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eyes wide shut

Illinois has three sentencing options:  Conviction, Conditional Discharge and Supervision.  Traditionally, defendants are told that a sentence of supervision is NOT a conviction.

The federal prohibition on masking is found at:

49 CFR § 384.226  Prohibition on masking convictions.

The State must not mask, defer imposition of judgment, or allow an individual to enter into a diversion program that would prevent a CLP or CDL holder’s CONVICTION for any violation, in any type of motor vehicle, of a State or local traffic control law (other than parking, vehicle weight, or vehicle defect violations) from appearing on the CDLIS driver record, whether the driver was convicted for an offense committed in the State where the driver is licensed or another State.  (emphasis added).
So, in a situation where the driver has a 11-14 mph over speeding ticket while driving on a freeway (nearly the most lame speeding ticket of all time, and I say nearly because a person could get a 0-10 mph speeding ticket) a probable negotiation with the state’s attorney might go something like this:
Defense Attorney:  What is your offer on this lame speeding ticket?
State’s Attorney:  I would offer a $50 fine plus court costs and supervision (interpreted as no conviction).
At this point the driver is not going to receive a conviction, because we have discussed before a supervision is not a conviction.  Therefore because the driver was not going to receive a conviction one could argue that the masking prohibition does not apply.  The masking provision specifically states:  The State must not mask …(any action)  …. that would result in a conviction.  However, as you can see in our example the driver was never going to receive a conviction, therefore the action taken by the State did not violate the prohibition on masking.
So, is a sentence of Supervision “a diversion program that would prevent a CLP or CDL holder’s conviction?  If Supervision is a sentence, rather than a diversion program then the answer must be no.  In a wild variety of ways Illinois law treats supervisions as not being convictions.  If a person is sentenced for a DUI supervision, they are regarded as not getting a conviction for DUI.  If a person gets a conviction for DUI their license is revoked by the State.  There are no revocations for DUI supervisions.  A person who gets three or more convictions for traffic offenses in a year will have their license suspended.  If a person were to get two supervisions and two convictions in a year the State would not suspend their license because they did not receive three convictions.  In short supervisions are not convictions.
Are supervisions a deferral of the imposition of judgment?  No, supervisions are an imposition of a judgment.  They effectively close the case with conditions and they are appealable.  One could argue that they defer imposition of a judgment of conviction, which they are, but the statute doesn’t prohibit that, it prohibits deferral of imposition of judgment.
You may argue that Illinois supervisions are a poor choice of resolving a case, that a driver is guilty or not, and should be punished or released, but as long as Illinois has supervisions as a sentence and tells people they are not convictions, then the masking provision should not apply to amendments of the traffic ticket where supervision is offered by the State.
Law Dude, Ray Flavin, is a DUI attorney who represents drivers that have been charged with DUI in McHenry County Illinois. His law offices are located across the street from the McHenry County Courthouse in Woodstock, IL.

There is an axiom that: Ignorance of the Law is no excuse.  However, I would bet a fair amount of money that you don’t know the law, not because you ignore it, but because they change it all the time and it is not logically consistent (so that you couldn’t fairly guess what the law is).

So let’s take a guess at the law.

Facts: You are pulled over for a DUI, for this example we’ll say that the officer pulled you over for an illegal reason (like he didn’t like you), he asks you to get out of the car, and you refuse to get out of the car.

Do you think you are resisting arrest?  Do you think you can resist arrest?

Illinois law says:  A person is not authorized to use force to resist an arrest which he knows is being made by a peace officer, even if he believes that the arrest is unlawful and the arrest in fact is unlawful.  720 ILCS 5/7-7(a).

You probably think that is a typo.  The Law says you can not resist an UNLAWFUL arrest.  Of course the law was written by our infallible legislature, the same one that outlawed tinted windows because they are so cool, because they threatened police safety, even though it seems that tinted windows don’t threaten police safety in almost every other state.

The law is drafted by special interest groups, for special interest groups.  The individual is not represented therefore an individual can’t rely on what the law might me if he or she had to guess.

Law Dude, Ray Flavin, is a DUI attorney who represents drivers that have been charged with DUI in McHenry County Illinois. His law offices are located across the street from the McHenry County Courthouse in Woodstock, IL.

Abe Lincoln has a sad :(

Many times the police will use a cracked windshield to support their reasoning for stopping a driver suspected of DUI.

Appellate Courts have a propensity to skip the law that doesn’t help their rant.  The Illinois courts that have considered whether a cracked windshield is a sufficient basis to stop a car.  You should know that the law says this:

(e) No person shall drive a motor vehicle when the windshield, side or rear windows are in such defective condition or repair as to materially impair the driver’s view to the front, side or rear. A vehicle equipped with a side mirror on each side of the vehicle which are in conformance with Section 12-502 will be deemed to be in compliance in the event the rear window of the vehicle is materially obscured.   This is  625 ILCS 5/625-12-503(e), to those who care.

