"Field Sobriety Tests in Illinois can be declined without penalty, and the danger of misinterpretation by an official far outweighs the benefits of its execution."
This article has no DUI practitioners a general overview of DUI laws, describes how a DUI is arrested, and provides general information to help you answer that question too often asked by customers and others: "What should I do if I 'm was DUI? "
First, note that there are two fundamentalParts for a DUI, summary suspension and criminal charges.
The lawsuit
"DUI" stands for "driving under the influence" of alcohol, drugs, or a combination thereof. 625 ILCS 5/11-501. The penalty for first time DUI is a Class A criminal offense by imprisonment of up to 365 days in jail and / or a fine of $ 2,500. There are four basic elements of DUI:
or driving or actual physical control
or vehicle
or statewide
or under the influenceAlcohol and / or drugs.
Consider the first three elements individually to participate.
"Driving or actual physical control." The "Driving or actual physical control" phrase means that a person can also get a DUI, he or she is just sleeping or sitting in a parked motor vehicle. See, for example, Watson v City of Naperville, 175 Ill. 2d 399, 677 NE2d 955 (1997). If a person is in actual physical control is a fact. Fields to look at factors such as property, if the subject hasKey if the ignition key, if the subject is in the driving seat, if he or she is the vehicle where the vehicle, etc., must be determined on actual physical control. See eg People v Brown, 175 Ill. App 3d 676, 530 NE2d 74 (2d D 1998).
In addition, the police did not show the person in the car that he or she was "real physical control." Evidence that the only person walking on a lonely street one block from a machine in aTrenches may be sufficient to determine the real physical control or newer operating. People v Jones, 198 Ill. App 3d 572, 555 NE2d 1143 (3d D 1990).
"From each vehicle." In Illinois, a vehicle, defined as "[e] very device, in, on or by which any person or property is or transported or drawn upon a highway, except devices whose power moves, devices used exclusively on tracks fixed or tracks and snowmobiles. "625 ILCS 5/1-217.
So, cars, motorcycles, mopeds and even electricMight be roller vehicles. In fact, maybe even a horse as a vehicle. See 625 ILCS 5/11-206.
The fact that a vehicle becomes useless, is not a defense unless it has been issued a certificate of trash and garbage within the definition of vehicle under 625 ILCS 5/1-134.1. People v Cummings, 176 Ill. App 3d 293, 530 NE2d 672 (3d D 1988).
"Everywhere in the state." It is not a defense, the criminal charge of DUI, the car is not on a road. ("But I was parked in myDriveway! ") People v Guynn, 33 Ill. App 3d 736, 338 NE2d 239 (3d D 1975).
The summary suspension
In Illinois, the driver can receive up-front (ie from day 46 after the arrest) the suspension of their driving privileges if you are arrested for a DUI criminal and then shoot a 0.08 or higher on a breath / blood test or drugs illegal in their system, or if they refuse chemical testing. 625 ILCS 5/11-501.1.
Drivers who had not been arrested for DUI in the past fiveYears before three months, when the test suspension (s) or six months suspension if they refuse to fail. 625 ILCS 5/11-500, 625 ILCS 5/6-208.1. In both cases, a license can for emergency work or school from Day 31 of the request for suspension. 625 ILCS 5/6-206.1. For all others is the length of the suspension 1 year due to lack of implementation and three years for the refusal. 625 ILCS 5/6-208.1. No license is available for emergencies. 625 ILCS 5/6-206.1.
Thus, in most cases, your customersfaced with a dilemma to the police, "I take the breath test or can I refuse?"
Right to counsel prior to chemical testing. Most DUI lawyers recommend that clients do not participate in the test, if you are not going to guarantee absolutely. In Illinois, however, a person not entitled to a lawyer before deciding whether to undergo a test to vote. People v Gaddi, 145 Ill. App 3d 227, 494 NE2d 696 (1st D 1986).
However, if an officer of the defendant offers the possibilityconsult with a lawyer before the test, he or she can not unreasonably interfere with the exercise of this right. People v Kern, 182 Ill. App 3d 414, 538 NE2d 184 (3d D 1989). In addition, subjecting the mere insistence on consulting with a lawyer, in isolation and not as a condition for the execution of the test, not a refusal, for the purposes of the summary suspension. Id
A typical DUI arrest
The DUI arrest typically consists of four phases: (1) moving vehicle, (2) personal contact,(3) projection of arrest, and (4) after the arrest processing.
Moving vehicle. At this stage the officer asks the following question: "Do I have to stop the vehicle"
Typically, a vehicle speed for each violation of the rules of the road, as well as the improper lane is interrupted, or even a violation of equipment. See, eg, human versus Hood, 265 Ill. App 3d 232, 638 NE2d 264 (4th D 1994).
A policeman can not stop a vehicle only on an anonymous tip to theof "drinking and driving." See, eg, human versus Moraca, 124 Ill. App 3d 561, 464 NE2d 312 (2d D 1984). In addition to driving slowly, weaving within the lane, and unusual (but legal) behavior does not justify the arrest of a vehicle. City of Highland Park against Lee, 291 Ill. App 3d 48, 683 NE2d 962 (2d D 1997), human Dionesotes v, 235 Ill. App 3d 967, 603 NE2d 118 (2d D 1992), human versus Manders, 317 Ill. App 3d 337 , 740 NE2d 64 (2d D 2000).
