Another case of a police officer arrested for DUI who refuses all tests

As a DUI defense attorney, people always ask me, “should I perform the tests?”  And my answer is, do what police officers do.

From the Chicago Tribune:

A Woodstock police officer faces arraignment in March for driving under the influence after he crashed his pick-up truck in Round Lake Beach about two weeks ago.

The officer was identified as Michael E. Niedzwiecki, 29, of Lake Villa, who was charged with DUI and failure to reduce speed to avoid an accident, according to a Round Lake Beach Police Department report.

The accident occurred Feb. 11 at 1:49 a.m. on Hainesville Road when Niedzwiecki’s 2007 Ford F250 pick-up went out of control while traveling northbound on a curve close to Clarendon Drive and struck a telephone pole, according to the report, which added that power lines knocked down by the crash blocked northbound traffic on Hainesville between Rollins Road and Clarendon.

According to the report, Niedzwiecki told one of the officers at the scene that he forgot about the sharp curve to the left in the roadway, and that is why he lost control of his truck. The report added that both Niedzwiecki and a woman who identified herself as his wife went to a nearby McDonald’s after the accident and before police arrived to get help.

The officer wrote in the report that Niedzwiecki was slurring his words and had glassy bloodshot eyes and an unsteady gait. “I could smell a strong odor of an alcoholic beverage,” the officer wrote.

When an officer asked Niedzwiecki to do a field sobriety test, Niedzwiecki refused and when asked to submit to a breath test, which he also refused, according to the report, and he was placed under arrest for DUI and was also cited for failure to reduce speed. When asked to make a statement about the accident, Niedzwiecki refused again, the report states.

According to the report, at one point, Niedzwiecki showed an officer his Woodstock police officer badge and identification card.

Read the whole story here: http://www.chicagotribune.com/suburbs/lake-county-news-sun/crime/ct-lns-woodstock-officer-charged-dui-st-0225-20170224-story.html

If a police officer does this when arrested for DUI, shouldn’t you too?

An off-duty Hammond, Indiana police officer was pulled over by a State Trooper and the Trooper suspected that alcohol was a factor.  What did the off-duty cop do?  He refused to perform field sobriety tests or take a breath test.  What does he know that you don’t?

From the Chicago Tribune:

A Hammond police officer was charged with operating a vehicle while intoxicated early Saturday morning after an Indiana state trooper observed him veer across lanes of traffic on Interstate 65 and nearly drive off the road, the Indiana State Police said.

Mathew L. Anderson, 30, of Hammond, was arrested shortly after 2 a.m. on State Road 2, just south of the Indiana State Police post, after the trooper followed him as he exited from I-65, a news release from the state police said.

The trooper was making a traffic stop on I-65, just north of the Lowell/Hebron exit in Lake County, when he saw a 2007 Honda Civic “that had just passed in the left lane veer abruptly over to the exit ramp to (State Road) 2 while nearly (running) off the roadway, traveling completely onto the right shoulder,” the release said. “It was so abrupt the female driver of the traffic stop also observed the vehicle and stated, ‘Oh my God!’ ”

The trooper followed the car onto westbound State Route 2, watching as the driver weaved on the road and drove on the right shoulder, the release said.

When the trooper pulled Anderson over, he identified himself as a Hammond police officer and said he had weapons in the car, the release said. The trooper said he could smell alcohol on Anderson’s breath, but Anderson refused to take a Breathalizer test or field sobriety tests, according to the release.

Anderson was charged with two counts of operating a vehicle while intoxicated and one of unsafe lane movement.

DUI, Race and the Chicago Suburbs

There has been a viral facebook post by Brian Crooks about growing up black in suburban Naperville.  So far, it has garnered over 25,000 shares.  Please read it.

I wanted to excerpt part of it about the numerous DUI and other traffic investigatory stops that he endured, because the key to solving our current policing crisis is through listening and understanding:

I got pulled over a lot in high school. Like, a lot a lot. By this point, I was no longer driving the Dodge. I had a Mazda of my own. It was flashy and loud, but this was 2002 and everybody with a Japanese car was doing a Vin Diesel impression, so it’s not like mine stood out that much more than anyone else’s. I spent a ton of money on my car and was especially aware of its appearance. You can understand, then, why it was weird that I was routinely pulled over for a busted taillight. After all, that’s the kind of thing I would’ve noticed and gotten fixed, especially if that taillight tended to burn out once a week or so. My parents had told me how to act when pulled over by the police, so of course I was all “Yes sir, no sir” every time it happened. That didn’t stop them from asking me to step out of the car so they could pat me down or search for drugs, though. I didn’t have a drop of alcohol until I was 21, but by that point I was an expert at breathalyzers and field sobriety tests. On occasion, the officer was polite. But usually, they walked up with their hand on their gun and talked to me like I’d been found guilty of a grisly homicide earlier in the day. A handful of times, they’d tell me to turn off the car, drop the keys out the window, and keep my hands outside the vehicle before even approaching…

