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Winning a Circumstantial DUI Case

In a previous post, we examined the per se portion of the DUI law. Per se basically means “it is what it is” and there is no room for interpretation. For purposes of this section, if the defendant has a BAC above the legal limit, the defendant is guilty, even if the defendant was not “intoxicated” in the everyday sense of that word.

However, in about 20% of DUI cases, prosecutors cannot use the per se provision because the defendant refuses to take a breath test. Officers could obtain a search warrant and extract a blood sample over the defendant’s objections, but few officers take this extra step. So, court prosecutors must rely on circumstantial evidence, and this evidence is always subject to interpretation.

Circumstantial Evidence at the Scene

Officers only need probable cause to arrest someone. Courts have never defined this phrase, but it is a standard of proof somewhere between the near-absolute certainty of beyond a reasonable doubt, an idea that is discussed below, and the fact-based hunch of reasonable suspicion, which is the scant amount of evidence that officers need to pull over motorists.

To transition from the traffic stop to the field sobriety tests, officers usually rely on evidence like:

  • Defendant’s Previous Stop: Officers often ask motorists “Where are you coming from?” If they say they are coming from a bar, the officer can fairly assume that they had been drinking at least moderate amounts of alcohol; if the response is “a party” or “a restaurant,” the inference is not as strong.
  • Erratic Driving: Nearly all motorists get pulled over because they go through a red light, change lanes without signaling, or whatever. Such behavior could be evidence of intoxication, or it could be evidence of an overall contempt for stop signs.
  • Bloodshot Eyes: Similarly, bloodshot eyes could indicate the person was intoxicated or could indicate that the person’s allergies are acting up.
  • Odor of Alcohol: Officers almost always testify that they detected an odor of alcohol. If that odor came from the defendant’s breath, that is evidence that the defendant had been drinking, but if the odor came from the car or the person’s clothes, that is evidence that the defendant had been around someone who had been drinking.

Probable cause is a relatively low standard, so the judge will probably not throw out the case at this juncture, even if the evidence is shaky. However, by challenging this evidence, the defense attorney paints a picture of someone who may not have even been drinking at all, let alone intoxicated by alcohol.

Circumstantial Evidence at Trial

To convince the jury that the defendant is guilty beyond a reasonable doubt, which basically means that each juror is totally convinced even after hearing both sides, most prosecutors rely on the approved field sobriety tests.

  • Walk and Turn: The defendant must “walk a straight line” heel to toe backwards and forwards.
  • Horizontal Gaze Nystagmus: The defendants must follow fixed points, usually the tip of a pen or a fingertip, using only their eyes and without moving their heads.
  • One Leg Stand: The defendant must hold one leg up in the air at a certain angle for a certain amount of time.

In all three, officers are trained to look for clues of intoxication. At trial, officers almost always testify that the defendant “failed” each test. Sometimes they base this assessment on technicalities, like starting with the wrong foot or a nearly imperceptible sway. Fortunately, the jury has the final say on whether the circumstantial evidence means that the defendant was intoxicated or just nervous.

Contact Experienced Attorneys

Circumstantial evidence DUI prosecutions are inherently weak. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.

(image courtesy of Michael Mroczek)

How Can a Lawyer Defend a DUI Charge in Illinois?

There are generally two ways to win a DUI, as an attorney can engineer a plea bargain to a lesser included offense or challenge the state’s evidence at trial. Most cases involve a little bit of both.

Over the past 25 years, DUIs have evolved from severe traffic tickets to one of the most serious offenses in the state. A DUI today often involves collateral consequences, like drivers’ license suspension and monetary cost. This change is especially apparent in Illinois, which is known for its harsh laws on the subject.

Plea Bargain

Between 90 and 95% of criminal cases are resolved prior to trial with an agreed plea of guilty. Typically, the defendant enters this plea in exchange for a lesser charge or a reduced sentence.

In Illinois DUIs, that lesser charge is usually reckless driving. Prosecutors normally agree to this plea if the evidence is somewhat weak, as outlined below, or if there are extenuating circumstances, such as a long gap between a first and second offense. Although reckless driving, like a first and second DUI, is a Class A misdemeanor, the collateral consequences are not nearly as severe in terms of drivers’ license suspension and higher auto insurance rates. Furthermore, reckless driving is a court supervision-eligible offense and a second DUI is not.

