Wishing you a safe, happy and arrest-free New Year!

This is the time of year when police are out in force conducting roadblocks.

So please remember to drive carefully.

The best way not to get a DUI is to not drink or drive.

But if you do get pulled over, or are stopped at a roadblock, please:

• Be courteous and polite;
• Don’t make any sudden moves;
• Stay in your car with the seatbelt on until the officer tells you otherwise;
• Try to avoid leaning against your car, or holding onto to car or using the car door for support when exiting, as the officer will claim you needed to do so to keep your balance;
•  Don’t volunteer any information, such as whether you had been drinking, where you had been drinking or how much (but don’t lie about it either);
• Don’t admit to being under the influence;
• Politely refuse all field sobriety tests and breath, blood or urine tests.
• Contact an attorney as soon as possible.  (My office number is 312-346-7730)

Wishing you a safe and healthy New Year!

Is it more dangerous to be a drunk walker than a drunk driver?

The Perils of Drunk Walking

Yes, according to Freakonomics radio.  They report that January First is the deadliest day of the year for pedestrians, and that 58% of those New Year’s Day walkers who died were drunk.

Actually, drunk pedestrians are eight times more likely to die than drunk drivers (per mile walked or driven).

Which is not to say that you should drink and drive.  Just that you shouldn’t walk either. Get a ride, or take a bus, train or cab.

DUI App of the Day

The other day I was out with my wife.  After she had two margaritas, she wondered what her blood alcohol level was (don’t worry, she wasn’t driving).

If only I knew about this new iphone app.  Here is a youtube video about “Breathaleyes” which claims to determine your BAC based upon your eye movements (“nystagmus”) using your iphone camera.

I am dubious about the use of nystagmus to determine intoxication, since there are over 120 documented causes for it.  However, this may be a useful app to help you determine whether or not you should drive after having a couple of drinks.

Here is another video put up by the Breathaleyes people comparing their app to results from a breath alcohol test:

Getting Arrested, the Easy Way.

Car crashes into Gresham District police station

Link to WGN Raw Video

From the Chicago Tribune, Peter Nickeas reporting:

“Police say an intoxicated man drove his car into an exterior concrete wall at the Gresham District police station on the 7800 block of South Halsted Street early Monday morning.

Nobody was injured, Chicago Police News Affairs Officer Amina Greer said.

Andrew Walker, 36, of the 100 block of 154th Street in Harvey, came up the sidewalk, sideswiped a tree and hit the barrier before driving away, police said.

He was cited for DUI and leaving the scene of an accident where property damage occurred.

Greer said Walker was stopped in his 1987 Chevy Caprice on the 7900 block of South Peoria Street, about a block south and west of the police station, and arrested.

No major damage to the building was reported, Greer said.”

Merry Christmas!

The Law Offices of Harold L. Wallin wishes everyone a Merry Christmas!

Please drink responsibly and don’t drink and drive.

(But if you do, someone will be waiting for you!)

Looks like I was right about Chicago Cops and their Dash Cameras

Back on November 3rd, I wrote in this blog that it was a common experience that police departments would remove squad cameras not long after they were installed, or that officers would claim that their cameras had “broke” only weeks or months after they had been installed.

In fact, I wrote the following:

Or suddenly the camera “broke” — and I put quotes on that word because, yes, I am very suspicious.  In Chicago, cameras only started to get put into circulation after several “top cops” were busted for exaggerating DUI cases.  Suddenly, the remaining top DUI officers were required to have video cameras installed in their squads.  After a few months, the videos stopped coming.  I asked one officer what happened to your videos? I thought your squad was set up for them?  The response went something like this:  “Funny, the City got us these cheap cameras and mine is broke already.”  Hmmmm.

Or the officer forgot to “activate” the camera.  You get the picture.

So you can imagine my interest in a story by WBEZ’s Rob Wildeboer, that is mainly about how one of the Chicago “blue light cameras” was suddenly turned away from a police action involving at least 19 squad cars, mace and billy clubs.