So the set up would be this.  Driver gets pulled over and the police say he had a cracked windshield.  They say this is the probable cause to stop the car.  Remember, in theory they can’t stop your car unless you are violating the law (or it’s Tuesday, it’s one or the other).  The Driver takes the case to court and loses and appeals his case.  So the courts take a look at the law and make findings like this:

People v. Ramsey

“In the case sub judice, no issue exists as to the legality of the initial stop of defendant’s vehicle under the first prong of Terry. Deputy Pickett observed the subject’s truck had a cracked windshield, a violation of the Illinois Vehicle Code (625 ILCS 5/12-503(e) (West 2002) (windshield must be unobstructed)). Thus, Deputy Pickett had probable cause to initiate a valid traffic stop here.”

That case goes on to some legal mind bending to find that after the stop the stuff the police discovered could not be excluded because the stop was ok.

Also see, People v. Omar Al Burei where citing Ramsey they draw the exact same distinction:

“The first inquiry of the Terry analysis is satisfied as there is no dispute that Officer Tienstra had probable cause to stop the minivan. In addition to the abrupt traffic maneuver, Officer Tienstra observed the minivan’s windshield was cracked. See 625 ILCS 5/12-503(e) (West 2002) (Illinois Vehicle Code requires that the windshield be unobstructed); see also Ramsey, 362 Ill. App. 3d at 613 (cracked windshield gave officer probable cause to initiate a valid traffic stop).”

So what’s the problem you ask?  Both stops were improper because the state did not show that the crack in the windshield MATERIALLY OBSCURED the driver’s view.  If they had read the statute they would have found that the officer was stopping the vehicles for no violation, and therefore the stops were illegal (and they would have saved themselves a ton of writing).  But they just assume that a cracked windshield is enough under 12-503(e)

I guess you can look at it this way:  It is settled that “[t]he purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but `to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.'” Mendenhall, 446 U.S. at 553-54, 100 S.Ct. at 1877, 64 L.Ed.2d at 509, quoting United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116, 1126 (1976).   That’s from the Supreme Court of the United States (while I am not sure it’s a great reference, it is something to think about).  It is arbitrary and therefore forbidden for officers to stop vehicles for no violation of the law, but the courts have a way of reading around those problems (that the violation existed in order to make their arguments.)

Perhaps their windshields are so cracked as to materially obscure their ideas.


Law Dude, Ray Flavin, is a DUI attorney who represents drivers that have been charged with DUI in McHenry County Illinois. His law offices are located across the street from the McHenry County Courthouse in Woodstock, IL.

Traffic Ticket

You only have to read this article to see why DUI law gets tougher but not any more effective.

I have reposted the article here because I am sure the link will die, and it will make it easier to look closely at why our system is broken and will never be fixed.

(My comments are in ITALICS.)

By Seth A. Richardson, State Capitol Bureau

The Senate passed a bill Tuesday expanding in-car blood-alcohol monitoring devices for people convicted multiple times of driving under the influence.
House Bill 3533 would require DUI offenders with at least two convictions to submit to the breath-alcohol interlock ignition device, or BAIID, program for at least five years before their licenses could be reinstated.

(See how our legislature is missing the boat by requiring someone with at least two convictions to have the BAIID?  A driver doesn’t usually get their second DUI conviction until their fourth DUI (unless of course they are in a strict jurisdiction), so this law starts out by skipping 90% of the DUI cases.)
Rep. Barbara Wheeler, R-Crystal Lake, originally sponsored the bill in the House. Her opponent in the November election, Joel Mains, brought the legislation to Wheeler’s attention.

(Every piece of terrible legislation must start with a tragedy.  The logic is that because something horrible happened to someone somewhere, we have to change the rules for all of us.  In this case, a guy gets drunk, drives, kills a teenager with a car, gets prison, gets out and then crashes his car again while DUI, because of course he does.)
A drunken driver killed Mains’ stepdaughter, Caitlin Weese, in 2003, one week before her high school graduation. The driver, James Stitt, sentenced to 7 1/2 years in prison before being paroled in 2009. His license was reinstated in 2013.

(The article fails to mention that in order to get his license back he had to complete alcohol counseling and go the the Secretary of State to get his license reinstated; not an easy task.  But, he did everything they asked of him, except stop drinking and driving, so he could make a story where we can all hate the evil that was done.)
Two weeks after the November election, a detective informed Mains that Stitt was arrested again for crashing into several cars while drunk.

