I have found the supposed victim of this murder to be alive! In just ten seconds, she will walk through the door of this courtroom." A heavy quiet suddenly fell over the courtroom as everyone waited for the dramatic entry. But nothing happened. The lawyer continued, "The mere fact that you were watching the door, expecting the victim to walk into this courtroom, is clear proof that you have far more than even a reasonable doubt as to whether a murder was actually committed." Tickled with the impact of his cleverness, the lawyer confidently sat down to await acquittal. The jury was instructed, filed out, and filed back in just ten minutes with a guilty verdict. When the judge brought the proceedings to an end, the dismayed lawyer chased after the jury foreman: "Guilty? How could you convict? You were all watching the door!" "Well," the foreman explained, "Most of us were watching the door. But one of us was watching the defendant, and he wasn't watching the door."

Except in this case, Mr. Zuohai would have looked toward the door, innocent man that he was. This case is not unusual. Innocent people are wrongfully convicted of crimes due to forced, false confessions every day across the United States and worldwide. And, like Zhuohai, if and when they are ultimately exonerated, their lives are in shambles, ruined by the overzealous--and arguably criminal--actions of police officers using unlawful and cruel tactics to force confessions from innocent people. 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!

Motorized lounging chairs and alcohol--a bad combination.

So far we've learned that Russian tankers, Barbie cars and golf carts are poor vehicle choices--especially if you're intoxicated. Today we're advising you that motorized lounging chairs--even if they're really cool and souped up--are also a bad choice. Unfortunately, Iowa resident Dennis LeRoy Anderson learned that lesson the hard way when he was arrested for driving a "motorized La-Z-Boy lounge chair" while he had a BAC of 0.29%. As reported in this Deluth News Tribune article, Anderson was traveling in style on the night of his arrest:

Proctor Deputy Police Chief Troy Foucault said the chair was powered by a converted lawnmower with a Briggs & Stratton engine. It has a stereo, cup holders and other custom options, including different power levels.

A National Hot Rod Racing Association sticker is posted on the chair’s head rest. The chair had a small steering wheel, about a third of the size of a golf cart’s, coming straight up from the middle of the La-Z-Boy.

The Proctor Police Department wisely recognized that the chair, an obvious shoe-in candidate for "Pimp My Ride," had some value. So they did what any reasonable, tech-savvy police department would do: they auctioned the car on eBay. The auction was halted temporarily when La-Z-Boy complained about the use of their corporate name in the auction title. It was later re-listed as simply a "DWI chair. " The winning bid netted $10,099.99 and the proceeds were slotted to "benefit Proctor tax payers." Meanwhile, as reported in this KTLA.com article, Mr. Anderson was convicted of DUI and his family was last seen attempting to recoup legal fees by selling a picture, on eBay, of him driving the infamous motorized chair. Of course, this entire fiasco could have been avoided if Mr. Anderson had made a better choice. So, we remind you once again to heed our advice: don't drink and drive. Walk, take a cab or call a friend.

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!

Avoid drinking and driving-that way you won't have to hire us.

This is a very moving video that serves as a reminder to avoid drinking and driving in the first place--rather than having to hire us afterward. (WARNING: There are some graphic images toward the end of the video). 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!

Sloppy lab work leads to Toxicology Chief resigning in Indiana

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Two weeks ago we discussed how lab errors in California, Colorado and Pennsylvania resulted in challenges to DUI convictions and the dismissal of a multitude of DUI cases. It looks like Indiana is joining the club. According to this article from IndyStar.com, the director of the Indiana State Department of Toxicology, Michael A. Wagner, has resigned amidst charges of inexcusable lab errors. Allegations include sloppy lab work, excessively long delays in processing specimens, and the failure to perform inspections as required by state law. In the article, Indianapolis defense attorney John L. Tompkins explained the basis for the allegations:

Tompkins, who teaches blood-testing issues to lawyers for their continuing education requirements, said sloppy work is not unusual from the state Department of Toxicology.

Within the past few months, he said, blood-testing reports have come back showing clotted blood being used -- a mistake -- and incomplete documentation of the testing machine's calibration.

Tompkins also contends that the department ignores a state law enacted in 2007...(which) requires the Department of Toxicology to conduct examinations of the people performing blood-alcohol detection tests and inspections of the equipment they use.

