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DUI

Disclaimer: Each case is unique and has a distinct set of facts. Legal results are highly dependent upon the facts of each case and the applicable law to those facts. A favorable result for one client does not mean that the same result(s) can or will be obtained for you. This material is based upon the typical DUI stop which does not involve an accident or any other allegedly unlawful activity. This is general information and not professional advice from an attorney, which can only be made after you engage the services of an attorney and all the relevant facts of your case are made known to the attorney. The material and opinions given here are not a guaranty, warranty, or promise that a favorable result regarding your case will be achieved.

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According to the National Transportation Safety Administration, Illinois has one of the “best” DUI laws in the nation. There is little doubt that Illinois has one of the “toughest” DUI laws in the nation. There is no doubt that Illinois has one of the “most complex” DUI laws in the nation. In 2006, over 50,000 citizens had their licenses suspended or revoked based upon the State’s DUI laws. Many provisions of the laws are skewed against the driver and in favor of the prosecution of citizens for driving under the influence. As a result, it is important that citizens be informed of their basic rights while driving.

Driving after consuming alcohol is a perfectly lawful act - unless you are impaired - or have blood alcohol content above a relatively precise legally defined limit.

You may have questions if you are stopped by law enforcement after you have consumed alcohol and are driving a vehicle - Why are you being stopped? Did you violate the law by drinking a bit too much? Are you going to be able to continue driving, or are you going to be taken to jail? What is going to happen to your car? Is there a way to get out of this? If you are cooperative with the officer, will he let you go? What do you say to the officer? Do you have to answer all of the officer’s questions? Do you have to perform field sobriety tests? Will your statements and field sobriety test performance be used only by the officer or will they be used against you in court? All of these and other questions will confront you very quickly. In order not to be confused, you need to know and remember your basic rights.

RIGHTS ON THE DUI TRAFFIC STOP.

While we do not condone drinking and driving while, we know everyone makes mistakes and we work hard to achieve favorable results for our clients, including those who have made mistakes. You need to know your rights when you are driving and are pulled over by the police after you have consumed alcohol.

1. THE IMPORTANCE OF CONDUCT DURING THE TRAFFIC STOP.

A person’s conduct during the traffic stop is very important and will either aid or impede a lawyer being able to achieve a favorable result for him or her. Without knowing their rights, people often say and do things which are easily and effectively used to convict them. At the traffic stop, before the arrest, law enforcement officers are not required to read a person’s Miranda rights - including the right to remain silent, and that anything you say will be used against you in court. You have these rights - but the officer need not remind you of them at the traffic stop. Instead, the law enforcement officer will ask you questions which, if you answer, will often be damaging to you, and the officer will observe your conduct at a traffic stop. It is highly likely that both your statements and your conduct will be used against you in court. Before the arrest, while you may be trying your best to perform field sobriety tests and be cooperative with the officer in hopes that you will be able to go on your way, the officer is making a record of your statements, field sobriety test performance, and conduct to be used against you - to find “probable cause” to arrest you for DUI. Later, the prosecutor will have use of these statements and the officer’s observation of your field sobriety test performance and your conduct to convict you of DUI.

2. THE DIFFERENCE BETWEEN A TRAFFIC STOP AND ARREST.

In order to know your rights, you need to understand the difference between a “traffic stop” and being under “arrest”.

A traffic stop is a brief and public detention of a driver. An arrest is the type of detention which a person is not free to leave. Whether an arrest has occurred is based on all the facts and circumstances in each particular case. An arrest may include questioning in the squad car, police station, or the officer informing you that you are not free to leave.

As stated before, at the traffic stop, the officer does not have to warn you of your Miranda rights - that anything you say can be used against you, that you have the right to remain silent, and you have a right to consult an attorney.

Questioning you after arrest does require that you be warned of your Miranda rights.

Ironically, much of the key incriminating statements and conduct in a DUI case happens at the traffic stop. Because the law enforcement officer will most likely not advise drivers of their rights at the traffic stop, drivers need to take the initiative to learn their rights ahead of time.