More interesting is this quote from former Chicago Police Chief Jody Weis:

Weis says it’s not too much of a stretch to think officers would divert the cameras. He says when he was in charge they had a problem with officers turning off the cameras in their cars, “and I think it was because people had a fear, we don’t want this camera recording what we’re doing and I don’t know how many times I spent and said ‘Guys, if you’re doing your job correctly this camera’s your greatest friend.'”

Sounds like I was right on the nose.  Funny, though.  I don’t remember the State’s Attorney being too upset when their “top DUI cops” suddenly suddenly weren’t producing videos anymore, after the taxpayers had just spent thousands to install new cameras in their squads.

P.S.  I am writing this after just coming back from court on a DUI case, where I was told that the dash cam video of the defendant’s arrest was erased pursuant to a south suburban police department’s “retention” policy.  The State’s Attorney was not given a copy of the video prior to the destruction of the evidence.

How to check up on an attorney before you retain him (or her)

The other day while I was doing some work for my website, I decided to google the search terms “Chicago DUI Lawyer” — and up came the name of an attorney I had never heard of before.

I won’t pretend that I know every attorney out there, but my practice is highly concentrated on DUI attorney and I appear daily at DUI court calls throughout Cook, Lake, DuPage and Kane Counties, so I either know or at least recognize most of the Chicagoland attorneys who work in this area.

So I was curious to look at his website and figure out who this attorney was.

The description on Google claimed that he was “an Experienced and Dedicated Chicago DUI Attorney.”

His website talked about the lessons that he had learned from his “experience as a DUI attorney.”

After looking at his website, I still didn’t recognize the attorney.

So then I looked him up on the website of the Illinois Attorney Registration and Disciplinary Commission.  On their website one can learn some basic information about an attorney, such as when he or she was licensed to practice, contact information, and whether there he or she has ever been disciplined for an ethical violation.

Upon checking this attorney’s name, I discovered that he had been in practice for thirteen months.  It appeared from all information that this attorney was working as a solo practitioner, without the direct supervision of an experienced attorney.

As I said before, I do not know this attorney, and I do not know how much actual “experience” he has had in his thirteen months of experience.

I can say that when I was at a similar level of experience, I don’t think I was ready to handle every case that walked in the door all by myself.  I probably was not even aware of all the things I didn’t know.

Perhaps this attorney is a prodigy, and will handle cases with complete confidence and competence.  But I find myself doubting that.  The fact that he chose to advertise himself as “experienced” after only thirteen months of legal experience is in itself a reflection of his character (and I am being generous, it appears that his website was put up when he had only eight months of experience) .

So as a reminder, if you have any questions about the competence, experience or ethics of an Illinois attorney, check with the Illinois Attorney and Registration Commission at www.iardc.org.

Report holiday drunk drivers, earn $100

Report holiday drunk drivers, earn $100 – Lake County News-Sun.

Hot off the presses from the Lake County News-Sun:

“Besides a number of police departments cracking down on holiday drunk driving, The Alliance Against Intoxicated Motorists (AAIM) is helping citizens target drunk drivers for a reward.

 

The group is working together in a joint effort to remove impaired drivers from the roadways over the Christmas and New Year’s holiday weekends through their Drunkbusters program and law enforcement’s 2011 holiday “Drive Sober or Get Pulled Over” impaired driving campaign.

 

Motorists can be paid $100 for reporting an impaired driver that leads to a DUI arrest. The program is in effect for all of Illinois over the holiday weekends. Drunkbusters runs year round in Lake, McHenry, DuPage, Will and Kane counties.

 

The Drunkbuster program has paid out over $445,000, resulting in the arrests of over 4,450 impaired motorists since the program started in 1990. The program is funded by fines collected from convicted drunk drivers.

 

If the report results in an arrest for drunk driving, as confirmed in writing from the arresting agency, AAIM will send the caller $100.

 

Drunkbusters have reported drunk drivers from convenience stores and gas stations, but the most popular method is via cell phone.

 

Callers should identify the possible drunk drivers by describing the erratic driving behavior of the vehicle in question, its description, location, direction of travel, and if possible, the license plate number.

