Take it from Officer Baez; when given the chance, just say no

The most common question that I get, as a DUI attorney, is whether or not to take a breath test in the event of a DUI arrest.  Of course I say don’t.  But you don’t need to take my advice.  You can simply emulate the actions of most of the police officers who find themselves on the wrong side of the breath testing device.

For example, here is a link to a story about a former Prairie Grove police officer who is currently on trial for a DUI that occurred while on duty.

As is the norm for cases like this, the officer refused to take a breath, blood or urine test to determine his blood alcohol concentration.

From the Tribune:

A former Prairie Grove police officer admitted on the witness stand Thursday that he drank two plastic cups of eggnog before his Nov. 29 shift, which ended when his police SUV slammed into a pole and the officer was charged with driving under the influence.

But Oscar Baez, 52, of Bensenville, said he drank the eggnog about four hours before the start of his 3 p.m. shift. He also testified that he is not typically a drinker but just wanted to “taste it a little bit.”

In additional to misdemeanor DUI, Baez also is charged with felony official misconduct and disobeying a stop sign.

Baez sought to explain why he failed a portion of the roadside sobriety exam that involved tracking with his eyes a pen being moved from side to side. Baez said he had surgery on his eye as a child and has a weak eye muscle for which he wears corrective lenses. He had taken his glasses off before the sobriety exam.

McHenry County prosecutors allege that Baez was under the influence of alcohol when his vehicle crashed into a utility pole near the intersection of Illinois Highway 31 and Gracy Road about 10:30 that night.

Baez, however, said he crashed because his brakes failed and “went all the way to the floorboard” as he approached the intersection.

Responding officers testified earlier that Baez told them at the scene that “those glasses of eggnog must have been bigger than I thought.”

The officers said they smelled alcohol on Baez’s breath, that he slurred his speech and swayed during the sobriety test and that he was chewing breath mints. On the stand, Baez said: “I always have mints on me. I have some now.”

Baez also contradicted earlier testimony from police officers who said he refused to go to a hospital to submit blood and urine samples. He did acknowledge that he refused a breath test, saying he was “frustrated” knowing by that time that he was being arrested and charged with a DUI.

Baez resigned from his job the following day. He was a police officer for about nine years.

In other testimony Thursday, Martin Pireh, a paramedic who arrived on the scene and examined Baez for injuries, said he did not smell alcohol on Baez’s breath.

Baez was smart to refuse.  He had no way of knowing what his BAC would turn out to be. Now the trial judge will have to decide whether the state can prove beyond a reasonable doubt that he was driving while intoxicated, without the benefit of a breath or other test, and with conflicting testimony between the arresting officers, Baez and the paramedic.  I would not be surprised to learn that Baez’s gamble paid off.

The McHenry County judge hearing the case will make his ruling on November 3rd.

This Attorney’s Thoughts on the Second Presidential Debate

In Sunday night’s debate, Donald Trump attacked Hillary Clinton for defending an alleged child rapist. He apparently believes that being a criminal defense attorney disqualifies a person for higher office.

Putting aside the facts of her representation (she was assigned to handle the case, and she worked out a plea to lesser charge, read about it here on snopes.com), Trump’s statement displays a lack of understanding about our legal system.

To put it bluntly: defense attorneys are not defendants. Our role is to zealously represent our clients and to provide them with a defense. Our system of justice depends on it.

Our country was founded on a shared mistrust of government power. That is why we have divided government. Our founders were concerned by the power of the state to imprison or execute people. They did not want this power to go unchecked. It is why we have an adversary legal system, that gives defendants Constitutional rights to know the charges against them, face their accusers and cross-examine them. We enshrined in our Constitution the rights against being forced to testify against oneself, being tried twice for the same crime and to a trial by a jury of our peers.

Defense attorneys are a last line of defense, protecting personal liberty. We are the ones challenging increasing power of the state and maintaining rights to privacy and personal integrity. We challenge illegal searches and seizures, false evidence, improper scientific methods and the use of torture or other coercive methods to obtain confessions.

When we put on a defense, we are making the state prove their case. We are testing their evidence, questioning the credibility of their witnesses, the accuracy of their science. As it should be. Otherwise we would be living in a police state or worse.

As someone who is and has been the subject of numerous lawsuits, Mr. Trump should be aware of this.