Once, when I came home from college, I was pulled over less than a block from my parents’ house. It was late, probably about midnight or so, but I hadn’t been drinking and it was winter so I wasn’t speeding because it had snowed that day. The officer stepped out of his car with his gun drawn. He told me to drop the keys out the window, then exit the car with my hands up and step back toward him. I knew he was wrong, but I wasn’t about to be shot to death down the street from my parents’ house because my failure to immediately comply was interpreted as me plotting to murder that officer. So yeah, I stepped out and backed up toward the officer. He hand cuffed me and refused to tell me why I had been pulled over, or why I had been asked to exit my vehicle. Only when I was sitting in the back of the police car did he tell me that there had been reports of gang activity in the area and that a car fitting my car’s description with a driver fitting my description had recently been involved in said gang activity. Gang activity. In south Naperville. Committed by a Black male driving a bright blue Mazda MX-6 with a gaudy blue and white interior. Yeah, alright. He was very short in asking me what I was doing in the neighborhood so late at night. I explained that my parents lived at that house with the glass backboard over there. He didn’t believe me. He took me back out of the car and put me face down on the hood of the police car to frisk me. I’d already been searched once before he put me in the car. Then, he spent about 15 minutes searching my car while I stood hand cuffed in the cold. My ID had my parents’ address on it, but he still didn’t think I lived there. I could tell he wanted to accuse me of having a fake ID. About a half hour after being pulled over, when he found nothing on me, nothing in my car, and nothing on my record, he reluctantly let me go. He didn’t even say sorry, or explain that it was his mistake; he must’ve been looking for another Black man in a bright blue Mazda MX-6 who was a gang leader in south Naperville. He sat in the street until I drove to my parents’ house, opened the garage door, drove inside, and then closed the garage door.

By the way, for the younger readers, I want to make it clear that having stories like this in the public conversation is not a new thing. When I was a young man in the 1980’s I read plenty of accounts of “driving while black.”  Perhaps the most memorable news item in this vein this was from 2000 when it became a temporary news story when it was revealed that Highland Park, IL police officers admitted that “they were taught to spot Mexican drivers to pull over by looking for large hats. A radio dispatch transcript submitted as evidence includes a Highland Park officer saying, “We got a winner,” after a sombrero sighting.” – Chicago Tribune story from March 31, 2000.  But then after a few weeks or months, stories like this pass away and nothing gets done.

I have said this before on this blog, but I will say it again.  DUIs are a very easy crime to fake.  They are also good tools for police departments that want to harass “unwanted” characters to keep them out of town.  All it takes for a DUI arrest is an officer’s “opinion” that a person was intoxicated because had “bloodshot eyes” and an “odor of alcohol.”  They can not offer a breath test and claim that the defendant “refused.”  It is also easy to make up probable cause for a drug or gun stop.  Let’s say an officer suspects someone is dealing drugs.  He can conduct a stop and frisk.  If there are no drugs, you walk away..If there are drugs, then you say you saw it in “plain sight.”  Or you can create some probable cause by heading straight to the suspected dealer and getting him to make a “furtive move” or run away.

This is not to say that this happens every time, but keep it in mind when you hear that someone was arrested for DUI.  Ask the critical questions:  why were they stopped?  what evidence is there?  Is there video evidence?

This is why video evidence is so crucial.  It is frustrating to me that even in 2016, it is common to have DUI, drug and weapons cases without any corroborating dash cam or body cam video evidence.  This should be mandatory.  Video evidence will often (if not always) establish whether the officer had probable cause, acted in a professional manner, and whether the defendant was violating the law or was just driving while black.

Chicago Police’s DUI Strike Unit out to annoy motorists tonight

The Chicago Police Department has announced that it will be in force tonight in the Gresham District, conducting a “DUI Strike Patrol” starting at 7:00 p.m. tonight through 3:00 a.m.

From their press release:

The purpose of this program is to saturate a pre-designated area with roving police officers that continually monitor vehicular traffic for signs of impaired driving. Patrols also place emphasis on speed, alcohol-related and safety belt violations. Police vehicles equipped for speed detection are deployed to apprehend speeding violators. In addition, the Breath Alcohol Testing (BAT) Mobile Unit may also be deployed to allow officers to expedite the process of charging a person with Driving under the Influence (DUI) prior to transporting an alleged into the nearest lockup for bonding. The mobile unit also allows for Individual Recognizance Bonds (I-Bonds) to be issued at the site of the DUI Strike Force Patrol.