 

According to AAIM more than 800 people were injured during the Christmas holiday last year and over 535 during the New Year’s holiday.”

Please remember to celebrate in a safe and healthy manner.

 

Notes on Week Three of TLC’s DUI show

1.   The pattern of one of the four defendants having his or her case dropped by the prosecutors after they learn the results of the blood test continued this week when Jody’s case was dropped.  This now makes three dropped cases out of twelve, or a 25% WRONGFULLY ACCUSED defendant ratio.

This does not include Travis’ case.  Travis blew 0.07 on the breath test, and he was not charged with a DUI, but a lesser offense referred to as “DWI” on the show (more on that later).  Counting Travis, the WRONGFULLY ACCUSED rate jumps to 33%!!

Watching the show, I could not figure out why Jody was suspected of being under the influence.   She didn’t have an odor of alcohol?  Why did they guess that she was under the influence of prescription medication?  Do the officers feel any shame at arresting this woman and putting her under so much stress because of their incorrect guess? Is it possible that these officers feel pressure to make arrests just for the TV show?  Do they get pressure to make arrests from other sources?  I suspect that they do.  There doesn’t seem to be much sympathy for people whose lives are upturned by these careless and faulty accusations of DUI.

2.   Once again, the focus is on roadblocks.  This is probably because it is easier for the TV show producers to set up camp at a roadblocks where there is a high probability that at least one person will get arrested for DUI over the course of a night.  However, this highlights a fact that often gets overlooked: the overwhelming majority of DUIs do not involve accidents, and many of them don’t involve impaired driving.

3.   Another recurring problem is the absence of lawyers on the show.  In these two shows, two of the defendants were facing serious felony charges (three time DUI offender James, and Casey, who was charged with possession of cannabis with intent to deliver, plus DUI and driving on a suspended license).  In addition, Travis just avoided a felony case for a second DUI when he blew 0.07.  All of them should be consulting an attorney since they are facing major consequences including prison time.

At a minimum, it would be nice to have an Oklahoma lawyer explain the legal process there.  As I am not an attorney in Oklahoma, I can only guess as to what is going on off-camera.  It seems as though plea offers are being made off-screen, and we are shown the defendants step up in front of the judge to enter an agreed-upon plea on the record.  Some of the defendants have attorneys, but it seems like many do not.

4.   More Differences between Illinois DUIs and Oklahoma DUIs:
It seems that in OK there is a lesser charge of DUI (“driving under the influence”) called “driving while intoxicated” or DWI.  It occurs when a person’s blood alcohol level is between 0.05 and 0.08.

Illinois does not have a similar statute.  In Illinois, the officer must first charge you with a DUI, based on his probable cause to believe that you have been driving under the influence of alcohol, before you take an “evidentiary breath test” in a station.  (Although the officer’s probable cause can be based in part on a roadside “portable breath test” or PBT).  If you blow under 0.08, you are still charged with a DUI (although it might be dismissed — I just had a 0.01 case dismissed in Markham earlier this month).

In Illinois, there are the following statutory presumptions:

1. If there was at that time an alcohol concentration of 0.05 or less, it shall be presumed that the person was not under the influence of alcohol.
2. If there was at that time an alcohol concentration in excess of 0.05 but less than 0.08, such facts shall not give rise to any presumption that the person was or was not under the influence of alcohol, but such fact may be considered with other competent evidence in determining whether the person was under the influence of alcohol.
3. If there was at that time an alcohol concentration of 0.08 or more, it shall be presumed that the person was under the influence of alcohol.
625 ILCS 11-501.2(b)

So in other words, if a person blows 0.07 like Travis did, he will still be charged with DUI and, if the case goes to trial, the breath test is admissible but the judge or jury does not have to presume that the defendant either was, or was not, under the influence of alcohol.  There have been reported cases of convictions with BACs as low as 0.03.

Why is this woman facing 6 to 28 years in prison?

Here is a fact scenario that may surprise you.

A young woman named Alia Bernard was driving on Route 47 between Sugar Grove and Elburn, when she looked away from the road to get her sunglasses.  She didn’t see that two cars ahead of her had stopped, and she hit into them.  This started a chain reaction that led to the death of two motorcyclists, Wade and Denise Thomas.

