Articles Posted in DUI

MarijuanaOn July 27 we reported that the DEA was considering reclassifying marijuana from a Class 1 Drug to something less.  Advocates for the legalization of marijuana were looking at this possibility as an important step to the possible legalization of marijuana.  On Wednesday the DEA made it’s decision public, and the decision did not make marijuana legalization advocates happy.  The DEA decided to keep marijuana in Class 1, which is the most serious classification of illegal drugs.  But what is especially troubling was the reason given by the DEA for denying the application to remove marijuana from the Class 1 category.  The DEA found that there is no accepted medical benefit for the use of marijuana and that it is highly vulnerable to abuse.  The DEA found that marijuana is not a safe and effective medicine.  This decision flies in the face of 42 states, and the District of Columbia, which allow for some form of medical marijuana use.

Today, sources are reporting that as early as today, the Obama Administration will issue new regulations which will make it easier for researchers to obtain the marijuana needed to conduct medical research. Currently, marijuana grown at the University of Mississippi has been the only source of medical marijuana available to medical researchers.  Currently, in order to obtain permission from the federal government to grow marijuana for medical research purposes, the process is so restrictive that it could take years to obtain it and is virtually impossible to get.  The new regulations will make it much easier to obtain permission to grow a supply of research grade marijuana.  The details are unclear but people who have seen the regulations believe that these changes could signal a major step towards the eventual legalization of marijuana.

Recently, Illinois has joined a growing group of states that are moving towards a more accepting treatment of marijuana.  Illinois allows for the use of Medical Marijuana.  The Illinois Legislature has accepted that there are medical benefits to the use of marijuana and they have set up a highly regulated process by which people who suffer from certain medical conditions can legally buy, possess and use medical marijuana as long as they have a valid prescription and obtain permission from the State of Illinois.  While the Illinois medical marijuana program is one of the most strict in the country, it is the product of a long and difficult fight in Springfield that took many twists and turns.

DUIOn Friday the United States Supreme Court issued a decision in a DUI case that many criminal defense attorneys have been closely following.  The case is actually three separate cases consolidated into one case captioned, Birchfield v. North Dakota.  What united all 3 cases was that they all dealt with a North Dakota law which made it an actual crime to refuse to take a breathalyzer and a blood test when requested to do so by the police.  There is no such law in Illinois.  A refusal to take a breathalyzer or blood test can result in the suspension of your diving privileges but is not an actual crime in Illinois.  However, 13 other states make a refusal to submit to a breathalyzer or blood test a crime.  Both North Dakota and Illinois have “implied consent” laws which state that when you operate a motor vehicle upon the public roads, you consent to submitting to a breathalyzer and a blood test when requested by the police.  Illinois warns you that failure to consent could result in the suspension of your driving privileges while North Dakota warns you that failure to consent could result in criminal prosecution.  Refusing to submit to a breathalyzer or a blood test is not a crime in Illinois.  The refusal to submit to such testing can only result in the suspension of your license for a period of time, usually one year, if this is your first DUI.  Sometimes, refusing to submit to a breathalyzer or blood test could benefit the underlying DUI case making it harder for the state to prove their case with test results, but will not stop the suspension of your driver’s license.  Refusing to submit to a breathalyzer or a blood test is a misdemeanor in North Dakota.  By making it a crime to refuse to submit to a breathalyzer or a blood test, a driver would be more likely to consent to such testing, thereby making it easier for the state to prove guilt in an underlying DUI prosecution.

In a 5 to 3 decision, the Supreme Court ruled that the police do not need a warrant to do a breathalyzer test but need a warrant to take a blood test.  The majority opinion was written by Justice Alito who held that “because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving.”  Since it’s considered a search incident to a lawful arrest, a warrant is not needed.

