TLC’s new DUI show to premiere December 1rst

The cable channel TLC will be premiering a new show called “D.U.I.” on Thursday, December 1, 2011.  According to the promotional material that I have seen, it is a reality/documentary show covering a DUI from arrest through booking, court appearance and sentencing.  It appears that the show may also address alcohol and drug addiction and treatment.

I have not seen any episodes in advance, so I can’t comment on this yet.  Hopefully, this will be a fair and balanced look at drunk driving.  We shall see…

Will my DUI appear on my record?

One of the most common questions I receive is “whether or not my DUI will remain on my record?”

I hate to speak in “lawyer-ese” but unfortunately, there isn’t a clear-cut answer.

The biggest unknown is what is meant by your “record”?  Do you mean a criminal record, and if so, which criminal record?  From the Illinois State Police, the FBI, or some private organization?  Or do you mean the Secretary of State’s driving records, or a nationwide driver database, or insurance records?  What about the clerk of the circuit court’s records?  What about the internet?

It is impossible for me to exhaust all the possible places where an arrest might appear.

Let me start out with a few basic concepts:

1.  In Illinois, first offenders are eligible for “court supervision.” Supervision is a type of sentence, which upon successful completion, results in dismissal of the charge.  730 ILCS 5/5-1-21.

The Illinois Secretary of State does not place supervision dispositions on the standard driving abstract that is readily available to the general public.  However, supervisions are kept on a “court purposes” abstract, which is only available to certain government entities (like police and state’s attorneys), you and your lawyer.

Thus, a DUI supervision will not appear on your public driving record (but it will appear on the hidden “court purposes” one).

Even though you have received supervision, it will still remain on the clerk’s public record.  These can be viewed by the public at the courthouse.  In addition, many circuit court clerks have records available on the internet, or sell them to private companies.  And the ones that don’t do this now may do so in the future.

2.  In Illinois, DUI supervisions or convictions are not eligible for expungement.  Neither are DUIs that were reduced to reckless driving.  20 ILCS 2630/5.2(a)(3)(A).

You can only obtain an expungement of an Illinois DUI if you were found not guilty of the offense, or the charge was otherwise dismissed.

If your case is expunged, then the clerk will remove the charge from their records, the arresting police will destroy their file and the Illinois State Police will remove the arrest from their records.

However, an expungement is not a complete erasure of your case.  An Illinois expungement is not binding on the Federal government, so the FBI is not under any obligation to remove an expunged DUI from their database.

Also, an expungement does not apply to non-Illinois governmental businesses.  For example, if your arrest was reported in a “police blotter” section of a local newspaper, and your name was indexed by a search engine, the arrest may pop up every time someone searches your name, regardless of the expungement.

Confusing, isn’t it?  Feel free to ask me at if you have any questions.

Video record the police at your own risk

In Illinois, it is a class one felony, punishable between four to 15 years in prison, to photograph or video record police officers.

(720 ILCS 5/14‑4) (from Ch. 38, par. 14‑4)
    Sec. 14‑4. Sentence.
    (a) Eavesdropping, for a first offense, is a Class 4 felony and, for a second or subsequent offense, is a Class 3 felony.
    (b) The eavesdropping of an oral conversation or an electronic communication between any law enforcement officer, State's Attorney, Assistant State's Attorney, the Attorney General, Assistant Attorney General, or a judge, while in the performance of his or her official duties, if not authorized by this Article or proper court order, is a Class 1 felony.

How can it be that you or I could be sent to prison for 15 years for the same activity that the police, city and local businesses conduct 24/7?  The City of Chicago Office of Emergency Management and Communications operates over 1,500 surveillance cameras watching our every action like “Big Brother” from Orwell’s 1984, but we can’t record a questionable police stop?

I have already discussed in previous blog posts how many police departments or individual officers actually removed or deactivated their dash cameras from squad cars after they turned out to be helpful to defendants.

