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What are the Methods of Proof in a DUI-Drugs Prosecution?

Mostly because it is 100% legal, relatively inexpensive, and easy to purchase, alcohol-related DUIs will probably always constitute the majority of DUI cases. In many jurisdictions, however, drug-related DUIs are almost as common.

When they go to trial, DUI-drug cases present their own unique kinds of issues. If the defendant submits to a breath or blood test, and most do, the prosecutor can use the DUI law’s per se section to prove intoxication without any additional evidence. Even in the absence of such tests, alcohol’s intoxicating effects are very well known. There is no Breathalyzer test for drugs and there is also no consensus as to the impairing effects of many of these substances.

Presence of Drugs

In some cases, a per se law is available. Under Section 625 ILCS 5/11-501(a)(6), the prosecutor need only prove the presence of drugs. Either direct evidence, like a blood or urine test, or circumstantial evidence, such as track marks on an arm or drugs recovered from a car, may suffice.

Most of the prohibited substances are listed in the Controlled Substances Act. The list includes a variety of illegal “street drugs,” like heroin, LSD, and cocaine.

Marijuana, which is legal for medicinal purposes in Illinois but illegal for recreational purposes, is a special case. With regard to other CSA drugs, the prosecutor must only establish that, beyond a reasonable doubt, the defendant had at least trace amounts of the drug in his or her system. Amount is completely irrelevant. With regard to marijuana, however, the defendant must have at least five nanograms of THC. There is considerable debate as to whether this measurement has any scientific basis or even if that much THC, which is much less than one joint, is impairing. But, that is the law, at least for now.


Section 625 ILCS 5/11-501(a)(5) is the circumstantial evidence section, which is used almost exclusively in prescription drug cases. It is not illegal to take prescription pain killers and not even necessarily illegal to abuse them, but it is illegal to get behind the wheel if the medication “renders the person incapable of safely driving.” As with alcohol, prosecutors generally use the field sobriety tests to determine impairment. These tests are only a few of the 12 steps the authorities can use to determine if a driver is under the influence of drugs:

  • Walk and Turn: Walking a straight line heel to toe without using the arms for balance is difficult on a flat surface in a well-lit, quiet room, and almost impossible to perform if conditions are less than ideal.
  • One-Leg Stand: Like the WAT, the OLS is a divided attention test which measures both dexterity and mental acuity. Prosecutors commonly claim that the defendant “failed” this test based on minor technicalities, like holding the leg at a slightly incorrect angle.
  • Horizontal Gaze Nystagmus: The HGN test is very reliable if it takes place under carefully controlled conditions and if the test administrator is well qualified. Those are two very big “ifs.”

There must also be additional evidence that the defendant was using an impairing substance at the time, such as empty pill bottles in the car or a current prescription for a painkiller.

Reach Out to Assertive Lawyers

Though they serve the same purpose (keeping impaired drivers off the street), the DUI-alcohol and DUI-drug laws each work differently. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.

(image courtesy of Yeshi Kangrang)

Common Issues in Enhanced DUI Stops

Almost all DUI cases begin with traffic stops. Third-party tips, either ones phoned in from citizens or reported over police radios, initiate a handful, as well. Jurisdictions that rely on responsive policing, in which officers keep a low profile unless there is an emergency, almost exclusively rely on one-on-one stops.

Most jurisdictions employ a high-visibility deterrence theory. One-on-one stops are important in these jurisdictions, but officers also use either DUI checkpoints or saturation patrols. The type of stop matters a great deal because there are some additional DUI defenses available in enhanced stop cases.

DUI Checkpoints

These roadblocks usually appear only during holidays commonly associated with drinking and driving, such as Memorial Day and New Year's Eve. DUI checkpoints are highly controversial, especially in Illinois. In 2015, an analysis concluded that some jurisdictions in Chicagoland spent an enormous amount of money on checkpoints even though the strategy bore very little fruit. Many jurisdictions, including the Lake County Sheriff's office, spent over $1,000 per DUI arrest, and many other jurisdictions, including Fox Lake, spent substantially more than that. DUI roadblocks are so expensive, in part, because of the manpower and overtime pay often involved.

There are restrictions in place on DUI checkpoints largely due to Supreme Court cases like Michigan State Police v. Sitz.

  • Pre-Checkpoint Publicity: The agency must publicize the checkpoint’s location in advance to give motorists the opportunity to avoid the area altogether. A notice on the department’s website may or may not suffice.
  • Preset Details: All the roadblock’s features, including the specific location, times, and manner of stopping vehicles, must be set in advance. Officers on the scene can have absolutely no discretion over any of these matters.
  • Brief Stop: To keep traffic moving, officers typically only stop every third or fourth vehicle. To do more risks backing up traffic to the point that the delay to motorists becomes unreasonable.