Since the case involved 3 separate DUI arrests, there were 3 different outcomes.  One driver, Danny Birchfield, had his conviction for failing to consent to a blood test overturned.  The second driver, Danny Bernard, Jr., had his conviction for failure to submit to a breathalyzer test upheld.  The third driver, Steve Beylund, who consented to a blood test under threat of criminal prosecution, had his case returned to the trial in light of the holding that a warrant is required for a blood test.

unnamedLast week the Illinois Court of Appeals held that in order to enter a residence without a warrant, the police need consent or demonstrate that an exception exists.  The case is People v. Swanson, 2016 IllApp (2d) 150340.  On the evening of January 7, 2015, Scott Swanson met a friend at a bar in Hinckley, Illinois. Swanson drank about 3 beers at the bar and left in his vehicle to go home.  It was icy outside with snow patches.  When he was roughly 2 miles from his home his car slid into a ditch, hit a stop sign, the airbags deployed and he cut his finger.  His vehicle could not start so he tried to call home but was unsuccessful.  It was below zero outside so he locked his vehicle and set out on foot to go home.  About a mile from the incident, he came upon the home of the Thompson family and knocked on the door.  The occupants answered the door but would not let him in. At some point a resident in the home pulled a gun and Swanson set out on foot to go home.  About a half a mile down the road Swanson encountered another home, but nobody answered the door so he set out to get to his house.  A DeKalb County Sheriff’s Deputy was dispatched to the Thompson home for a report of a disoriented person.  On his way to the Thompson home the deputy encountered Swanson’s disabled vehicle.  He noticed the damage to the vehicle, the deployed airbag and an open beer can on the passenger side floor.  He did not notice any blood in the vehicle.  Once it was determined that the vehicle belonged to the Swansons’ another officer went to the Swanson home and spoke to Swanson’s wife.  The officer informed Swanson’s wife that her husband had been involved in an accident and could not be found and left his card with her and requested that she call him if he came home. Shortly after the officer left the Swanson home, Scott Swanson arrived at the house.  His wife noticed that he was freezing cold, covered in snow, and his finger was bleeding. Swanson’s wife went upstairs and drew a warm bath.  When she went upstairs she noticed a glass of vodka and orange juice.  Swanson told her that he had poured the glass to warm up.  While Swanson’s wife dressed the wound he drank the glass of vodka.  After she drew the bath, Swanson’s wife called the officer and let the dispatcher who answered the call know that he was safe, he did not need any medical attention and that she would arrange to have the vehicle removed from the ditch.  According to Swanson’s wife, an officer broke in on the phone conversation and told her that the police had to see Swanson to make sure he was ok.  She insisted that he was fine  and that the police did not have to come to the house and if they did she would not let them in. Shortly after that phone call the police arrived at the Swanson home.  There was conflicting testimony at the hearing about exactly what happened.  Swanson’s wife insisted that she did not allow the police to enter the home while the police officers testified that she had given some form of consent to enter the home.  But at some point the police entered the home and placed Scott Swanson under arrest.  He was charged with Driving Under the Influence of Alcohol (DUI), Leaving the Scene of a Property Damage Accident, Illegal Transportation of Alcohol, Failure to Reduce Speed to Avoid an Accident and Improper Lane Usage.  Swanson filed a Motion to Suppress Evidence and a Petition to Rescind Statutory Summary Suspension.  After hearing the evidence, the Court granted the Petition to Rescind the Statutory Summary Suspension by finding that there was no probable cause to believe that the defendant was under the influence of alcohol at the time of the accident and granted the Motion to Suppress by finding that Swanson’s wife was credible and that his wife did not invite the police into her home and that there were no exigent circumstances present to justify the police entering the home and suppressed everything that happened after the police entered the home.

On Appeal the State argued that the trial court erred in granting the motion because there was consent to enter the home  and the need for emergency medical attention.  The State argued that the trial court erred in granting the Petition to Rescind because there was probable cause to believe that Swanson had been under the influence of alcohol at the time of the accident.

With regards to the issue of consent, the Court refused to overturn the trial court’s determination that Swanson’s wife was more credible than the officers.  The Court held that they will not disturb the trial courts findings of fact absent a finding that it was against the manifest weight of the evidence.

