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Alcohol

What is the Legal Limit in Illinois for DUI?

There isn’t one.  Does that surprise you?  When a person takes a Breathalyzer after a DUI stop in Illinois the law says:

1.  For those who blow over 0.08 there is a presumption that the person was under the influence.

2.  For those who blow 0.079 to 0.051, there is no presumption that the person was under the influence of alcohol.

3.  For those who blow under 0.05 there is a presumption that the person was not under the influence of alcohol.

Do you see the sneaky thing they did there?  Normally, in America a person is presumed to be not under the influence (not guilty), unless the state proves that they were under the influence at trial.  However, if you look at the middle presumption (that is that there is no presumption), the state just papered over one of your rights: to be presumed not guilty, and took it away.

Interestingly, it is the first presumption that people assume establishes a “limit” of 0.08 in Illinois.  It does not.  The jury may be told that they may presume that the person was under the influence, but that presumption may be rebutted by the defendant at trial.  Of course, that would be a pretty interesting trial where the defendant established that his alcohol tolerance was so high that at 0.08 he wasn’t under the influence.   One has to think that the jury might be predisposed to finding someone guilty who had such a big alcohol problem.  So at the very least it would be an uphill battle to say the least.

So it turns out there is no Legal Limit in Illinois, just a bunch of people who think there is one.

Law Dude, Ray Flavin, is a Bull Valley 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.

Dexter

Isn’t that cute, a teenager in the state legislature.

So in West Virginia, a beautiful state with wonderful people, a teenager got elected to the state legislature.  Now if you know me, if I were a famous legislator I would run my dog for the legislature (that’s how I roll folks).

And it would be about the same thing.  Another ineffective legislator to say yes to the majority nut jobs who are running the legislature today.

In the article, they talk about how this is somehow the new face of the Republican Party in West Virginia.  It isn’t.  In the case where my dog won a seat on the legislature the outcome would be about the same.  My dog’s inability to understand what was going on would just add to the power of the majority to get things done (and the people from the district my dog represented would be poorly represented, unless of course they loved what the majority was doing).

It is funny to me that this kind of thing is celebrated.  Those people who depended on their legislator to stand up and say, “Hey, I don’t think the police should be able to search your car because you weren’t wearing your seat belt!” would not be heard.  Those parents with teenagers who are now serving minimum mandatory sentences for relatively minor drug crimes, would have no voice to stop the legislature from running over the run of the mill Joe six pack.  When the state attempted to needlessly sell its assets like state parks to private enterprises, my dog couldn’t stop or at least stand up to the majority.  There would be literally an empty space sitting in the legislature, allowing all of the bad ideas to pass through unmolested.

I guess you could argue that the legislature is already sold to the highest bidder, so does it really matter?  But the thing that keeps on eating away at me is that the average person in the state might look at this and think, “Look at that go-getter, you get’em little teenage girl.”  without realizing that there’s really nothing cute about it, and it wouldn’t be cute even if it were my dog sitting in that seat in the legislature (eventhough my dog is adorable).

Law Dude, Ray Flavin, is a McHenry County 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.

 

 

Just wait.

What if we are wrong about DUI impairment?  Everyone knows that drinking too much alcohol can impair a person’s ability to drive.  The argument centers over when alcohol impairs your ability to drive.

The jury instructions for a DUI say that a person is under the influence of alcohol when they drink any amount of alcohol that impairs their ability to think and act with ordinary care.

Under the BAC over 0.08 laws, the jury may presume that a person is under the influence when they have a blood alcohol content of over 0.08 g/dl.  But is that right.

Is the amount of alcohol in your bloodstream directly related to how impaired you are?  My guess is that it is not.  Further is the effect of a particular level of alcohol the same in everyone?  Obviously it is not.  Psychologists will tell you that people who drink often develop a tolerance to alcohol.  They have to drink more to achieve the desired results.  Just by that very fact aren’t they telling us that the amount of alcohol to impair a person can change?

Also, anecdotally, a person who drinks probably has experienced the feeling of “drinking themselves sober.”  How would it be possible to lessen the affects of alcohol by drinking more, that seems paradoxical.

I suspect that the real reason that we experience these exceptions to the rule that once a person has a blood alcohol over 0.08 they are impaired is because, impairment is probably more related to the change in alcohol concentration in the blood rather than the level.  That would explain how a persons first drink comes with a buzz (when of course their blood alcohol could never be a 0.08 after one drink).

Why do we set the ‘drunk level’ at 0.08, when it is likely that measure is not adequate to describe the level of a persons impairment?  The government will tell you that it is because they are concerned about public safety they feel it is a good short cut or substitute for the truth.

But is it?

Law Dude, Ray Flavin, 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.

Boom goes the dynamite (wait, strike that ..)

The Horizontal Gaze Nystagmus test (or HGN) is a DUI Field Sobriety Test used by police officers in Illinois to detect alcohol impairment.  Personally, as a defense attorney I hate the test because essentially the officer looks at someone’s eyes and tells us what he saw (with no opportunity for us to review what he saw) our only attack lay in the performance of the test and the tests accuracy.

Generally NHTSA guidelines guess that this test is about 77% accurate for detecting BAC (blood alcohol content) above 0.10.  It’s not, of course, but in this world of made up BS created from the clear blue sky, that’s what juries are told around the country.

Well, there may be a shift in the FORCE (Star Wars TM).  I represensented three clients in a row who the officer said scored 6 out of 6 clues for the HGN.  Only problem:  Their BACs were 0.74, 0.06, and 0.54 respectively.  Now I know that I can use that information against the officer who did those tests, but the real question is:  is there anyway to gather that information about other  police officers who perform the tests routinely?

