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!

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