| "Field-sobriety tests in Illinois may be refused without | | | | driver to exit the vehicle. The officer is observing for |
| penalty, and the risk of erroneous interpretation by an | | | | the odor of alcohol, bloodshot and/or glassy eyes, |
| officer far outweighs the benefit of performing them." | | | | slurred speech, fumbling with the license, and other |
| This article gives non-DUI practitioners a general | | | | indicia of intoxication. The officer will also generally ask |
| overview of the DUI laws, describes how a DUI arrest | | | | whether the driver has been drinking and, if so, how |
| occurs, and offers general information to help you | | | | much, when, and where. He or she may also ask a |
| answer that all-too-often asked question by clients and | | | | question that requires two unrelated answers, such as |
| others: "What should I do if I'm stopped for DUI?" | | | | "what year is your car and where are you heading this |
| To begin with, note that there are two basic parts to a | | | | evening?" to see if the driver can think properly. |
| DUI; the summary suspension and the criminal charge. | | | | The last part of the personal contact phase may be to |
| The criminal charge | | | | ask the subject to say a part of the alphabet, or to |
| "DUI" stands for "driving under the influence" of alcohol, | | | | count backwards from 67 to 43, in attempt to gauge |
| drugs, or a combination thereof. 625 ILCS 5/11-501. The | | | | mental impairment. |
| penalty for a first time DUI is a Class A criminal | | | | At this point, the driver might be requested to exit the |
| misdemeanor punishable by up to 365 days jail and/or | | | | vehicle for further testing. |
| a $2,500 fine. There are four basic DUI elements:o | | | | Pre-arrest screening. Pre-arrest screening consists |
| Driving or actual physical controlo of any vehicleo | | | | mainly of field-sobriety tests and portable breath |
| anywhere in the stateo while under the influence of | | | | testing. In Illinois, field-sobriety tests and portable breath |
| alcohol and/or drugs. | | | | tests are optional, and a driver faces no penalties for |
| Let's look at the first three elements individually. | | | | refusing to submit to these tests. |
| "Driving or actual physical control." The phrase "driving | | | | Further, in Illinois there is no requirement that the |
| or actual physical control" means that a person may | | | | field-sobriety tests be valid or standardized, with the |
| get a DUI even is he or she is simply sleeping or sitting | | | | exception of the horizontal gaze nystagmus ("HGN") |
| in a parked motor vehicle. See, e.g., City of Naperville v | | | | test. See People v Bostelman, 325 Ill App 3d 22, 756 |
| Watson, 175 Ill 2d 399, 677 NE2d 955 (1997). Whether | | | | NE2d 953 (2d D 2001); People v Basler, 193 Ill 2d 545, |
| a person is in actual physical control is a question of | | | | 740 NE2d 1 (2000). |
| fact. Courts look to such factors as possession, | | | | The most common field tests are the "one-leg stand," |
| whether the subject has the keys, whether the keys | | | | "walk and turn," and HGN tests. These three tests |
| are in ignition, whether the subject is in the driver's seat, | | | | have their source from the National Highway Traffic |
| whether he or she owns the vehicle, where the vehicle | | | | Safety Administration (NHTSA) development of |
| is located, etc., to determine actual physical control. | | | | standardized field-sobriety tests, which were created |
| See, e.g., People v Brown, 175 Ill App 3d 676, 530 NE2d | | | | and validated in the early 1980s. |
| 74 (2d D 1998). | | | | Modified versions of the "one-leg stand" test in Illinois |
| Further, the police need not observe the person in the | | | | still generally require a person to stand on one foot |
| car to prove that he or she was in "actual physical | | | | with the other raised in the air for at least 30 seconds. |
| control." Circumstantial evidence such as being the only | | | | Testimony in court about whether a person has |
| person walking down a lonely street one block from a | | | | passed or failed this test often varies depending on |
| car in a ditch can be enough to establish actual | | | | the police department, or even the particular officer, |
| physical control or recent operation. People v Jones, | | | | administering the test. The validity of these tests, when |
| 198 Ill App 3d 572, 555 NE2d 1143 (3d D 1990). | | | | not conducted in accordance with NHTSA standards, |
