Attorneys for Highland Park huffing teen challenge DUI law

carlyroussoAccording to the Chicago Tribune, Douglas Zeit, the attorney for Carly Rousso, has challenged the constitutionality of the statutes under which she has been charged, which make it illegal to drive under the influence of an intoxicating compound.  Rousso was alleged to have been under the influence of difluoroethane, by “huffing” the fumes of a cleaning product prior to driving up on the sidewalk, striking and killing Jaclyn Santos-Sacramento.

From the Tribune:

Defense lawyer Douglas Zeit is questioning whether difluoroethane is intoxicating, which he said affects the constitutionality of the charges against Rousso. She is charged with reckless homicide and four counts of aggravated driving under the influence of an intoxicating compound.

Prosecutor Michael Ori said Zeit must notify the state attorney general about a challenge to the constitutionality of a state law. Ori explained that the judge can either deny the motion or dismiss the charge. If the judge dismisses the charge, there would be an immediate appeal to the Supreme Court.  If the judge were to find it constitutional, the defendant can also appeal, said Ori.

A status date is scheduled Sept. 27, with the trial scheduled Nov. 1.

In order to make his case, Zeit will need to present expert testimony to the court to show that difluorethane is not intoxicating.  A quick search of the internet indicates that this may be hard to prove.  I will be curious to see which expert he uses, and what he or she says.

From Medicine.net:

Reports in 2005 about teens dying after inhaling the chemical difluoroethane from a popular computer-cleaning spray known as Dust-Off called widespread attention to the practice of inhalant abuse. Then, as now, the product Dust-Off itself was not the source of the problem; it is only one example of hundreds of common household products with the potential to be abused by inhalant abusers.

Inhalant abuse (commonly called “huffing”) is the intentional inhalation of chemical vapors to attain a mental “high” or euphoric effect. A wide variety of substances, including many common household products, are abused by inhalers (see list below). The 2010 National Survey on Drug Use and Health (NSDUH) revealed that the primary population of inhalant abusers (68%) is under 18 years of age. Although inhalant abuse is declining from its peak in the 1990s, it is still a significant problem. In 2011, 7% of eighth graders reported inhalant use, along with 4.5% of 10th graders and 3.2% of 12th graders.

Inhalants produce an effect that may be similar to alcohol intoxication. Initial symptoms described by abusers who were “huffing” include drowsiness [and] lightheadedness…

Mandatory Videotaping of DUI arrests coming to Illinois?

A new bill that is pending in the Illinois House (HB3202), sponsored by Representatives Emanuel Chris Welch, Arthur Turner and Michael Zalewski, and drafted by David Franks of the Illinois State Bar Association Traffic Law and Courts section, would make it mandatory for all law enforcement agencies to have their squad cars equipped with video recording equipment by July 1, 2014.

The new law would become part of Illinois’ DUI and criminal statutes, as a new section of the DUI statute 625 ILCS 11/501.9 and an amendment to the wiretap law 720 ILCS 5/14-3.

The synopsis of the proposed bill states as follows:

Amends the Illinois Vehicle Code. Requires all law enforcement patrol vehicles to be equipped with video recording equipment by July 1, 2014. This equipment must be capable of recording at least 10 hours of video footage and recording sound with the use of a wireless microphone. Patrol vehicles with in-car cameras are required to record when (1) the officer determines an enforcement stop is necessary and shall continue until the enforcement action has been completed, provided that the recording shall include any field sobriety tests administered during a DUI stop, including the administration of a portable breath test; (2) the patrol vehicle emergency lights are activated or when they would otherwise be activated if not for the need to conceal the presence of law enforcement, and shall continue until the reason for the activation ceases to exist, regardless of whether the emergency lights are no longer activated and, in the event of an arrest may not conclude before the subject is transported and leaves the vehicle; (3) the officer reasonably believes recording may assist with prosecution, enhance safety, or for any other lawful purpose and shall continue until the reason for recording ceases to exist. Requires audio and visual recordings of all Illinois Vehicle Code related stops. For DUI related stops, requires video recording of any observation periods, test refusal, and test administration, including those not conducted at the scene of the stop. Requires officers to report any equipment malfunction. Makes any video recording made under this Section subject to the Freedom of Information Act and subpoenas, but allows the department to charge a $25 fee for compliance with any video production request for the purpose of recouping administrative costs. Effective July 1, 2014.

