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Search Warrants and Drug Charges

A judge claimed that a defense attorney’s motion to suppress evidence was based on “a preposterous position” and allowed the prosecutor to use the evidence seized at trial.

An Illinois judge made that comment during a pretrial hearing in a felony drug possession with intent to deliver case. Officers initially stopped a vehicle for traveling 74mph in a 70mph zone; Frederick W. Rumble, the defendant in this case, was a passenger in that vehicle. After officers smelled cannabis and found one gram of marijuana on Mr. Rumble’s person, they searched the car and found both crack and powder cocaine. The defense claimed that since possession of one gram of cannabis is not technically a crime (it is punishable as a civil penalty only), the officers did not have a legal basis to search the automobile.

The judge ruled that the officers could not have known how much cannabis was in the car based solely on odor and that “the smell of what turned out to be lingering raw cannabis was sufficient to establish probable cause.”

Search Warrant Exceptions in Drug Cases

The defense did not challenge the search based on the lack of a warrant because the officer’s actions fell within the automobile exception, which is one of the six recognized exceptions to the Fourth Amendment’s warrant requirement.

Since an automobile or other motor vehicle might become unavailable in the time that it takes to procure a warrant, courts allow officers to conduct a limited search if they have probable cause to believe that the defendant was involved in criminal activity. The limited scope means that officers cannot search a van’s glove compartment if they suspect that the vehicle is smuggling undocumented immigrants; there is no definition of “probable cause,” but it is somewhere between an evidence-based hunch and near certainty.

The other five exceptions are:

  • Consent: Officers nearly always ask for permission to search suspicious places or vehicles if they lack probable cause. You have the right to say “no” and thus force the officer to obtain a warrant.
  • Search Incident to Arrest: Other than consent, this exception is probably the most common one. It is often used after traffic stops, although in Illinois, not all traffic offenses are arrestable.
  • Plain View: As the name implies, for officers to seize contraband without warrants, they must be able to see the items. One example is a handgun on a car seat, even if it is partially concealed.
  • Weapons Pat-Down: If an officer has reasonable suspicion that the defendant is carrying a weapon, like a gun or knife, the officer may pat the suspect down.
  • Hot Pursuit: In the original Dirty Harry, a rifle that Harry seized from a suspect during a foot chase was later ruled inadmissible. Today, the rifle would probably be admitted under the hot pursuit exception.

The prosecutor has the burden of proof to show that an exception applied and that all the elements for that exception are present in that case.

Reach Out to Experienced Attorneys

Officers can seize evidence without warrants only in limited circumstances. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.

(image courtesy of Shahzin Shajid)

DUIs and Drivers’ Licenses

Almost all DUI enforcement contacts trigger a mandatory drivers’ license suspension, either because the defendant refused to provide a chemical specimen or the defendant’s BAC exceeded the legal limit. License suspension hearings are not easy to win because the deck is stacked against the defendant and the issues are quite narrow. Nevertheless, aggressive representation at this hearing is often critical to a successful outcome in court.

The only way to avoid automatic suspension is if the officer reverses course and decides not to arrest the defendant after the enforcement contact, and that hardly ever happens.

Next, a DUI conviction means a mandatory drivers’ license revocation. The reinstatement hearings are not easy to win, either, because the defendant has the burden of proof to show that he or she can drive without endangering public safety and there are very strict procedural requirements.

There is no revocation if the defendant receives court supervision in a first DUI or if the charges are reduced to reckless driving.

ALR Suspension

The administrative license revocation suspension automatically takes effect on the 46th day after the defendant receives notice, unless the defendant requests a hearing. Unless the judge reduces them, the mandatory suspension periods are:

  • Six months for a first failure,
  • One year for a first refusal or a subsequent failure, and
  • Three years for a subsequent refusal.

For the enhanced penalties to apply, the prior failure or refusal must be less than five years old.

At the hearing, the circuit court judge usually serves as prosecutor, judge, jury, and executioner. Furthermore, defendants may be called as witnesses against themselves because the Fifth Amendment does not apply in these proceedings. Finally, even if the arresting officer does not appear to give testimony, the judge nearly always resets the case to give the state another bite at the apple.

That being said, it is sometimes possible to at least get the suspension periods reduced. There may be issues with the stop, such as the adequacy of an informer’s tip. Or, the arresting officer may have given the defendant the incorrect statutory warnings. Technically, defects like these could even require the judge to throw out the case.

