NFL Draft: Bears skip over one player with a DUI arrest, but still take two others

Despite a lot of speculation that the Chicago Bears would be selecting linebacker Alec Ogletree in last week’s NFL Draft, they instead went with offensive lineman Kyle Long.

What do they both have in common?  Besides being first round draft picks?

They have been arrested for DUI.

As if to prove that having been arrested for a DUI is no big thing, the Bears used their sixth round selection on defensive end/linebacker Cornelius Washington, who was arrested for DUI in 2011.

Lets hope that these young men have learned their lessons and will not run afoul of the law again.

But if they do, lets hope they know who to call.

Attorneys, don’t do this

Today I saw something that irked me.  It was a little thing, but it bothered me, even after I worked out good pleas for two clients, then got a not guilty on a DUI (including all the moving violations too) for a very nice client, and walked out of the courthouse on a Friday afternoon to warm weather, buds on the trees and a perfect blue sky, and the hope that spring had finally arrived.

Yet, this one thing really bugged me.  And what is the point of having a blog if you can’t kvetch now and then?

Before I get started, a disclaimer.  This post is for the attorneys who read this blog.  I know there are quite a few.  The general public probably won’t be too interested.

Anyway, here it is: I was watching the end of a trial today.  It had begun the other day and all I saw was a Motion for a Directed Finding which became closing arguments.  Essentially, the police had charged a woman with concealing evidence of a homicide.

The judge began to state his findings.  All in all, he spoke for about eight or nine minutes.  After about three, it was pretty obvious that he was going to find the defendant not guilty.

When I say “obvious,” I mean that it would be obvious to any experienced attorney that the judge was explaining that the evidence was not sufficient to prove the charge alleged.  It probably wouldn’t be so obvious to the average person, let alone the nervous defendant sitting in court with her future on the line.

So, at this very moment that it became obvious that the judge was going to find his client “not guilty,” the defense attorney turned to his client, with a big grin, and handed her a CBR form and a pen.

(To those not in the know, a “CBR” is a “cash bond refund to attorney” form which means that the defendant is agreeing to have the balance of his or her bond sent to his or her attorney.)

Did I mention that the judge was not done explaining what he was going to do?  Or that he would not say the magic words “not guilty” for another five minutes or so?

So why did this irk me?

Here is this attorney’s client, worried about what will happen to her, and listening intently to everything the judge is saying, while her attorney is thinking about getting paid.  It is not a professional way to present oneself.

Possibly, the attorney realized that the case was about to be over, and there would be no more continuances for post trial motions or sentencing, so the time was ripe to take care of the bond refund.  He could not contain himself and wait a few minutes until the judge had made his ruling official and his client could breathe a sigh of relief.

It also made me wonder whether the attorney had an arrangement to get a bonus if there was a not guilty.  Contingency fees are not allowed in criminal cases by the Illinois Rules of Professional Conduct. 1.5(d)(2).  I hope this was not the case, but when you do something like that, it makes people think.  Why wouldn’t the attorney have the client sign the CBR form at the beginning of the representation, instead of at the end?  It is simple business sense to have the client sign the form at the beginning of the representation, when the client is eager to be represented and is looking for a way to pay for an attorney’s services, rather than to wait until the case is over, all the work has been done and the client has less of an incentive to tender over his or her bond money.  It is also ethically responsible to make sure that the client understands and consents to the fee at the beginning of the representation.

Even if this was totally above-board, it was just tacky.

Another rant about the Cook County Cellphone ban

Here is another of what I am sure will be a continuing series about problems or inconveniences caused by the Cook County ban preventing the general public from bringing cellphones into courthouses.
Today was a busy day on my calendar.  This tends to happen to attorneys in my line of practice from time to time.
Here was my schedule:

    8:30    two cases in Wheaton, that were set for status and continuances were expected;
    9:00    a felony case in Markham, where client was to appear before the Presiding judge in one courtroom, then be assigned to another judge in another courtroom for arraignment;
    10:00    three felony cases at the Leighton Criminal Courthouse at 26th Street, two of which were in front of Judge “O” (who usually starts court at 10:15)

Since I do not have the power of teleportation or the ability to split myself into two, I had another attorney appear on my behalf in Markham at 9:00 to handle the arraignment while I planned to go to DuPage and then 26th Street.