(What you are not supposed to ask is:  How did not having a BAIID device stop this guy from crashing into several cars?  Because the answer is: it didn’t.)

The bill passed by a 55-0 vote in the Senate. Sen. Pamela Althoff, R-McHenry, worked closely with Mains and Wheeler.

(And, of course the bill passed by a 55-0 vote because no one dare question the terribleness of the tragedy.  Of course the terribleness of the tragedy has nothing to do with the law, but you’re supposed to forget that, remember?)

She said the bill was proof Democrats and Republicans can work together.
“We’re just pleased that we can bring initiatives like this forward,” she said. “It can really make a difference.”

(Yes, Democrats and Republicans can work together when they are passing a law which does not solve the problem for which it was written, perfect.)
The BAIID program began in 1994 and was expanded in 2009 to include summary suspensions for first-time DUI offenders. Alcohol-related DUI cases handled by the Illinois State Police have decreased every year since the expansion, from 7,261 in 2009 to 5,014 in 2014.

(There was a bit of magic that just happened here.  Did you see it.  The number of DUI cases is down.  It was actually reduced by high gas prices and a ban on smoking in bars, however the Illinois State Police are happy to associate it with the BAIID device, because showing government programs work is important — for people who work for the government.)

The bill now moves to Gov. Bruce Rauner’s desk.

*    *    *

Lest you think that I am attacking the poorly written DUI code without proposing a solution.  I proposed a solution here.

Law Dude, Ray Flavin, is a DUI attorney who represents drivers that have been charged with DUI in McHenry County Illinois. His law offices are located across the street from the McHenry County Courthouse in Woodstock, IL.

How $500 ended the world

I received an email from a poor fellow that got on the wrong end of a DUI stop.  He seemed to have an answer for everything that was wrong with the stop.  I mean literally everything.  He wrote over 160 pages of rebuttal of the stop.  He claimed that DUI enforcement is some sort of money making machine.

While I would be the first one to agree that DUI enforcement is sloppy and misguided, the problem with the “DUI business” model is that it doesn’t make money.  For example let’s say you are a small city like Spring Grove, IL or Harvard, IL.  According to AAIM statistics if you are Spring Grove you write 55 DUIs in 2013, 27 if you are Harvard Illinois.

Let’s imagine that only 4 of your cases go to jury trial.  The average cost of a (2-3 day)DUI jury trial to a small municipality is $4,000.  So you spend $16,000 on jury trials per city ($32,000 total).  Both cities combined write 82 DUIs.  To write these DUIs both cities combined employ 27 officers.  If you get $1,500 per DUI (which you don’t)  the total DUI money is $123,000, minus how much you paid for jury trials ($32,000), minus the amount you paid your prosecutor (I will guess $2,000 per month for each city, $48,000), means you net $43,000.

You have 27 officers, who you presumably pay to be police officers, divided by $43,000, means that DUI enforcement pays you $1,593 per officer per year.  I have not counted cases that get dismissed because there is not enough evidence, the cars and the gas required to keep the patrols on the road, or officer overtime waiting for hearings or trials to start.  The rumor is that officers get 3 hours overtime per hearing.

If there were a hearing for each of the 82 DUIs that would be 246 hours of overtime paid.  I do not know how much officer overtime is but a conservative guess would be $25/hr.  So the total for overtime would cut another $6,150 off of the $43,000, leaving you with $36,850.

I am pretty sure the salary for one of the 27 officers exceeds the $36,850.

So as a business model, DUI enforcement as a way to make money doesn’t do very well

Law Dude, Ray Flavin, is a DUI attorney who represents drivers that have been charged with DUI in McHenry County Illinois. His law offices are located across the street from the McHenry County Courthouse in Woodstock, IL.

Tank Window

Recently Kansas has passed a law that you don’t need anything to carry a concealed weapon.  Contrast that with Illinois where you need a FOID (Firearm Owners Identification Card), a concealed carry permit (which requires that you take a gun safety class, prove proficiency with the weapon and register) and still you can’t carry a concealed weapon almost everywhere including parks, churches, bars, casinos and anywhere where there are large groups of people.

One of the nice thing about the United States is that you can have 50 different ways to approach lawmaking.  And consequently, you can see if one type of regulation works better than the other.  If Kansas doesn’t have too many problems with their system, can there be any real justification for Illinois having its overly complicated system?

We should have a Constitutional amendment that provides that laws that impose duties on citizens must use the least restrictive means to accomplish the purpose of the law, and evidence that a law doesn’t meet that requirement voids the law.

I am a troublemaker, aren’t I.

Law Dude, Ray Flavin, is a DUI attorney who represents drivers that have been charged with DUI in McHenry County Illinois. His law offices are located across the street from the McHenry County Courthouse in Woodstock, IL.