3. YOUR RIGHT NOT TO PROVIDE INCRIMINATING EVIDENCE AGAINST YOURSELF AT THE TRAFFIC STOP.

If the law enforcement officer believes you may have been drinking prior to or during driving, or if he/she pulls you over for another violation and becomes of the opinion that you may have been drinking, much of what the officer says and does is for the purpose of collecting information to support an arrest for DUI. That information may include some or all of the following things: answers you give to the officers questions, odor of alcohol on your breath or in your vehicle, bloodshot eyes, erratic driving, confusion in finding your registration, insurance, and driver’s license, fumbling those documents, slurred speech, and mainly your performance on field sobriety tests. If, as a result of these things, the officer forms a reasonable belief that you may be impaired in driving from the consumption of alcohol, this constitutes “probable cause” to arrest you for DUI and you will likely be arrested. Two of the most incriminating “pre-arrest” things for you to consider in order to know your rights are: (1) answers to the officer’s questions; and (2) field sobriety tests.

4. OFFICER'S QUESTIONS - ADMITTING DRINKING OF ALCOHOL.

An officer will often ask the driver if he/she has been drinking. Many people answer “only a couple”. Truthful or not, that answer constitutes an admission to drinking alcohol and will add to probable cause for a DUI arrest, and is an unnecessary mistake.

Drivers, as well as anybody else questioned in any civilian setting - before or after arrest, have a basic Fifth Amendment Constitutional right to remain silent - to not incriminate themselves. You have the right not to answer the question. A proper and lawful answer to that question might be: “I’m not answering that question” or “I choose not to answer that question”.

A driver stopped for a traffic violation must give his name, driver’s license, vehicle registration, and proof of insurance, but may decline to answer any further question or give any further information based on the Fifth Amendment to the United States Constitution, the right against self incrimination.

Tip: Some drivers use a distinctive folder to put their registration and insurance card in, and any time when they drive, they put their license in it, and place it in an easy to find location in their vehicle. Nervously fumbling around for these things (which many do when completely sober) is something which the officer will note in his report as some evidence of intoxication. After a person pulled over at a traffic stop hands the officer the folder and affirms his name, he need not answer any further questions.

5. FIELD SOBRIETY TESTS.

You might have questions about field sobriety tests. What are field sobriety tests? Am I required to perform these tests? (See #7 below) What happens if I refused to perform them? (See #8 below)

Standardized Field Sobriety Tests (SFST’s) are psychophysical (a branch of phychology which studies the sensory response to physical stimuli) tests which have been developed by the National Highway Traffic Safety Administration (NHTSA), a division of the United States Department of Transportation. According to NHTSA, these tests allow a properly trained officer to assess a suspect's mental and physical impairment - by having the subject perform physical exercises and scoring the subject’s performance. According to NHTSA, these tests focus on the abilities needed for safe driving: balance, coordination, and information processing.

The NHTSA field sobriety training manual instructs officer/trainees that “Psychophysical testing actually begins as soon as you come into face-to-face contact with the suspect and begin the interview. Psychophysical testing continues as the suspect steps from the vehicle and you observe the manner of the exit and walk from the vehicle. The most significant psychophysical tests are the three scientifically validated structured tests that you administer at roadside.” NHTSA’s SFST STUDENT MANUAL, 2004

6. THERE ARE FOUR (4) TESTS WHICH DRIVERS NORMALLY EXPERIENCE. THEY ARE:

a. PBT - PORTABLE - PRELIMINARY BREATH TESTING
b. HGN - HORIZONTAL GAZE NYSTAGMUS TEST
c. WALK AND TURN TEST
d. ONE-LEG STAND TEST

a. PBT - THE PRELIMINARY BREATH TEST

The portable, preliminary breath testing device is one which the officer may carry in his/her squad car. The device measures the BAC (breath alcohol content) of the driver.
It is not an evidentiary instrument, which means the result cannot be used in court as evidence of the BAC result shown at the time of the test. However, it can be used in court to determine whether the officer correctly determined that he/she had probable cause for the DUI arrest.

