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DUI-300x226Police get frustrated when they pull over a motorist for suspicion of Driving Under the Influence of Alcohol and the driver refuses to submit to a breathalyzer test when the officer requests that they take such a test. The reason behind their frustration is because, in many cases, if they do not have a breathalyzer test result, it becomes harder for the state to prove in Court that the driver was operating a motor vehicle under the influence of alcohol.

The Illinois Legislature has clearly given motorists the right to refuse to submit to a breathalyzer test. The Legislature has imposed a severe penalty for refusing to submit to a breathalyzer test when requested to do so by a police officer. If you refuse to submit to a breathalyzer test you will be looking at a mandatory 12 month suspension of your driver’s license. The suspension will kick-in 46 days after you are arrested for a DUI unless you are able to persuade a court otherwise.

For several years, police and prosecutors have been trying to get around a motorist’s refusal to submit to a breathalyzer test. For the past several years, Kane County has established “no-refusal” weekends. “No-refusal” weekends were centered around certain events like New Year’s Eve and Fourth of July weekends. Kane County authorities would set-up roadblocks to close off certain roads and stop every vehicle. If the police suspected that the driver of a certain vehicle was Driving Under the Influence, they would request that the driver submit to a breathalyzer test and if they refused, the police would obtain a warrant from a judge who was on the scene to force a blood draw from the driver. If the driver refused to comply with the judge’s order, the driver could be arrested and charged with Contempt of Court.

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Arrest-300x226Being arrested by a police officer is something that nobody would ever want to experience. While being arrested by a police officer does not automatically mean that you will be charged with a crime, it usually means that you are suspected of committing a crime and you should be aware of what may happen and what you should do to protect yourself from what the future may hold.

When you are arrested by a police officer, this means that you are in custody. This means that you are not free to leave. If you are arrested, you will be taken to the local police station. If the police believe that they have enough evidence to prove you guilty beyond a reasonable doubt in court of committing a crime, you may be charged with a crime. However, if the police believe they need to gather more evidence, they can hold you in custody for a limited period of time for questioning.

Whether you are charged with a crime or being held for questioning, you need to understand that you are under no obligation to answer any questions asked by the police. What you need to do is provide some basic information, such as your name and address, but you are not required to answer any questions involving the reason behind your arrest.

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Speeding-Ticket-300x226In the past few years, the Illinois Legislature has enacted laws which make Excessive Speeding a much more serious matter than most people think. Most people are conditioned to believe that if they are pulled over for speeding they will receive a simple speeding ticket and the most that could happen to them is that they have to pay a steep fine and take a Traffic School class. The recent changes to the speeding laws have made certain Excessive Speeding tickets an actual crime. From all of the calls that I get from prospective clients, this area of the criminal law may be one of the most misunderstood subjects.

If you are caught speeding 26 to 34 miles per hour over the posted speed limit, you will be charged with a Class B Misdemeanor. A Class B Misdemeanor for speeding 26 to 34 miles per hour over the posted speed limit carries a maximum punishment of 180 days in County Jail and a maximum fine of up to $1,500. If you are caught speeding 35 miles per hour, or over, the posted speed limit, you will be charged with a Class A Misdemeanor. A Class A Misdemeanor for speeding 35 miles per hour over the posted speed limit carries a maximum punishment of up to one year in County Jail and a maximum fine of up to $2,500. So, if you are pulled over for speeding 26 miles per hour, and over, the posted speed limit, you will not receive a simple speeding ticket. You will be arrested and charged with a crime which carries a potential jail sentence. In addition to any possible criminal penalties, a conviction for speeding 26 miles per hour over the posted speed limit may result in the suspension of your driver’s license by the Illinois Secretary of State. A conviction for Excessive Speeding will remain permanently on your driving record with the Secretary and will appear as a criminal conviction in a routine background search. Not only will a prospective employer find out that you have been convicted of a crime, but your insurance company may use this conviction to drop you from their Auto Insurance plan or increase your insurance premiums.

Yesterday, the Illinois Department of Transportation greeted local motorists with some good news which may help reduce the number of Excessive Speeding cases that could lead to a criminal conviction and a potential jail sentence. Up until now, the speed limit on I-90 west of Elgin was 70 miles per hour all the way to Wisconsin. Yesterday, the Illinois Department of Transportation announced that the speed limit from Randall Road in Elgin to Mount Prospect Road has been increased to 70 miles per hour for all passenger cars. The new speed limit matches the 70 mile per hour speed limit from Elgin to Wisconsin. The previous speed limit from Randall Road in Elgin to Mount Prospect Road was 55 miles per hour.

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Criminal-Defense-Attorney-300x201Last week I had a meeting with a client in my office in Schaumburg who was being charged with a felony in Rolling Meadows. The client has a lawyer who was representing him for the case. The client came in for a consultation because he was not happy with the services that his current lawyer was providing and was considering hiring me to represent him in the case. The client told me that he had spoken to his lawyer and requested copies of the police reports. His lawyer refused to provide copies of the police report and the client was very upset with that decision.