As I pulled into the Henry Hyde Judicial Center in Wheaton, I saw that I had a message from the Assistant State’s Attorney for Judge O’s courtroom.  She said that the judge was not going to be in court today, and that another judge was using his courtroom for a jury trial.  If my clients could be there at 9:00, before the jury trial started, she would give my clients continuances to whatever date I wanted.

Problem 1: Trying to contact my clients, when I had reminded them last night not to bring their phones to the courthouse.

Next, I received a text from the attorney handling my case in Markham.  It was 9:30 and she said my client had not arrived.  The case had already been assigned, and the file was heading to the new courtroom.  

Problem 2: Where was my client?  I tried to call and text my client, but I did not receive a response.  I later found out that he was inside the court building, and had left his phone in his car.  For whatever reason, the attorney wasn’t seeing him, but she did shortly thereafter and it wasn’t much of a problem.  This time.    

Quite frankly, this is getting aggravating, and it has only just begun.  How am I supposed to communicate with my clients and tell them where to go or where I am, if they can’t bring phones with them to the courthouse? 

National Standards for Police Video close to being finalized

As an attorney who handles DUI cases from different municipalities and counties, I have found that there are several different types of police squad video capture devices.  Sometimes this can become a problem, as either something important is not recovered, or cannot be played back except on a certain type of device.  This happened a few weeks ago, when the prosecutor in one of my cases was unable to play the officer’s squad video on the DVD player in the courtroom and had to present her case without it.

Now it looks like voluntary standards will soon be adopted, which will likely result in uniformity of devices.


National standards for police vehicle digital recording systems are close to being finalized, an official with the agency developing those standards told an audience attending a conference on electronic forensics.
The National Institute of Justice’s Office of Science and Technology is working on the “final, final” standards for digital-video systems for vehicles, OST Division Director William Ford told attendees of the Forensic Enabled Intelligence conference being held in Alexandria, Va.
In 2010, the NIJ produced a draft document—Vehicular Digital Multimedia Evidence Recording System Standard for Law Enforcement—which has yet to be finalized, according to NIJ officials. The draft document requires vehicle-camera digital-recording systems to be equipped with two cameras, two microphones, a digital recorder, a video monitor and an audio monitor.
Those systems must have the option of incorporating at least one additional wireless microphone, and the capability of recording “digital multimedia evidence” and exporting that DME, the draft said. Those systems shall be capable of recording a minimum of two video streams and a minimum of three synchronized audio streams and associated metadata.
The draft document lists performance standards for the recording systems including requiring such systems to be switchable between auto and manual focus; and the primary camera is capable of being rotated 90 degrees in either direction from the camera’s front facing position, according to the document. The camera also has to be capable of operation in low light.
The camera system’s wireless microphones will have a battery life of 15 hours in the passive mode and 3.5 hours in the active mode, the document says. All the microphones are to be capable of capturing sounds greater than, or equal to, 50 dB at about three feet, the draft says.
However, the standards have to be validated and that requires testing of police vehicle digital recording systems which Joan LaRocca, a DoJ public affairs specialist, said is scheduled to occur sometime this year.
While the NIJ is likely to move forward with the vehicle camera standards, Ford added that most of institute’s standards are “voluntary standards,” including the vehicle camera standards. “While having a video camera in a car is something that helps police, (and) protects police,” the NIJ’s standards are more designed to ensure that law enforcement agencies “are aware” of the technologies available, he said.

Thanks for superlawyer Mark Palmer for sharing this story through the ISBA listserv.