So when Trump attacked Clinton for defending an accused rapist, he is attacking our carefully balanced system of justice that, whatever problems it may have, is still a model for the world.

I have represented accused murderers, rapists, burglars, thieves, drug dealers and a lot of drunk drivers. Some of them were guilty, some were not. Sometimes the truth was elusive. Sometimes the truth was in between. Many of the accused are otherwise good people. I have represented police officers, fire fighters, veterans, doctors, lawyers, business people, school teachers, postal workers, you name it. Does that fact that I have represented these people mean that I have bad judgment or am incapable of holding political office? I think not.

While I am on the subject of the debate, there were two other things that bothered me.

Donald Trump said that when he becomes president, he would appoint an Attorney General who would prosecute and jail Hillary Clinton for her emails. Again, putting aside that FBI Director Komie said that “no reasonable prosecutor” would indict her for this, Mr. Trump’s statement again shows a fundamental ignorance about our justice system.

The Attorney General is of course appointed by the President, and therefore, is to an extent, is a political office. They will (generally) reflect their president’s priorities. Obviously, Loretta Lynch is more likely to prosecute civil rights violations than say, John Ashcroft was. And John Ashcroft was more likely to seek tougher sentences on low level drug offenders than Loretta Lynch.

Having said that, the role of the Attorney General, like any prosecutor, is to use his or her independent judgment when bringing forth prosecutions, based on evidence and supported by probable cause. So for example, while the DOJ under Obama investigated into George Zimmerman’s shooting of Trayvon Martin, it ultimately decided that there was insufficient evidence to support a civil rights violation charge and no federal prosecution was brought. If it was solely a political office, this would not be the case.

What Trump proposed is the opposite of that. It is improper for an Attorney General to go after political enemies. In fact, doing exactly this was the basis of one of the articles of impeachment that was drafted against President Richard Nixon.

Finally, I’d like to address the Supreme Court vacancy. As to this topic, I am critical of both candidates. During an earlier Republican debate, held the weekend of Justice Scalia’s death, Mr. Trump said that Republican’s should “delay, delay, delay” President Obama’s nominee. That was before President Obama had a nominee. This obstruction has lead to two terms of Supreme Court deadlocks and further politicization of the Supreme Court, which any prospective government leader should understand is intolerable and damaging to our judicial system.

As to Ms. Clinton: when asked what considerations she would take in naming a nominee, she indicated that trial experience would be desirable, which is something that I, as a trial lawyer, appreciate. However, she also listed several cases that she wanted upheld or overturned (Citizen’s United, Obergefell and Roe v. Wade). I do not believe that it is appropriate for a President to have a litmus test for Supreme Court nominees. Indeed, her husband, President Bill Clinton claimed not to have had a litmus test when he nominated Judges Ruth Bader Ginsburg and Stephen Breyer to the Supreme Court. Having a litmus test for judges is problematic in the same way that having one for attorney generals is. It breaks down the separation of powers and destroys independent reasoning and judgment.

In my humble opinion, a President should be looking to appoint the best possible legal minds to the bench, and not appoint someone to uphold or reverse a particular ruling. A Supreme Court Justice will rule on thousands of cases during his or her tenure and it is far more important that we have sound legal reasoning in all of those cases than a preferred result in one or two of them.

Your thoughts?

Illinois Court finds that forfeiture of wife’s 35K motorcycle was excessive penalty for hubby’s DUI

In a recent case from the Illinois Appellate Court, Fifth District, in The People ex. rel. Mathew Hartwich v. 2010 Harley Davidson, 2016 Ill. App. (5th) 150035, it was held that Courts must consider whether a forfeiture is an excessive penalty considering the crime committed.

In this case, a married couple drove to a bar.  The motorcycle, a Harley Davidson valued at $35,000, was owned exclusively by the wife.  The wife drove the vehicle to the bar, where she did not drink.  However, her husband, who became intoxicated, insisted on driving home.  He was stopped by police and charged with felony aggravated driving under the influence, because he did not possess a valid driver’s license at the time.  He had only driven 12 blocks to his home.  He had a blood alcohol level of 0.161, twice the legal limit.

The State filed for a vehicle forfeiture.  In Illinois, a vehicle can be forfeited if used in the commission of an aggravated DUI or driving while revoked, and the revocation was based upon a prior DUI conviction.  Vehicles can be forfeited even if the owner was not operating the vehicle, so long as he or she knew of the illegal use of the vehicle and consented to it.