If the allegations are true, the resignation of Wagner is only the first step toward achieving justice for those who have been wrongfully convicted of DUI in Indiana. Simply put, the accusations of sloppy lab work are inexcusable. Where the life and liberty of a person accused of a crime is at stake, it is imperative that lab test results be performed carefully, accurately and in a timely manner. 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!

Golf carts: yet another bad choice.

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First we learned that operating a Barbie car while intoxicated was a very bad idea. We later learned that a Russian tanker is also a bad choice. Today's lesson: golf carts--also a bad choice. As reported in this Tampa Bay Online article, a young man was recently charged with operating a golf cart on U.S. 19 while intoxicated:

Early Thursday, a New Port Richey Police officer pulled over a golf cart cruising in the right lane of U.S. 19 heading south. Steven Lee Proctor had a dazed expression, slurred speech, watery bloodshot eyes and reeked of alcohol, the officer said in his report. At first the 18-year-old denied drinking any alcohol or using any controlled substances. But after performing poorly on field sobriety tests and being read his legal rights, Proctor admitted to the officer he had "a few beers" before driving the golf cart on the highway, the report said.

Our advice? If you've had a few drinks, take a cab or get where you're going the old fashioned way: walk. You'll retain your dignity and stay safe. 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!

Are DUI Breath Interlock Devices Reliable?

The short answer: no. DUI breath interlock devices malfunction all the time. These devices are intended to be used by individuals who have a DUI charge pending. Some judges will permit a person charged with DUI to operate a motor vehicle during the pendency of the criminal case only if a DUI breath interlock device is installed in their car. However, these devices are incredibly unreliable. Fox Chicago News recently addressed the issue in an article that examined the problems that are frequently encountered with these devices. As explained in the article, because of the devices often malfunction, they are used far less frequently than expected:

When the program began last year, the state expected more than 30,000 DUI defendants would use the devices, but we've learned less than 10,000 drivers are actually using them.

DUI defense attorneys say it's because the systems malfuction so often, drivers would rather risk driving without them than put up with all the headaches...

The Secretary of State admits the BAIID program has been used much less than expected. Pending legislation could make it harder for drivers to opt out. And as for malfunctioning devices, the state admits there are problems with cold weather and some foods.

Certain foods, including white bread and pizza crust, in addition to cough medicine and mouth wash, have been reported to cause the devices to malfunction. Clearly, something needs to change. Either a new type of device should be issued that doesn't malfunction or use of the devices should be eliminated altogether. Don Ramsell of our office was interviewed by Fox News regarding the failure rates and, in the video below, discusses how these devices can be so problematic: 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!

New Jersey Holds Drunk Drivers Can Recover From Bars That Over-Served Them

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Last week, the New Jersey Law Journal reported on a New Jersey appeals court's ruling in Voss v. Tranquilino, A-5431. In Voss, the court addressed the issue of whether a person convicted of drunk driving can then turn around and sue the bar that over-served them for economic and non-economic damages. The defendant in Voss, the bar at which he had been drinking, asserted that it was immune from liability pursuant to the operation of the 1997 anti-drunken driving amendments to motor vehicle insurance law, at N.J.S.A. 39:6A-4.5(b), which specifically state that a driver convicted of DWI in connection with an accident "shall have no cause of action for his or her injuries." The court disagreed, basing its decision on the the legislative intent behind the law:

(The) legislature could not have thought it could reduce the number of drunken drivers by immunizing liquor establishments from their claims and thus providing a disincentive to the licensees...

The court's decision makes sense. Although some might argue that it encourages people to drink and drive, bar owners should not be exempted from dram shop laws when the natural extension of their negligent action occurs: the drunk person operates a motor vehicle and is involved in an accident. Had the person not been intoxicated he or she might not have made the unfortunate decision to operate a motor vehicle while intoxicated. Where the bar's failure to stop serving alcohol to the injured party may have been at least one cause of the accident, the bar should not be absolved from liability by operation of law. 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!

Operating a Russian Tanker While Intoxicated is Probably a Bad Idea

Last week we learned that, for any number of reasons, throwing back a few drinks prior to taking your kid's Barbie car for a spin is a bad idea. This week we learn that operating a Russian tanker while intoxicated is likewise inadvisable. As you'll see in the video below, a Russian soldier learned that lesson the hard way. His drunken tank excursion ended as quickly as it began when he abruptly crashed into a house, knocking down a supporting wall. Following the collision, the tank driver exited the vehicle, clinging to 2 unopened bottles of vodka. However, despite appearances, according to a military spokesman, "The driver was absolutely sober, because he was going to military exercises." You be the judge. Drunk Russian Tank Driver - More amazing video clips are a click away 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!

