Sunday, September 7, 2008

New Illinois law mandates car breath test device for first-offense DUIs. Illinois DUI lawyer

Public Act 095-0400, SB0300, 95th General Assembly
This Act takes effect on January 1, 2009.

A new Illinois law requires first-time drunk driving offenders to install breath test devices in their vehicles and pass the test every time they try to start their engines.

If the driver's breath exceeds the alcohol limit, the apparatus ensures the car won't start.

Gov. Rod Blagojevich signed the legislation on August 24, 2007, making Illinois the fourth state to mandate the gadget.

The other states that require it are New Mexico, Arizona and Louisiana, according to the National Conference of State Legislatures.

When the law goes into effect in 2009, it will effect approximately 30,000 offenders in Illinois who have had their licenses suspended on DUI arrests, according to the secretary of state's office.

The alcohol ignition interlock devices must be rented and cost about $150 to install. There are also monthly fees.

"We will not tolerate drunk drivers on our streets," Blagojevich said in a statement. "This law ... will help make sure impaired drivers can't get back on the road. But if they do, they'll face tough penalties."

If offenders attempt to drive someone else's vehicle to avoid the breath tests, they could face jail time.

About 3,000 people in Illinois currently have the devices in their vehicles. Most are second-time drunk driving offenders.

Deletes everything after the enacting clause. Reinserts the provisions of the engrossed bill, with various changes. In the State Finance Act, provides for creation of the Indigent BAIID Fund and the Monitoring Device Driving Permit Administration Fee Fund (rather than the Alcohol Monitoring Device Fund). Provides that a first offender who receives a statutory summary suspension shall be issued a monitoring device driving permit (rather than a monitoring device driver's license), except under specified circumstances. Provides that a person issued a monitoring device driving permit may not drive a commercial vehicle. Establishes other restrictions. Provides that a person who received a judicial driving permit before the effective date of the bill may continue to drive on that permit. Provides that a person who fails to comply with the requirements of a monitoring device driving permit commits the offense of driving on a revoked or suspended license. Provides that a person who holds a monitoring device driving permit convicted of the offense for driving a vehicle not equipped with an ignition interlock device, or a person eligible for a monitoring device driving permit convicted of driving with a drug or alcohol-related summary suspension, is guilty of a Class 4 felony and subject to 30 days of imprisonment. Amends the Unified Code of Corrections. Provides that a person who commits one of these offenses is not eligible for court supervision. 625 ILCS 5/1-144.5 new. Changes the effective date from January 1, 2008 to January 1, 2009.

House Amendment No. 2
Provides that, after a drug- or alcohol-related statutory summary suspension has been imposed on a first offender, the circuit court shall, unless the offender has opted in writing not to have a monitoring device driving permit issued (rather than if requested by the offender), order the Secretary of State to issue the offender a monitoring device driving permit.

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Tuesday, January 15, 2008

DUI Defense Illinois Legal challenges to evidence

1. ILLEGAL STOP OF PERSON OR VEHICLE – a driver cannot be stopped unless the officer has a reasonable and articulate basis to believe that a traffic law or other law has been violated. Similarly, a person cannot be seized unless a violation has occurred.

2. WEAVING INSIDE THE LANES IS NOT ILLEGAL – weaving without crossing any lines is not a violation of the law, and a vehicle cannot be stopped for that reason.

3. ANONYMOUS REPORT OF DRUNK DRIVING -- a car cannot be stopped simply because an anonymous citizen reported that the driver was drunk.

4. STANDARD FIELD SOBRIETY TESTING IS INACCURATE – in healthy individuals, the one-leg stand test is only 65% accurate, and the walk-and-turn test is only 68% accurate in determining if a person is under the influence. Those persons with injuries, medical conditions, 50 pounds or greater overweight, and 65 years or older cannot be validly judged by these tests.

5. NON-STANDARDIZED FIELD TESTS ARE INVALID – neither the Federal Government (NHTSA) nor medical science considers touching your finger to your nose, or saying the alphabet, or counting backwards, as valid sobriety tests.

6. BREATH TESTING IS INACCURATE – virtually all experts concede that one breath test alone is unreliable. The Illinois Supreme Court has remarked that breathalyzers are not foolproof. Finally, breath testing in Illinois is subject to various inaccuracies, including a +/- 12.5% variance, non-specificity for ethanol, etc.

7. BOOKING ROOM VIDEOS – Many police stations videotape suspects at the police station, where their speech is clear and their balance is perfect, in spite of police testimony to the contrary.

8. IN-SQUAD VIDEOS – more and more often, the suspect’s driving and performance on field tests is being recorded; often contradicting police testimony.

9. FAILURE TO PROVIDE SPEEDY TRIAL – If a client is not provided with a trial within 120 to 160 days of demand, through delays of the court or prosecutor, the charges must be dismissed.

10. POLICE BLOOD TEST INACCURATE – Many times, police blood testing fails to follow prescribed rules of testing, analysis, or preservation recommendations.

11. HOSPITAL BLOOD TEST INACCURATE – Hospital blood tests overestimate a person’s true level by as much as 25% in healthy, uninjured individuals, and are not statistically reliable in severely injured persons.