Now it seems that police have been targeting journalists as well as private citizens in their efforts to avoid scrutiny for their actions.  Here is an article by Ben Kaufman of the Cincinnati City Beat:

“Are increasingly militarized local police — helmets, assault rifles, black uniforms and boots, etc. — using excessive force more often than previous generations?
Or has technology — cell phones and YouTube — made any use of force, whether excessive or justified, easier to document?
A classic example shows Oakland, Calif., police beating an unresisting Occupy demonstrator. Initial images show him facing officers with his hands in his pockets. As he backs away, he is beaten so savagely that his spleen was injured and he required surgery. It’s all online.
Maybe it’s reaching too far, but online images of forceful police confrontations with peaceful students and Occupy Wall Street protesters might do what Al Jazeera satellite images did to spread and support “Arab Spring.” It could give voice to the disorganized protests against growing inequities and their costs in American society today.
Diop Kamau, a former officer, runs the Florida-based Police Complaint Center, which investigates allegations of police abuse nationwide. “Police are now facing an onslaught of scrutiny because everyone has a cellphone,” he told the London Observer. If you don’t believe it, check the Internet for the past week’s photos of cops using pepper spray on Occupy demonstrators across the nation.
To the untrained eye, any use of force can appear excessive, especially if we can’t imagine doing anything that would warrant Mace, pepper spray or physical restraint by police.
In the Good Ol’ Days, this kind of scrutiny didn’t exist and most Americans were unfamiliar with police uses of force. Movies usually showed cops as benign or virtuous. Sheriffs, Texas Rangers and other frontier “peace keepers” shot troublemakers. Exceptions to this propaganda were photos in the news media of police working as strike breakers, segregation enforcers, or attacking civil rights marchers and demonstrators in the South.
When I was a police reporter, I knew that my father’s father was our hometown’s first motorcycle cop. Grandpa Jack, whom I never knew, also was handy with his “slap jack,” according to the 1960s chief who knew him in the ’30s. That wasn’t part of the family legend. A slap jack is a handheld, flat leather device sometimes loaded with lead shot. Swung hard enough, it wraps around an offender’s limb or head with stunning force. No one had photos of that.
The chief also recalled that Grandpa patrolled the logger bars with his English Mastiff. . . but without a leash or collar. No photos of that, either. Grandpa Jack died in bed. I never saw the slap jack but I inherited his Smith & Wesson .38 police revolver with live brass cartridges so old and green that they must have been in the cylinder when he last carried it.
Even when force isn’t involved, police don’t like being photographed. All over the nation, they harass journalists and others taking their photos. Sometimes, photos don’t even involve police. Think malls, mass transit, airports, energy facilities.
“There is a widespread, continuing pattern of officers ordering people to stop taking photographs or video in public places, and harassing, detaining and arresting those who fail to comply,” Chris Calabrese, of the American Civil Liberties Union, told the Observer.
Antiterrorism paranoia or “C.Y.A.” sometimes is invoked. I’ve written about this before, in the context of Britain’s nanny state and Ohio student photographers being harassed and/or arrested in campus-area confrontations.
What’s fascinating is the general absence of complaints against Cincinnati police from people with cameras. Officers might be uncommunicative, but they haven’t been confiscating cameras or arresting people who use them. That’s why the interference with voters using digital cameras at a Steve Chabot public meeting was so unusual. The cop said he was following orders from Chabot’s people.
When we talk about images of police officers, we’re not talking about revealing undercover identities. Masked officers remain masked in photos. Last week, however, the NYPD busted a guy who photographed an unmarked car being used for surveillance at Occupy Wall Street and the car’s license plate. Legal but provocative. Other officers being photographed are not any more identifiable than they are on daily patrol.
The catch is that videos often catch what the NFL calls “the second punch.” That’s an opposing player’s response that refs see after the original, unseen provocation. Police use of force sometimes follows actions beyond dashboard cameras or out of the view of microcams that some cops are wearing. As in the NFL, we often don’t know what provoked police, but bystanders’ camera phones capture the forceful response.
Sometimes, officers’ excessive force is evident. That was the case when an NYPD Deputy Inspector Anthony Bologna pepper sprayed unthreatening female demonstrators penned by police during an Occupy Wall Street demo. Video of the scene — moments before Bologna sprayed the women — shows cell phones being used as cameras by the nonviolent demonstrators. He didn’t care. He’s facing an internal investigation for that use of force.