The Celebrity DUI Weekend Wrap-Up

This was a busy weekend for celebrity DUI news.

michaelsAl Michaels, the longtime sports broadcaster, was arrested in Santa Monica after allegedly making an illegal U-turn.  A breath test revealed a BAC of 0.08, which is exactly the “legal limit” for a DUI, and which makes it likely that he will get a reduced charge or dismissal.

witherspoonBoth actress Reese Witherspoon and her husband/agent Jim Toth were arrested in Atlanta, Georgia; Toth for DUI and Witherspoon for disorderly conduct.  Toth was pulled over for driving in the wrong lane and he blew 0.139 on a breath test.  Witherspoon, who later admitted that she had “one too many” was argumentative with the officer and tried to use her status as a celebrity to scare the officer.  It didn’t work.

harrellMuch more seriously, Robert Todd Harrell, the bass player for the band 3 Doors Down, was arrested and charged with vehicular homicide after a fatal crash in Nashville, Tennessee.  The police claim that Harrell was under the influence of a combination of prescription medications and hard cider.  Harrell is also charged with trying to sneak drugs into the jail.

18 months in jail for smoking weed? Thats what happened to a reader of my blog

I have written before about how Illinois has a “zero tolerance” law regarding driving with any amount of a narcotic in your system.  This means that if you smoke some marijuana, then a week later you are involved in a fatal accident, you can go to prison — even if the accident wasn’t your fault.  Just like Alia Bernard.

In response to one of my blog posts, I received a message from someone who was convicted for driving two days after he smoked marijuana.  I thought it was worth re-posting in its own blog post.  Here is his story:

I was recently convicted in St.Clair County of an Aggravated DUI Under the Cannabis Act stemming from a car accident that happened last year and sentenced to 18 months DOC. The officer that arrived on scene said because I was incoherent and had slurred speech and a thick tongue that I must be on drugs because there was no scent of alcohol. I was incoherent as a matter of fact I do not remember anything because of the severe injuries I had such as; a shattered hand (to the point there was a bone sticking out), bleeding on the brain, fractured cheek bone, broken ribs and a shattered ankle, so I was out of it from injuries. I was flown in a helicopter to SLU in Missouri so yes it is safe to say I was indeed incoherent when the officer arrived who wouldn’t be? I had went to a birthday party two days prior to the accident and had smoked marijuana. I never imagined I would be going to prison for having pot in my system while rapists and repeat offenders just get a slap on the hand. I plead not guilty and chose a jury trial. I was never allowed my day in court so to speak the state said it is a strict liability offense and they did not have to prove anything except I was driving and I had marijuana in my system. This law needs to be changed this is America and I have the right to a defense in a court of law at least I thought so anyway. I was not allowed to have any witnesses or evidence to show that I was not under the influence the day of the accident. In the past year I quit smoking and found out it takes 45 days to leave my system and I am a small person at 5’5 and 120 pounds. My life has been forever changed because I smoked marijuana and a few days later drove. I am lucky they are allowing me to finish my school semester before I have to surrender myself to go to DOC for about four and a half months. I am 32 years old no criminal record and now I am a felon and can kiss my career goodbye that I have been going to college and working so hard to achieve. This law is bogus and needs to be fixed because even though marijuana stays in your system for a long period of time you are not “high” the whole time only a couple of hours. Quit destroying peoples lives and wasting tax payer money to punish someone for smoking pot. Legalize, educate and tax it, help our state with some of our huge debt we have here in Illinois!

Now that the Illinois House has voted to allow medical marijuana, there is also talk of amending the DUI laws to create a “legal limit” of cannabis in one’s blood system that would create a presumption of impairment similar to the 0.08 blood alcohol law.

What do you think?

Two examples of why DUI defendants should not post about their cases on Facebook

I cannot say this enough times:  if you have a legal matter, do not post about it on Facebook or any other form of social media.  (Or, for that matter, discuss it with anyone or write about anywhere else).

Here are two new examples of DUI defendants who got into hot water for posting about their drunk driving escapades on Facebook:

From ABC News:

A Kentucky woman’s cavalier ‘LOL” comment on Facebook about an alleged drunk driving accident that police believe she caused led a judge to send her to jail for two days and force her off the social networking site.