Inexcusable lab errors in DUI cases

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Tests for blood alcohol content are not infallible and can be tainted by any number of factors, including human error and faulty equipment. It is for that reason that good DUI defense attorneys never assume that tests results are accurate. Case in point--in recent months, across the country, lab errors have resulted in the dismissal of DUI charges. For example, as reported at denverpost.com, 7 DUI cases were dismissed due to lab errors:

Colorado Springs authorities in December announced the discovery of errors and a review of results at the lab where the alcohol content in blood samples was higher than the true result...In all, the lab retested 7,892 blood alcohol cases dating back to 2006 and found a total of 206 errors. Of the nine affected cases, five defendants had served jail time.

In San Francisco, human error and tampering is alleged to have affected thousands of criminal cases. The lab test problems, which were initially thought to have affected only drug cases, may affect DUI cases as well, as explained in this ABC article:

The public defender's office says the shortcomings which the scandal exposed in the drug unit, may also pertain to DUI testing. They include sloppy work, lack of protocols and inadequate staffing..."One of the most critical pieces of evidence in a driving under the influence case is whether or not the person had alcohol in his system and how much," former San Francisco crime lab director Jim Norris said.

Elsewhere, in Pennsylvania, one county is taking matters into its own hands in order to save money. In Cumberland County, officials have decided to hire a phlebotomist rather than outsource blood alcohol testing. As noted at the Philadelphia DUI Blog, this new arrangement concerns local DUI attorneys:

"I worry about the chain of custody," said a Harrisburg Pa DUI lawyer, referring to the problems in administering the county's part-time blood lab. Indeed, many Pennsylvania lawyers feel that such blood tests, if done at the hands of the county, could pose problems relating to conflicts of interest and impartiality.

Blood alcohol testing is a critical area of concern and plays a key role in the evidentiary burden of the prosecutors. But if the evidence were left in the hands of the county prosecutors, isn't it natural that Pa DUI lawyers would have objection?

Prosecutors and law enforcement officers rely on lab test results to convict people of crimes, such as DUI, which can wrongfully deprive innocent citizens of their liberty if performed incorrectly. For that reason, accurate lab test results are of paramount concern.

The lab testing scandals in Colorado and California and the potential conflicts of interest raised by the newly proposed lab testing scheme in Pennsylvania are clear indications that we still have a long way to go. Innocent people continue to be wrongfully convicted of DUI every day, something that is inexcusable--and entirely preventable.

Visit Americas Top DUI and DWI Attorneys at or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Come on Barbie, let's go party.

(WARNING: The song in this video, "Barbie Girl," is catchy, to say the least. Watch at your own risk). Perhaps Paul Hutton of Essex in the UK was inspired by this song on that fateful evening when he decided to go cruising in the electric Barbie car that belonged to his children. On the other hand, maybe--just maybe--the alcohol he drank just before he decided to take the car for a spin had something to do with it.

Image by di_the_huntress via Flickr

Either way, as he explained during his court appearance for operating that very same Barbie car while intoxicated, getting in the car wasn't an easy feat for a grown man:

It is designed for three-to-five-year-olds...You have to be a contortionist to get in, and then you can't get out.

Fortunately, as reported in this article (Telegraph.co.uk) even though Hutton had souped up his car with "bigger wheels," it topped out at speeds of 4 mph and no one was hurt. As described by one of the magistrates on the bench:

The vehicle (was) not even capable of doing the speed of a mobility scooter and could be outrun by a pedestrian.

For that reason, Hutton received only a conditional discharge as his sentence. 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!

Latest Criminal Defense and DUI Links

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Here's a list of recent links from around the criminal defense legal blogosphere that are worth a second look:

• "The fact that an accident has occurred does not mean a crime has occurred" South Carolina Criminal Defense blog
• "Drunk Driving: A Victimless Crime" The Legal Satyricon
• "A Really Long Rant About Liberty And Finality" Criminal Defense Blog
• "Mixed Messages on Drinking and Driving" NYT City Room Blog
• "Police-Team DWI/DUI Investigations Allowed Though Discontinued?" Albuquerque Criminal Lawyer Blog

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!