In the same way, a tiny 84-year-old protester was pepper sprayed so heavily by Seattle police last week that it dripped from her face and she became a pinup illustrating police force.
And there are online camera phone images of a campus cop using an industrial size canister to blast pepper spray in the faces of seated, peaceful students in a demo at the University of California, Davis. They don’t even resist the cop’s assault and he obviously doesn’t give a shit who sees what he’s doing.
Two or three officers have been suspended and the chancellor — whose initial anti-student comments bordered on vicious — might be fighting for her job, too. Student contempt for her was awe-inspiring when she walked to her car through lines of angry but silent students, all caught on video.
It goes on and on.
Maybe we’re going back to the Vietnam era when many Americans saw young people as the enemy. Think May 1971 and Kent State University. That left us with the image of the young woman screaming as she knelt by one of the shooting victims. The difference is that police now are acting in full knowledge that they are being photographed by the news media or others who will post the images online. These cops don’t care.
Going well beyond pepper spray, NYPD sensitivity to photographers exploded last week when cops evicted Occupy Wall Street campers from Zuccotti Park. Various news sources say cops arrested and/or roughed reporters and photographers as part of NYPD’s effort to limit journalists’ access when protesters were forcibly evicted. It was unclear whether arrested or beaten journalists were part of the protest, embedded in the protest, or otherwise indistinguishable from protesters.
Some, however, said they showed NYPD press cards to no avail; they worked for the AP or the New York dailies. Many more apparently worked — and I’m not sure what that means — for online sites and blogs. I’ll wait for another time to dig into the “who is a journalist” debate, but the online world has made an already blurred identification fuzzier; not everyone with a camera phone is a journalist.
A lot of what I read about police/photographer confrontations comes from websites created by editors at the Poynter Institute in Florida. Poynter is a nonpartisan in-service training site for working journalists. It also publishes a daily aggregation of news-related items from other websites and publications. Two of our trades top ethicists also blog there.
Poynter Online quoted the Milwaukee Journal-Sentinal and WITI-TV when it reported that photojournalist Kristyna Wentz-Graff was wearing media credentials and “was clearly not part of the protest” when city police arrested her Wednesday near the campus of the University of Wisconsin-Milwaukee.
Police said Wentz-Graff “never identified herself as a journalist to officers.” It’s the second time in the past two months that Milwaukee police have arrested a working photojournalist. A WITI-TV videographer was arrested in September while covering a house fire.
At least in Los Angeles, three photographers are striking back, according to Poynter’s Bob Andelman. Quoting The Los Angeles Times, he said news and other professional photographers claim they are being singled out for harassment by the Los Angeles County Sheriff’s Department. Their federal lawsuit was filed by the ACLU of Southern California.
The Times said the suit alleges the Sheriff’s Department and deputies “have repeatedly” subjected photographers “to detention, search and interrogation simply because they took pictures” from public streets of places such as Metro turnstiles, oil refineries or near a Long Beach courthouse.
Plaintiffs are photographers Shawn Nee, Gregory Moore and Shane Quentin and the National Photographers’ Rights Organization. Nee is described in the filing as an “aspiring” photojournalist, Moore shoots for The Long Beach Post, and Quentin is a freelancer.
The Times said Nee was detained in October 2009 and searched while shooting pictures of the subway; the deputy also “threatened to forward Nee’s name to counterterrorism so it could be added to an FBI ‘hit list’.” The incident was captured on video but the deputy was not disciplined for his rough handling of the photographer.
“Photographers in Los Angeles and nationwide are increasingly subject to harassment by police officers,” said Mickey H. Osterreicher, general counsel for the National Press Photographers Association. “Safety and security concerns should not be used as a pretext to chill free speech and expression.” Peter Bibring, senior staff attorney for the ACLU of Southern California, said that the sheriff’s actions toward photographers “violates the Constitution’s core protections” and that “to single them out for such treatment while they’re pursuing a constitutionally protected activity is doubly wrong.”
My personal experience with police violence came during a political demonstration when I worked for a Rome daily. I was there with my camera and when an aggressive officer approached me with obvious intent to do harm, I held up my ID with “stampa” (press) written on it. “Bene,” he said, and swung his club.”