Other forms of contact include arriving at the scene or locationDriver falls asleep at the wheel. These two areas are the place as a community care-taking functions that do not "stop" is actually taking. See People v Murray, 137 Ill. 2d 382, 560 NE2d 309 (1990).
Personal contact. After the arrest of a vehicle, the officer makes observations to determine if the driver has left the vehicle to ask. The officer is bloodshot from the smell of alcohol and / or glassy eyes, slurred speech fiddled with the licenses and other signs of intoxication observed. TheOfficial will generally ask if the driver has been drinking, and if so, how, when and where. He or she may ask a question, that two separate answers as needed ", what year is your car and where are you going tonight?" to see if the driver can not think straight.
It may be the last part of the phase of personal contact in order to ask the subject to say the alphabet or count backwards 67-43, in an attempt to evaluate the mental impairment.
At this point theDriver may ask to leave the vehicle for further testing.
Pre-arrest screening. Pre-arrest screening consists mainly of field sobriety tests and portable breath. In Illinois, field sobriety tests and portable breath tests are optional, and a driver does not suffer from sanctions for refusing to undergo this.
In addition, Illinois is not necessary that the field sobriety tests are standardized, valid, or, with the exception of the horizontal gaze nystagmus ("HGN")to be tested. See People v Bostelman, 325 Ill. App 3d 22, 756 NE2d 953 (2d D 2001); Basel v People, 193 Ill. 2d 545, 740 NE2d 1 (2000).
Field tests are the most common "one leg stand" of the "walk and turn", and HGN tests. These three tests have originated from the National Highway Traffic Safety Administration (NHTSA) standardized field sobriety develop a test that has been created and validated in early 1980.
"One-leg stand" test of the modified versions are still in Illinoisgenerally require a person on one leg with the other are growing up in the air for at least 30 seconds.
Testimony in court that a person has passed or failed this often varies according to the officer or special police, the administration of the test. The validity of these tests, if it is performed in accordance with NHTSA standards are never proven.
The "walk and turn" test also varies between the officers and departments. In general, however,The test requires a person to nine steps heel to toe in a straight line, pivot, walk and walk back nine steps heel to toe in a straight line. Unfortunately, if a person has not been passed in Illinois or the official's discretion, despite the clear dictates of the NHTSA tests are not valid, standardized management and the score will be pursued.
The portable breath test uses handheld devices designed to estimate a person's blood alcohol concentration. AllThe manufacturers of these devices require a minimum period of 15 minutes deprivation in order to validate these results.
After the arrest processing. Post-processing of a DUI arrest include chemical testing of a prisoner and an interview. Pilots have the right to refuse, after being arrested for DUI will be interviewed, and their silence can not be used against them in court.
The chemical tests may include blood, breath or urine for alcohol and drugs. 625 ILCS5/11-501.2. Of the three, is considered the most accurate blood test for alcohol or drugs. Urine is considered to be at least accurate. As for breath, said the Illinois Supreme Court that there is an "empirical fact that breathalyzer tests, although not universal, are infallible." People v Orth, 124 Ill. 2d 326, 530 NE2d 210 (1988).
A person who submits the chemical analysis, has received the right to an independent review of its choice of law. The courts,but never thought about how this law can or should be applied to speech. 625 ILCS 5/11-501.2 (a) (3).
The answer to the call late at night
As a general rule, the following questions when you think about the late night phone call from a customer.
Field sobriety tests are optional in Illinois and may be rejected without any penalty. Because Illinois is not the tests that are validated by scientific or medical communities, the danger of misinterpretation of an officer will take a longexceeds the benefits of trying to make it work.
Portable breath tests are optional in Illinois. Since the need for portable breath testing rules is no longer an officer with the manufacturer's recommended operating procedures comply with the risk of an erroneous result by far one of the advantages of taking.
Chemical analysis in Illinois is made up of breath analysis, blood or urine. Or because a driver can be punished for refusing these tests can be avoided, a lawyer,Advise a client, whether to take (or deny) these tests. Note, however, which is usually much more difficult to successfully defend a person, the chemical has not been passed.
Statements of the accused to help over consumption of alcohol and / or drugs is rarely the situation. A customer should always decline an interview and then be recommended to avoid misinterpretation by the police magistrate.
Customers who have recently been arrested should be instructed to take the followingSteps.
Videotape or their state after they are released from prison for potentially useful information appeared at the hearing.
Photograph or the area in which they were made without evidence in the field for weather conditions, shock or other conditions that could affect the accuracy of the test.
videocassette or guided by the motorist.
or band to record their speech as soon as possible.
or obtain an independent test blood as soon as possible if useful.
• Locate the advice of aDUI lawyer as soon as possible.
Front-line
DUI defense has become a very technical area of practice over the past 15 years, including aspects of criminal law, civil law, the confiscation and criminology.
However, family doctors in the first line of support, even if they want to transfer the case to an experienced DUI. This article gives a brief outline of the process for the DUI lawyers who focus theirPractices in other sectors.
By Donald J. Ramsell
