With new year, new law will end the 30 day “hard time” wait for DUI driving permits

As the Chicago Tribune noted over the weekend, as of January 1, 2016, there will no longer be a 30 day “hard time” period before people who are suspended for first time Illinois DUIs can get a driving permit.

The new law ends an anachronism that had kept a 1980’s era law on the books despite recent changes in Illinois drunk driving laws that made the hard time period unnecessary and counter-productive.

In Illinois, first time DUI offenders receive a license suspension if they either fail or refuse a breath, blood or urine test.  The suspension is six months for failing the test and twelve months for refusing.

This suspension law has been around in one form or another since the 1980s. The idea was to get drunk drivers off the road without having to wait for their DUI case to be resolved.

Since 2009, these first offenders have been eligible for a Monitored Device Driving Permit (“MDDP”) which allows the person to drive their car 24 hours a day, seven days a week, so long as their vehicle is equipped with a breath alcohol ignition interlock device (“BAIID”).

However, as a holdover to the old law, there was still a 30 day “hard time” rule, which was designed to keep drunk drivers off the road.  Since now there is a BAIID requirement, there is enough of a safeguard that the person won’t drive drunk, so there was no longer any need for the wait.  In light of that, Congress removed the 30 day hard time provision that was a condition of Federal Highway appropriations back in 2012, with the blessing of MADD.

It took Illinois another three years to act on this and remove the 30 day wait time.

You may ask, “why should we do anything that helps drunk drivers?”

And here are the reasons:

  • They can’t drive drunk with a BAIID installed on their car.
  • If they do somehow drive drunk (or stoned), they will be charged with felony and face one to three years in prison, if not more depending on his or her background.
  • This will discourage people from driving while suspended during that 30 day time period, as well as skipping out on the BAIID restricted permit altogether since it wasn’t helping them during the hard time period.
  • It will also give prosecutors more reason not to agree to rescissions of the license suspension for people who have a hardship with the 30 day hard time provision (although it is still a useful tool for prosecutors as a carrot to dangle to encourage guilty pleas).

 

My rebuttal to the Tribune’s article about DUI plea deals

There was an article this weekend in the Chicago Tribune, decrying the tendency of some prosecutors (mainly village prosecutors in DuPage County) to agree to rescind the mandatory license suspension that comes with most DUI cases, in return for a plea on the underlying DUI case.

In my opinion, the article was one-sided and made “compromise” sound like a dirty word.

So, why should prosecutors make such deals?

1.  To avoid losing cases.  In a DUI case, the state has the burden of proving that the defendant was under the influence of alcohol beyond a reasonable doubt.  In many cases, the only evidence to support a DUI conviction is the arresting officer’s opinion that the defendant was intoxicated, which, however educated, is still just an opinion.  However, the license suspension will be upheld unless the defendant can show that the officer did not have even a reasonable suspicion that the defendant was under the influence.  That is a significantly lower threshhold than “beyond a reasonable doubt.”  Many cases fall between the two standards of proof.  The plea for rescission deal can be an incentive to get a defendant to plea without a trial, or other pre-trial motions.

When prosecutors agree to a “rescind suspension for plea” deal, they are taking a risk in giving a defendant his license back.  But they are also getting the certainty that the person will plead guilty, and be required to undergo alcohol treatment.  If that person gets a subsequent DUI, now he will be subject to a heightened penalty.  If they went to trial and lost, none of this would happen.

The defendant is taking a gamble that he or she will never get arrested for DUI again. If the gamble turns out wrong and he or she is arrested again, that prior DUI on his or her record will lead to a significantly harsher sentence on the new case.

2.  To avoid a backlog of cases.  Our courtrooms are backed up, especially in DuPage.  In DuPage, the judge will go through the “trial call” in the morning.  Usually, due to volume, most of the cases are continued until the afternoon, or even the following day or month.  If suddenly another 20% of the summary suspension and DUI hearings went to hearing, the system would break down.

I have seen this happen before.  From time to time, to show how tough they are on DUIs, prosecutors will not agree to any deals.  This means cases that should have been dropped or worked out instead go to trial.  As a result, a courtroom full of defendants, police, witnesses and attorneys will be sitting waiting for all the trials ahead of the them to conclude.  The officers are getting paid overtime while they wait, so this can be a big burden for small municipalities.  And, oftentimes, those witnesses or police officers will have left the building by the time their case is called for trial.

3.  There isn’t much else to bargain with in a DUI case.  Most DUI sentences are set by law; there is mandatory alcohol treatment, fines, victim impact panels and (in some cases) community service and/or jail.  The summary suspension is the biggest bargaining chip that a prosecutor has to induce a defendant to plead guilty.