As for a reduced sentence, almost everything is negotiable. Some common agreements include:

  • Probation in lieu of jail time,
  • A lower than maximum fine,
  • A shorter drivers’ license revocation, and
  • An RDP (restricted drivers’ license) during at least part of the revocation period.

The judge has the final say over all plea bargain agreements and can decide whether to accept or reject the prosecutor’s recommendation, but it is almost unheard of for a judge to exercise this power without at least giving the two sides a chance to amend the settlement terms.

Challenging the Evidence

Most prosecutions under the Illinois DUI law are per se violations under subsection (a)(1). This provision states that defendants are guilty as a matter of law if their BAC exceeds .08, or whatever the legal limit is under the circumstances.

The Breathalyzer has been around since the 1950s, and while there have been many improvements, the underlying technology is essentially unchanged. Some potential challenge areas include:

  • Acetone: Diabetics, smokers, and some people on special diets have elevated acetone levels. Breathalyzers register this substance as ethanol, which sometimes causes artificially high results.
  • Unabsorbed Alcohol: If the defendant has had any alcohol within the last hour or so, it has probably not been absorbed and the results will be skewed.
  • Mouth Alcohol: If the defendant belches or burps in the 15 minutes prior to the test, the results will probably be artificially high.

Admittedly, these flaws are insufficient to discount the test results entirely, but in borderline situations, they are often enough to convince at least one juror that the chemical test may be slightly inaccurate.

Reach Out to Assertive Attorneys

There are several ways to win a DUI charge. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.

(image courtesy of Maria Stiehler)

Breaking Down a Third DUI in Illinois

In most states, third DUIs are somewhat rare, due to the 10 or 15-year look back period. This means that a DUI will “fall off” a person’s record after the 10-15-year period, and any DUIs charged after that will not be considered subsequent offenses. In Illinois, prior convictions never “fall off” an offender’s record for DUI sentencing purposes, so an offense that everyone else has probably forgotten about often comes back to haunt defendants charged with DUI. Furthermore, even if there was no DUI conviction, the prior case can still be admissible for sentencing purposes. That includes prior court supervision cases and some reckless driving convictions.

Previously, in a post about second DUIs, I brought up the point that a second offense is sometimes the dividing line between a one-off incident and a problem drinker. A third DUI is nearly always the cutoff between these two informal categories, underscoring the need for an aggressive attorney.

The Law and Local Procedure

Another reason for hiring an experienced, local attorney is that a third DUI in Chicagoland is procedurally different from similar offenses in other parts of the state.

These differences begin at the pretrial release phase. Most jurisdictions in Chicagoland impose high bail amounts in third DUI cases. It is not unheard of for these amounts to exceed $30,000. Most counties allow defendants to assign their bail money to attorneys’ fees.

A third DUI is a Class 2 felony that is punishable by a maximum three to seven years in prison and/or a fine that is usually $3,500, which includes a $1,000 DUI technology fee. However, that is only part of the story. Judges in Cook County, DuPage County, and Will County do probation sentences in these cases, but they usually require confinement as a condition of probation. Statutorily, the minimum jail time is ten days, but when confinement is a condition of probation, the sentences are considerably longer and may be as high as 180 days. Then, probation can last a maximum of four years.

A third DUI conviction means a maximum ten-year drivers’ license revocation, during which a restricted driving permit may or may not be available. DUI arrests also involve an administrative license suspension, and even if the defendant has prior convictions, the law may still consider the offense to be a first for this limited purpose, meaning that additional relief is available in the event of administrative license suspension.

Defending a Third DUI

Although every case is different, the state’s evidence in third DUI cases is often rather shaky because many of these offenses are chemical test refusal cases for which the conviction rate is only about 60%. The conviction rate in test cases is closer to 90%. Going to trial for a felony DUI is quite risky because if the jury convicts the defendant, the court often assess the maximum seven years.

The defendant often faces a choice between a plea to probation that includes some jail time and the possibility of an extended prison sentence. Many times, the field sobriety test (FST) results are the deciding factor.

Reach Out to Aggressive DUI Attorneys

A third DUI is always a serious felony. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.

(image courtesy of Rob Bye)