Under the Illinois DUI Illinois law, you have the statutory right to refuse this test.

b. HGN - HORIZONTAL GAZE NYSTAGMUS TEST

Horizontal Gaze Nystagmus (HGN) refers to the involuntary jerking of the eyes when the eyes gaze to the side. According the NHTSA, as a person’s alcohol concentration increases, the eyes will begin to zerk sooner as they move from side to side.

In addition to alcohol, there are many physical conditions which cause an increase in HGN. At best, according to NHTSA, the HGN test is 77% accurate.

Recent case law allows HGN to be admitted as evidence of intoxication, but only if the officer who gave the test is properly trained according to NHTSA standards, and gave the test properly. Because of the difficulty and numerous conditions and strict procedure required for a valid HGN test, this test has been problematic for many officers to give properly.

HGN TEST PROCEDURE AND SCORING:

In the HGN test, the officer requires you to follow the motion of a small stimulus with the eyes only, keeping your head straight. The officer moves the stimulus in a certain manner to the left and right. The stimulus may be the tip of a pen or penlight, an eraser on a pencil the officer’s finger tip. There should be no lights flashing or reflecting in the background.

The officer should always begin with your left eye. According to NHTSA, the officer should examine for three specific clues of intoxication.

1. as the eye moves from side to side, does it move smoothly or does it jerk noticeably?

2. when the eye moves as far to the side as possible and is kept at that position for several seconds, does it jerk distinctly?

3. as the eye moves toward the side, does it start to jerk prior to a 45degree angle?

According to NHTSA, if 4 or more clues are present, the test is 77% accurate for impairment from alcohol intoxication.

c. THE WALK AND TURN TEST.

The Walk and Turn test is a “divided attention” test. According to NHTSA, “divided attention” tests demonstrate that you are capable or incapable of the same mental and physical abilities that a person needs to drive safely.

The test consists of two parts - the Instruction Stage, and the Walking Stage.

INSTRUCTION STAGE:

In the Instructions Stage, you must stand with your feet in heel-to-toe position, keep your arms at your sides, and listen to the instructions. The Instructions Stage divides your attention between a balancing task (standing while maintaining the heel-to-toe position) and an information processing task (listening to and remembering instructions).

WALKING STAGE:

In the Walking Stage you take nine heel-to-toe steps, turn in a prescribed manner, and take nine heel-to-toe steps back, while counting the steps out loud, while watching your feet. During the turn, you keep your front foot on the line, turn in a prescribed manner, and use the other foot to take several small steps to complete the turn. The Walking Stage divides your attention among a balancing task (walking heel-to-toe and turning); a small muscle control task (counting out loud); and a short-term memory task (recalling the number of steps and the turning instructions).

SCORING: Officers administering the Walk-and-Turn test observe the suspect's performance for eight clues:

- can’t balance during instructions;
- starts too soon;
- stops while walking;
- doesn't touch heel-to-toe;
- steps offline;
- uses arms to balance;
- loses balance on turn or turns incorrectly; and,
- takes the wrong number of steps.

According to NHTSA, research shows that if a person exhibits two or more of the clues, or cannot complete the test, his/her BAC is likely to be above 0.10. According to NHTSA, this test has been shown to be accurate only 68% of the time.

The Juggling Test. In the Juggling Test, the officer will hand you three red balls.

(just kidding)

d. THE ONE-LEG STAND TEST:

The One-Leg Stand Test is the final NHTSA validated test. It also consists of two stages, the instruction stage and the Balance and Counting Stage:

INSTRUCTION STAGE:

In the Instruction Stage, you must stand with you feet together, keep you arms at your sides, and listen to instructions. This divides your attention between a balancing task (maintaining a stance) and an information processing task (listening to and remembering instructions.)

BALANCING AND COUNTING STAGE:

In the Balance and Counting Stage, you must raise one leg, either leg, with the foot approximately six inches off the ground, keeping your raised foot parallel to the ground. While looking at the elevated foot, you must count out loud in the following manner: "one thousand and one", "one thousand and two", "one thousand and three" until told to stop. Generally, this will go on for 25 to 30 counts or until the officer scores at least two clues of intoxication.