4.  For fairness.  These laws do not affect everyone equally.  Some people have jobs that require that they drive.  Some people have family members that they have to take care of.  Some people have CDLs and a DUI suspension will mean a one year disqualification of that license.

A plea for rescission deal can allow these people to drive while still requiring them to do alcohol treatment, pay hefty fines, follow the law and/or whatever else is part of the plea deal.

5. Because our state government hasn’t acted.  Our summary suspension law has a provision that says that the driving permit will not be effective until after 30 days of suspension.  The reason for this law, when created, was to get drunks off the road for a period of time before allowing them back with a restricted license.  The rationale for this 30 day “hard time” rule evaporated once Illinois required installation of a breath alcohol ignition interlock device (BAIID) as part of the permit. With the BAIID, you can’t drive drunk.  So why do we still have a 30 day hard time period?  Simply, put, government inertia.  It had been required under a Federal Highway appropriations bill, but Congress removed this provision once states began requiring BAIIDs. But Illinois has yet to amend their law.

For someone who must drive for work, this 30 day period means that he or she may lose their job and health benefits, and not be able to support their families.  It is reasonable that a prosecutor can see the injustice of this law and see no point in turning a first offender into an unemployed person whose children need goverment aid to get by.

6.  Yes, to raise money.  Yes, the Tribune article emphasizes that local prosecutors will often require a larger than usual fine in return for a plea for rescission deal.  Well, it should not be surprising to anyone that municipalities see DUIs as a money-making opportunity.  With each DUI, they charge a large impoundment fee, receive court fines, and become eligible for federal funding (See here and here).  Instead of a reinstatement fee that goes to the Secretary of State, or BAIID fees that go to private companies, these towns would like to see the money flow towards them.  I don’t see what is wrong with that.  Would the Tribune prefer that everyone pay higher taxes instead?

Illinois Appellate Court uses simple logic to reach correct decision — and I am surprised!

Under the Illinois Motor Vehicle Code, there is a “statutory summary suspension” of a motorist’s license if he or she is arrested for a DUI and either “fails” a breath, blood or urine test or refuses testing. 625 ILCS 5/11-501.1.

The motorist can petition the court to “rescind” the suspension.

My copy of Black’s law dictionary defines “rescission” as “to abrogate, annul,  … to declare …void in its inception and to put an end to it as though it was never there.”

So you would think that if a court “rescinds” your statutory summary suspension, it is as if it never happened.  That’s what “rescind” means, right?  Because by definition, its retroactive!

So what happens if a suspended motorist (who may feel that the suspension was illegal and will be thrown out by a judge) chooses to ignore the suspension and drives, only to get caught and charged with driving while suspended — but later is vindicated when the suspension is “rescinded”?

In a 1997 case, People v. Focia, 287 Ill.App. 3d 767, 679 N.E. 2d 121, 223 Ill.Dec. 177 (Ill. App. 3, 1997) , the Third Appellate District of Illinois held that the word “rescission” has a different meaning than its normal meaning in the DUI context.  Basically, the court interpreted the word “rescission” to mean “termination” when applied to DUI cases.  This was because the court felt that the purpose of the summary suspension law was to get accused drunk drivers off the roads.  If the court ruled that a rescission absolved a person of a driving while suspended, it would only encourage people to continue to drive after their suspension began, in anticipation of a rescission.  Therefore, the court said, the driver must wait until a judge “rescinded” the suspension before driving again.

To my way of thinking, this was a classic example of “judicial activism” because the court was making its own policy determinations (that accused drunk drivers should not be driving until a court clears them) instead of simply reading the words of a statute and giving them their ordinary meaning.  After all, the legislature is presumably knew what they were doing when they chose to use the word “rescind” instead of “overturn” or “terminate.”

But this ridiculous court opinion, giving the word “rescind” a special new meaning only when it comes to DUI cases, has been the law in Illinois for the past 15 years.

Since I don’t practice in the Third Appellate District, I have, from time to time, filed “Motion(s) to Dismiss” asking courts to ignore the Focia decision as unwise.  Occasionally, these motions have resulted in a reduced sentence, but never an actual dismissal.

Until today, anyway.  The Fifth Appellate District released a contradictory opinion in People v. David K. Elliott, 2012 IL App (5th) 100584, essentially adopting the common sense proposition (and traditional rule of statutory interpretation) that the words of a statute will be given their ordinary meaning.  Hence, a “rescission” means that the suspension never happened.

Yes, all the court did was apply a commonsense reading of the words of the statute to come to the correct decision.

