Could a witch get a DUI on a broomstick?

Could this be a DUI?

Could a witch get a DUI on a broomstick?

I posted about this last year, but the question remains timely.

In Illinois, DUI is not limited to cars and trucks. Our DUI laws cover all “vehicles,” which are defined by our Motor Vehicle Code as:

Every device, in, upon or by which any person or property is or may be transported or drawn upon a highway or requiring a certificate of title under Section 3-101(d) of this Code, except devices moved by human power, devices used exclusively upon stationary rails or tracks and snowmobiles as defined in the Snowmobile Registration and Safety Act.

For the purposes of this Code, unless otherwise prescribed, a device shall be considered to be a vehicle until such time it either comes within the definition of a junk vehicle, as defined under this Code, or a junking certificate is issued for it.
Since a  magic broomstick doesn’t work on “human power” but magic power, it is possible that an intoxicated witch could be prosecuted for DUI on a broomstick. Just to be clear, however, the Illinois Courts have not yet ruled on the matter. They have held that motorized bicycles, motorized lawnmowers, and all terrain vehicles do qualify as a “vehicle.” Snow mobiles and boats are covered by separate statutes. Also, a vehicle that is inoperable is still a “vehicle” unless and until a junking certificate has been issued. So be warned!

My blogiversary!

It has been one year since I started this blog.  I had been thinking about blogging since I first read about blogs back around 2000, but I wasn’t sure if I would have enough items to blog about, especially since I have to be cautious about not revealing any client confidences and I didn’t want this to be forum to gripe about what happens in court.  I also didn’t intend this blog to be a celebration of drunk driving, but instead provide a reasoned look at our DUI laws and how they work in reality.

At the same time, I also wanted to keep this blog interesting and not be just a bunch of keywords.

So after one year, 274 blog posts and over 10,000 page views, I have to thank:

  • the worlds of politics, Hollywood, and professional and collegiate sports for constantly giving me new celebrity DUIs to blog about;
  • and police officers from around the nation, who keep falsifying cases while dash cameras or surveillance tapes are recording;
  • and the police unions, that keep trying to keep it a felony for a citizen to video record police officers who are working and are outside in public view;
  • and the drunk drivers, who have provided me with some very memorable DUI arrests to write about.

Hopefully, everyone reading this will continue to enjoy the blog and have a safe and happy year.

 

Federal Judge writes article about extreme mandatory minimum sentencing for non-violent offenders

Judge Mark W. Bennett, who sits in the Northern District of Iowa, has written a compelling article for The Nation about our over the top mandatory minimum sentencing guidelines for non-violent drug offenders.  He has had to sentence over 1,000 non-violent drug offenders over the past 19 years.

Here is an excerpt:

Crack defendants are almost always poor African-Americans. Meth defendants are generally lower-income whites. More than 80 percent of the 4,546 meth defendants sentenced in federal courts in 2010 received a mandatory minimum sentence. These small-time addicts are apprehended not through high-tech wiretaps or sophisticated undercover stings but by common traffic stops for things like nonfunctioning taillights. Or they’re caught in a search of the logs at a local Walmart to see who is buying unusually large amounts of nonprescription cold medicine. They are the low-hanging fruit of the drug war. Other than their crippling meth addiction, they are very much like the folks I grew up with. Virtually all are charged with federal drug trafficking conspiracies—which sounds ominous but is based on something as simple as two people agreeing to purchase pseudoephedrine and cook it into meth. They don’t even have to succeed.

I recently sentenced a group of more than twenty defendants on meth trafficking conspiracy charges. All of them pled guilty. Eighteen were “pill smurfers,” as federal prosecutors put it, meaning their role amounted to regularly buying and delivering cold medicine to meth cookers in exchange for very small, low-grade quantities to feed their severe addictions. Most were unemployed or underemployed. Several were single mothers. They did not sell or directly distribute meth; there were no hoards of cash, guns or countersurveillance equipment. Yet all of them faced mandatory minimum sentences of sixty or 120 months. One meth-addicted mother faced a 240-month sentence because a prior meth conviction in county court doubled her mandatory minimum. She will likely serve all twenty years; in the federal system, there is no parole, and one serves an entire sentence minus a maximum of a 15 percent reduction rewarded for “good time.”

Several years ago, I started visiting inmates I had sentenced in prison. It is deeply inspiring to see the positive changes most have made. Some definitely needed the wake-up call of a prison cell, but very few need more than two or three years behind bars. These men and women need intensive drug treatment, and most of the inmates I visit are working hard to turn their lives around. They are shocked—and glad—to see me, and it’s important to them that people outside prison care about their progress. For far too many, I am their only visitor.