| "Of any vehicle." In Illinois, a vehicle is defined as | | | | has never been established. |
| "[e]very device, in, upon or by which any person or | | | | The "walk and turn" test also varies among officers |
| property is or may be transported or drawn upon a | | | | and departments. Generally, however, the test requires |
| highway, except devices moved by human power, | | | | a person to walk nine steps heel-to-toe in a straight |
| devices used exclusively upon stationary rails or tracks | | | | lane, pivot, and walk back nine steps heel-to-toe in a |
| and snowmobiles." 625 ILCS 5/1-217. | | | | straight line. Unfortunately, whether a person has |
| Thus, cars, motorcycles, mopeds, and even electric | | | | passed or failed has been left to officer discretion in |
| scooters could be considered vehicles. In fact, even a | | | | Illinois, despite the clear dictates of NHTSA that the |
| horse may be considered vehicles. See 625 ILCS 5 | | | | tests are not valid unless standardized administration |
| 11-206. | | | | and scoring is followed. |
| The fact that a vehicle is inoperable is not a defense | | | | The portable breath test employs hand-held devices |
| unless it has been issued a junk certificate or falls | | | | designed to estimate a person's blood alcohol |
| within the definition of a junk vehicle under 625 ILCS 5 | | | | concentration. All manufacturers of these devices |
| 1-134.1. People v Cummings, 176 Ill App 3d 293, 530 | | | | require a minimum 15-minute deprivation period to |
| NE2d 672 (3d D 1988). | | | | validate these test results. |
| "Anywhere in the state." It is not a defense to the | | | | Post-arrest processing. Post-arrest processing of a |
| criminal charge of DUI that the car was not on a | | | | DUI includes chemical testing of an arrestee and an |
| highway. ("But I was parked in my driveway!") People | | | | interview process. Drivers have the right to refuse to |
| v Guynn, 33 Ill App 3d 736, 338 NE2d 239 (3d D 1975). | | | | be interviewed after being arrested for DUI, and their |
| The summary suspension | | | | silence may not be used against them in a court of |
| In Illinois, drivers may receive up-front (i.e., beginning on | | | | law. |
| the 46th day following arrest) suspension of their | | | | The chemical testing may include blood, breath, or urine |
| driving privileges if they are arrested for a criminal DUI | | | | testing for alcohol and drugs. 625 ILCS 5/11-501.2. Out |
| and then score a .08 or greater on a breath/blood test | | | | of those three, blood testing is considered the most |
| or have illegal drugs in their system, or if they refuse | | | | accurate for alcohol or drugs. Urine is considered the |
| chemical testing. 625 ILCS 5/11-501.1. | | | | least accurate. Regarding breath testing, the Illinois |
| Drivers who have not been arrested for DUI in the | | | | Supreme Court stated that it is an "empirical fact that |
| past five years face a three-month suspension if they | | | | breathalyzer tests, while generally valid, are not |
| fail the test(s) or a six-month suspension if they refuse. | | | | fool-proof." People v Orth, 124 Ill 2d 326, 530 NE2d 210 |
| 625 ILCS 5/11-500; 625 ILCS 5/6-208.1. Either way, | | | | (1988). |
| they can apply for a hardship license for work or | | | | A person who submits to chemical testing has the right |
| school effective on the 31st day of the suspension. | | | | to obtain an independent test of his or her own |
| 625 ILCS 5/6-206.1. For all others, the length of | | | | choosing by statute. The courts, however, have never |
| suspension is one year for failing and three years for | | | | spoken about how this right can or should be enforced. |
| refusing. 625 ILCS 5/6-208.1. No hardship license is | | | | 625 ILCS 5/11-501.2(a)(3). |
| available to them. 625 ILCS 5/6-206.1. | | | | Answering the late-night call |
| Thus, in most cases, your client is faced with a | | | | As a general rule, think about the following issues |
| dilemma at the police station; "Do I take the breath test | | | | when you receive that late-night call from a client. |
| or do I refuse?" | | | | Field-sobriety tests in Illinois are optional and may be |
| Right to attorney prior to chemical testing. Most DUI | | | | refused without penalty. Because Illinois does not |
| lawyers would recommend that clients not take the | | | | require these tests to be validated by the scientific or |
