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.
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.
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?
The City of McHenry has vowed to use $150,000 to prosecute (take to trial) DUI cases this year. (THIS IS A BRAND NEW IDEA THIS YEAR). This seems like it might be silly for several reasons:
1. The number of DUIs that The City of McHenry, Illiinois has written has gone down for the last five years EVERY YEAR
2013: 63 DUI arrests,
2012 91 DUI Arrrests;
2011 97 DUI Arrests;
2009 144 DUI Arrests.
Why exactly would you want to spend more money prosecutiing FEWER DUI charges?
2. The City has just changed attorneys representing the City in DUI cases. Are the newer attorneys more expensive?
I wonder if it costs more to take a DUI case to trial, or to negotiate it? I wonder if the attorney who has the contract with The City of McHenry makes more money if the case goes to trial?
I wonder if there is a little moral hazard paying an attorney more for taking DUI cases to trial. I wonder if there is even more problems with announcing that you are going to spend $150,000 on DUIs … when there are fewer DUIs.
When do you think someone will suggest that maybe we should save some money and lower the number of police patrols because there are fewer DUIs out there?
I was looking at videos on YouTube and I searched How to Beat a Bull Valley DUI. I like to look at the latest DUI attorney advertising, just to see what is being said out there. And Bull Valley is very near the city where my office is located in Woodstock, IL.
It occurred to me that the general public might not understand a basic fact of the law of Illinois (or insert your state here). When a person “beats” a DUI, it doesn’t mean that they weren’t driving under the influence. Recently one of my clients was pulled over because a “white car” had left the scene of a disturbance. They stopped her car (because it was white) and discovered that she was figuratively drunk out of her mind. But the police officers did not have a valid reason to stop the car. (I don’t believe I have to explain to you here that police officers can’t pull over cars just because they are white). So the municipality dismissed the case on the date we had the case set for hearing.
However, when I look at these … “We can “beat” the DUI sites” they really fail to mention what happens if the police officer had a good reason to stop the car. Of course, there is nothing wrong with taking a case to trial and putting the state to its evidence (provided that you don’t have to pay a “trial tax*”). A local high volume attorney took two such cases to trial and lost thus the drivers received convictions (that the judges later changed) for first time DUI cases. When a driver gets a conviction in Illinois their license gets revoked. So I am pretty sure the tensions ran high at the high volume place until the judge relented and changed his mind about convicting the drivers who chose to go to trial on their DUI cases.
But how many DUIs can be beat? I know from time to time our local state’s attorney loses his mind and insists that there be “no deals” in DUI cases. Of course he ends up losing a lot of cases when he does that. He begins to rethink that “no deals” position just as the newspaper discovers that the state’s attorney seemingly can’t win any DUI cases. It is during those times when many DUI cases are sent to trial that it is exposed how many DUI cases would fail at trial. And it turns out that a surprising number do fail at trial when taken to trial.
But the question that I a most interested in, because I am a lawyer, how many DUI case results are changed by a lawyer? If you ask the lawyers the answer is all of them. However, if that is true, “Then, Why do we run a DUI system that is so gamey, that it matters what attorney you choose?” And, “Why do we allow the criminal justice system to operate in such a way that it matters what attorney you hire?’ (Or what 5 attorneys you hire if you are O.J. Simpson).
It would be interesting to do some scientific analysis to see if judges impose trial taxes, and whether it makes a difference which attorney you hire for a particular DUI.
*A trial tax, is an addition to the sentence by a judge of a defendant who took their case to trial, rather than enter a negotiated plea. The term is mostly theoretical because we can never know what they would have been sentenced to if they had not went to trial because that was before the judge knew fully about the case.
A client recently approached me and told me that he received a DUI and there was “no evidence” for his DUI so therefore the DUI should be dismissed. I told him that after practicing DUI law for 22 years that it was unlikely that there was “no evidence.”
He told me that he had been arrested for DUI while in a parking lot, so because he was not driving on the road, he was not driving under the influence. I had to tell him that according to 11-501 (DUI Law) that a person could be arrested for being in actual physical control of a motor vehicle anywhere in Illinois. That means that if you are driving a golf cart on a golf course you could be arrested for DUI.
He then explained that they had “no evidence for DUI arrest.” I obtained a copy of his police reports and they indicated that he had taken three field sobriety tests and had admitted to taking prescription medication. He also took a breathalyzer and scored 0.0. I felt funny explaining to him how field sobriety tests are evidence. Personally, I think field sobriety tests are total BS, but they are evidence that the judge or jury can consider. The 0.0 breathalyzer will just ensure that they will charge him with a drug DUI rather than an alcohol DUI.
Lastly, in the report the officer recorded that the client had made a statement to his girlfriend (who had called the police), “Thanks babe, another DUI.” That statement would be heard by the judge or jury when considering whether to find him guilty of DUI.
I am not sure whether it is television or the incomprehensibility of the law, but people need to understand that the State is going to take whatever evidence they have and try to make a case. Can the jury find you guilty on that amount of evidence? Sure, it’s entirely up to them. Could they find you not guilty? Once again, sure, that’s their job.
But thinking that there is no evidence, therefore they have to dismiss the case is just silly.