Watch Out--Law Enforcement Uses Social Media

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It was simply a matter of time. Social media has become increasingly popular in recent years and law enforcement is now beginning to collect user data from social media sites for evidence. In fact, as reported in this AP article, some FBI officers are actually "going undercover" on social networking sites like Facebook, Twitter and MySpace by creating fake profiles. In some cases, undercover officers actually communicate with suspects in an effort to obtain information to support criminal charges. Similarly, as explained in the article, social media sites are being used to confirm suspect's alibis and are being mined for information about suspects, including their activities, their personal relationships and their spending habits. However, as explained in this post from AlterNet, it's unclear whether the warrantless attempts of law enforcement to collect evidence on social media sites is legal:

As law enforcement agents increasingly find reasons to use social-networking sites, questions regarding crime-fighting and privacy arise. The bad news is there are no real good answers regarding what users' rights really are, what social-networking companies are required to do (and not to do), and what regulations ought to govern the use of these sites in investigative law enforcement work given that there isn't really a legal system designed to supervise social-networking sites.

Unfortunately, this is one of the areas where the laws and regulations that control law enforcement agencies' actions haven't yet caught up with new technologies. And, until a court holds that these warrantless intrusions are unlawful, the police will continue to mine social media sites for evidence. What does that mean for you? It means that you should exercise caution when using social media. Don't post anything on social media sites that you wouldn't want shared with the entire world. If you are currently facing DUI charges, don't post pictures in which you are drinking alcohol or are out with friends who are drinking. Don't allow others to photograph you engaging in questionable activities that could reflect poorly on you or on your pending case. The bottom line--use common sense. Think before you post updates to a social media site. If you think it might be a bad idea to post a particular photo, it probably is a bad idea. Finally, don't accept friend requests from people that you don't know. Social media is a part of our lives; it's not going away. If you'd like to participate in social media, then by all means, do so. But be smart about it. Don't give law enforcement--or anyone else--access to information that could be used against you. Just like anything else-- it's better to be safe than sorry. 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!

Illinois Supreme Court Issues Decision on DUI & HGN

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In February, the Illinois Supreme Court handed down its decision in People v. McKown, a case appealed by our office on behalf of our client, Joanne McKown. In McKown, the court considered the following arguments that we asserted on behalf of our client:

(1) the HGN test is not a reliable indicator of impairment due to alcohol and, therefore, does not meet the Frye standard; (2) even if the HGN test does meet the Frye standard, admissibility of test results should be limited to showing probable cause for arrest; (3) if HGN test results are admissible at trial, the court must strictly enforce standards for performance of the test; (4) police officers who testify regarding HGN test results are testifying as expert witnesses and should not be considered qualified unless they have received extensive training; (5) the trial court’s findings of fact in the Frye hearing were erroneous; and (6) the HGN test results should not have been admitted at her trial because the officer did not properly administer the test.

The most important conclusion reached by the court was that HGN test results are not proof of actual impairment, and instead can be used only for the possibility of impairment. Other significant conclusions reached by the court were that:

• The HGN test cannot be used to establish an alcohol concentration or to suggest a concentration greater than 0.08%
• The HGN test now requires strict compliance with NHTSA (in other words, police officers can no longer claim “I don’t know what NHTSA is, but I did it according to my training”….)
• The trial court must assess each matter on a case by case basis and can rule that the admission of HGN test is inadmissible on grounds of undue prejudice
• Police officers must be properly trained under NHTSA protocol
• The HGN test is not properly performed while a subject is seated, as explained by the State's expert.

You can learn more about this important decision via this Illinois Lawyer Now article published by the Illinois State Bar Association.

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!

VIDEO: Ten Rules for Dealing with Police

No one likes being stopped by the police, even if it's for a simple traffic infraction. Regardless of why you've been detained, any police encounter is bound to be nerve wracking. Sure, in an ideal world, you'd have your criminal defense lawyer right there with you--but in the real world you can still make educated decisions about the police encounter as long as you know your rights and how to assert them in a calm and effective manner. The following is a great video from the Cato Institute that can help you do this. It's called "Ten Rules for Dealing with Police." In it, attorney Bill Murphy explains, in everyday language, how to effectively deal with the police while asserting your Constitutional rights. 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!