This is a very common scenario. I frequently talk with clients who want copies of the police reports so that they can review them at home with their friends and family. I’m sure that many of those clients want to talk to another lawyer and get a second opinion. When a criminal defense lawyer tells a client that they cannot give them copies of the police reports, the clients usually think that’s because the lawyer doesn’t want to lose the case. While that may be the reason behind refusing to give a client police reports in some cases, people need to understand that your criminal defense lawyer is prohibited from giving you copies of the police reports. Let me explain why.

Your lawyer is required to follow certain rules. Your lawyers’ conduct is governed by the Rules of Professional Responsibility. Those rules provide for certain ethical responsibilities that lawyers have to their clients and to the Court. The Supreme Court of Illinois has also enacted certain rules which limit what your lawyer can, or cannot do. The Supreme Court Rules govern what happens in court and what your lawyer can or cannot do while they are representing you in a criminal case in court. Your lawyer is required to follow all those rules.

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Speeding-Ticket-LawyerIn the past several weeks, I have spoken to several clients who were arrested for Aggravated or Excessive Speeding and were charged with a crime. Most of the people I spoke to did not realize that they could be arrested for speeding. Many people do not understand the Illinois speeding laws and how a simple speeding ticket can lead to you being arrested and facing the real possibility of having a criminal conviction appear on your record and a possible jail sentence in your future. I want to take this opportunity to try to help people understand just how drastic the consequences of a speeding ticket in Illinois can be.

In general, if you are pulled over for speeding over the posted speed limit, you will not be arrested. The police officer will issue you a speeding ticket and depending on the County that you were pulled over in, and your driving record, you may be given the opportunity to avoid going to Court by paying a fine or by attending Traffic Safety School. But in certain circumstances, being pulled over by a police officer for speeding could result in an arrest and criminal charges.

Aggravated or Excessive Speeding

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Police-Vehicle-Search-300x200It is common to have a client come into my office who is facing criminal charges resulting from a search of their vehicle by a police officer. Many of those clients want to know whether the police had the right to search their vehicle and whether I can have the evidence that was recovered thrown out of Court. There’s no simple answer to this question. Whether the police had the right to search the vehicle and whether I can convince the Court to throw out the evidence depends on the facts of each individual case. I want to talk a little bit about the general rules and what the constitutional limits are when it comes to the police searching a motor vehicle.

Generally speaking, the police cannot search your vehicle without a warrant. The Fourth Amendment to the United States Constitution protects us from unreasonable searches and seizures when we have a reasonable expectation of privacy. Courts have consistently ruled that we do have a reasonable expectation of privacy in our motor vehicles. At the same time, the Courts have recognized that there is an “automobile exception” to the search warrant requirement when it comes to our cars. The “automobile exception” provides that individuals have a lower expectation of privacy when it comes to their cars as opposed to their homes. The Fourth amendment creates minimum requirements that apply to all states and in all cases. However, states are free to grant their citizens more rights than what’s afforded to them by the United States Constitution.

The police can search your vehicle without a warrant only under certain limited circumstances. The limited circumstances are set forth as follows:

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DUI-300x200Being pulled over by a police officer is a stressful experience. This is especially true if you know that you have been drinking alcohol. Your mind starts racing and you want to make sure that you don’t give the police officer any reason to suspect that you are under the influence of alcohol. Unfortunately, many motorists don’t really think before they open their mouth. They don’t realize that the police are not there to help them. The police have a job to do and their job begins the moment they notice your vehicle. You need to understand what the police officer is doing and how your conduct and your statements can be used against you in court.

First of all, a police officer cannot pull over your vehicle for no reason. In a typical DUI, a police officer will notice a driver committing a traffic violation. This could be speeding, failure to stop at a red light or a stop sign, or improper lane usage. Once the police officer pulls over your car, the police officer begins making observations that will provide them with the legal justification to pull you out of the car and ask that you submit to a field sobriety test. In order for a police officer to ask that you exit your car to perform a field sobriety test, the police officer must have probable cause to think that you may be under the influence of alcohol. A mere hunch is not enough. The police officer must have specific articulable facts to justify their suspicions.

The police officer will begin making observations as soon as they suspect that alcohol may be involved. If a police officer asks you to exit your vehicle, you should follow the officer’s request. It is not up to you to decide whether the police officer has probable cause to suspect that you may be under the influence of alcohol. The issue of whether the police officer had the legal right to ask that you exit your vehicle is a decision that will be reviewed later on in Court in front of a judge.

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Kane-County-Drug-Case-300x226Yesterday, Kane County State’s Attorney, Joe McMahon, announced that Kane County saw a 7% increase in the number of felony cases filed by the Kane County State’s Attorney’s Office in 2017. The increase in the filing of felonies in Kane County continues a rise in the number of felony cases filed that began in 2015. In 2007, Kane County saw 3,349 felony cases filed. That number declined from that year until 2015, when 2,011 felony cases were filed in Kane County. In 2016, 2,255 felony cases were filed. In 2017, 2,413 felony cases were filed. That represents a 7% increase over 2016.

