IL Appellate Court rules that blood in motorist’s mouth invalidated her breath test

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the Defendant’s breath test of 0.215 was suppressed from evidence at her trial and her statutory summary suspension was rescinded.

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).

 

Governor signs into law bill removing waiting period for DUI driving permits

Governor Rauner has signed into law a bill (SB 0627) which removes the “hard time” waiting periods before a motorist could apply for a DUI-related driving permit.

Effective January 1, 2016, the bill will remove the 30 day waiting period before a person could obtain a Monitored Device Driving Permit (“MDDP”) after getting a first offense DUI suspension for either failing or refusing a breath, blood or urine test.

The law also removes the one year waiting time for a person whose license has been revoked for DUI to apply for a Restricted Driving Permit, and the three year wait for a person who has a summary suspension for a second offense refusal..

In addition, the law will require DUI arrestees to sign a form acknowledging that they have been warned of the license suspension consequences for either failing or refusing to take a breath test.  This is an advantage for prosecutors, who routinely lose suspension hearings on this issue when officer can’t make it to court and the defendant is able to testify that he or she wasn’t warned.

Overall, this law is a big win for both defendants and the public.  With the advent of breath interlock devices, there is no compelling reason to make people wait to obtain a driving permit when there is technology out there that will prevent them from driving drunk.

The Chicago Tribune Editorial Board comes out in favor of scrapping the DUI 30 day hard time rule

Last week, I posted a blog post about a pending bill in the Illinois legislature that would end the 30 day hard time rule which prevents first time DUI offenders from getting a driving permit until they have served 30 days of their statutory summary suspension.

Now, the Chicago Tribune editorial board has come out in favor of it too.

Here is their editorial, which is pay-walled on their site (why would they want to keep people from reading their opinions?):

Illinois law says that if you’re arrested for drunken driving, you’re supposed to serve the driver’s version of “hard time.” That is, you can’t drive, period. This “hard time” is supposed to be 30 days for first-time offenders and up to three years for repeat offenders.

But people steer around that law in several ways. Some simply drive without a license. Some work out plea deals with local prosecutors to pay hefty fines so they can avoid a suspension.

The Illinois State Bar Association has proposed a way to end the evasion — by ending the “hard time” period of suspensions.

The ISBA proposes that motorists charged with DUI be required to install ignition interlock devices that test for alcohol on a driver’s breath. They would drive — sober — with the interlock instead of losing driving privileges. The presumption is that more drivers would pay to install the devices and drive legally, rather than drive illegally or cut deals to avoid suspension.

Mothers Against Drunk Driving — long an advocate of ignition interlocks for all DUI offenders — is on board with the idea. So is the Chicago-area advocacy group called Alliance Against Intoxicated Motorists. They’re not exactly known as pushovers on drunken driving.

State Senate President John Cullerton, who has passed valuable traffic safety laws in recent years, tells us that he supports the idea. “There’s an evolution in this area from the hard suspension which was sacrosanct” years ago, he says. Now, advocates recognize that “it’s safer to have people driving with the interlock than to have them illegally driving, as many of them do.”

This page has supported broader use of ignition interlock devices to help curb intoxicated driving. The National Transportation Safety Board recommended in 2012 that states mandate interlocks for all DUI offenders. The states with the strongest interlock laws, such as New Mexico, Arizona and West Virginia, have seen greater reductions in drunken driving deaths than the national average, MADD reports.

The threat of automatic suspension is a strong deterrent — when it’s enforced. That would be our preference, but it’s not easy to force local prosecutors and municipalities to give up their deal-making.

So we can see value in using interlocks after an arrest. That change would not affect how DUI offenders are punished after a conviction.

A first conviction for a misdemeanor DUI in Illinois carries a revocation of driving privileges for at least one year, two years if you’re under age 21. If your blood-alcohol level is more than twice the legal 0.08 limit, there’s a mandatory minimum $500 fine and 100 hours of community service. Depending on circumstances, including whether anyone was hurt in a crash of if there was a child in the car, penalties escalate, including possible jail time.

This interlock proposal could help curb a widespread and infuriating practice exposed by the Tribune last year. Local prosecutors in some suburbs cut plea deals to reduce DUI charges and collect wads of cash for municipal coffers. Those arrested often pay those fines to avoid a license suspension. The prospect of driving with an interlock instead of serving “hard time” might reduce the incentive for these municipal workarounds.

This all depends on how the concept is translated into proposed law. If a bill is presented to them, lawmakers should make sure it doesn’t create new loopholes in safety law. The message shouldn’t change: Drink. Drive. Pay.

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?

A Red and Blue Light Special: Getting a DUI in a Walmart

Today's Hero

Today’s Hero

The offense of DUI can come in sorts of varieties:  from the person “sleeping it off” to the roadblock to the reckless driver to the fatal accident.  But here is one that is new to me:   driving drunk on a motorized shopping cart inside a Walmart:

Police in Brooksville say they’ve arrested a man who was driving drunk — inside a Walmart.

According to WFLA , officers said Timothy Carr was drunk and driving around the store on a motorized shopping cart.

Carr then removed an alcoholic beverage from a shelf and was drinking it while he knocked other items off the shelves, police told WFLA .

The Walmart is located at 7305 Broad Street.

According to the report, Carr told police he did not have enough money to pay for the alcohol. He also said he is a transient.

Carr had two previous arrests for retail theft, which made the current arrest a felony.

He was charged with disorderly intoxication and felony retail theft.

It is unclear from this story whether Mr. Carr was actually charged with a DUI.  Perhaps the officers used their discretion and only charged him with disorderly intoxication.

But can you get a DUI in Illinois on a motorized shopping cart?  If you are a faithful reader of this blog, you may remember that I have blogged before about DUIs on a motorized wheelchair and on a Zamboni.As I said before in the Zamboni post,

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) … 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 drivable, but has not yet been issued a junking certificate, were all motor vehicles subject to DUI laws.

So, the answer is, yes, you can get a DUI in a motorized shopping cart.

However, you cannot receive a statutory summary suspension, for failing or refusing a blood, breath or urine test, if you were arrested for DUI inside a Walmart, because the summary suspension law only applies to driving that occurs on the public roads.  So there’s that.

What I received this holiday season.

thankyouI just wanted to share with you a couple of “Thank you” notes that I received from two clients who had a combined four years of license suspensions rescinded this month.

I cannot thank you enough for all of your help regarding my case! … you have helped me keep my job and save my license! This was indeed a early Christmas present and I can safely feel I am given a second chance … you have given me hope and strength to keep my head held high and go on! I am forever grateful! Thank you, thank you, thank you!  I wanted to reach out and say it after being difficult and so worried about it! You really made an impact on my life and I’m forever grateful! Have a wonderful holiday season!

– Client with case in Markham

You were able to obtain for me the results that I was looking for and I am grateful for that.  It would have been a big deal had I lost my drivers license, so I am glad you were able to get the summary suspension rescinded.  I will definitely recommend you if someone I know is ever faced the legal situation that I encountered.

– Client with case in Rolling Meadows