Chicago Tribune Castigates Lawyers and Judges for Allowing "Dangerous Drivers" to Drive

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A few weeks ago the Chicago Tribune suggested in this article, "Judges don't slow 100 mph speeders" that Illinois judges, and to an extent, defense attorneys, were responsible for excessive leniency toward chronic and dangerous drivers. It is suggested in the article that in some counties, judges tend to give breaks to "dangerous drivers" who appear with attorneys:

Prosecutors in DuPage, Kane, Lake, McHenry and Will counties insist they rarely accept plea deals calling for supervision for people driving 100 mph or faster. Most blame judges for agreeing to it.

In DuPage County, where 62 percent of triple-digit speeders get the deal, State's Attorney Joe Birkett said those speeders usually impress judges by getting attorneys.

"Unfortunately, the mere fact they step up with a lawyer, the judge will take into consideration that this person is taking this seriously," Birkett said.

Judges in those counties, for their part, say they look at every case individually. They don't want to be overly harsh. Convictions can cost a driver his or her license, which could mean losing a job. And, judges often face a heavy volume of cases, with pressure to move through them quickly and assign fines.

Unfortunately, the the article is based upon incorrect facts and assumptions that call into question the conclusions reached therein. For example:

• Contrary to the claim in the article, sentences of court supervision do not keep the tickets ‘off’ the drivers’ records--in fact, the Tribune was easily able to locate the records of drivers who received this sentence
• The article refers to people convicted of speeding as "dangerous drivers," but in the article, the Tribune was unable to locate any evidence that drivers who received a sentence of court supervision had been in an accident after receiving that sentence

Another important omission--the article fails to mention that in 2000, Jesse White and the named prosecutors successfully lobbied to make speeding 40 mph above the limit a crime – a Class A misdemeanor punishable by up to 1 year in jail. Thus, anyone convicted of this ticket is now a convicted criminal in the eyes of the law, and that conviction follows a person for their lifetime. Such a conviction is a strong barrier toward future employment. At that time, the Illinois State Bar Association opposed making speeding a crime, predicting that it would cause judges to offer court supervision more frequently, due to the harsh consequences of a criminal conviction. And, lo and behold, that's exactly what appears to be happening. Finally, Jesse White’s suggestion that we should be treating speeders as convicted criminals is wrong. The suggestion that a speeding driver with no accidents on his record should be treated more harshly than a person caught stealing, or criminally damaging property, or assaulting or battering another (all also Class A misdemeanors) is simply wrong. We do not punish people for what might or could happen. Speeding should be discouraged--not demonized. **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 and blood draws by force?

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A few weeks ago the Chicago Tribune reported that Rep. Keith Farnham, D-Elgin, introduced a bill to the Illinois House that authorizes police to use "all reasonable and necessary force" while executing a search warrant. If passed, this provision would apply to, among others, DUI suspects who refuse to submit to a search warrant for a sample of their blood. The current law requires that a person who has been involved in an accident causing serious injury or death must provide a sample of their blood, but it is silent as to the amount of force that can be used to require a suspect to comply. However, the failure to comply with a request for a breath test or blood draw does have ramifications: a refusal will result in an automatic 1-year drivers' license suspension. Of course, even if this law is enacted, it will have little practical effect, as Don Ramsell of our office explains in the article:

Defense attorney Donald Ramsell, who serves on the Illinois State Bar Association's traffic law committee, says the number who refuse is "minuscule." Ramsell says he's handled more than 13,000 DUI cases since 1986. "I have never had a single client in the face of a search warrant who has ever refused."

Nevertheless, the implications of the proposed law are disturbing, since a forced blood draw implicates fundamental privacy rights. Fortunately, as explained in the Chicago Tribune article, the proposed bill is likely unconstitutional:

The Farnham bill, though, is probably unconstitutional. Former Cook County Circuit Judge Daniel Locallo cites a 2005 ruling by the Illinois Supreme Court that a DUI defendant did not have the right to refuse such a test. But the court warned that its ruling "does not give law enforcement officers unbridled authority "...to use physical force in obtaining blood, urine and breath samples."

Let's hope that the proposed bill never sees the light of day. If, however, it does become law, then subsequent forced blood draws and the arrests resulting therefrom may set the ground work for an interesting and important constitutional challenge addressing one of our most basic rights: the right to be free from unlawful searches and seizures.

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I wrote the Book on Illinois DUI Laws

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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."

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

Daily Herald | New state DUI laws 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!

Attorneys criticize new DUI law

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! - 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.