McMahon attributes the 7% increase over 2016 to the rise in the number of felony drug cases that were filed in Kane County last year. McMahon reports that last year, his office charged 447 felony drug cases. That number represents a 42% increase over 2016. Some of the cases filed in Kane County in 2017 were severe drug cases such as Possession with Intent to Deliver, Delivery of a Controlled Substance, and Drug Trafficking. The increase in the number of drug cases filed in 2017 coincides with the rising number of heroin-related overdose deaths that have been rising in King County and other surrounding counties.

McMahon believes that the increase in the number of felony drug cases in Kane County is a combination of an increase in the number of drugs coming into the area and the increased attention that law enforcement has placed on attacking the heroin and opioid-related crises in Kane County.

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Domestic-BatteryOne of the most common questions I get asked by people who are charged with a Domestic Battery is whether they can be guilty of a Domestic Battery if they did not hit anyone.  The short answer to that question is yes.  But let’s talk a little about what a Domestic Battery is and why it is very important that you hire a good Illinois Domestic Battery lawyer who knows what they are doing.

First of all, most Domestic Batteries in Illinois are a misdemeanor.  The maximum punishment for a misdemeanor Domestic Battery is one year in jail and a fine up to $2,500.  But unlike most misdemeanors, if you are found guilty of a Domestic Battery in Illinois, you cannot receive Court Supervision.  Court Supervision is a type of sentence, that if successfully completed, does not result in a conviction on your criminal record.  The lowest possible sentence that can be imposed on a Domestic Battery in Illinois is Conditional Discharge.  A Conditional Discharge sentence for a Domestic Battery cannot be expunged from your criminal record.  This means that if you are found guilty of a Domestic Battery you will never be able to remove the conviction from your criminal record.  And that’s why even though a Domestic Battery is usually a misdemeanor it is more serious than most other misdemeanors.  Since it can never be removed from your record, the consequences of a conviction can last a lifetime.

Next let’s talk about what Illinois law considers a Domestic Battery to be.  In order for a Battery to be considered a Domestic Battery as opposed to a regular Battery, the victim has to be either a family or household member. What does that mean?  This means that the victim has to either be a spouse or former spouse, a child or stepchild, or someone related to you by blood or by a prior marriage.  The victim can also be a current, or former boyfriend/girlfriend or a current, or former spouse. A family or household member can be someone who lives with you, someone that you are alleged to have had a child with or are related to each other through a child.  A household or family member can also be someone that you are currently having, or have previously had, a dating relationship with.  So as you can see, a family or household member is rather broadly defined under Illinois Law.

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DUILast June, the United States Supreme Court issued a decision in a DUI case that many DUI lawyers had been closely following. The case is actually three separate cases consolidated into one case captioned, Birchfield v. North Dakota.  What united all 3 cases was that they all dealt with a North Dakota law which made it an actual crime to refuse to take a breathalyzer test and a blood test when requested to do so by the police.  There is no such law in Illinois.  A refusal to take a breathalyzer test or blood test can result in the suspension of your driving privileges in Illinois but is not an actual crime in Illinois.  However, 13 other states make a refusal to submit to a breathalyzer test or blood test a crime.  Both North Dakota and Illinois have “implied consent” laws which means that when you operate a motor vehicle upon the public roads, you consent to submitting to a breathalyzer and a blood test when requested to by the police.  Illinois warns you that failure to consent to a breathalyzer test could result in the suspension of your driving privileges while North Dakota warns you that failure to consent to a breathalyzer test could result in criminal prosecution.  Refusing to submit to a breathalyzer or a blood test is not a crime in Illinois.  The refusal to submit to such testing can only result in the suspension of your license for a period of time, usually one year, if this is your first DUI.  Sometimes, refusing to submit to a breathalyzer or blood test could benefit the underlying DUI case making it harder for the state to prove their case with test results, but will not stop the suspension of your driver’s license.  Refusing to submit to a breathalyzer test or a blood test is a misdemeanor in North Dakota.  By making it a crime to refuse to submit to a breathalyzer or a blood test, a driver would be more likely to consent to such testing, thereby making it easier for the state to prove guilt in an underlying DUI prosecution.

In a 5 to 3 decision, the Supreme Court ruled that the police do not need a warrant to do a breathalyzer test but need a warrant to take a blood test.  The majority opinion was written by Justice Alito who held that “because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving.”  Since it’s considered a search incident to a lawful arrest, a warrant is not needed.

Since the case involved 3 separate DUI arrests, there were 3 different outcomes.  One driver, Danny Birchfield, had his conviction for failing to consent to a blood test overturned.  The second driver, Danny Bernard, Jr., had his conviction for failure to submit to a breathalyzer test upheld.  The third driver, Steve Beylund, who consented to a blood test under threat of criminal prosecution, had his case returned to the trial court in light of the holding that a warrant is required for a blood test.

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