DUIThe Illinois Supreme Court has ruled that the police can pull over a vehicle just for trying to avoid a police roadblock. Jacob Timmsen was driving down US Highway 31 when he saw bright orange warning signs that he was about to enter a police checkpoint. Timmsen activated his turn single and made a U-turn at a railroad crossing about 50 feet away from the roadblock. There was nothing improper about the maneuver. He properly used his turn signal and made an otherwise legal and proper driving maneuver. In spite of the fact that he was driving legally, a County Deputy working the police roadblock checkpoint pulled over Timmsen merely because he suspected that he was trying to avoid the police roadblock. After Timmsen was detained and interrogated by the deputy, it was determined that he was driving on a suspended license and placed under arrest. After he was arrested, the deputy searched Timmsen’s vehicle and found less than a gram of marijuana inside his vehicle. Timmsen was subsequently convicted and sentenced to 90 days in county jail. After the conviction, Timmsen appealed the case and the Court of Appeals ruled in his favor finding that the maneuver made by Timmsen did not provide reasonable articulable suspicion that Timmsen had committed any crime and that exercising one’s constitutional rights should not be used as evidence against them in a criminal prosecution. The State appealed to the Illinois Supreme Court and the Supreme Court overturned the ruling of the Appellate Court and ruled that the deputy had reasonable suspicion to make the stop and upheld the conviction of Timmsen. In ruling the way it did, the court looked at the totality of the circumstances, mainly that the maneuver occurred at 1:15 a.m. on a Saturday morning approximately 50 feet from a checkpoint roadblock. The court found that this indicated a high degree of probability that the driver was operating his vehicle under the influence of alcohol and by attempting to avoid detection by the police, Timpson had created reasonable suspicion and probable cause to pull him over.  Timmsen had argued that the police had no right to pull him over because he was merely minding his own business. But the Supreme Court did not agree with him. The court found that even though he made a legal maneuver, it raised the suspicion that he was attempting to avoid contact with the police. The court found that there was nothing about the facts of the case to suggest that he was merely going about his own business. The court found that his U-turn was just as suspicious and evasive as running away from a police officer in a high-crime area. As a matter of fact, the majority found that Timmsen was doing the opposite of going about his own business.

The lone dissent was by Judge Anne M. Burke. Judge Burke argue that the 4th Amendment gives individuals the right to ignore a police officer if that police officer has no reason to believe that they had done anything wrong. She believes that the roadblock in the early morning hours was irrelevant to the case. Judge Burke held that you cannot be convicted of doing something that you have a right to do. Since you have a right to avoid the police and not cooperate with them, how can that be a sufficient basis for pulling over a motorist?

This case is troubling precisely for the reasons stated by Judge Burke in her dissent. Timmsen was arrested because he was exercising his constitutional rights. It’s important to keep in mind that when it comes to the constitution, the ends should not justify the means. Sure, Timmsen was driving a vehicle without a license and had marijuana in his vehicle. But the police did not discover this until after he was pulled over. But the reason he was pulled over was because he tried to avoid contact with the police. The 4th Amendment grants citizens the right to not talk to the police when they don’t want to. So what this case does is impose criminal penalties upon a citizen who is exercising a constitutional right. This is troubling and should not be allowed. Why have a constitutional right if citizens know that exercising their constitutional right could put them in legal jeopardy? I suppose that this defeats the purpose of giving people that constitutional right. We should cherish the rights afforded to us by our constitution. By imposing criminal penalties upon people who exercise those constitutional rights, we are watering down and dismissing the importance of those constitutional rights. People should not be afraid to exercise their constitutional rights.

Robbery ChargesThis week the United States Supreme Court agreed to hear a Minnesota DUI case that will further help define the parameters of the 4th Amendment.  The case involves a statute in Minnesota which makes it a crime to refuse to take a breathalyzer test when requested by the police.  In 2012 police were called to a boat launch where a car was stuck while trying to to take a boat out of a lake. They confronted 3 men. all of which smelled of alcohol but all 3 denied being the driver.  One man was in his underwear and was holding the car keys.  The man was arrested and taken to the police station.  He was asked to take a breathalyzer test and refused.  He was charged with refusing to take a breathalyzer test based on a Minnesota statute which makes it a crime to refuse to take a breathalyzer test when requested to take one by a police officer.  12 other states have similar laws.  Illinois is not one of those states.  It’s not as if Illinois does not punish drivers who refuse to submit to a breathalyzer test.  Illinois imposes an administrative penalty which involves suspension of a driver’s license for a refusal to submit to a breathalyzer test.  The Minnesota law does not require a warrant only a lawful arrest with probable cause to believe that the person was driving the vehicle while intoxicated.  The difference between Illinois and Minnesota is that Minnesota imposes a criminal penalty on the refusal to submit to a breathalyzer test while Illinois does not.