Personally, I have a problem with the $25 “administrative fee” which is quite exorbitant considering that (a) a blank DVD costs about 20 cents retail and it doesn’t take much time to copy a file; and (b) defendants in Illinois have a right to receive a copy of the video, and there is a Constitutional right to obtain an exculpatory material.

Aside from that, this is a good bill.  Too many police officers still do not have video equipment in their squad cars, especially in Chicago.  I have noticed that as video recording has become more prevalent, I am getting less and less calls from potential clients complaining about officers “putting a case on” them.  Keep in mind that most people who are arrested have no idea that they are being video recorded, so the reason that I am getting less of these calls isn’t because people are “wising up” that their false claims won’t go anywhere.  No, it is because police officers know that they can’t get away with charging someone with DUI, just because they can, when there is video recording their encounters.

The new prohibition; the next phase commences?

The State of New Mexico is at it again in its war against drunk drivers.  You may recall that New Mexico was the first state in the nation to require breath interlock devices for first offender drunk drivers (and that measure only passed after the state legislature considered and rejected a bill requiring interlocks for all drivers).

Now, a new proposal is making its way through the New Mexico state legislature that would require prohibit most people convicted of a DWI from purchasing alcohol.  This would be done by a special mark on their driver’s license or state ID.

The origin of the bill, according to the story, makes little sense to me:

State Representative Brian Egolf, a Democrat from Santa Fe, said he was motivated to introduce the bill after seeing a man with an interlock device in his car buy miniature bottles of whiskey and a Coke at a convenience store.

The man poured the whiskey into the Coke, blew into the interlock device and started his car. He then placed the drink in the car’s cup holder and drove off.

What’s wrong with this story?  Breath ignition interlock devices (“BAIIDs”) are typically set to prevent the vehicle from starting at 0.025 BAC (this is less than a third of the legal limit).  This means that a person could have a small amount of alcohol in his or her system and still start the motor.  In addition, from time to time, the device prompts for a new breath sample, called a “rolling re-test,” in order to keep the engine running.  So that it is not possible for a person to start up a car equipped with a BAIID, then begin to start drinking alcohol, and drive for any significant length of time.

While drunk driving is certainly a serious problem; and it is especially bad in New Mexico, this strikes me as a very draconian response, akin to using a sledgehammer when a rubber mallet is appropriate.

What do you think?

Smile while you blow?

This was brought to my attention by Champaign attorney Mark Palmer.

The Secretary of State has proposed an new rule for breath ignition interlock devices (“BAIID”), requiring that they have cameras capable of photographing the motorist while he or she is taking the breath test necessary to start the vehicle.

The proposed rule states:

IGNITION INTERLOCK DEVICES

SOS also proposed amendments to “Procedures and Standards” (92 Ill Adm Code 1001; 37 Ill Reg 720), concerning Breath Alcohol Ignition Interlock Devices (BAIIDs) issued to persons with restricted driving permits or monitoring device driving permits (MDDPs, for first-time DUI offenders). No later than July 1, 2013, all BAIIDs installed shall include a camera that captures a clear image of the individual blowing into the BAIID, at a sufficiently wide angle to determine whether a circumvention device has been inserted into the mouthpiece of the BAIID. Captured images shall be stored by the vendor of the BAIID device and made accessible to the SOS, as prescribed by the SOS. For persons in the first-time monitoring driving permit program, preventing the camera from taking clear and accurate photos of the permittee blowing into the mouthpiece is a violation.  Permit privileges shall be suspended for an additional 3 months when an image shows the MDDP permittee has used a product that allows the permittee to avoid blowing directly into the mouthpiece, or has tried to prevent a clear picture of the driver. BAIID providers and installers are affected by this rulemaking.