If lengthy mandatory minimum sentences for nonviolent drug addicts actually worked, one might be able to rationalize them. But there is no evidence that they do. I have seen how they leave hundreds of thousands of young children parentless and thousands of aging, infirm and dying parents childless. They destroy families and mightily fuel the cycle of poverty and addiction. In fact, I have been at this so long, I am now sentencing the grown children of people I long ago sent to prison.

Read the whole article here:  How Mandatory Minimums Forced me to Send More than 1,000 Nonviolent Drug Offenders to Federal Prison.

More Judicial Ratings Released

Early voting has begun, and since I last provided links to the ISBA and CBA ratings, some additional Bar Associations have posted their own ratings, so here is an expanded list:

Alliance of Bar Associations Judicial Screening (new)

Chicago Bar Association two page pocket guide

Chicago Bar Association (detailed)

Chicago Council of Lawyers (new)

Chicago Tribune editorial board (new)

Judicial Performance Commission of Cook County (new)

Illinois State Bar Association – For all Counties (new)

Illinois State Bar Association – Cook (summary)

Illinois State Bar Association – Cook (full)

Lake County (IL) Bar Association (new)

Why bad police officers remain on the force

Here’s a link to an excellent article by Mike Riggs for Reason.com about why it is nearly impossible to fire bad police officers: Why Firing a Bad Cop is Damn Near Impossible:  A Short History of the “law enforcement bill of rights”

Here is the key quote:

here’s how a typical police misconduct investigation works in states that have a law enforcement bill of rights in place:

A complaint is filed against an officer by a member of the public or a fellow officer. Police department leadership reviews the complaint and decides whether to investigate. If the department decides to pursue the complaint, it must inform the officer and his union. That’s where the special treatment begins, but it doesn’t end there.

Unlike a member of the public, the officer gets a “cooling off” period before he has to respond to any questions. Unlike a member of the public, the officer under investigation is privy to the names of his complainants and their testimony against him before he is ever interrogated. Unlike a member of the public, the officer under investigation is to be interrogated “at a reasonable hour,” with a union member present. Unlike a member of the public, the officer can only be questioned by one person during his interrogation. Unlike a member of the public, the officer can be interrogated only “for reasonable periods,” which “shall be timed to allow for such personal necessities and rest periods as are reasonably necessary.” Unlike a member of the public, the officer under investigation cannot be “threatened with disciplinary action” at any point during his interrogation. If he is threatened with punishment, whatever he says following the threat cannot be used against him.

What happens after the interrogation again varies from state to state. But under nearly every law enforcement bill of rights, the following additional privileges are granted to officers: Their departments cannot publicly acknowledge that the officer is under investigation; if the officer is cleared of wrongdoing or the charges are dropped, the department may not publicly acknowledge that the investigation ever took place, or reveal the nature of the complaint. The officer cannot be questioned or investigated by “non-government agents,” which means no civilian review boards. If the officer is suspended as a result of the investigation, he must continue to receive full pay and benefits until his case is resolved. In most states, the charging department must subsidize the accused officer’s legal defense.

A violation of any of the above rights can result in dismissal—not of the officer, but of the charges against him.

Because of these special due process privileges, there’s little incentive for police departments to discipline officers. In most cases, it’s more financially prudent to let a District Attorney or outside law enforcement agency do the heavy lifting, and then fire the officer if he’s convicted. This is the only “easy” way, under police bills of rights, for departments to get rid of bad cops–which essentially means the only way to get rid of bad cops is if some other law enforcement agency can make a felony charge stick. This is the biggest problem with law enforcement bills of rights–they encourage police departments to let external forces determine what behavior is unacceptable.

Not his prerogative: Bobby Brown busted for 2nd DUI in a year

Singer Bobby Brown, who has a history of substance abuse issues, was arrested for his second DUI in a year early Wednesday morning in L.A.

Brown, who also had a DUI in 1996, was still on probation for his last DUI, and had been in an in-patient alcohol treatment facility over the summer.

According to the New York Daily News:

The New Edition singer, 43, was pulled over shortly before 1 a.m. and failed his field sobriety test on busy Ventura Blvd. in Tarzana, Calif., about four miles from his Encino residence, cops said.

“He was pulled over for a traffic violation and based on the officer’s observations, he was arrested and booked for driving under the influence,” Sgt. Pablo Monterrosa with the Los Angeles Police Department told the Daily News.

“He failed a combination of the field sobriety test and the breathalyzer. It sounds like he was cooperative,” Monterrosa said.

Brown was booked and released within hours on $25,000 bail, police said.

