Before proceeding with more on my suggestion to have breath alcohol machines in all establishments that serve alcohol, I need to make it clear that the safest decision is to not drive when you are going to drink. No matter what amount you drink, no matter how much time should elapse between drinking and driving- don't do it. Your lawyer may or not be able to defend your case, but your Constitutional rights are second to your health. Another concern is avoiding a DUI stop and arrest which is supremely unpleasant even if found unjustified later.
My suggestion is to put breath alcohol machines in every establishment that serves alcohol. This can be equated with fire suppression equipment, or perhaps managed through Department of Health procedures. The machine must be operational and either located near the exit, or in a more discrete location- perhaps near the bathrooms. Use of the device must be free to patrons, and should be encouraged for everyone to use. This can be part of the liquor licensing process, with maintenance checks to make sure the machines are calibrated and working properly.
This will serve two purposes- first, the patron will have an idea of where his BAC is when they are leaving. This will help the drinker make an educated decision to drive or not. Second, it will help the person, driving or just using the machine for their own curiosity, understand what that particular BAC feels like. For instance, Patron X feels "okay," or "good to drive." He had a couple drinks, then waited 45 minutes to an hour, and is now getting ready to leave. Upon using the BAC machine, he may recognize that they are a .09% BAC. Surprised or otherwise, it will allow the patron to understand and examine what .09% BAC feels like when he had that many drinks and waited so long.
Patron X will also have an understanding of what .09% BAC feels like. He will begin to learn how much certain drinks (especially mixed drinks, with bartenders that can have a heavy hand) affect their BAC. Also, he or she can acquire the understanding that waiting can be successful, but usually requires more time to wait. For instance, the state's alcohol forensic experts will testify that burnoff (the human body processing the alcohol and thus reducing the effects) occurs at .015% to .02% per hour.
Next time Patron X is at a party, he can also have the same understanding of the alcohol they drank compared to their BAC at the bar last time. If these machines are required to be in every bar, restaurant or lounge, Patron X will have a greater understanding of both how individual drinks affects him/her, and what that specific BAC feels like at different times of their drinking. Again, a .09% just after drinking in a rising BAC will feel different than a .09% in a declining BAC many hours later (the Mellanby Effect).
This solution can be attached to an establishment's liqueur license. If we truly care about stopping drinking and driving, this solution goes to the core of the problem- helping the driver understand when he or she is impaired. While district attorneys make the same opening statement in trial- "Patron X made a decision to drive," the district attorney can not say, "Patron X made an educated decision to drive." More likely than not it was an uninformed, regretful decision that was made.
Please feel free to post a response or suggest your own idea. As always, if a regretful, uninformed decision to drive was made, and you or someone you know is facing DUI charges, I can always be reached for a free consultation.
Statistics show that the majority of people who face Los Angeles DUI charges stand a good chance of having those charges dropped. Unfortunately, being declared innocent does not mean that you won’t face consequences. The Kraut Law Group is familiar with “DUI defense blowback” – when some people may resent your legal success — especially among celebrities and authority figures.
DUI defense blowback can be painful and embarrassing. Several exonerated people have been lambasted on social media and in public. For example, Texas judge Nora Longoria was angrily told she should resign and was a “disgrace to the… legal system” after her July 2014 charges were dismissed. These people may also face guilt, anger, and depression.
Victims of DUI defense blowback need not wallow in their circumstances, however. Instead, they can use valuable tips to help deal with the fallout. These include the following:
• Know the facts of the case. Many people are wrongfully convicted of DUI because of faulty sobriety tests or inconclusive blood or urine draws. The law also varies from state to state regarding whether “warrantless search” blood or urine samples are legal. People whose cases involved these circumstances can find peace in the fact that they were not at fault.
• Separate the person from the circumstance. One of the reasons people facing DUI blowback feel depressed is the absorption of the idea, “I was charged with a DUI; therefore, I am a horrible person.” Even people who commit actual DUIs are not horrible people. They are human, and humans make mistakes. Although mistakes have consequences, the person must be separated from the deed itself. Learn to say, “The DUI was a horrible thing I do not want to do again.”
• Ignore the lambasting. People who use abusive language toward such drivers are venting anger and often being judgmental. Allow them to vent, but do not retaliate or argue with them about the circumstances of the case or what “really” happened. Angry people are not likely to listen, and in the end, one’s own perception of self and circumstances matter more.
Locating a seasoned and qualified Los Angeles DUI defense lawyer is a critical part of the process of reclaiming your life, your time and your peace of mind. Call ex-prosecutor Michael Kraut for a free consultation right now.