SCORING:

While you are performing the test, the officer will score based on four clues of intoxication:

- sways while balancing;
- uses arms to balance;
- hopping
- puts foot down.

If there are two (2) or more clues detected, NHTSA says that you have a BAC of .10 (The legal limit when the tests were validated) According to NHTSA, this test is accurate only 65% of the time.

7. DO YOU HAVE TO PERFORM THE FIELD SOBRIETY TESTS?

Except for the PBT (portable - preliminary breath test), if you refuse to submit to the HGN, Walk and Turn, or One-Leg Stand sobriety tests the fact of your refusal can be introduced in court. Unlike the PBT, neither the Illinois DUI statute, nor caselaw, has extended your Constitutional right against self incrimination to include your right not to incriminate yourself by performing field sobriety tests.

8. WHAT HAPPENS IF YOU REFUSE TO SUBMIT TO THE FIELD SOBRIETY TESTS.

Although there has been legislation introduced as late as 2003 which would suspend the drivers license of any person who refused to perform field sobriety tests, to date, that legislation has been defeated. Your driver’s license will not be suspended just because you refused to perform field sobriety testing. (Note: your license will be temporarily suspended if you are arrested for DUI whether or not you perform the Field Sobriety Tests.)

When, and if, your case goes to trial, your refusal to take the Field Sobriety Tests may be allowed in evidence and is deemed to be some evidence of consciousness of guilt - that you knew if you took the tests that you would fail. On the other hand, you should be permitted to explain your reason for the refusal.

POST-ARREST RIGHTS

After you are arrested, the officer will take you in his squad car to a police station where he will read you a warning and wait for 20 minutes to make sure you have not ingested or regurgitated, and then he will ask you to go to where a breath analysis machine is located, and ask you to blow into a hose attached to the machine.

9. THE LAW OF BREATH TESTING:

By driving a car, the law provides that you give implied consent to be tested for intoxication. There are penalties which apply if you refuse to blow into the hose attached to the breath analysis machine. Those will be examined below.

10. THE BREATH ANALYSIS RECORD:

The breath analysis record (from an approved evidentiary breath analysis machine) is often the key piece of evidence which will convict a person of DUI. If it reads .08 BAC (breath alcohol concentration) or higher, there is a presumption you were driving DUI. If that is the case, it is highly likely you will be convicted of DUI. If it reads .05 BAC to .08 BAC there is no presumption one way or the other - you can still be convicted or acquitted. In other words, just because you are under .08 BAC, there is no presumption that you are not driving DUI unless you are also under .05 BAC.

The BAC reading makes it easy for the prosecutor to convict you of DUI. Without the BAC reading, the prosecutor’s case gets a lot harder to win, and conversely, your case gets a lot better for negotiating a favorable result or winning at trial.

11. PENALTIES FOR REFUSING TO TAKE THE BREATH TEST. Before you refuse to take the breath test, you should know that there are penalties for refusing. What are the penalties?

A LONGER SUSPENSION:

Instead of having your license suspended for 6 months (if you blow into the machine), your license will be suspended for 1 year if you are a first time offender, or 3 years if this is your second or more DUI arrest.

You may still be entitled to drive after 30 days, however. If you are a “First Offender” - meaning you haven’t had a DUI conviction or received supervision for a DUI charge in the past 5 years (prior to the date of arrest for the current DUI charge), the refusal does not make you ineligible to receive a MDDP (monitoring device driving permit).

(Note that if you are convicted of DUI, your license will be revoked for 1 year even if you blow into the machine - if this is your second DUI, it is 3 years, and third DUI, it is 6 years.)

SUPERVISION

If you are a first offender (for this purpose meaning you have never been convicted or received supervision for dui) and refuse to blow into the breath analysis machine, you are still eligible for supervision.

12. RECOMMENDATION

All of the foregoing information is intended to advise you of your rights and the penalties for failing to follow the law. It is not intended as a recommendation that you violate the law by any act, omission, or refusal. We recommend that you contact an experienced DUI attorney if you are arrested for DUI.

© Gullberg & Box, 2010