Paula Asher slammed into a car carrying four teenagers in Woodford County, Ky., in July and left the scene, police allege . Parents of the teens were upset to see a seemingly flip comment about the incident on Facebook after the fact and told the court about it, police told WLEX.

Asher received four charges stemming from the incident, including leaving the scene of accident, driving under influence of alcohol, and possession of a controlled substance, Tricia Kittinger with Woodford County Circuit Court told ABC News.

Woodford District Judge Mary Jane Phelps wasn’t pleased either when she learned that Asher had written, “My dumb bass got a DUI and I hit a car…LOL” on Facebook, according to Louisville NBC affiliate WAVE. “LOL” is an abbreviation for “laughing out loud.”

When Asher initially appeared in court after the July 20 accident, the judge told her to delete her Facebook account, Kittinger said. Asher did not take it seriously, and was charged with contempt of court when the judge learned her Facebook page was still active…

“I didn’t think LOL would put me in jail,” she said.

Asher will be back in court on September 24, Kittinger told ABC News. She has since said that she’s sorry for what she did to all parties involved.

“I apologize to everybody,” she said. “I apologize to the judge. I didn’t mean to hurt anybody.”

From The Oregonian:

Jacob Cox-Brown, 18, … wound up in Clatsop County Jail after posting a message on Facebook, complete with emoticons, admitting he’d been driving drunk and apologizing for hitting someone’s car.

Astoria police were already investigating a hit and run on Fifth Street involving a Scion that received significant damage after being sideswiped, police said. A second car was also damaged.

That call came in at about 1 a.m. New Year’s day.

Later that day, an Astoria officer got a phone call from someone who wanted to share Cox-Brown’s message, which read: “Drivin drunk … classic 😉 but to whoever’s vehicle i hit i am sorry. :P”

A second “friend” also called police. At Cox-Brown’s Astoria home, police found a vehicle with damage consistent to the damage done to the two vehicles involved in the early morning hit and run, police said.

They also found pieces belonging to Cox-Brown’s vehicle left behind at the scene of the crash. He was arrested and taken to the Clatsop County Jail where he was accused of two counts of failing to perform the duties of a driver.

He was released on his own recognizance.

Update:  CNN has more stories about what can happen when you “share” on social media.

U.S. Supreme Court turns down prosecutors requests for warrantless blood draws in DUI cases

The United States Supreme Court has released its opinion in the warrantless DUI blood draw case that I have blogged about here, here and here.  The Court denied prosecutors request to allow for warrantless blood draws in all DUI cases, although it left room for a case by case basis in which they may be allowed.  This means that a police officer can’t routinely take a DUI suspect to a hospital for a blood draw whenever that suspect refuses to provide a breath sample.

Here is a link to the Court’s opinion in Missouri v. McNeely.

What do you think?


Brewers’ Yovani Gallardo arrested for OWI

gallardoThis is from ESPN.COM:

MILWAUKEE — Milwaukee Brewers pitcher Yovani Gallardo was arrested and charged with drunken driving Tuesday after authorities say he was traveling on a city highway near Miller Park with a blood-alcohol content nearly three times the legal limit.

Deputies responded about 2 a.m. to a report of a possibly intoxicated driver, Milwaukee County sheriff’s spokeswoman Fran McLaughlin said. She said a caller reported seeing a driver repeatedly swerving between lanes, and deputies spotted Gallardo driving alone at 40 mph in a 55-mph zone.

“He was very cooperative,” McLaughlin said. “He said he had a couple of beers.”

The arrest report says Gallardo had red glassy eyes, slurred speech and an odor of alcohol, and that he failed field-sobriety tests. Authorities say a breath test revealed a blood-alcohol level of 0.22, nearly three times the legal limit of 0.08, and the reading was matched by a second breath test following his arrest.

“We have been made aware of the situation with Yovani and we take this matter very seriously,” the Brewers said in a statement. “We have expressed our disappointment to him and know he understands that behavior of this nature is of great concern to everyone in the organization. Yovani has acknowledged the seriousness of this incident and is taking full accountability for his actions.”