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

New 2009 Illinois DUI Laws - MDDP and Driving Permits

Effective January 1, 2009, the judicial driving permit, a hardship license formerly granted to first offenders (see 625 ILCS 11-500 for definition of ‘first offenders’) is abolished for all arrestees on or after 1-1-09. 625 ILCS 5/6-206.1 makes several substantial changes to the implied consent laws. But, before getting into those changes, let me state two things that are not affected. First, summary suspension hearings and procedures remain the same, other than the fact the length of the suspensions double (six months for a test failure, twelve months for a test refusal). Second, criminal DUI laws do not change. What the new law does: in place of the judicial driving permit, the new law creates the Monitoring Device Driving Permit (MDDP). In essence, the law gives the first offender the option to drive after the 31st day of his suspension, for any purpose and at any time. Unless a defendant opts out of the MDDP law, the driver must agree to have a breath alcohol interlock ignition device (BAIID) installed on the car that the offender drives. (See Section 3.__ for a more detailed discussion of BAIID devices). If a driver is caught driving during a summary suspension and he has opted out of the MDDP, it is a Class 4 felony punishable by up to 1-3 years incarceration. The MDDP is available only to ‘first offenders’, which is defined in 625 ILCS 11-500. Essentially, a ‘first offender’ is a person who has had no DUI suspensions or findings of guilty in the past 5 years. MDDPs are available only for First Offenders unless: (1) The offender's driver's license is otherwise invalid;(2) death or great bodily harm resulted from the arrest for Section 11-501;(3) the offender has ever been previously convicted of reckless homicide; or(4) the offender is less than 18 years of age. Unlike a JDP, a first offender is entitled to an MDDP if he fits the above qualifications; the court has no discretion and must order an MDDP, unless the offender opts out in writing: “(e) Following a statutory summary suspension of driving privileges pursuant to Section 11-501.1, for a first offender, the circuit court shall, unless the offender has opted in writing not to have a monitoring device driving permit issued, order the Secretary of State to issue a monitoring device driving permit as provided in Section 6-206.1. A monitoring device driving permit shall not be effective prior to the 31st day of the statutory summary suspension.” 625 ILCS 5/6-208.1 Further, unlike a JDP, the offender does not need an alcohol evaluation or any supporting documentation in order to have a MDDP granted. In summary, here are the features to the MDDP process: An offender is arrested for DUI; A sworn report, completed by the police officer, is sent to the Secretary of State (SOS); The Secretary of State sends a Notice Order of Summary Suspension to the offender (effective on the 46th day after the test or refusal), along with MDDP information; The offender then goes to court for the DUI; The trial judge asks the offender whether he or she wants an MDDP; If the offender says yes, then an order for an MDDP is completed; If the offender says no, then the offender is admonished by the court and the offender signs an ‘opt out’ statement; If yes, then an order for the MDDP is sent to the Secretary of State; The Secretary of State then gets the Court Order; The SOS reviews the offender for eligibility and determines any requirements that must be fulfilled (i.e. cost) The SOS then sends the offender the requirements for the MDDP, i.e. the bill, etc.; Once the offender meets the requirements, then the SOS sends the offender the MDDP; The offender then has 14 days to have the MDDP installed. The MDDP law requires the offender to pay to the SOS an administrative fee of 30.00 per month. 625 ILCS 5/6-206.1. The entire number of months must be paid up front. (i.e $150.00 for a 6 month summary suspension and $330.00 for a twelve month refusal suspension.) The offender must take the vehicle to a certified BAIID installation company. These are private companies. There will be an installation fee (approximately $150.00) and a monthly fee for the device (approximately $115.00 per month). Once installed, the device begins monitoring. It is initially uploaded to the SOS to notify them of installation. If not uploaded initially, then eventually the MDDP is cancelled. Thereafter, the offender must bring the vehicle into the installer every 30 days for readings. The BAIID company sends a report to the SOS monthly, and the computer at the SOS looks for violations. There are a specific set of rules that have been promulgated by the Secretary of State of MDDP violations and other MDDP related issues. These rules can be found at 92 Ill. Adm. Code 1001, and in the Illinois Register at Volume 32, issue 28 pages 9819 to 9869 as proposed amendments, or online at http://ilsos.net/departments/index/register/register_volume32_issue28.pdf . If the offender receives is convicted of any moving violation during the MDDP period, the SOS shall extend the suspension for another 6 or 12 months, depending on the suspensions initial length: “(b) The Secretary of State upon receiving a report of the conviction of any violation indicating a person was operating a motor vehicle during the time when said person's driver's license, permit or privilege was suspended by the Secretary, by the appropriate authority of another state, or pursuant to Section 11-501.1; except as may be specifically allowed by a probationary license to drive, judicial driving permit issued prior to January 1, 2009, monitoring device driving permit, or restricted driving permit issued pursuant to this Code or the law of another state; shall extend the suspension for the same period of time as the originally imposed suspension; however, if the period of suspension has then expired, the Secretary shall be authorized to suspend said person's driving privileges for the same period of time as the originally imposed suspension.” 