No one has ever said that Ms. Bernard was under the influence of anything at the time of this horrible incident.  In fact, prosecutors have stated in open court that she was not under the influence.

No one ever said that Ms. Bernard intended to hurt anyone either.

Up until recently, all she would be facing would be some traffic citations and a big personal injury lawsuit.

Yet when she returns to court next February, she is looking at a sentence of between six to twenty-eight years in prison.

How can this be?

Under Section 11-501.6 of the Illinois Motor Vehicle Code, anyone involved in a serious personal injury or fatal motor vehicle accident is required to submit to alcohol or drug testing.

Ms. Bernard’s blood test came back positive for cannabis metabolites, which were in her system because she had smoked some marijuana three or four days before this accident.

Under a 2011 Illinois Supreme Court decision, People v. Aaron Martin, 2011 IL 109, a person can be prosecuted for aggravated DUI involving a death even if that person was not impaired and even if they didn’t cause the accident (although in this case, Ms. Bernard did cause the accident by failing to keep a proper lookout).

You see, in Illinois, a person can be charged with a DUI just for having drugs in his or her system.  The DUI statute states that:

5/11-501(a) A person shall not drive or be in actual physical control of any vehicle within this State while:
(1) the alcohol concentration in the person’s blood or breath is 0.08 or more based on the definition of blood and breath units in Section 11 501.2;
(2) under the influence of alcohol;
(3) under the influence of any intoxicating compound or combination of intoxicating compounds to a degree that renders the person incapable of driving safely;
(4) under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving;
(5) under the combined influence of alcohol, other drug or drugs, or intoxicating compound or compounds to a degree that renders the person incapable of safely driving; or
(6) there is any amount of a drug, substance, or compound in the person’s breath, blood, or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act [720 ILCS 550/1 et seq.], a controlled substance listed in the Illinois Controlled Substances Act [720 ILCS 570/100 et seq.], an intoxicating compound listed in the Use of Intoxicating Compounds Act [720 ILCS 690/0.01 et seq.], or methamphetamine as listed in the Methamphetamine Control and Community Protection Act [720 ILCS 646/1 et seq.].    625 ILCS 5/11-501.

This statute applies to all DUIs in Illinois, whether misdemeanor or felony.

Thus under section (a)(6), a person commits a DUI when they drive, or are in actual physical control of a motor vehicle while there is the presence of a drug in his or her blood, breath or urine.

(Note that this statute only requires a “controlled substance” so prescription pain medication would qualify; also note that unless the driver has the ability to test his breath, blood or urine on a daily basis, he would have no way of knowing when the controlled substance has passed out of his system).

What makes this case a felony then is the following language:

(d) Aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof.
(1) Every person convicted of committing a violation of this Section shall be guilty of aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof if:
(F) the person, in committing a violation of subsection (a), was involved in a motor vehicle, snowmobile, all-terrain vehicle, or watercraft accident that resulted in the death of another person, when the violation of subsection (a) was a proximate cause of the death.

Note that it is the violation of the DUI statute itself (“subsection (a)”) that leads to the upgrade to aggravated DUI, not any impaired driving.

The penalty for this is a minimum of three to fourteen years if there is one death, or six to twenty-eight years if two or more people died in the accident.  Probation is available only if a judge determines that “extraordinary circumstances” exist.

Had Alia Bernard been in this accident and had not smoked marijuana three or four days before, she would have been facing only a traffic citation (which is fine-only, and does not carry any jail or prison sentence), and a big personal injury lawsuit.  Under a recent change in the law, if this accident happened now she would also face a license revocation upon conviction.

But because she did smoke some “weed” a few days before, she is now facing six to twenty-eight years in prison — even though the prosecutors have stated that the marijuana she smoked did not impair her in any way.

Think about that.  Six to twenty-eight years, because of something she did that had nothing to do with this accident. Something that, while illegal, has been done by millions of Americans.  Something, that by itself, did no harm.

Is this justice?