As you may know, the Illinois Secretary of State requires that most people who have been suspended or revoked in Illinois for one or more DUIs have a BAIID installed on their vehicle as a condition of a driving permit.  The BAIID will only allow the individual to start a motor vehicle so long as there is not a BAC reading of 0.025 or higher.  This means that a person can have a BAC that is well below the legal limit yet not be able to start his or her vehicle.  Because of this, it is quite common for people to find that they are locked out and unable to start their vehicle despite not having consumed alcohol for over 12 hours, and feeling completely sober.  When this happens, not only is the person unable to start the car, but he or she will then face repercussions for their “high” BAC, including but not limited to extensions of the suspension, revocation of the driving permit,and  impoundment or forfeiture of the vehicle.

Faced with such consequences, it is commonplace for the person in this situation to attempt to claim that someone else was responsible for the BAIID result.  Sometimes this is true, sometimes it isn’t.  Currently, the person may contest the action of the Secretary of State and request a hearing, at which time he or she can present their evidence.  This requires the Secretary of State to weigh the credibility of the witnesses and evidence.  A photograph of the actual test will make this determination a lot easier, for both the Secretary of State and motorist involved.

30 day hard time rule coming to an end?

Since 1986, Illinois has had an “implied consent” or “statutory summary suspension” for motorists who are arrested for DUI and either refuse or fail breath, blood or urine tests.  As part of this law, Illinois has allowed “first offenders” to receive a driving permit during their suspension.  However, these permits could not begin until 31rst day after the suspension began.   This 30 day period is called “hard time” and it was mandated by the Federal government through a highway funds bill.

The purpose of the 30 day “hard time” was to get intoxicated motorists off the road for at least some period of time, before allowing them to get back on the roadways with a limited use permit.  For years, Illinois only allowed Judicial Driving Permits to be issued, after a judge agreed after a hearing in which the judge reviewed the motorist’s alcohol and drug use evaluation, heard about the (alleged) facts of the case and the defendant’s driving history, and then they could only be issued for limited purposes such as for work or school.

A sea change occurred a few years ago, when Illinois scrapped the “Judicial Driving Permit” and replaced it with a “Monitored Device Driving Permit” (“MDDP”).  As it currently works, a first offender is automatically enrolled to get a MDDP and must choose to opt out.  The MDDP allows driving, after the 30 day hard time period, for any purpose, 24 hours a day, seven days a week, so long as the person has a breath ignition interlock device (“BAIID”) installed on his vehicle (however, there is a limited “work vehicle exception to allow someone to drive a work vehicle without a BAIID).  At the time, Illinois was one of the first states to make this switch, requiring interlocks for first offenders.

Since this law was introduced, it puzzled me as to why the 30 day hard time remained in place.  Once the BAIID is installed, a person can only drive legally if he or she has a BAC of under 0.025.  The BAIID ensures that if the person is going to drive, he or she will do so sober.  So why not let that person drive immediately?  Giving that person a permit right away would encourage people to get the MDDP with the breath interlock, instead of making them wait 30 days, a timeframe where a person might feel the need to drive illegally, just to keep their job or get their children to school.

The problem in scrapping the hard time requirement was that the State would lose Federal money under the transportation bill unless the 30 day rule remained on the books.

So this has been a point of frustration for me (one of many, when it comes to our DUI laws).

But now it looks like things may change.

Since Illinois adopted the new law requiring BAIIDs for first offenders, other states have jumped on the bandwagon, and ignition interlocks for first time offenders are increasingly becoming standard.  A new Federal transportation bill, pushed by Mothers Against Drunk Driving (MADD) provides money to states that adopt breath interlocks for states, and, as part of the bill, removes the requirement that states have mandatory 30 day hard time.

According to my contacts at the Secretary of State and the Illinois Bar Association, our legislature is looking into scrapping the 30 day hard time rule. Local state’s attorneys and police departments have been contacted for feedback, and apparently everyone is on board with removing this outdated rule.  So all that is needed is our representatives to pass the legislation.  Hopefully, they will see the benefits to this law and feel that with the approval of MADD, prosecutors and police departments, they have the political cover to support this common-sense change.