| test unless they're absolutely sure to pass. In Illinois, | | | | medical community, the risk of erroneous interpretation |
| however, a person has no right to consult with an | | | | by an officer far outweighs the benefit of attempting |
| attorney prior to deciding whether or not to submit to a | | | | to perform them. |
| test. People v Gaddi, 145 Ill App 3d 227, 494 NE2d 696 | | | | Portable breath tests in Illinois are optional. Because the |
| (1st D 1986). | | | | rules governing portable breath testing no longer |
| However, if an officer affords the defendant an | | | | require the officer to comply with the manufacturer's |
| opportunity to consult with an attorney prior to testing, | | | | recommended operating procedures, the risk of an |
| he or she cannot unreasonably interfere with the | | | | erroneous result far exceeds the benefit of taking one. |
| exercise of that right. People v Kern, 182 Ill App 3d 414, | | | | Chemical testing in Illinois consists of breath, blood, or |
| 538 NE2d 184 (3d D 1989). Further, the mere insistence | | | | urine analysis. Because a driver may be penalized for |
| on consulting with an attorney, standing alone and not | | | | refusing these tests, an attorney may want to avoid |
| as a condition of taking the test, does not constitute a | | | | advising a client whether to take (or refuse) these |
| refusal to submit for summary suspension purposes. Id. | | | | tests. Note, however, that it is generally much harder to |
| A typical DUI arrest | | | | successfully defend a person who has failed chemical |
| The typical DUI arrest involves four phases: (1) vehicle | | | | testing. |
| in motion, (2) personal contact, (3) pre-arrest screening, | | | | Statements by an accused about consumption of |
| and (4) post-arrest processing. | | | | alcohol and/or drugs rarely help the situation. A client |
| Vehicle in motion. At this stage, the officer is asking | | | | should always be advised to decline an interview and |
| himself the following question: "Should I stop the | | | | thus avoid possible misinterpretation by the |
| vehicle?" | | | | investigating police department. |
| Typically, a vehicle may be stopped for any violation of | | | | Clients who have recently been arrested should be |
| the rules of the road, such as improper lane usage, | | | | advised to take the following steps.o Videotape their |
| speeding, or even an equipment violation. See, e.g., | | | | condition after they are released from custody for |
| People v Hood, 265 Ill App 3d 232, 638 NE2d 264 (4th | | | | potential useful evidence at trial.o Photograph the area |
| D 1994). | | | | where any field tests were taken for weather |
| A police officer may not, however, stop a vehicle | | | | conditions, uneven areas or other conditions that may |
| based solely on an anonymous tip about "drunk driving." | | | | have affected the fairness of the tests.o Videotape |
| See, e.g., People v Moraca, 124 Ill App 3d 561, 464 | | | | the route driven by the motorist.o Tape record their |
| NE2d 312 (2d D 1984). Further, driving too slowly, | | | | speech as soon as possible.o Obtain independent |
| weaving within the lane, and unusual (but legal) | | | | blood tests as soon as possible, if helpful.o Seek the |
| behavior do not justify stopping a vehicle. City of | | | | advice of an experienced DUI attorney as soon as |
| Highland Park v Lee, 291 Ill App 3d 48, 683 NE2d 962 | | | | possible. |
| (2d D 1997); People v Dionesotes, 235 Ill App 3d 967, | | | | Front-line help |
| 603 NE2d 118 (2d D 1992); People v Manders, 317 Ill | | | | DUI defense has become an extremely technical area |
| App 3d 337, 740 NE2d 64 (2d D 2000). | | | | of practice over the past 15 years, incorporating |
| Other forms of contact include arriving at accident | | | | aspects of criminal law, civil law, forfeiture law, and |
| scenes or locating a driver sleeping behind the wheel. | | | | forensic science. |
| These two areas are considered community | | | | Nevertheless, general practitioners can provide |
| care-taking functions, where no "stop" actually occurs. | | | | front-line assistance even if they intend to refer the |
| See People v Murray, 137 Ill 2d 382, 560 NE2d 309 | | | | case to an experienced DUI practitioner. This article |
| (1990). | | | | provides a thumbnail sketch of the DUI process for |
| Personal contact. After stopping a vehicle, the officer | | | | lawyers who concentrate their practices in other |
| makes observations to determine whether to ask the | | | | areas. |