At the very center of the case is the question about how far can the right to search extend when someone is arrested.  In other words, when someone is arrested, does the state’s right to search extend to their blood, breath and urine or does this type of search require a higher level of protection?  Was it right to criminalize this defendant’s assertion of his 4th Amendment protections when he refused to blow into a machine at the police station?  These are all interesting questions which the United States Supreme will answer soon.

Oral arguments are scheduled for April 30 and a decision should be released this summer.

Statutory Summary SuspensionWinning  a  Petition  to  Rescind  Statutory  Summary  Suspension  hearing pursuant  625  ILCS  5/11-501.1  means  the  world to  our clients. A win prevents our  client’s privileges from  being suspended so they can  drive while they are fighting their DUI and thereafter; whether the  DUI is  for  alcohol, cannabis or other drugs.

My client was involved in a car accident when he side-swiped a limousine. When the police officer arrived at the scene of the accident, he apparently smelled the odor of burnt cannabis on my client and arrested him for DUI. However, there was no evidence that my client was under the influence of alcohol or any drug while he was driving. The police officer, although, did recover a  pipe from my client and cannabis from his car.

Under 625 ILCS 5/11-501.1, the given officer is required to warn the motorist that his/her license will be suspended if he/she does not take the requested chemical tests. The police officer is required to sign and read to the motorist a document called a “Warning to Motorist” which warns  the motorist of the suspension. In our case, the  police officer did not warn our client that his license would be suspended for one year nor was he given a copy of the “Warning to Motorist.”

Legal%2BDefendersThe new year will bring some pretty significant changes to the Illinois DUI laws. The changes have the support of anti-DUI activists and criminal defense attorneys.  But to get everybody on board, the law contains things that make everyone happy.  First, let’s talk about the changes which will affect the fewest number of drivers.  Here’s the changes:

– If you have been convicted of 2 or more DUI’s, you will be required to have a Restrictive Driving Permit for five years before you can have a full license reinstatement.

– In order to have your license reinstated, you must have a Restrictive Driving Permit (RDP) and a Breath Alcohol Ignition Interlock Device (BAID) for five continuous years.

DUIThe short answer to the question presented in the title to this post is no.  Let me explain.

In my 23 years of practicing law, I have seen it all and have been asked every question that you could imagine.  One of the most common areas in which I get asked questions has to do with whether someone has to actually be driving their motor vehicle in order to be guilty of Driving Under the Influence of Alcohol (DUI). In Illinois, you are considered to be “driving” a vehicle, for purposes of a DUI, if you have actual physical control of a motor vehicle.  Whether you had actual physical control of a motor vehicle depends on the totality of the circumstances.  Some of the factors are where you were sitting in the vehicle, did you have the key to the vehicle, what were you doing inside the vehicle and did you have the ability to start the vehicle and move it?

I’m writing this article because I just had a case in which my client had attended a party at a bar and had too much to drink.  My client realized that he was in no condition to drive so when he went to his vehicle, he decided to put back his driver’s seat and go to sleep.  A few hours later, the police responded to a call of a man possibly passed out or dead in a parked vehicle and approached my client’s vehicle.  The officer saw my client laying back in the car seat and started knocking on the window of the vehicle to get my client’s attention.  My client woke up and opened the door.  My client was eventually pulled out of the vehicle, the officer detected the strong odor of alcohol on my client’s breath, administered field sobriety tests and placed my client under arrest for suspicion of  Driving Under the Influence of Alcohol (DUI).  Under Illinois law, my client was considered to be “driving” the vehicle because of the facts of the case.  He was inside the vehicle and the vehicle was in good working condition.  He lived in the suburbs and had driven to the city for the event.  What was most damaging to my client’s case was the police officer recovered the keys to the vehicle in the front pants pocket of my client.