Can an officer use force to draw blood against your will?

The Illinois Appellate Court, Third District issued an important ruling this week involving DUI summary suspensions. The case is People v. Farris, 2012 Il App (3d) 100199.

In the Farris case, the arresting officer came upon Ms. Farris immediately after an accident. She had a cut lip and was complaining of a headache. The officer noted an odor of an alcoholic beverage on her breath. She was taken by paramedics to a nearby hospital. On the way, she became belligerent.

At the hospital, the officer requested that she provide a blood sample. After she refused, two officers, a doctor, a nurse, and another hospital employee held her down to get the blood sample against her will. After the blood test result was obtained, a “notice of summary suspension” was completed, stating that her license would be suspended for six months for her taking a blood test which disclosed a result greater than 0.08.

As you may be already aware from reading this blog, a DUI defendant faces a summary suspension of his or her license for either failing, refusing or being unable to complete a blood, breath or urine test. If you are a first offender, the penalty for failing the test (i.e., blowing over 0.08 or testing positive for drugs) is a six months suspension. It is a one year suspension for refusing or being unable to complete the test. For second offenders, the penalties jump to one and three years respectively.

Here is a link an earlier post explaining the summary suspension.

Back to the Farris case. The trial Court conducted a hearing and found that the blood draw was not voluntary, and the result of the test was suppressed from evidence. In response, the State sought leave to have the “notice of summary suspension” (also known as a “sworn report’) amended to reflect a refusal instead of a voluntary test. Ultimately, that request was denied. The summary suspension was later rescinded as it could not be shown that the defendant took a blood test with a result in excess of 0.08 (since the result of the test had been suppressed due to its being coerced).

The first issue that the Farris case raises is whether the police can forcibly obtain a blood draw from you against your will. Seven years ago, the Illinois Supreme Court ruled that police could use some force to get a blood draw, but at the same time cautioned them against using excessive force to do so, noting that even with a refusal, there were still consequences for the defendant, such as a longer suspension and that proof of the refusal is admissible at trial to prove “consciousness of guilt.” Basically, they seemed to say that some use of force is okay, but don’t overdo it. Not a very clear line, was it?

Well, the line isn’t all that much clearer now, but the Appellate Court in Farris held that having five people pin you down to get a blood draw against your will qualifies as a violation of the unreasonable search clause of the Fourth Amendment to the United States Constitution. As a result, the blood test was suppressed from evidence.

The second issue concerned the extent to which an officer may amend a “sworn report.” While the case law allows an amendment to fix a minor error, the Farris court held that the trial court did not err by refusing to allow an amendment which had the effect of changing the basis for the suspension, as well as doubling its length.

Can you get a DUI while riding on a Zamboni?

Not the actual Zamboni (unfortunately)

Today it was reported that a man from Apple Valley, Minnesota was arrested for suspicion of driving a Zamboni driver while under the influence of alcohol.

Apparently, this man was “weaving all over the ice” and had a strong odor of the energy drink Red Bull, slurred speech and red eyes.  He was arrested on suspicion of DUI and was taken to the police station for a blood test.

He is reported to have had two prior DUIs.  As far as we know, neither of them occurred on a Zamboni.

In 2007 a judge in New Jersey found that there could not be a DUI on a Zamboni, under that state’s laws.

However it appears that the Minnesota legislature made sure to include Zambonis as a type of vehicle covered by their DUI statutes.

Although I am not aware of any Illinois case directly on point, in Illinois one can be found guilty of a DUI if you are driving a motorized vehicle that is not designed for rails or tracks (or a snowmobile, but they are covered under a separate statute).  I am pretty sure that a Zamboni fits into that broad definition.  Previous cases have held that a lawn mower, a golf cart, an all terrain vehicle, a motorcycle, a moped, a portable towing device or even an car that is not driveable, but has not yet been issued a junking certificate, were all motor vehicles subject to DUI laws.

So, remember, please don’t drink and Zamboni!

Canadian newspaper comes out again draconian DUI laws

Say No to Tougher Drunk Driving Laws!