Am I surprised?  You bet.

This has been a classic example of what DUI defense attorneys often call the “DUI exception to _____” (fill in the blank with constitution, logic, fairness or whatever else may apply).  DUI has become such a hot button issue that courts regularly ignore all legal precedents and common sense to come to an anti-drunk driving ruling.  So I am pleasantly surprised when a court is willing to come to the correct decision even if it means that the justices might be labeled “soft on DUI.”

What does this mean to drivers in the Chicago area?  Cook, Lake or DuPage are in the First and Second Appellate Districts, so in this case, since there are conflicting decisions from other Districts, trial judges are to apply the most recent opinion.

However, the legal fiction that “rescind” has a special meaning in DUI cases will continue to apply in the Third District, at least for now until another Appellate District or the Illinois Supreme Court rules on the issue.

Here is a map of the Illinois Appellate Districts:

A DUI MDDP “did you know?”

A veteran DUI defense attorney called me today to discuss a situation that had arisen with one of his clients.

The client had been suspended for a DUI, and had obtained a Monitored Device Driving Permit (“MDDP”) which allowed him to drive a motor vehicle during the suspension, so long as it was equipped with a Breath Alcohol Ignition Interlock Device (“BAIID”).  Instead of driving his BAIID equipped vehicle, the client was caught driving a second vehicle that he owned, without a BAIID.  The client was charged with driving while suspended.

This attorney did the best he could for his client, and obtained an excellent disposition — court supervision, which traditionally has been sought by traffic attorneys for their clients on driving while suspended cases because (unlike a conviction) it does not trigger a doubling of the underlying suspension.

Or so he thought.

His client just got a notice that not only was his permit being cancelled, but also his suspension was being extended another year.

The attorney wanted to know:  “Is this really the law?”  The answer was “yes, it is.”

The statute for the MDDP provides that upon receiving either a conviction or court supervision for driving while suspended (or DUI, leaving the scene of an accident, reckless driving, drag racing, fleeing and eluding, or violating the terms of the MDDP) the MDDP shall be cancelled. 625 IlCS 11-206.1(c-1)

However, that is not all.  Upon such cancellation, the person shall have his or her suspension doubled.  625 ILCS 11-206.1(l).

So to reiterate, if you drive outside the bounds of your MDDP, you will not only lose your permit, you will have your suspension doubled.  And during that period, the only way to get any driving relief is if you go through a formal hearing process through the Secretary of State (and that hearing process will probably take almost as long to complete as your suspension).

Just another reason to read the fine print of your MDDP.  And not to try to take any shortcuts with the law.

(I should point out that this client still got a great deal — he could easily have ended up with a felony conviction, jail or prison time, and having his vehicle forfeited — just for driving a non-BAIID equipped car during his summary suspension).

Plainfield, Will Co. cops conduct sting on invalid licenses

Plainfield, Will Co. cops conduct sting on invalid licenses – The Naperville Sun.

About ten years ago, our local law enforcement, judiciary and legislators were repeatedly humiliated on a daily basis by the Chicago Sun-Times.  What did the Sun-Times do?

All it did was send a reporter and photographer to a different traffic court every day and  find a suspended or revoked driving defendant.  After taking notes on the “slap on the wrist” that the defendant received, and the (sometimes) stern warning from the judge not to drive until they had a valid license, the reporter would then follow the driver out into the parking lot and watch as he or she would get into his car and drive off.

Day after day there were pictures and photographs of these suspended or revoked drivers who were thumbing their noses at the law.

So, in response our legislators passed one tough law after another against suspended or revoked drivers in the hopes that the Sun-Times would lay off.  But they didn’t, so the laws just kept getting tougher and tougher.

Now, for example, if you drive just one time on a DUI suspension, you can be charged with a felony case, have your car forfeited, and you face a minimum of 30 days in jail (and possibly one to three years in prison!).  A fourth one would be a minimum 180 days in jail and a 10th would be a minimum two years in prison.  625 ILCS 5/6-303

Another thing to come out of this are the regular “sting” operations that police and sheriff do at local traffic courts.  They will be prepared with a list of all the license plate numbers of all the suspended or revoked defendant’s who are scheduled to be in court that day, and will be prepared to pull them over.  Also, they may follow revoked or suspended drivers out of court and into the parking lot (even private parking lots in downtown Chicago!).

Therefore, if you have a suspended or revoked driver’s license, consider yourself warned that you are facing a tough sentence and that the police will be motivated to catch you.

Instead of driving, consider consulting with an attorney to see if your license can be reinstated.

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.

Summary:

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.