Freedom of speech and freedom of speech are rights that are essential to maintaining our freedom and democracy.  Don’t sit idly by as they are taken away from us.  Contact your local representatives to remove these odious statutes from the books.

More things not to do when you are arrested for a DUI.

I guess she is proud of herself.

Watch out drinkers!  The police will be out in force this Thanksgiving weekend!  If you do get arrested, please don’t act like this lady:

“Arizona cops might disagree with Michelle Watson’s two thumbs-up review of her night on the town.

The intoxicated 24-year-old reportedly shoved one police officer and kneed a second in the crotch during a profanity-laced battle with cops after her drunken driving arrest.

A police report unearthed by reported the woman was driving her Honda Civic erratically through Prescott, Ariz., when she was stopped by cops.

The suspect was spotted driving in the middle of the road, bouncing off the curb and eventually driving onto a sidewalk as she tried to park her car, according to a police report.

Watson was hardly a happy drunk when police tried to take her into custody at 8:10 p.m. last Thursday.

“I don’t have to walk f—— anywhere,” she snapped at one officer. She then shoved the cop before kneeing a second officer in the crotch as she was put in handcuffs, the report said.

She continued kicking and swearing until police managed to add leg restraints to her handcuffs. Watson was charged with “DUI-super extreme” after her blood-alcohol level was measured at three times the legal driving limit.

She was also accused of aggravated assault and resisting arrest — although her anger dissipated by the time of her mug shot.

The suspect flashed a grin and two big thumbs up for cops as they took her photo inside the Yavapai County Jail.”

Don’t do this!

The Wrong Shirt to Wear

This is not the photograph that you would want to have admitted against you at your DUI trial.


“A man wearing a t-shirt reading “I’m A Drunk” crashed into a police car early Thursday on Long Island and is being charged with driving while intoxicated, police said.

Kevin Daly, of Coram, N.Y., was driving a 2000 Saturn on County Road 83 at about 1:45 a.m. when he hit the patrol car.

The entire message on his t-shirt reads “I’m Not An Alcoholic, I’m A Drunk. Alcoholics Go to Meetings.”

The officer, who is assigned to the Suffolk County Police Department’s alcohol fatality enforcement team, was treated for minor injuries.

Coram, 22, was not hurt.

He was ordered held on $10,000 bail at his arraignment and was issued several traffic summonses. He was represented by an attorney from Legal Aid, which has a policy of not commenting on pending cases.

Daly is due back in court Wednesday.”

Here is the link.

Illinois: The leader in DUI prosecutions?

Illinois Gets Highest Rating from MADD

This weekend it was reported that Mothers Against Drunk Driving (MADD) gave Illinois its highest rating.

The Chicago Tribune reports that:

Mothers Against Drunk Driving has given Illinois its highest rating for the state’s efforts to combat impaired driving.

Illinois Secretary of State Jesse White says he’s glad the organization has recognized Illinois “as a national leader in the fight against drunk driving.

According to the Illinois Department of Transportation, alcohol-related crash deaths have dropped by more than 38 percent since White took office.

IDOT reports there were 711 alcohol-related crash deaths in 1999, compared to 436 last year.

The group’s rating system focused on efforts including sobriety checkpoints, enhanced penalties for people who drive drunk with children in the vehicle, among other measures.”

Many in the State Legislature will congratulate themselves for properly kow-towing to this powerful advocacy group.