12. BREATH TEST OPERATOR UNLICENSED – An Illinois Breath Test Operator must possess a valid, unexpired operator’s license, or the breath test result is inadmissible.

13. BREATHALYZER MACHINE MALFUNCTIONS – if there is a malfunction or repair of the breath test instrument within 62 days before or after a suspect’s breath test, the results of the suspect’s test are presumed invalid.

14. BREATH TEST OPERATOR LICENSE EXPIRED -- An Illinois Breath Test Operator must possess an unexpired operator’s license, or the breath test result is inadmissible. Licenses expire automatically every 3 years.

15. BREATH TEST DEVICE NOT APPROVED – A breath testing instrument must be listed on the Federal List of Approved Breath Evidential Instruments and the ISP approved list of Devices, or the results are inadmissible.

16. FAILURE TO PROVE DRIVING – a defendant’s admission to driving, without more, does not prove a charge of driving under the influence.

17. INDEPENDENT WITNESSES – often times, independent witnesses to accidents, bartenders, hospital personnel and others can provide crucial evidence of the defendant’s sobriety.

18. FAILURE TO MIRANDIZE – prosecutors may not use as evidence the statements of a defendant in custody for a DUI when the police have failed to properly issue Miranda Warnings.

19. FIELD SOBRIETY TEST IMPROPERLY ADMINISTERED – according to the National Highway and Traffic Safety Administration, improperly administered field tests are not valid evidence of intoxication.

20. OFFICER’S PRIOR DISCIPLINARY RECORD – a police officer’s previous disciplinary record can be used to attack the officer’s credibility.

21. PORTABLE BREATH TEST INADMISSIBLE – Illinois law prohibits the use of portable breath testing results as evidence at trial in a DUI case.

22. PORTABLE BREATH TEST IMPROPERLY ADMINISTERED – The manufacturers of portable breath testing devices require a minimum of two tests to consider the results evidential in nature.

23. FAILURE TO CONDUCT OBSERVATION PERIOD – Illinois requires that a driver be observed continuously for a minimum twenty minutes prior to a breath test in order for the results to be considered admissible and valid.

24. EXPERT WITNESSES – Expert witnesses are available to review the validity of breath tests, blood tests and field sobriety tests.

25. MEDICAL AND HEALTH PROBLEMS -- Medical problems with legs, arms, neck, back and eyes can affect the results of field sobriety tests. Further, other medical conditions can also affect the validity of breath test results.

26. BAD WEATHER – Weather reports establishing high winds, low visibility, and other conditions are available to explain poor driving or poor balance.

27. LACK OF PROBABLE CAUSE TO ARREST -- A police officer must have specific and articulable facts to support any arrest for DUI, or the suspension will be reversed and the evidence suppressed at trial.

28. ILLEGAL SEARCH – the police are prohibited from searching a person or the automobile for a minor traffic offense, and may not search a car without a driver’s consent or probable cause. Any evidence illegally obtained is not admissible in court.

29. PRIOR INCONSISTENT STATEMENTS BY POLICE OFFICERS – any statement made by a police officer, verbally, in police reports, or at previous court proceedings may be used to attack that officer’s credibility.

30. POST-DRIVING ABSORPTION OF ALCOHOL – the prosecutor must prove the blood or breath alcohol at the time of driving. Recent consumption of alcohol just prior to driving will cause the test results to be higher than what the true level was when the person was operating the automobile.

31. INTERFERING SUBSTANCES – many items contain forms of alcohol which may cause false results, such as asthma spray, cough drops, paints, fingernail polish. These items can cause the breath results to be invalid.

32. BREATH MACHINE NOT PROPERLY OPERATED – the manufacturers of breath testing devices have specified protocols which must be followed for a breath result to be valid. Failure to follow these requirements will result in improper readings.

33. FAILURES TO PRODUCE DISPATCH TAPES – most stops of vehicles are recorded on dispatch tapes, as well as recording police communications regarding an arrest of an individual. Failure to preserve such tapes upon request can cause all evidence which could have been recorded to be suppressed.

34. MISLEADING STATEMENTS BY POLICE OFFICERS – Any misleading statement by the police regarding the consequences of taking (or refusing) a blood, breath, or urine test will cause the suspension to be reversed and removed from the driver’s record.

35. STATUTES OF LIMITATIONS – A misdemeanor charge of DUI must be filed within 18 months of the date of offense, or the charges will be dismissed outright.

36. PRIVATE PROPERTY – a person who has not driven the car on a public highway cannot be suspended for drunk driving.

37. FAILURE TO DISCLOSE EXPERTS – the failure of the prosecutor to disclose the state’s expert(s) will cause those witnesses to be barred from testifying against the defendant.

38. LACTATE RINGERS – when hospital staff use lactate ringers during the treatment of a patient, the hospital blood serum results will report falsely elevated, and therefore invalid, readings.

39. FAILURE TO RECORD CERTIFICATION TESTS – the failure to include the value of the simulator solution used to test breath machines will cause the breath test results to be inadmissible in court against the driver.

40. FORCED BLOOD DRAWS – the police may not take a blood test against the driver’s consent where there has not been an injury involved, or the result is inadmissible.

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