At any rate, the worst possible outcome is for the judge to impose the maximum suspension, and that would have happened whether the defendant requested a hearing or not, so there is no risk. Furthermore, the ALR hearing is a chance to conduct discovery, and these opportunities are limited for DUI defense lawyers in many jurisdictions.

First time offenders may be able to drive once they have ignition interlock devices installed in their vehicles; any driver may receive a restricted driving permit upon proof of hardship.

License Revocation

A DUI conviction means mandatory license revocation. Persons may apply for reinstatement after:

  • One year for a first DUI (two years if the defendant was under 21),
  • Five years for a second conviction, and
  • 10 years for a third DUI.

Fourth and subsequent DUIs technically mean lifetime revocation, but these drivers are able to drive with an ignition interlock device after a certain amount of time. Certain aggravating factors, such as a collision with serious injuries or a child passenger in the vehicle may lengthen the minimum revocation periods.

Prior to the reinstatement hearing, the driver must complete certain items depending on the risk classification category, such as a DUI education school, alcohol counseling, and perhaps attendance at AA meetings. This evidence, coupled with the vigorous arguments of an experienced attorney, is often sufficient to convince the judge to approve reinstatement.

Team Up with Aggressive Attorneys

Both DUI arrests and convictions affect your drivers’ license. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.

(image courtesy of Chris Montgomery)

Dealing With a Second DUI in Illinois

In many ways, a second DUI is the first “mandatory” DUI because, unlike a first infraction, a second DUI is not eligible for court supervision. Therefore, unless an attorney can arrange a plea to reckless driving or secure a not-guilty verdict at trial, a second DUI will likely result in all the consequences of a conviction, including mandatory license revocation.

The best way to approach a second DUI, or almost any other criminal case, is to evaluate any factual and legal defenses and the, based on that assessment and some other factors, determine a course of action.

Penalties for a Second DUI

For DUI penalty purposes, Illinois has no lookback period. So, in many states, if a defendant is arrested for DUI in 2006 and again in 2017, the 2017 DUI would technically be a first offense, since the prior one was more than 10 years old. But in the Prairie State, where the DUI laws are little tougher, the 2017 arrest would be charged as a second DUI.

The penalties under the DUI law for a second infraction are:

  • Minimum five days in jail (or 240 community service hours); the maximum jail term is one year,
  • Minimum $1,000 assessment plus court costs; the maximum financial penalty is $3,500 plus costs, and
  • Minimum drivers’ license revocation of five years.

Prosecutors will upgrade the charges if the defendant had a BAC above .16, there was a child under 16 in the car, the defendant caused an injury collision while intoxicated, or another aggravating factor applies.

Possible Defenses

As discussed above, any prior DUI conviction or reckless driving conviction, no matter how old it is, serves as a prior conviction for sentencing reasons. However, for practical purposes, the older the prior incident is, the more likely prosecutors are to reduce the charges.

There are some other procedural defenses, as well, such as irregularities regarding the police officer’s basis for stopping the defendant.

Substantively, evidence in a second DUI either comes from the field sobriety tests or the chemical test; the chemical test is nearly always a Breathalyzer. Like all circumstantial evidence, the field sobriety tests, such as the one-legged stand, are subject to different interpretations. If even one juror has a reasonable doubt about the prosecutor’s interpretation, the defendant cannot be found guilty.

The Breathalyzer does not measure the blood alcohol level; instead, this gadget measures breath alcohol and then estimates the blood alcohol content based on that measurement. Because of this extra step, the Breathalyzer may be unreliable in borderline cases.

Possible Approaches

Most criminal cases settle out of court, and if any one of the defenses above applies, prosecutors are often willing to reduce the DUI charge to reckless driving. This offense is also a Class A misdemeanor, but it does not have some of the consequences that a DUI has; for example, there is no drivers’ license revocation and no minimum incarceration time or fine amount.

If the defenses are stronger, or if the prosecutor stubbornly refuses to negotiate, trial is always an option. In fact, good defense attorneys always assume that the case will go before a jury, to help ensure the best possible preparation.

Team Up with Assertive Attorneys

A second DUI requires a different approach. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.

(image courtesy of Chris Montgomery)