In an 8 to 1 rulDUIing, the United States Supreme Court ruled that police should try to obtain a warrant from a Judge before forcing a citizen to submit to a blood test when it comes to a DUI.  This is a case that could have national implications that go beyond just DUI cases.  The case involved Tyler McNeeley, who was pulled over by a Missouri police officer who suspected that he had been operating his vehicle while under the influence of alcohol.  McNeeley, who had two previous DUI cases, refused to submit to a breath test when the request was made by the arresting police officer.  The Missouri officer, who was a Missouri State Trooper, took McNeeley to a local hospital, instead of first obtaining a warrant from a judge, and had McNeeley’s blood drawn.  The blood draw indicated that McNeeley blood alcohol level was nearly twice the legal limit.  The Missouri Supreme Court had previously ruled that the blood draw violated the Missouri State Constitution.  On Wednesday, 8 Justices on the United States Supreme Court found that there was no sufficient reason to dispense with the requirement that police first obtain a warrant before having a blood sample forcibly drawn from a driver’s arm.  The Court seemed to leave open the possibility that the police could draw blood without a warrant if a true emergency was present. But absent a showing of a true emergency, either the driver will consent or the police need to get a warrant.  In Illinois a refusal to submit to a blood alcohol test will subject the driver to a one year suspension of their driver’s license.

This decision leaves unanswered what affect this will have on state laws which have been enacted to deal with driver’s who are pulled over for suspicion of driving under the influence of cannabis.  The only way to determine whether they are high on cannabis is to take a blood test.

James Dimeas is an award winning Chicago criminal defense attorney and author with more than 23 years of experience aggressively representing his clients in DUI and Cannabis cases.  If you have a DUI or Cannabis case in Illinois, contact me in Chicago (312-229-5500), DuPage and Kane (630-504-2096) or Lake (847-696-6458) for a free and confidential consultation to discuss your legal options.

This week the United States Supreme Court heard oral arguments on a Missouri DUI case which raises some interesting issues.  Two years ago, in the early morning hours, Tyler McNeely was pulled over by a Missouri State Trooper.  The Officer suspected that McNeely had been drinking so he performed the usual field sobriety tests and requested that McNeely take a blood alcohol test.  McNeely refused so the Officer placed handcuffs on McNeely, placed him in the back of his squad car, took him to a local hospital and had a nurse draw blood from McNeely while McNeely was restrained.  The blood draw revealed that McNeely’s blood alcohol level was nearly two times the legal limit and McNeely was charged with Driving Under the Influence (DUI).  At trial McNeely challenged the blood draw on the basis that it violated his Fourth Amendment right to be free from unreasonable searches and seizures.  The trial court sided with McNeely and the state appealed to the Missouri Court of Appeals.  The Court of Appeals send the case directly to the Missouri Supreme Court and the Missouri Supreme Court also sided with McNeely.  The state appealed to the United States Supreme Court and the Supreme Court agreed to hear the case.  The State of Missouri is being joined by the Obama administration. The government is arguing that while the Fourth Amendment protects citizens from unreasonable searches and seizures, the time required to obtain a warrant would allow or a “destruction of the evidence” which requires that the evidence be obtained quickly. The government believes that once the police have probable cause to believe that someone has been drinking and driving then it is reasonable for the police to obtain the evidence before it is gone.  McNeely and his supporters disagree and point out that there has been no showing that a warrant could not be obtained in a timely fashion and that the government overlooks the affront to a person’s dignity that occurs when a needle is stuck in their arm against their wishes by the government.

James Dimeas is an award winning criminal defense attorney and author with more than 23 years of experience aggressively representing his clients in felony cases.  If you have a felony case in Illinois, contact me in Chicago (312-229-5500), DuPage and Kane (630-504-2096) or Lake (847-696-6458) for a free and confidential consultation to discuss your legal options.