And make no mistake, MADD does important work in educating the public about the dangers of drunk driving, and they have succeeded in enacting laws that have dramatically reduced the incidences of drunk driving-related fatalities.


I believe it is very dangerous to allow an advocacy group to totally dominate public policy decisions.

This is especially true in criminal law, which at its best should be about dispassionate and rational justice.

But it is easy to lose our way, particularly in the DUI area, especially whenever someone needlessly loses their life because of a selfish and thoughtless drunk driver.  We want to punish them and everyone who ever has or ever will have a drink and then get behind the wheel of a car.

So no one wants to speak on behalf of drunk drivers, at least publicly.  Which leaves it to me, speaking to you.

Under the influence of MADD, Illinois and the other 49 states have been slowly but surely taking away discretion from judges and the Secretary of State.  I have already discussed how the Secretary of State cannot give any type of reinstatement to anyone who has had four DUI convictions in their lifetime — no matter how long ago, what their individual circumstances are or where they live now.  They could be living in Alaska, need dialysis three times a week and be unable to process alcohol, yet Illinois cannot give them driving relief.  I have also explained how judges must find people guilty of driving under the influence of alcohol if they were just sitting in a vehicle without any intent to drive.

Over the past few years, Illinois’ DUI statute has been amended frequently to add or increase “mandatory minimum” sentences that give a judge no discretion whatsoever.  So, for example, I recently had a case where a client had three prior DUIs, all of them more than 20 years ago, and was now charged with a fourth case.  He was not involved in an accident.  There was no impaired driving.  In fact, he didn’t commit any moving violation.  He was stopped at a roadblock, and the officers detected an odor of alcohol on his breath.  He was faced with a mandatory minimum of three years in the penitentiary, and the possibility of a maximum sentence of up to seven years for this.  Faced with this, he would have gladly plead guilty if he could have received probation (the likely sentence for this type of offense and background prior to the mandatory minimum).  But because this was not an option, we were forced to trial, and thankfully, we received a finding of not guilty.  Had we not, his life would have been ruined.

More on mandatory minimums to follow …

Field Sobriety Tests: What do they prove?

The DUI field is full of psuedo-science. When I say that, I mean that there are many elements of a DUI prosecution case that sounds scientific, when in fact it is not, because it has not been reviewed or conceived using the proper scientific methods to ensure reliability and validity.

One such aspect is what is called “standardized field sobriety testing.” You know, standing on one leg or touching your finger to your nose. Or repeating the alphabet from G to T. Or picking up coins from the ground.

If these tests were in fact scientific, we would know the answers to the following questions: Do intoxicated people test differently, under the same testing conditions, from people who are sober? Can these results be replicated if the same people are tested by different officers?

In fact, there has been very little research in this area. We don’t know the answers to these questions. Many field tests were created by police officers on the road and have been passed down over the years from one generation to the next as if they had some validity. Only three field tests have been approved by the NHTSA for DUI detection: the one leg stand, the walk and turn and the horizontal gaze nystagmus. But even those three tests have not been properly vetted, and they have large margins of error.

In addition, officers are typically trained in field sobriety testing during a one week long crash course in it, and they only get occasional refresher courses, if at all. Once they are out on the road, their testing methods are not reviewed for quality control to ensure that they are being administered properly. It is not unusual for officers to start changing the tests to add their own personal twists when these are supposed to be standardized tests.

How not to conduct a Summary Suspension hearing.

Today I was at Chicago’s Traffic Court and I sat through a summary suspension hearing while I was waiting for paperwork on a plea negotiation to be completed. The two attorneys handling the hearing were both young and new to me. Actually, the State’s Attorney was a law student (who can handle a contested hearing in court under Illinois Supreme Court Rule 711 so long as he or she is supervised by a licensed attorney).

I don’t want to pick on anyone, because we all have had bad days in court, and we all have to start somewhere. However, I do have a problem with an attorney who takes on a case that he or she is not qualified or prepared to handle.

Mistake number 1: Not knowing the law.

