Some more thoughts on that Tribune story about suspended drivers

If you just read that heading and said “more thoughts?  Where are the first thoughts?” then head over to this link to a blog piece I wrote for my firm’s website.

For those of you that have never driven while suspended, or with an expired license, I congratulate you.  You are a careful and responsible motorist.  We should have more motorists like you.

You may not even understand how it is that a person can get their drivers license suspended.  If you are curious, you can take a look at the Illinois Motor Vehicle Code here.  You will find 18 reasons to cancel a license in Section 5/6-201, 18 reasons to revoke in Section 5/6-205, and 47 reasons to suspend a drivers license in Section 5/6-206.  There are other grounds to cancel, suspend or revoke in other provisions.  Threatening your drivers license has become a popular way for our government to induce you to comply with various laws, such as parking restrictions, child support, or having a false ID.  It is so much easier for a politician to vote to raise revenue by increasing the court costs for a traffic ticket than an outright increase in income tax.

The most common reason that people get their licenses suspended is a result of financial problems.  Instead of living in a suburban home with a two car garage and driveway, they live in an apartment building with few available streetside parking spots, and they rack up parking tickets.  They have problems paying their bills and let their car insurance lapse.  They get a traffic ticket and can’t afford the exorbitant fines and costs.  They get behind on child support and can’t ever get caught up.

And each conviction for driving while suspended or revoked extends their period of suspension or revocation.

Why do they drive without a license?  Usually because they need to get to work or take their kids to school, and in the moment, they are willing to take the risk rather than lose their job or have their kids miss school.

And the overwhelming majority of people driving without a valid license are not causing accidents.  If you don’t believe me, just sit in any traffic courtroom and you will see that most people are stopped for having no valid registration, or a broken tail light, or some minor moving violation.

Keep in mind that liability insurance will not cover drivers who do not have a valid drivers license.  So do we want laws that tend to encourage people to drive illegally without valid insurance, or laws that give them a chance of at least a driving permit, conditioned on maintaining liability insurance, which will result in a higher percentage of insured drivers on the road?

So the question becomes:  what is the best policy to deal with this?  On the one hand, we can take the position of the Riverside police chief:  send them to prison, and extend their drivers suspensions and revocations for a decade.  Or we can take another position:  stop using people’s need to drive to support themselves and their families as a way to extort them into paying for government and stop making harder and harder for these people to get a legal license.

What do you think?

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?