According to TMZ:
The L.A. City Attorney just filed the criminal charges against the singer.  In addition to the DUI charge, Bobby has been charged with 2 other crimes — driving on a restricted license and driving a vehicle without a vehicle interlock device.
The last 2 charges are the result of a prior DUI conviction in 2012.  Bobby was also convicted of DUI in 1996.
If convicted this time, Bobby faces up to 2 years in jail, although it’s highly unlikely he’d get that much time…
And one final thing … Bobby is also facing a probation violation for the prior 2012 DUI.

White Sox Hall of Famer Carlton Fisk arrested for DUI in New Lenox

Carlton Fisk, the Hall of Fame former White Sox catcher, was arrested Monday in New Lenox, IL after he allegedly drove off the road at Gouger and Spencer and into a corn field, where he found unconscious.

According to Roman Modrowski of ESPNChicago:

Hall of Fame catcher Carlton Fisk was charged with a DUI in New Lenox, Ill., on Monday after he was found unconscious behind the wheel of his vehicle, which was found in the middle of a corn field, according to New Lenox police.

“Around 7:20 (Monday) night, we received a couple of calls about a vehicle in a field,” Deputy Chief Bob Pawlisz said. “When officers went over there, they found Mr. Fisk unconscious behind the wheel.

“They contacted local paramedics in New Lenox, had him examined, and the officers had reason to believe he was under the influence. He was transported to the local hospital and charged with a lane violation, driving under the influence and illegal transportation of alcohol. An open container of alcohol was found in the vehicle.”

Pawlisz said a citation was issued, Fisk posted bond and was released. The 64-year-old Fisk is scheduled to appear in the Will County Courthouse on Nov. 29.

Fisk, who had a 24 year major league career beginning in Boston in 1969 and then continuing with the Chicago White Sox from 1981 to 1993, was enshrined in baseball’s Hall of Fame in 2000.

Update:  Dennis Sullivan of the Chicago Tribune has a few more details in his latest update:

Deputy Chief Bob Pawlisz said Fisk, 64, was at the wheel with the engine running when police arrived around 7:25 p.m. Pawlisz said Fisk was disoriented when officers woke him, and he declined a blood-alcohol test. An open 1.75-liter bottle of liquor also was in the car, Pawlisz said.

Fisk was treated at Silver Cross Hospital and released Tuesday morning after posting bail and is scheduled to appear in Will County court Nov. 29.

In addition to DUI, Fisk was charged with improper lane use and illegal transport of alcohol.

A gadget that foils red light cameras? But is it legal?

Wired and Slate have posted articles this week about “NoPhoto” — a device which looks like a license plate cover but contains a powerful light that activates when a red light camera tries to snap a photo of your plate.  According to Slate, it “senses and responds to the bright flash of a traffic camera with a flash of its own, shrouding your plate number in white light at the moment the camera takes its picture. NoPhoto is designed to be triggered only by red-light cameras, which seems like a key feature ”

The cost is $350, a little more than the cost of one red light camera ticket.

But, is it legal in Illinois?

I say no.

Under the Motor Vehicle Code, any “object” that is “designed to distort a recorded image of any of the characters of a motor vehicle’s registration plate recorded by a” traffic, speed, or red light camera is considered an illegal plate cover and is a traffic offense, pursuant to   625 ILCS 5/12-610.5, which reads in pertinent part:

Chapter 625. Vehicles Act 5. Illinois Vehicle Code

Chapter 12. Equipment of Vehicles

Article VI. Miscellaneous Requirements 5/12-610.5. Registration plate covers§ 12-610.5. Registration plate covers.
(a) In this Section, “registration plate cover” means any tinted, colored, painted, marked, clear, or illuminated object that is designed to:
(1) cover any of the characters of a motor vehicle’s registration plate; or
(2) distort a recorded image of any of the characters of a motor vehicle’s registration plate recorded by an automated traffic law enforcement system as defined in Section 11-208.6 of this Code or an automated speed enforcement system as defined in Section 11-208.8 of this Code, or recorded by an automated traffic control system as defined in Section 15 of the Automated Traffic Control Systems in Highway Construction or Maintenance Zones Act.
(b) It shall be unlawful to operate any motor vehicle that is equipped with registration plate covers.
(c) A person may not sell or offer for sale a registration plate cover.
(d) A person may not advertise for the purpose of promoting the sale of registration plate covers.
(e) A violation of this Section or a similar provision of a local ordinance shall be an offense against laws and ordinances regulating the movement of traffic.

