An Illinois Appellate Court reversed a trial court’s ruling in a fatal DUI crash.
According to the Opinion, the motorist was driving with his children in the back seat. One of his kids tried to hand him a candy wrapper to open. When he momentarily turned his head, his van struck a seven year old boy, who was riding a bicycle and had darted out into traffic between two parked cars. The motorist immediately stopped and ran into the nearby City Hall to get assistance.
The investigating officers testified that they did not observe any indications that the motorist was impaired by either alcohol or drugs. Nevertheless, he was taken to a hospital to provide blood and urine screens. The tests results showed the presence of THC and amphetamines and the motorist was charged with DUI.
A few days later, it was determined that the motorist had not been read the “Warnings to Motorist” form that would advise him of his rights regarding the chemical testing. A second test was then ordered.
The defendant was found guilty and received a sentence of 54 months.
On appeal, the Court noted that there was no probable cause to believe that the motorist was impaired or that he had caused the accident. No citations had been issued, and he was not under arrest at the time of the blood test, as required by Illinois law. As a result, the results of the tests were suppressed and since there was no other evidence to support a finding of guilty, his conviction was reversed.
You can read the opinion here: People v. Hayes, 2018 IL App (5th) 140223 (February 15, 2018) .
The Illinois Supreme Court has reversed an Appellate Court ruling that I previously discussed on this blog.
In the case, a husband and wife went drinking. The husband’s license had already been suspended for drunk driving. The wife claimed that she had been the driver of the motorcycle, but when the left the bar to go home, her husband, who had a key fob, got on their Harley Davidson first and refused to relinquish control. He was later arrested with DUI with a BAC of twice the legal limit, and the vehicle was forfeited.
The Appellate Court held that the forfeiture was unconstitutional, considering that the wife had paid $35,000 for the bike and that she was not the one violating the law.
On further appeal to the Illinois Supreme Court, the Court noted that the actual value of the vehicle at the time of the forfeiture had not been proven during the forfeiture hearing, only the cost of purchase four years earlier. It also held that the wife bore some degree of culpability for this occurrence, because she knowing consented to her husband driving even though she knew that his license was suspended and that he was intoxicated.
Read the Opinion here: The People of the State of Illinois ex rel Matthew Hartrich v. 2010 Harley Davidson, 2018 IL 121636 (February 16, 2018).
The Chicago Tribune has a front page story today by Mary Wisniewski about the rise in Chicago traffic deaths in 2017, 133 compared to 113 in 2016, an 18 per cent increase.
The article blames distracted driving, distracted pedestrians, low gas prices, a better economy, higher speeds and alcohol use.
The story also notes that the average death toll from 2011 to 2015 was 126.2. So why is Ms. Wisniewski comparing 2017 to one unusually low year instead of comparing it to the entire decade, which would provide a more useful comparison? Indeed, when you combine the 2016 and 2017 death tolls and divide them by 2, you get an average of 123 — still lower than the 2011-15 average. Maybe 2016 was just an outlier.
Comparing 2011-2015 to 2016-17, the numbers are virtually identical, within the margin of error. But that wouldn’t be front-page worthy.
My concern is that someone in the state legislature will see the front-page headline and assume that there is a crisis when there isn’t a crisis. This is how bad laws get enacted.
From the Chicago Sun-Times:
A Cook County judge called the case of Johnathan Rios ‘profoundly tragic’ at his initial court appearance Thursday at the Leighton Criminal Courthouse.
Rios, 28, is accused of being drunk when he crashed early Tuesday on Interstate 55, causing his brother to be thrown from the SUV and killed.
Shortly after midnight, Rios was driving a 2004 Toyota Highlander north near Cicero Avenue when he tried to pass other vehicles waiting to exit by veering across several lanes of traffic, Cook County prosecutors and Illinois State Police said.
The Toyota slammed into a guard rail on the exit ramp, throwing 22-year-old Christian D. Barrajas from the vehicle, authorities said. Barrajas, of the Clearing neighborhood, was pronounced dead at the scene.