Any deviation from any of these requirements, no matter how slight, may serve to invalidate the checkpoint and any stops or arrests made as a result of the defective roadblock.

It is also important to point out that drivers have rights at these checkpoints. They must comply with the officers’ request to show their drivers’ licenses and other documents, but they do not have to answer any questions or even roll down their windows. Drivers also have the right to turn around so as to not go through the checkpoint, but officers may well trail said motorists for at least a few blocks.

STEP Campaigns

Because of privacy concerns and also because of a lack of funding, many states are reducing the number of checkpoints. In fact, earlier this year, Missouri lawmakers reduced the state’s roadblock budget from $20 million to $1. Therefore, many departments are moving away from fixed roadblocks to Selective Traffic Enforcement Programs.

In these saturation patrols, supervisors pull officers off their normal schedules and redirect them to specific areas. They are then instructed to issue as many citations as possible for a certain infraction, such as speeding, DUI, or whatever.

Evidence, especially at the initial stop phase, is often weak in these situations because officers make arrests or issue citations in situations that probably mandate warnings. There are often overall issues as well, as the directive to target specified offenses often smacks of a police dragnet to some jurors.

Contact Aggressive Lawyers

The type of stop has considerable bearing on a DUI defense strategy. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.

(image courtesy of Luigi Manga)

The Pre-Arrest and Arrest Phases of Criminal Cases

Chinese thinker Sun Tzu once wrote that “Every battle is won or lost before it’s ever fought.” That may or may not be entirely true, but it is certainly true that what happens before a military battle (or a legal one, for that matter) is almost as important as the events that transpire during said battle.

Many times, successful defense in a criminal case hinges on a procedural defect or irregularity because it is impossible for the prosecutor or anyone else to go back in time and correct prior mistakes. While the general principles remain very much the same, the underlying law is almost constantly changing, so it is important to examine these issues frequently.

Pre-Arrest Stops

From the early 1950s through the 1960s, the United States Supreme Court issued a number of opinions which, at the time, significantly expanded the rights of citizens accused of criminal conduct. One of them, Terry v. Ohio, introduced the concept of reasonable suspicion, which is the evidentiary standard that applies at this phase.

Essentially, officers may only detain suspects if there are “specific articulable facts” which suggest criminal activity. Officers can use their training and experience to interpret these facts, but a mere “gut feeling” is insufficient. For many years, although there was no assigned proportion, courts always required that the officer have correct facts as opposed to vague suspicions. But a recent case may have changed that dynamic.

In 2014, the Court issued Heien v. North Carolina. This case began when an officer observed a car with a burned-out tail light. He pulled over the vehicle, and following a consented search, officers discovered cocaine. The stop appears routine, but the problem is that North Carolina law only requires motor vehicles to have one working tail light, so Mr. Heien was not violating the law.

Nevertheless, the Supreme Court upheld the subsequent arrest and therefore Mr. Heien’s conviction as well, since the officer’s mistake was “reasonable.” Arguably therefore, if a prosecutor can convince a judge that another officer would have interpreted the same facts in the same way, the stop may now be legal, regardless of the arresting officer’s mistake.

Heien could apply in tip cases, as well. Assume that an officer receives a tip about a suspicious vehicle, but pulls over the wrong car or truck. Under current law, that stop might be permissible as well, even though the officer made a grievous error.

The Arrest

Terry also reinforced the concept of probable cause, which is the evidentiary standard that applies at the arrest phase. For years, defense attorneys and prosecutors alike knew that probable cause was somewhere between reasonable suspicion and probable cause. According to a 2003 case, the probable cause threshold is much closer to the low end than anyone previously thought.

In Maryland v. Pringle, police found cocaine in a back seat armrest and arrested everyone in the car, including Mr. Pringle, who was a front seat passenger. As a non-owner who was on the opposite side of the car, he did not meet the proximity test or knowledge test when it comes to possession of contraband. Nevertheless, the court held that there was a “reasonable ground for belief of guilt,” even though there was not nearly enough evidence to convict Mr. Pringle at trial. In other words, “reasonable” probably means “somewhat likely.”

Police officers make mistakes and blur the lines of reasonable suspicion and probable cause with ease. These minor ‘mistakes’ on the part of law enforcement can cost you your freedom, so do not let them slide. A criminal defense attorney can help you achieve the justice you deserve.

Contact Aggressive Lawyers

The law in some key criminal law areas clearly favors prosecutors. Furthermore, it can be hard to know whether your arrest was carried out with reasonable suspicion or probable cause. If you feel that your rights have been violated during your arrest or during the pre-trial phase of your legal proceedings, having an experienced criminal defense attorney on your side is a necessity. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.

(image courtesy of JP Valery)