Did police stop you for driving under the influence in Los Angeles? Contact DUI defense attorney Michael Kraut for assistance at (323) 464-6453 or online. We’re located at 6255 Sunset Boulevard, Suite 1480, Los Angeles, California 90028.
After the Supreme Court decided the case of Missouri v. McNeely, the question of when a warrant is required, before law enforcement may draw a person's blood became more interesting to say the least. On one side of the issue was the position that a blood alcohol concentrations is constantly changing, thus, there is a justification for law enforcement to bypass the traditional warrant requirement.
The contrary, and as it turns out the prevailing position, is that our Constitution does not allow law enforcement unfettered discretion to decided if they can stick a needle in your arm without a warrant (i.e. probable cause presented to a judge who issues a warrant). The reality of modern technology is that a telephonic warrant can be obtained in about 15 minutes for most cases. Accordingly, the exigent circumstances reasoning for bypassing the warrant requirement is unsound. As the U.S. Supreme Court stated in their rejection of such a per se rule in DUI cases:
But it does not follow that we should depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State and its amici. In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. See McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed 153 (1948).
Missouri v. McNeely, 133 S.Ct. at 1555 (2013).
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I thought I had heard it all when the mayor in Toronto- Rob Ford admitted to partying and smoking crack! Funny, but not really. You can almost look at the man and see crack written all over him so since you elected him shame on you. Now you can't get rid of him. However, if you use Washington DC as an example, Mayor Barry, well heck it's almost a right of passage. Not to mention that he was re-elected after this miraculous concession of smoking crack!
Having said that, the purpose of this article is to shed some light on the attractive Grafton, Cleveland Mayor Megan Flanigan. She allegedly was driving drunk when she struck a fire hydrant very close to her house. It is unclear to me what happened next but the article seems to indicate that she was on scene when the cops arrived, possibly still in the vehicle. I don't know if she left or could have left the scene and returned when the police arrived. The cops smelled alcohol on her breath and requested she perform the normal field sobriety tests (mistake #1) which apparently did not go well and she was arrested and taken to the station. The article did not indicate what if any number she blew at the station (mistake #2) if she did blow.
The article did continue on however that after she left the police cruiser evidently they found some illegal pill of some kind in the back seat which they are attempting to charge the mayor with. This of course will not stick because the police failed to do their job correctly, but that does not stop them from attempting to stick the pill on the drunken mayor.
At the outset, the mayor in this case hit a fire hydrant, it's not clear if her airbags deployed thereby hitting her in and about the face and chest area with great force. Either way, deployment or not, following an accident, the field tests are a dumb idea! These damn tests are bad enough for a sober person to perform in the dark and under the stress of an arrest. Factor in an accident of any significance, compounded by an airbag explosion and they become the most ridiculous display of physical acumen that one can ask for. The cops however don't give a damn, nor should they. They are after the ever elusive conviction just like the prosecutor's office. Thus, any evidence that supports their contention that a driver was drunk will work nicely for them. It therefore becomes incumbent on the motorist to recognize the insanity they are being asked to take part in and say "no freaking way am I doing roadside gymnastic tests following an accident." Frankly, one should say that same line under any circumstance accident or not because the stupid tests are strictly voluntary and since they are designed and offered under circumstances which all but guarantee failure, it's a bad idea.
Now, regarding the pill in the car, give me a break! If the cops failed to search this woman at the time of arrest for whatever reason, that is on the cops. Anything you find in the car after that is too damn bad. No way to prove beyond a reasonable that something that small was not left there by the previous guest in the car. If the cops are unable or unwilling to search their collar as per procedure, what makes anybody think they are able to properly search and clean their own car?
Indeed it's unfortunate to have another mayor fall under such dubious circumstances but this case sounds a little anemic to me.
Football season on college campuses means parties and drinking, which can also result in drunk driving and dangerous accidents. Alabama State University and Alabama A&M University students are familiar with the annual football battle between the two schools in their traditional Magic City Classic week.
The festivities mark one of the biggest celebrations in Birmingham, attracting tens of thousands of fans statewide. One family who lost their son in a Magic City drunk driving accident 21 years ago has used the occasion to raise drunk driving awareness and to prevent future accidents and injuries.
In Leeds and throughout the state, parents, administrators, and safety advocacy groups, including Mothers Against Drunk Driving and the Alabama Alcoholic Beverage Control Board are encouraging students to be drug and alcohol free this season. If students do decide to take part in drinking activities, they are encouraged to drink responsibility. MADD has made it a priority in Alabama and nationwide to raise awareness and to help prevent underage drinking and driving accidents. The last week of October is also known as “Red Ribbon Week,” a time for supporters to join together to curb incidents of impaired driving.