Prosecutors said Rios was driving five other passengers in addition to Barrajas, who was riding in the rear hatchback of the vehicle and was not in a seat. State police said no one in the Toyota was wearing a seat belt during the crash.
Two other passengers, a 20-year-old woman and a 21-year-old man were taken to Mount Sinai Hospital, state police said. Prosecutors said the man suffered a broken shoulder and will likely require a skin graft.
Rios appeared in court Thursday on felony charges of aggravated driving under the influence causing death and aggravated driving under the influence causing bodily harm.
He walked slowly into the courtroom and had to sit in a chair during his hearing before Judge Mary Marubio. His face showed bruising from the crash and he cried softly at times.
Rios’ blood alcohol content was 0.148 after the crash, prosecutors said. Rios told state police investigators he smoked marijuana, drank shots of Crown Royal and consumed six beers the night before.
Rios’ license was suspended at the time of the crash due to a 2010 DUI conviction, for which he received court supervision, prosecutors said.
Read the entire story here at: https://chicago.suntimes.com/news/man-charged-with-driving-drunk-in-profoundly-tragic-crash-that-killed-brother/
In a new Illinois Appellate Court opinion (People v. Ernsting, 2018 IL App (5th) 160330), the Court affirmed a trial Court’s ruling that a breath test result was inadmissible due to the motorist bleeding inside her mouth.
According to the opinion, the motorist claimed that after having three beers with dinner, she went for a ride with her 85 pound dog. During the ride, the dog was unruly, and was licking her face and obstructing her view. As a result, the defendant crashed her car.
She testified that before taking the breath test, she was bleeding from her mouth. The arresting officer did not check her mouth, in violation of the Illinois Administrative Code rule for breath alcohol testing, which requires that the breath test operator observe the subject for 20 minutes prior to the test, to ensure that there is no foreign substances in her mouth. The Court found that blood is a foreign substance.
The Court also heard testimony from Ronald Henson, PhD., a breath test expert (who I have used in a few DUI cases and one civil case in the past). Dr. Henson testified that blood in a subject’s mouth is a “foreign substance” and would elevate their BAC result and make the test unreliable. This was supported by Henson’s opinion that the defendant did not appear to be intoxicated on the arrest video. He also pointed to mistakes that the officer made in administering the breath test.
Due to these errors, the Defendant’s breath test of 0.215 was suppressed from evidence at her trial and her statutory summary suspension was rescinded.
From the Chicago Tribune:
A Montgomery woman faces felony charges for what police say is her sixth drunken driving offense.
Leah Behrens, 33, of the first block of Chatham Place, Montgomery, was charged with felony drunken driving, felony obstructing justice, felony driving on a revoked license and other misdemeanor and traffic violations in connection with two crashes on Feb. 6 that took place about five minutes apart.
In the first crash, about 6:45 p.m. Feb. 6, the 2002 Mitsubishi Gallant Behrens was driving struck two cars stopped at the light at Lake Street and Illinois Avenue, Aurora police said in a Facebook post. One car, a 2000 Honda Civic, was driven by a 23-year-old Aurora man, and the other, a 2005 Saturn Vue, was driven by a 27-year-old Glendale Heights man with a 25-year-old woman as passenger. All three declined medical attention, police said.
Behrens did not stop, police said. About 6:40 p.m., less than three miles away, she was southbound on Broadway and tried to turn left onto Hazel, police said. She drove in front of a northbound 2011 GMC Sierra pickup truck a 36-year-old Plano man was driving with his three sons, ages 4, 12 and 14, causing a crash, according to police. They also did not require medical attention, police said.
“The second crash happened to occur near a restaurant where a couple of Aurora police officers were eating dinner,” police stated.
Another patron told them about the crash, and they went to investigate, police said. They found Behrens outside of her car, “displaying obvious signs of intoxication,” police said.
Police said Behrens was treated and released from an Aurora hospital, and was later taken to another Aurora hospital for a court-ordered blood and urine draw. She refused to cooperate, leading to the obstructing justice charge, police said. Kane County prosecutors authorized the felony charges.
A sixth DUI is a Class X felony, punishable from 6 to 30 years in prison.