Pre-Arrest Procedure in a DUI

Contrary to popular belief, an effective criminal defense often does not begin when the charging instruments are filed, when the suspect is booked into jail, or even when flashing lights appear in the rearview mirror. In many cases, and especially DUIs, an attorney starts looking for defenses before the officers even get out of their patrol cars.

Judges closely scrutinize pre-arrest procedures, and in many cases, a procedural defect at this phase causes the judge to throw out the prosecution. In other instances, if the evidence is shaky in this area, an attorney can leverage that weakness into reduced charges during pretrial negotiations. This reduction is critical in subsequent DUIs, because typically, only a first DUI is a probation-eligible offense in Illinois.

Reasonable Suspicion and Tips

To detain a potential suspect, an officer must have sufficient knowledge to conclude that a crime has probably been committed. To make this conclusion, officers must mostly rely on specific, articulable facts; they can use their training and experience to supplement these facts. Reasonable suspicion usually comes from a third-party tip or from conduct that the officer actually observed.

Most DUI tips revolve around a vehicle that someone witnessed driving erratically. There are several legal issues with these tips, including:

  • Reliability: Anonymous tips are often suspect, because there is usually a reason that tipsters refuse to give their names; for example, they may have an axe to grind or they may be fabricating the story. Tips from other officers are the most reliable, with identifiable third-party tips occupying a middle ground.
  • Specificity: Did the tipster identify the vehicle as an “SUV”, a “blue SUV,” or a “blue SUV with a license tag that starts with L2?” A vague tip makes a subsequent stop more questionable.
  • Time: Did the officer receive the tip two minutes ago or ten minutes ago? If the tip was relayed from a caller to a dispatcher and then to an officer, which it often is, the time delay may be an issue.

Most courts use a totality-of-the-circumstances analysis, so a weakness in one area does not necessarily invalidate the tip.

Reasonable Suspicion and Observed Activity

As for the second area – offenses personally observed – officers receive a great deal of latitude. Two years ago, the United States Supreme Court ruled that even an ">officer’s critical mistake about the underlying facts does not invalidate the stop.

That being said, the officers must observe what they reasonably believe to be criminal activity. Many officers overly rely on so-called “furtive movements,” or sudden movements that, from the officers’ perspective, indicate that the suspects are trying to hide or conceal evidence. Most courts have rejected the approach that such movements constitute reasonable suspicion because there is nothing beyond the officers’ subjective interpretation that criminal activity is afoot.

Rely on Experienced Attorneys

A thorough DUI defense begins with the pre-arrest events. For prompt assistance from an experienced criminal defense lawyer in Schaumburg, contact Glasgow & Olsson. Convenient payment plans are available.

(photo courtesy of Xander T)

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