The penalties get much higher if you are caught with one of these devices on the Illinois Tollway, I suppose because they don’t want to lose any tolls to people sneaking through the IPass lane.  Here is the text of the Illinois statute regarding obstruction of registration plates on the Tollway, 605 ILCS 10/27.2:

Chapter 605. Roads and Bridges Act 10. Toll Highway Act 10/27.2. Obstruction of registration plate visibility to electronic image recording.§ 27.2. Obstruction of registration plate visibility to electronic image recording.
(a) A person may not operate on a toll highway any motor vehicle that is equipped with tinted plastic or tinted glass registration plate covers or any covers, coating, wrappings, materials, streaking, distorting, holographic, reflective, or other devices that obstruct the visibility or electronic image recording of the plate. This subsection (a) shall not apply to automatic vehicle identification transponder devices, cards or chips issued by a governmental body or authorized by a governmental body for the purpose of electronic payment of tolls or other authorized payments, the exemption of which shall preempt any local legislation to the contrary.
(b) If a State or local law enforcement officer having jurisdiction observes that a cover or other device or material or substance is obstructing the visibility or electronic image recording of the plate, the officer shall issue a Uniform Traffic Citation and shall confiscate the cover or other device that obstructs the visibility or electronic image recording of the plate. If the State or local law enforcement officer having jurisdiction observes that the plate itself has been physically treated with a substance or material that is obstructing the visibility or electronic image recording of the plate, the officer shall issue a Uniform Traffic Citation and shall confiscate the plate. The Secretary of State shall revoke the registration of any plate that has been found by a court or administrative tribunal to have been physically altered with any chemical or reflective substance or coating that obstructs the visibility or electronic image recording of the plate. A fine of $750 shall be imposed in any instance where a plate cover obstructs the visibility or electronic image recording of the plate. A fine of $1,000 shall be imposed where a plate has been physically altered with any chemical or reflective substance or coating that obstructs the visibility or electronic image recording of the plate.
(c) The Illinois Attorney General may file suit against any individual or entity offering or marketing the sale, including via the Internet, of any product advertised as having the capacity to obstruct the visibility or electronic image recording of a license plate. In addition to injunctive and monetary relief, punitive damages, and attorneys fees, the suit shall also seek a full accounting of the records of all sales to residents of or entities within the State of Illinois.

So my advice is, “Say No to NoPhoto!”

Dash Cam Videos raises questions about NJ pol’s DUI arrest

Video: Moriarty says officer falsified reports

DUI is a strange sort of crime, because so many DUI arrests are based totally on a police officer’s discretion.  While probably the first thing that comes to mind when you hear DUI is that of a falling down drunk who gets behind the wheel of a car and causes a horrible crash, the reality is that most DUI arrests do not involve an accident, and a substantial percentage of them consist of people who are barely to slightly affected by alcohol.

But then there is a whole subsection of DUI cases where the person was not under the influence of alcohol, perhaps did not even drink at all.  This is because a DUI case can be entirely based upon an arresting officer’s say-so.

In other words, if an officer claims, honestly or not, that he or she believed that the defendant was driving while under the influence of alcohol, that is sufficient for a DUI arrest, and an automatic license suspension.  In Illinois (and most states) that license suspension will be upheld even if the person is found not guilty, so long as the officer was reasonable in his or her (mistaken) suspicion.  The ramifications of a wrongful arrest can follow a person for life.

Which brings me to the latest documented example of police abuse, from New Jersey.  Luckily for Assemblyman Paul Moriarty, there was dash cam video of the stop and arrest, which should vindicate him.  Without the video, it would be his word against the arresting officer.

The video is quite remarkable.  When it begins, the officer positions his squad car on a median facing oncoming traffic.  The Assemblyman’s Murano drives past doing nothing remarkable.  Yet the officer makes a u-turn (driving over the sidewalk), runs a red light (without using his lights or siren) and drives at speeds of up to 80 miles per hour (in a 25 mph zone) to catch up with him.  When the officer does catch up, he doesn’t pull over the Assemblyman.  Instead, he stays behind for a while, while the Murano moves along slowly in traffic.  It is only when the Assemblyman made a right turn that he gets pulled over.

I can’t seem to figure out how to embed video on WordPress, but you can view all the dash cam video at NBC Philadelphia’s website at: http://www.nbcphiladelphia.com/news/local/Police-Release-Surveillance-Video-of-Paul-Moriarty-Arrest–174953311.html

Upon being pulled over, Moriarty is told by the officer that he had cut him off.  This is a lie.  It is true that Moriarty did not get over into the right turn lane until just before he turned.  However, there were no cars (including the squad car) in the right hand turn lane, so no one was “cut off.”