I think that criminal defense attorneys should be able to subpoena past police reports to see how many UNDER 0.08 BAC DUIs they wrote scored 6 out of 6 on the HGN test.  It may be time to do some legal experiments.  I have always thought that more science should be introduced into the law.  Would an officer be pulled off the road if he or she consistently scores poorly in this regard.  Well, I guess only time will tell.

Law Dude, Ray Flavin, 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.

 

P.S.  I really think we will be looking back on this particular field sobriety test and laughing about how our courts ever allowed it.

This picture has nothing to do with this post.

There are sometimes in DUI cases where a defense attorney must face two or more DUI prosecutors.

If the judge ignores his or her role as referree, and decides that he or she misses being a prosecutor (because most judges are former prosecutors), as a defense attorney you may be facing two prosecutors. For example:  Your client is a first offender DUI client.  You bargain with the actual state’s attorney for a rescission of the statutory summary suspension in exchange for a guilty plea and supervision (no conviction) on the DUI.  This way your client can avoid the expense of getting a BAIID Device installed in his car (and also save the $250 license reinstatement fee)  This represents a total savings of the cost of the BAIID Device (about $750) plus $250 reinstatement fee, or about a $1,000.  The actual state’s attorney may like this deal because his case may have a number of technical problems that may or may not cause him to lose at trial.  So this negotiation can be a win-win.  However, your judge (who misses being a prosecutor) may decide to reject the negotiation because he or she feels that they would have won the case at trial (doesn’t understand the weaknesses), and therefore you have to negotiate the case with the judge also.  So in effect you have two prosecutors on the case.

In some circumstances you could have three prosecutors on the case.  Imagine the scenario featured above, but in this case you as a defense attorney have negotiated the case with a municipal attorney.  Also in this case imagine that the county state’s attorney is one of those “tough on DUI” types.  He got elected because he felt that the “tough on DUI” slogan that he used for his campaign was why he is in office and he likes his job so he decides to “help” municipal attorneys by threatening to pull their prosecuting authority if they do DUI negotiations that he doesn’t like.  So as a defense attorney you end up negotiating with the municipal prosecutor, the state’s attorney and then the judge.

But don’t lose heart.  This all works out very well for you because when these guys don’t want to do the deal you end up taking the case to trial and because there essentially wasn’t a deal that you could recommend to your client, it’s like trying a case with no downside.  You weren’t going to take the “tough on DUI” deal, so if you lose at trial it the prosecutor’s fault.  And, as luck would have it you will win about 95% of these case because as it turns out there was a reason that the first prosecutor should have cut a deal with you.

Welcome to the wacky world of “tough on DUI” prosecution.

Law Dude, Ray Flavin, 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.

swat team

Here’s some jumbled up thoughts for you this Labor Day Weekend

 

Labor Day in the United States is a holiday to celebrate the American Labor movement.  As it turns out my great Aunts were part of the Great Sit Down Strike of 1937, so that explains a bit of my lefty leanings.  Many people will spend Labor Day with their local police departments after a DUI arrest, it turns out that in our area it is much more likely that you will spend time with the Bull Valley Police Department (statistically) than other departments for reasons I don’t understand.

Which brings me to a topic that I don’t often see written about, except here.  Are the police, and the justice system more hassle than they are worth?  I know, radical concept.  Let’s see if I can walk you through it and see what you think.

Police Departments were first formed in London, as an alternative to the military being the police.  The thought was, when the military came into ‘take care of a problem” back in those days, you could usually count their effectiveness with dead bodies and severed limbs of rioters or gang members.  Because that was thought to be a bit uncivilized they invented police departments.  Police would wear blue rather than military red to try to distinguish themselves from the police.  It is interesting that the police of today now try to look MORE like the military.

But what do the police departments accomplish?  Well, they make us wear seatbelts, stop at stop signs and slow down out driving.  They keep us safe, except of course for the times when they are the problem:

Here’s a video clip of the police harassing someone because that’s what the police do.

Nobody ever asks do we have too many police.  Our local budget for the police at the McHenry County Sheriff’s Office is 29 million dollars.  And the 400 or more Sheriff’s Deputies do not include the 27 other entities that have law enforcement officers in our county.  In our county if you call the police they come.  Sometimes they come 5 or 10 at a time.  It is not really a matter of having too few officers.

But, do they really help?  Let’s talk about the average case, not the extreme case.  The average cop interaction with the police is a seat belt ticket.  What was accomplished?  I was safer?  What did it cost me?  $65-$320 depending on which court costs were added. Where would we be without seatbelt/speeding/stop sign tickets?  Arguably richer, but what was gained by having the police stop me?

Let’s look at the extreme case.  Without the police we could imagine that there would be gangs who stopped cars on the highway and take $500 payments from them to allow them on their way.  Compare that with roadside safety checks. A municipality will collect a $500 administrative fee (using the police) if a persons license is suspended because at some point they didn’t have insurance. This payment is taken regardless of whether the person knew about the suspension.  Do the $500 payments being taken from the driver differ, from the point of the driver?  In either case he is out the $500 bucks.

Lastly, while it’s hard for a whitey like me to explain, without police there would be fewer “persons of color” expected by the police to “Respect Ma Authority.”  And fewer things for the people of Ferguson to protest or riot against.

If we didn’t have police would the world be all that different?  The answer is of course yes.  The landlords and the rich corporations wouldn’t have an essentially free force to remove people from their property, they would have to hire their own thugs, and you could argue they would be more brutal.

I hope everyone has a great Labor Day.  I wonder when we will have a Police Day?

Law Dude, Ray Flavin, 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. He is one of those lawyers.

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