If you remember from Monday’s blog post, one of the grounds to rescind a summary suspension is that the “motorist was not properly warned by the arresting officer about the consequences of failing, refusing or being unable to complete a blood, breath or urine test.” Well, this attorney did not realize this. He thought the “warnings” referred to Miranda warnings. Not only was this wrong, but it really aggravated the judge, who was annoyed to be wasting her time explaining basic law to the attorney.

In contrast, the “711” State’s Attorney knew the law, made good objections and was successful in her Motion for a Directed Finding.

Mistake number 2: Not having a (good) theory of the case.

From what I heard of the testimony, the motorist was stopped for a driving offense, admitted drinking three beers, and was taken to a police station for field sobriety tests. Had I been the attorney, I would have argued that the motorist had been arrested at the scene, without the benefit of field sobriety tests. Without those tests, I would have argued, the officer lacked sufficient evidence to support “reasonable grounds” to arrest the defendant for DUI.

Instead, the defense attorney apparently planned to argue that his client did well on field sobriety tests, considering that he was tired and had been working all day, and wasn’t given Miranda warnings. Not as strong of a defense.

Again, in contrast, the 711 State’s Attorney had a theory of the case — that the motorist provided the arresting officer with multiple indicators of intoxication — and she used her cross-examination of the motorist to get him to admit to those indicators.

Mistake number 3: Not knowing trial advocacy.

This is a straightforward one. If you are going to do any type of contested evidentiary hearing, you have to know what a “direct” question is and how to ask it. You also have to know which testimony is allowable and what evidence is admissible. Otherwise, you just annoy the judge and make a fool of yourself. For example, you can’t ask your client/defendant, on direct examination, “Did the officer observe you step off the line during the walk and turn test?” There is no “winging” it when you are representing people.

Again, the 711 ASA knew how to frame questions, and did a fine job.

Mistake number 4: Putting the client on the stand unnecessarily.

It is always a difficult decision whether or not to have your client take the stand. Had the attorney realized before the hearing that he wasn’t going to succeed on his Miranda warnings argument, maybe he wouldn’t have put his client on the stand. I don’t know.

But he did. And his client admitted driving after drinking three beers. The judge was unimpressed with his explanations for why he didn’t ace the field sobriety tests.

Since the case revolves around the officer’s “reasonable grounds” to arrest, I would rather hear from the officer directly as to his or her reasons why the defendant was arrested rather than have the defendant guess about it. As a bonus, having the officer testify gives the defense attorney an opportunity to question the officer under oath, which might prove beneficial during cross-examination at a later hearing or trial.


Defendants: You should only hire experienced and knowledgeable counsel! Attorneys: Learn your craft before handling a case above your abilities, and always be prepared!

A little more about Illinois’ DUI Summary Suspension Law

1.    The suspension cannot be stayed.  The summary suspension is automatically scheduled to begin on the 46th day you received the “notice of summary suspension” form. (Though it may be possible to win a rescission of your suspension prior to your suspension going into effect).

2.    You have only 90 days from the date that you receive a “Notice of Summary Suspension” to file your Petition to Rescind with the appropriate court of venue.

3.    You are entitled to a hearing challenging your suspension, within 30 days of filing a Petition to Rescind or on the first court date as set by the tickets.  Failure of the the State or Court to provide you with a timely hearing can lead to rescission of your suspension.

4.    Even if you file a Petition to Rescind, you can still request a Monitored Device Driving Permit (“MDDP”) as a back-up contingency.

5.    The statutory summary suspension law does not apply to vehicles on purely private property.  (But you can still be prosecuted for a DUI on private property).  However, if you drove on a public road before pulling into a private lot to park, then the law applies

6.    Just like you don’t have to be driving get a DUI, you don’t have to be driving to get a summary suspension.

7.    If you are a “repeat offender” (i.e., two or more DUIs or summary suspensions within five years), you cannot obtain any type of restricted driving permit — even if you were found not guilty of the underlying DUI.