During the initial interaction, the officer lies to Moriarty and treats him in an accusatory fashion.  Moriarty seems stunned to be accused of drunk driving, and cannot believe he is being asked to do field sobriety tests.  From what is visible on the video, Moriarty does not seem to be impaired.  He is not confused, his speech is normal, he maintains his balance, he is able to stand on one leg for the required 30 seconds (and it seems like he could have kept on standing like that for quite a while) and (to the extent it is on the video) he walks the line fine. For this he was arrested.

According to news reports, Moriarty refused a breath test, but seven hours after the arrest, went for a blood test which revealed no alcohol in his system.  This is persuasive to me, since alcohol eliminates from the blood system at a rate of about 0.01 an hour, so if he was over 0.08 at the time of arrest he would still have some alcohol in his system at the time of the blood test.

From my review of the video, it is clear that Assemblyman did nothing wrong, did not drive in an impaired fashion and was not drunk.  It is equally clear that for some unknown reason, this officer used his badge and authority to pick the Assemblyman’s vehicle out of traffic, conduct a baseless stop, make false accusations, make a wrongful arrest, inflict emotional distress, damage the Assemblyman’s reputation and put him at risk for a license suspension and criminal conviction.

Yet more evidence of why Chicago Police officers were sabotaging their own dash cam equipment.

Some thoughts on judicial temperament

Former Chief Justice Ann McMorrow and Judge James P. O’Malley

Over on Jack Leyhane’s blog, “For What it’s Worth,” he has an excellent post about “judicial temperament.”  He talks about what it is and how important it is in considering a judge’s qualities.  You can read it by clicking this link.

Here are a couple of quotes:

…a temperate judge treats all persons in front of the bench with respect and courtesy and that a temperate judge expects and usually receives courtesy and civil behavior from those who appear in his or her court.

Nobody likes being bullied. And, sadly, a judge with a poor temperament is often a bully, pushing people around simply because he or she can, embarrassing lawyers in front of their clients, and in general not treating the people who appear in court with the respect and civility which one might expect.

On the other hand, I’ve appeared in front of judges who had awful temperament… and were good judges… and I’ve appeared in front of judges who were the distilled essence of excellent judicial temperament… and were terrible judges.

….if a judge doesn’t follow the law and rules unpredictably, especially when I believe (in the best exercise of my professional judgment) that I have a strong case, I don’t care how nice the judge may be, or how good his or her temperament is: Legal knowledge, ability, skills and respect for the law and precedent trumps temperament, in my opinion, every time.

Given my druthers, of course, I’d take both.

As a fellow trial lawyer (and I have tried cases in just about every division and courthouse in Cook County, plus the surrounding collar counties), I think Mr. Leyhane is exactly right.

In the DUI context, I can think of many judges who are wonderful people, very courteous and pleasant.  But on the bench they are either very confused about the law, have difficult times making decisions, or worst of all, find virtually everyone guilty regardless of the facts of the case.  A former boss of mine once warned me to always beware of the judges who “smile before they stick the knife in your back.”

On the other hand, I have known many judges who are very difficult in the courtroom, yet are very knowledgeable about the law and will give a fair trial.  Oftentimes, this is because the judge is so knowledgeable that he or she has lost his or her patience for attorneys who lack the practice skills or diligence that they expect.

For example, there is one judge in one of the suburban Cook County courthouses whose demeanor seems to have terrified many attorneys.  Many a time I have found myself sitting in a Cook County courthouse during a recess, overhearing some attorneys talking shop, when inevitably the conversation turns to this judge and the latest thing he has done. Yet, I am always glad to be in front of him, because he will give my client a fair trial.  I have won cases and lost cases with this judge, but, at the end of the day, I can rest easy knowing that I was before a fair tribunal.

Having said that, I agree with Mr. Leyhane’s final sentiment, that it is better have both judicial knowledge and temperament.  Often I will sit in court while a perpetually grumpy judge is presiding, and I wonder, “how hard would it be to be just a little pleasant?” or “doesn’t this judge appreciate his or her job?  If not, he or she can resign, and there will be 200 people applying for the vacancy.”

One of my favorite judges to appear before was the late Judge James P. O’Malley, who served at the Bridgeview courthouse for many years before he died (at the way too early age of 54).  He was tough but fair; knowledgeable about the law, and I always felt that I received a fair hearing.  But what I will always remember is the way that he dealt with people — attorneys, defendants, witnesses, police officers, sheriffs, clerks, everyone.  When a nervous new attorney would step up before him, he would often say “Don’t worry counsel, you are amongst friends.”  If only every judge could be like Judge O’Malley, my life would be a lot easier.