DUI – Breathalyzer Below .08

Can a person be charged with DUI even if his blood alcohol content is below .059 and thus below the legal limit, but on the contention of the police officer that the defendant had shown evidence of intoxication and impairment. In People v. Phillips, the 1st District Appellate Court here in Illinois was tasked with making this determination. The defendant was charged with driving under the influence pursuant to 625 ILCS 5/11-501 (a)(2) which is a charge of driving while under the influence, but this particular paragraph makes no statement as to the blood alcohol concentration. Instead (a)(2) relies on the assertion that the driver was driving in an impaired condition based on a totality of the evidence at the time of the traffic stop. Upon being found guilty by the trial court, the defendant appealed. One of the issues on appeal was the contention that the State failed to meet its burden of proving him guilty beyond a reasonable doubt on the argument that since he did not blow .08 there is a presumption of a lack of impairment. Therefore, the defendant contended that if he did not blow .08 then the statute stated that the court needed to start from a presumption that he was not impaired and thus could not be charged. The appellate court ruled on the contrary stating that although under the Illinois vehicle code someone who is stopped for suspected DUI, and is given a breath test, and blows less than .08, but more than .05 the statute makes no presumption of impairment, but neither does it infer a lack of impairment. The court ruling basically confirms what has been the state of affairs related to this particular form of DUI charge – that when someone’s BAC, based on a breathalyzer test, is below .08 it is the totality of circumstances, the total facts of the case, that will control in the ultimate court’s decision. Therefore, the testimony of any witnesses, the arresting officer, any other officers, and anyone else as to the facts and circumstances of the DUI stop. This may include the appearance of the defendant, whether there was a smell of an alcoholic beverage on the person, whether they were able to go through the field sobriety tests sufficiently well, and any other facts and circumstances allowing the court or the jury to make an informed decision on whether or not the defendant was guilty. In this case it was the smell of an alcoholic beverage on defendant, bloodshot eyes, slurred speech, general disorientation and lack of awareness of his surroundings, and finally difficulty with the field sobriety tests which were sufficient for a finding of guilty.

Supervision and a Commercial Driver’s License in Illinois

Based on secretary of state regulations if you have a commercial drivers license and are pulled over and issued a ticket, if you plead guilty and receive supervision the Secretary of State, for purposes of your driving record, does not recognize the supervision. The secretary of state will consider the disposition of the case as being a guilty and points will be applied to the driving record resulting eventually in either a suspension (or for purposes of insurance and increase in the premium rates). This makes it very important that CDL drivers secure the services of a inexperienced traffic attorney whenever they received a traffic citation.

Heien v. North Carolina 135 S.Ct. 530 (2014)

In this recent U.S. Supreme Court decision it would seem that the bar was lowered somewhat for police officers as to their knowledge of the law utilized as the basis of a traffic stop. In this case the office pulled over two defendants for driving within only one functional brake light. As a result of the stop and a subsequent search of the vehicle, Defendant Heien was arrested for possession with intent to distribute cocaine. Turns out that the relevant North Carolina statute was at best ambiguous whether it was required that two brake lights be functional or one. After making its way through the state courts (with the North Carolina Supreme Court deeming the statute ambiguous and that one light is sufficient – thus making the stop illegal and therefore the search was illegal and therefore the arrest was illegal). Upon appeal to the U.S. Supreme Court, in an 8-1 ruling, the majority opinion, stating that “reasonable men make mistakes of law, too, and such mistakes are no less compatible with the concept of reasonable suspicion,” determined that as such mistakes relate to the Fourth Amendment right against search and seizure, the Constitution, “tolerates only reasonable mistakes, and those mistakes – whether or fact or of law – must be objectively reasonable (italics in original). We do not examine the subjective understanding of the particular office involved.” Apparently the reasonableness in this case was the ambiguous language in the statute thus making the officer’s mistake – in believing that both brake lights, and not just one, were necessary for the legal operation of a vehicle on the roads of North Carolina – thus making the stop and the arrest within the bounds of the Fourth Amendment.

This decision begs the question are we now on the slippery slope of holding police officers to a lower standard of knowledge of the law than citizens? And if, as the Supreme Court here states, that a subjective understanding of the police officer does not come into play in determining this “reasonable mistake” theory one needs to ask one more question – Does that mean that a 20 year veteran of a state police department issuing 50 citations every week for those twenty years with an intimate knowledge of the state vehicle code who states that he did not know is not a relevant matter of fact in such a case? It would seem that perhaps, based on this decision, the answer would be no. If that is the case were does this decision lead to insofar as police officers pleading oops I didn’t know that!

Rescission of a Statutory Suspension is Prospective

In a recent decision the Illinois Supreme Court addressed the issue whether a trial court’s decision to rescind the statutory summary suspension attendant to a DUI traffic arrest was prospective or retroactive. In People v. Elliott, 2014 IL 115308,  the Court determined that based on statutory construction of the phrase “rescind” a trial court’s determination to rescind a suspension is a prospective adjudication and thus relates to future conduct and not to prior actions/arrests. That was especially important in the context of the case before the Court, because the Defendant had been first stopped for  a DUI, with a statutory summary suspension taking affect within the time frame provided under the statute. A few days after the commencement of the summary suspension he was stopped while driving his vehicle and arrested for driving while suspended ( a conviction was entered in this case). At a subsequent hearing on the matter of his DUI related summary suspension the trial court in the DUI matter ruled in the Defendant’s favor and the suspension was rescinded. Defendant then attempted to have his conviction for driving while suspended overturned. Based on this decision such a “retroactive” use of the rescission was beyond the scope of the court’s powers and the conviction for driving while suspended was upheld.

New Legislation

Hard to imagine that boating can be a topic for our blog in light of the cold weather outside but legislation never sleeps. Thus under Public Act 098-0103, and effective January 1, 2014 any person operating or having physical control of a motorboat in Illinois who is involved in a personal injury or boating accident shall have presumed to have consented to a blood, breath and urine test for the purpose of determining the content of alcohol or drugs in the the person’s blood if arrested for a violation of the Boat Registration and Safety Act or similar provisions of local laws. A refusal to allow the administration of the testing by an arresting officer may result in the suspension or disqualification of the boater’s vehicle driving license. If the test discloses a blood alcohol content of .08 or greater the person’s vehicle driver’s license will be suspended commencing 45 days after the notice of suspension is provided to the boater. Relevant existing suspension/disqualification provisions for motor vehicle licenses in case of a DUI will apply.



Esurance Cards

Effective August 24, 2013, vehicle drivers in Illinois may provide evidence of insurance by way of a mobile electronic device in lieu of a paper insurance card (i.e. snapshot of your insurance card or declaration page on your cellphone, tablet, etc.). Senate Bill 1775 and House Bill 3139.

Traffic Laws

Effective January 1, 2014 the use of electronic devices while operating a vehicle on Illinois roads is banned. Public Act 98-0506 expands the scope of the ban on use of cell phones, tablets and other electronic devices for purposes of sending text messages to include the telephone functional. Effective midnight January 1, 2014 make sure you have hands-free hardware and software.

Traffic Law

This week Illinois legislators passed a measure that would create a drivers license program for illegal immigrants. Illinois is the fourth state in the nation with such a program. The Secretary of State has ten months to complete the creation of any necessary administrative measures to commence the issuance of licenses to drivers.