Drinking and driving poses hazards on the road, but it can also be a life-changing event for those behind the wheel. Our Birmingham drunk driving defense attorneys are experienced in helping college students and their families navigate the criminal justice system.
We know that a DUI can shift a student’s academic and professional career. Our priority is to help college students defeat or reduce drunk driving charges and penalties in the event of an arrest. We also hope to raise awareness to prevent future drunk driving arrests, accidents and injuries.
For students facing DUI charges, experienced counsel and advocacy can help to prevent serious penalties and fines, including jail time, loss of license and lost future job opportunities.
Sadly, drunk driving accidents have impacted the lives of thousands of residents in Alabama. Most of us know someone who has been involved in a DUI or who knows someone who has been affected by a drinking related accident.
According to federal statistics, there are 5,000 alcohol-related deaths every year, including under aged drinking, drinking and driving and related accidents.
MADD and State Farm Insurance partnered together this year to raise awareness to fight drunk driving, and representatives from the Alabama ABC Board warned students of the legal consequences of underage drinking and drinking and driving.
This football season, students should remember the law and their rights. The legal drinking age is 21 in the state of Alabama.
ABC board launched an initiative last year known as “Under Age, Under Arrest,” which targeted underage drinking and binge drinking. While underage consumption and DUI are a significant safety hazards, persons arrested and charged for either offense should also remain aware of their rights. Challenging a DUI allegation is critical to prevent getting overcharged or over-penalized for a drinking and driving offense, especially if the driver was underage or involved in a car accident.
If you have been arrested for DUI in Birmingham, call Defense Lawyer Steven Eversole at (866) 831-5292.
More Blog Entries: Penalties Will Increase for Fatal DUIs, Feb. 8, 2014, Birmingham DUI Defense Lawyer Blog
New DUI Defense: Too Drunk to be Prosecuted? Oct. 12, 2013, Birmingham Underage DUI Defense Lawyer Blog
Let's say that you were just arrested for drunk driving, and as the days and weeks pass, you are put in front of a judge multiple times. During one of these courtroom visits, you are informed that your driver's license is being revoked, and hearing this breaks your heart. Your job, your life, your responsibilities to your family and friends -- all of these things are being ruined because of this determination.
Losing your driver's license can be, and usually is, a crippling consequence of a DWI charge. Your job could be at risk, as well as your freedom and ability to get from place to place. This is a massive punishment that people who are accused and convicted of driving while intoxicated need to fight as soon as they possibly can.
Here in Minnesota, you have to inform the Minnesota Commissioner of Public Safety that you intend to challenge the decision to revoke your license within 30 days of receiving notification that your license is being revoked.
It's also important to note that here in Minnesota, there are two separate cases going on with your DWI charge. Even if you win the DWI case, you could lose your license in the other case.
Given the high-risk nature of this DWI setup in Minnesota, you need to defend yourself by consulting with a criminal defense attorney that has extensive experience with DWI cases. If you're in the state of Minnesota, consider us at Strandemo Sheridan & Dulas. We can help you with both of the court cases you have to deal with after a DWI. Don't give up your license without a fight.
Things are getting even more interesting when it comes to Minnesota's DWI Test Refusal law. Apparently even the State's own prosecutors are troubled by the recent decision finding Minnesota's DWI Test Refusal Law constitutional, and they're asking the Minnesota Supreme Court to review it.
If you need some quick history: even before the United States Supreme Court issued its decision in Missouri v. McNeely, we explained how the decision could end up eliminating Minnesota's attempt to make refusal a crime. When the decision finally arrived, we immediately wondered if Minnesota's test refusal law was now unconstitutional. It was a good question, and it wasn't long until Minnesota judges began throwing out DWI refusal charges as unconstitutional.
Then, the Minnesota Court of Appeals issued its decision in State v. Bernard, crafting a new "inevitable warrant" doctrine and upholding the constitutionality of the test refusal law. At least one judge refused to follow the Bernard decision, pointing out how it directly contradicted numerous other Supreme Court cases.
Which brings us to today: After the attorney in the Bernard case asked the Minnesota Supreme Court to review (and overturn) the decision in Bernard, the State of Minnesota was given an opportunity to respond. On Tuesday, they did file their response . . . and nobody was more surprised than us when we discovered that the State is joining in the defense's request for review of the Bernard decision.