The team was opening a three-game home series against San Francisco on Tuesday night.

In Wisconsin, first-offense drunken driving is a citation, not a misdemeanor or felony charge. McLaughlin told ESPN Wisconsion that Gallardo faces nearly $778 in fines for drunken driving and for unsafe driving ($300 for DUI, $300 for his level of intoxication and $178.80 for deviating lanes).

Gallardo was a 16-game winner last season, his fourth consecutive season with at least 200 strikeouts. But he gave up six runs in a loss Saturday to St. Louis and is 0-1 in three starts this season with a 6.61 ERA. The Brewers have already endured a 32-inning scoreless streak and entered Tuesday’s game at 3-8, worst in the Central Division.

Acknowledgement:  I first learned about this from a tweet today from St. Louis DWI defense Lawyer Jason Korner.

Cell phone ban goes into effect at Cook County Courthouses

nocellsignToday, the Cook County ban on cellphones, laptops, tablets and other electronic devices went into effect.

According to the Cook County Court’s web site,  the ban applies to the following Courthouses:

  • The George N. Leighton Criminal Court Building, 2600 S. California Ave., Chicago
  • The Cook County Juvenile Center, 1100 West Hamilton Ave., Chicago
  • The Domestic Violence Courthouse, 555 West Harrison St., Chicago
  • The Second Municipal District Skokie Courthouse, 5600 Old Orchard Road
  • The Third Municipal District Rolling Meadows Courthouse, 2121 Euclid Road
  • The Fourth Municipal District Maywood Courthouse, 1500 Maybrook Drive
  • The Fifth Municipal District Bridgeview Courthouse, 10220 S. 76th Ave.
  • The Sixth Municipal District Markham Courthouse, 16501 S. Kedzie Parkway
  • 5555 W. Grand Ave., Chicago (First Municipal District criminal branches 23 and 50)
  • 2452 W. Belmont Ave., Chicago (First Municipal District criminal branches 29 and 42)
  • 155 W. 51st St., Chicago (First Municipal District criminal branches 34 and 48)
  • 727 E. 111th St., Chicago (First Municipal District criminal branches 35 and 38)
  • 3150 W. Flournoy St., Chicago (First Municipal District criminal branches 43 and 44)

This means that the ban does not apply to the Richard J. Daley Center at 55 W. Washington St., Parentage and Child Support Court at 28 N. Clark and 32 W. Randolph, and Juvenile Court at 1100 S. Hamilton.  Given that the purported aim of the ban was to protect witnesses from being photographed by gang members, the failure to include Juvenile Court is glaring and perhaps its omission from the list is a typo.

According to the same website, the only people exempted are:

  1. persons with disabilities, as defined by the Americans with Disabilities Act, who require electronic devices for effective communication;
  2. current or former judges;
  3. licensed attorneys;
  4. members of the news media;
  5. local, state, and federal law enforcement officers;
  6. employees of any local, state, or federal government agencies or offices;
  7. any person reporting for jury duty pursuant to summons;
  8. building and maintenance tradespeople, equipment repairpersons, and vendors;
  9. domestic violence advocates and counselors as defined by 750 ILCS 60/227(a)(2);
  10. authorized employees and agents of attorneys;
  11. any person or category of persons pursuant to order of court;
  12. persons who are present at the courthouse to obtain civil orders of protection, stalking no contact orders, or civil no contact orders or parties to a proceeding who are present at the courthouse to attend a proceeding related to an underlying order of protection, stalking no contact order, civil no contact order or other related proceedings;
  13. participants in a domestic violence assistance program;
  14. persons required by court order or the sheriff to wear an electronic monitoring device;
  15. parties to orders of protection who are required to carry a GPS devices; and
  16. All persons in the Richard J. Daley Center, 50 W. Washington St., Chicago

These persons who are exempted from the ban must be on official business in the courthouse, have proper identification and may only use cell phones and other electronic devices in the public areas away from the courtrooms.