The Court found that the forfeiture in this case was grossly disproportionate to the underlying offense of aggravated DUI.  To support its finding the Court emphasized three factors: 1) that the owner of the vehicle was not the person who committed the offense; 2) the husband only drove 12 or 13 blocks from the bar to their home and 3) the Harley had an estimated value of $35,000

Take My Advice: Posting on Social Media May be Hazardous to your legal health

Lately I have seen several stories about people who brag about committing crimes or avoiding arrest on social media.  Inevitably, the person is arrested, and their statements, photographs or videos become part of the prosecution’s case.  Here is the latest story, about a Connecticut man who made it home before the police could arrest him for DUI.  His “victory” didn’t last long.

From RawStory.com:

Driving while under the influence is never smart, nor is running from police when they try to pull you over.

But then bragging about it on social media afterward? That’s a whole new level of ineptitude.

Local news station WFSB reports that a Connecticut man named Aaron Morrissette was arrested by state police after he boasted of outrunning five state police cruisers after they tried to pull him over on suspicion of driving while under the influence.

The police had originally been called to respond to a domestic disturbance in Killingly, Connecticut on Wednesday night. When officers arrived at the scene, Morrissette was seen “fighting with several people” and then “smashed the window of a vehicle and drove a pickup truck” toward the officers.

The police pursued him for several miles before they stopped due to public safety concerns. Among other things, Morrissette “ran several red lights and nearly caused a crash” in his attempts to flee.

But after his escape, he wrote about the incident on social media and declared that “I won” the chase against the police.

Police found him at a home in Killingly the next day and took him into custody without incident.

He has been charged with domestic violence, disorderly conduct, harassment, reckless endangerment, reckless operation of a motor vehicle, disorderly conduct, interfering with a police officer, engaging the police in a pursuit, operating under suspension as a result of a DWI, operating an unregistered motor vehicle and operating a motor vehicle without insurance.

Chicago Bar Assoc. releases its ratings of Judicial Candidates for the upcoming election

I am a member of the Chicago Bar Association’s Judicial Evaluation Committee and we have just released our evaluations for the upcoming election.  These evaluations are based on lengthy investigations and hearings.  Please review our findings before voting.  And share these with your friends and family!

From their website:

The Association’s Judicial Evaluation Committee (JEC) invites you to view its evaluations of judicial candidates running for vacancies on the Illinois Appellate Court and the Circuit Court of Cook County and judges running for retention in the upcoming General Election to be held on November 8, 2016. Get the findings at www.chicagobar.org/votejudges or view it on your mobile phone at http://m.chicagobar.org. A quick, printable pocket guide is available.

Here are direct links if you are on your computer:

Cleveland Browns lineman arrested for drunk driving

From the Royalton Post:

A Cleveland Browns offensive lineman was arrested for OVI and other counts after being stopped by police while in a Cleveland Metroparks parking lot around 1 a.m. Sept. 26.

According to a North Royalton Police report, an officer saw Alvin Bailey Jr., 25, a city resident, speeding northbound on West 130th Street at 12:57 a.m. in his lifted pick-up truck. The vehicle then turned onto Valley Parkway and into the Paw Paw Picnic Area just off of West 130th.

An officer allegedly saw Bailey exiting the vehicle and reportedly ignored commands to go back inside, with Bailey instead bending down under the tailgate. Bailey then stood up, seeming surprised at the officer’s presence, according to the report. He stated he stopped due to a vehicle warning of high air pressure and was releasing air.

Bailey reportedly told officers he was driving home after spending several hours at a Pearl Road business in Strongsville. He said he went there after arriving back in Cleveland from Miami, where the 0-3 Browns had played the previous afternoon and lost to the Dolphins 30-24. Bailey was a new addition to the starting lineup in that game after center Cameron Erving was injured earlier this season.

Bailey – who the Browns list at 6-foot-3-inches and 320 pounds – reportedly admitted to drinking while at the business and consuming several whiskeys on the plane from Miami before that. He was arrested for OVI after performing poorly on sobriety tests and testing over the legal limit on a portable breath test.

During a search of the vehicle, officers allegedly saw green flakes believed to be marijuana inside the center console, including in an unlocked lock box. Bailey was cited for failure to comply, drug abuse, drug paraphernalia, speed and unsafe vehicle (cracked windshield). He had a Sept. 29 court date.