625 ILCS 5/6-303 MDDP Violations include: Tampering or attempted tampering 10 or more unsuccessful starts within a 30 day period 5 or more unsuccessful starts within a 24 hour period BAC of .05 or more Failing a running retest Failing to take a running retest Removing the BAIID device Failing to utilize the BAIID as required (under-usage) Failing to submit a timely monitoring report Additionally, a driver must keep journal of: Unsuccessful starting attempts Failure to successfully complete a running retest Any problem with Device Name of driver for each of the above. If the S.O.S. determines that a violation has occurred, it will notify driver who must respond in writing within 21 days. S.O.S. can extend the suspension for additional 3 months: “ (j) Upon making a determination that a violation of the requirements of the MDDP has occurred, the Secretary shall extend the summary suspension period for an additional 3 months beyond the originally imposed summary suspension period, during which time the person shall only be allowed to drive vehicles equipped with an ignition interlock device; provided further there are no limitations on the total number of times the summary suspension may be extended. The Secretary may, however, limit the number of extensions imposed for violations occurring during any one monitoring period, as set forth by rule. Any person whose summary suspension is extended pursuant to this Section shall have the right to contest the extension through a hearing with the Secretary, pursuant to Section 2-118 of this Code. If the summary suspension has already terminated prior to the Secretary receiving the monitoring report that shows a violation, the Secretary shall be authorized to suspend the person's driving privileges for 3 months, provided that the Secretary may, by rule, limit the number of suspensions to be entered pursuant to this paragraph for violations occurring during any one monitoring period. Any person whose license is suspended pursuant to this paragraph, after the summary suspension had already terminated, shall have the right to contest the suspension through a hearing with the Secretary, pursuant to Section 2-118 of this Code. The only permit the person shall be eligible for during this new suspension period is a MDDP.” 625 ILCS 5/6-206.1(j) For the first and second violations, the SOS will extend the suspension and MDDP for 3 month periods. After the third extension of the Summary suspension, local law enforcement will impound the vehicle for 30 days. After a fourth violation, the vehicle is permanently seized and forfeited. MDDP Cancellations: If the holder of the MDDP is convicted of or receives court supervision for a violation of Section 6-206.2, 6-303 (driving while suspended/revoked), 11-204 (fleeing and eluding), 11-401 (leaving the scene of an accident), 11-501 (DUI), 11-503 (reckless driving), 11-506 (street racing) or a similar provision of a local ordinance or a similar out-of-state offense or is convicted of or receives court supervision for any offense for which alcohol or drugs is an element of the offense and in which a motor vehicle was involved (for an arrest other than the one for which the MDDP is issued) the MDDP is cancelled. The MDDP will also be cancelled if the driver violates 625 ILCS 5/6-206.2, which includes driving a vehicle not equipped with a BAIID device after being issued an MDDP, or soliciting another to blow into a BAIID device in order to avoid a restriction. If cancelled, the driver is not automatically reinstated with full privileges at the end of the MDDP. Instead, the driver must apply for restricted drivers permit (RDP). If granted, the driver must then drive on the RDP for a length which is double the original period (with extensions). If an offender is indigent, there is an indigent fund that can cover all or part of the cost of an MDDP. Company cars: “Persons who are issued a MDDP and must drive employer-owned vehicles in the course of their employment duties may seek permission to drive an employer-owned vehicle that does not have an ignition interlock device. The employer shall provide to the Secretary a form, as prescribed by the Secretary, completed by the employer verifying that the employee must drive an employer-owned vehicle in the course of employment. If approved by the Secretary, the form must be in the driver's possession while operating an employer-owner vehicle not equipped with an ignition interlock device.” 625 ILCS 5/6-206.1(a-2) However: The company cannot be owned in whole or in part by the driver or the driver’s family; Cannot be used to drive a company car that is also made available for personal use; Car cannot be driven more than 12 hours per day and 6 days per week. orney Lawyer Now!