You may ask, why do I say “annoy motorists” instead of “protect the public”?

Because look at their stats from last week’s DUI Strike Patrol, conducted in the Grand Crossing District:  135  citations, only one of them was for DUI.

One DUI on a Saturday night?  Are you kidding me?  Any patrol officer can get a DUI while out on patrol on a Saturday in Chicago between 7 p.m. and 3 a.m.  Why not use some of those officers instead to stop people from getting killed a block from the Chicago Police’s main headquarters?

Thats my 2 cents.

Appellate Court rules police cannot enter home without warrant or consent to investigate accident

In a new decision, the Illinois Appellate Court, Second District, affirmed a ruling from a DeKalb County case, rescinding a DUI suspension and suppressing evidence, after police entered a man’s home, without a warrant or obtaining consent to enter, to investigate a  a report of a man acting confused and disoriented which lead to the discovery of a one car accident.  The case is People v. Swanson, 2016 IL App (2d) 150340.

In summary, the evidence showed that the defendant left a tavern and got into an accident on a cold, snowy and icy night.  He sought shelter at a nearby home, but the homeowner would not let him enter and instead called the police.  The defendant ran off, and ultimately arrived at home, where, according to his wife, he consumed alcohol to “warm up.”  Prior to his arrival at home, police had responded to the homeowner’s call, discovered the smashed vehicle, and visited the defendant’s home and spoke to his wife.  She was asked to call the police when he arrived, which she did, but when police arrived, she did not let them enter and told them that she was taking care of her husband.  The police entered anyway and arrested him for leaving the scene of an accident and DUI.

The case upheld a longstanding proposition of law that police cannot enter a person’s home without a warrant or without consent, unless there are exigent circumstances.

Lesson:  remember your rights.  Because this man’s wife insisted on them, the case against him is history.

Chicago Police to do DUI saturation patrols this weekend

The Chicago Police DUI Strike Force will be out doing saturation patrols in Wicker Park, Bucktown and Logan Square this Saturday night.

From their press release:

The Chicago Police Department will be conducting a DUI Strike Force Patrol in the
Shakespeare (14th) District this weekend. The DUI Strike Force Patrol will commence at 7:00 p.m. on Saturday, April 23, 2016 and end at 3:00 a.m. on Sunday, April 24, 2016.
The purpose of this program is to saturate a pre-designated area with roving police officers that continually monitor vehicular traffic for signs of impaired driving. Patrols also place emphasis on speed, alcohol-related and safety belt violations. Police vehicles equipped for speed detection are deployed to apprehend speeding
violators.
In addition, the Breath Alcohol Testing (BAT) Mobile Unit may also be deployed to allow officers to expedite the process of charging a person with Driving under the Influence (DUI) prior to transporting an alleged into the nearest lockup for bonding. The mobile unit also allows for Individual Recognizance Bonds (I-Bonds) to be issued at the site of the DUI Strike Force Patrol.

Illinois State Trooper pleads guilty to DUI while on Duty

From the Chicago Tribune:

An Illinois State Police trooper who authorities said was intoxicated when he responded to a crash on Interstate 88 last year pleaded guilty Monday to driving under the influence, according to Kane County prosecutors.

Trooper Paul Zurn, 34, agreed to a sentence of one year of court supervision in exchange for a guilty plea to misdemeanor DUI, according to a news release from the Kane County state’s attorney’s office. Judge Robert Morrow accepted the plea.

According to prosecutors, Zurn responded to a minor traffic crash on Aug. 22, 2015, on I-88 near Farnsworth Avenue in Aurora. At the scene, Zurn “was observed by other troopers to be unsteady on his feet, and a bottle containing alcoholic liquor was found in his squad car,” according to the news release.

Zurn refused to submit to a portable breath test and standardized field sobriety tests and also refused to submit to a Breathalyzer test, according to the release. As a result, his driver’s license was suspended for one year by the Illinois Secretary of State.

According to Illinois law, first-time misdemeanor DUI offenders are eligible for supervision, the release said. In addition to the supervision sentence, Zurn must undergo alcohol treatment, pay $2,185 in costs and fines and attend a victim impact panel.

Information about Zurn’s job status was not immediately available.

Two things to note:  1) he refused all tests (so why shouldn’t you do the exact same thing if you end up in the same situation); and 2) even without doing the tests, and without getting his license suspension rescinded which would allow him to work, he plead guilty. Here is a State Trooper, on duty, and there are no field tests or blood alcohol level, yet he still plead guilty.  Since I have not seen the arrest reports, videos or reviewed any of the evidence, I am not in a position to evaluate his case.  But this goes to show that there is no such thing as a slam-dunk case.