Bronwyn Eyre of the Saskatoon StarPhoenix has just published a stinging rebuke to new Alberta, Canada drunk driving laws which trash civil liberties and human dignity in the name of “highway safety.”  They treat refusing a breath test the same as a failure, with penalties including a felony conviction and up to five years in prison.  Here is the article in its entirety (link above):

“If you’re attending a Christmas party this weekend, you’d better watch your back.

Take it from Alberta MP Peter Goldring, who was reportedly watched by Edmonton police as he left his annual constituency fundraising dinner last week. He was then followed and, just three blocks away, pulled over by officers who, that night, were tasked with “identifying and arresting suspected impaired drivers.”

You have to wonder if police were tipped off.

After all, Goldring has been a vocal opponent of several provincial impaired driving laws, as well as proposed federal legislation that would allow police to randomly screen drivers with roadside breathalyzer tests, whether officers suspected them of being impaired or not.

“It’s safe to say everyone is opposed to drunk driving, but there are civil liberty issues involved,” Goldring recently said. “There’s the presumption of innocence and the right to not self-incriminate.”

The MP, who withdrew from the federal Conservative caucus, is expected to launch a challenge under the Canadian Charter of Rights and Freedoms, arguing police didn’t have the proper grounds to demand a sample from him.

There’s no indication Goldring was driving erratically when he was pulled over. Perhaps to prove a point, he refused to submit to a breathalyzer test – which carries the same legal consequences as being found over the legal limit – and could now face a $1,000 fine, up to five years in prison and various driving restrictions.

In a foreshadowing twist, Goldring had a disagreement at his fundraiser with Edmonton MLA Thomas Lukaszuk over Alberta’s new, controversial impaired driving laws (which were pushed through last week).

“Mr. Goldring said the new legislation is intrusive and will someday be challenged by someone in a court of law,” Lukaszuk said. “I responded that it ensures impaired drivers will be taken from Alberta streets. This is a matter of much higher importance than some potential hypothetical challenge.”

I hope Mr. Lukaszuk didn’t indulge in a glass of wine from the cash bar that evening, because under Alberta’s new law, drivers caught with (not illegal) bloodalcohol levels between .05 and .08 – easily reachable after a glass of wine – will be subject to an automatic three-day licence suspension and three-day vehicle impoundment.

The Alberta law follows a similar law in British Columbia, passed last year, where a first offence carries a three-day driving ban and a $200 fine. A second offence carries a seven-day ban and a $300 fine and a third offence carries a 30-day ban and a $400 fine.

Astoundingly, the law was recently held to be “unconstitutional but justified” by a B.C. judge.

Saskatchewan Justice Minister Don Morgan has said he’s looking at the B.C. and Alberta laws.

“The methods (they’re) using appear to have positive results,” he said, noting he’s made “no definite decision.”

Minister Morgan: Just say no. Aside from the obvious detrimental effects such laws have on police resources – not to mention the restaurant industry – it’s alarming to hear politicians such as Alberta’s Lukaszuk refer to civil rights concerns as insignificant, “hypothetical challenges.”

There’s no doubt we should target real driver impairment by setting up road stops in high-speed zones, airing graphic ads and banning repeat offenders from ever driving again – whatever it takes. But fining and impounding the cars of those who have even one glass of wine is part of a disturbing new Puritanism that’s as much about banning drinking as drinking and driving.

B.C. claims that during the last year, its .05 law has lowered impaired driving deaths by 40 per cent – although officials are keeping the actual statistical breakdown under wraps.

The reality is, very few fatal accidents are caused by drivers over age 20 with blood-alcohol levels under .09. Drivers with bloodalcohol levels of .12 and over are statistically the most likely to cause fatal or serious accidents.

Across Canada, 60 per cent of fatal crashes involving alcohol are caused by drivers with .16 blood-alcohol levels, while only between three and five per cent of accidents and other traffic incidents are caused by drivers with .05 and .08, respectively, in their blood.

We should all be concerned about what led police to pull over Peter Goldring.

Because, as civil libertarians like to say, they could be coming for you next.”