This makes it far, far more likely that the Bernard decision is going to see careful scrutiny from the Minnesota Supreme Court - all of the parties are in agreement that it needs to be looked at again. One thing is almost certain: we have not yet received that final word on whether or not charging someone with a crime for nothing more than refusing to submit to a warrantless search is actually constitutional.
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In January, Colorado lawmakers will consider a new DUI bill (HB 1036) making repeat DUI offenses a felony. Currently, Colorado is one of just five states plus the District of Columbia without a felony DUI law. DUIs in the state are treated similarly in the eyes of the court whether it is a first or tenth offense.
Recent news about Denny Lovern, who racked up 16 DUI convictions in 30 years, has raised concerns that the state legislature hasn’t done enough to address serial drunk driving. If passed, the new law would create minimum jail sentences for drunk drivers with three or more offenses in the last five years.
Similar Colorado bills have failed in the past. Some debate whether a felony DUI bill would really make a difference in preventing impaired driving. They claim that some individuals will drive drunk no matter how severe the proposed punishment. And they point to figures from the National Highway Traffic Safety Administration (NHTSA) showing that while alcohol-involved highway deaths increased in 2012 (the latest year for which state-level data is available), DUI deaths decreased in four of the jurisdictions without felony DUI laws, including Colorado.
But supporters of the bill counter that a felony DUI law is about more than just dissuading potential drunk drivers or even punishing offenders—it is about public safety. Some believe putting hardcore drunk drivers behind bars is the only way to take people like Lovern off the road to keep them from injuring or killing others. Without the option of a felony DUI, the prosecutor in Lovern’s case is using charges like attempted first-degree assault and attempted manslaughter to try to obtain a jail sentence.
Why hasn’t a felony DUI law been passed in Colorado? Many believe it has to do with the high cost of incarceration, as well as a preference for treatment. However, treatment and punishment are not exclusive to one another and a felony DUI bill may give prosecutors and judges more choices for handling repeat offenders.
Do you think felony DUI laws and mandatory incarceration help reduce intoxicated driving, or do states need to focus on other options to deal with extreme repeat offenders?
I was in the Scottsdale City Court yesterday when I heard a Judge discussing the much anticipated Home Detention Program. It appears that they have finally implemented the program. Here are the minimum qualifications based on the information I was given at court.
The date of your offense must be after May 27, 2010; andYou must start your self-surrender date on or after October 1, 2010
There may be some exceptions to the time restrictions if your attorney can demonstrate a serious medical condition. Since the program is so new (as a matter of fact, several of the court clerks did not even know it had be approved yesterday) I am sure there will be some additional details and restrictions. In addition, keep in mind: (1) admittance into the program is not automatic. The judges have already hinted that not everyone will be receiving the benefit of this program; (2) there will still be an initial term of jail for anyone accepted into the program. Thus, this program is for lengthier terms of incarceration.
If you need assistance or additional information about a Scottsdale DUI case, please contact the Koplow Law Firm Online or by phone at (602) 494-3444.
Lawrence Koplow
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It looks like the Hillsborough County Sheriff’s Office waited until the last minute to cancel a July 4th DUI Checkpoint.
Two days ago, the checkpoint was still listed on the HCSO website for an undisclosed location in District II from 2100 hours to midnight. BAT and transportation were to be provided at a location to be announced. Today, that checkpoint was wiped off the schedule.
HCSO is still planning a Saturation Patrol. The Tampa Police Department and other local police departments are expected to have increased patrols through the holiday weekend.
The University of South Florida Police Department website doesn’t disclose any checkpoints for July.
Accidents involving motor vehicles are a very common occurrence in the Las Vegas Valley. Most of us have come to accept fender benders on our streets and highways as a way of life and rarely give them a second thought nowadays. When the accident is alleged to have been caused by someone under the influence of drugs or alcohol however, the consequences become much more severe for the person causing the accident.
A 21-year-old Los Angeles woman was severely injured recently and admitted to the hospital in critical condition after being part of a two vehicle accident, allegedly caused by a person driving under the influence of alcohol.
The Las Vegas Metropolitan police department reported that this accident occurred shortly after 1:00 in the morning on September 21, 2013 in the vicinity of Las Vegas Boulevard and Siren’s Cove Boulevard near the Treasure Island Hotel and Casino.
A full summary of the accident can be found here.
According to witnesses and the review of evidence located at the scene, a BMW was turning left from Siren’s Cove Boulevard to northbound Las Vegas Boulevard. The driver of the BMW, who appears to be from Las Vegas, lost control of his vehicle and struck as which was abiding by traffic laws at a light signal. All three individuals in the taxi cab were injured and taken to an area hospital. One passenger in the taxi suffered severe injuries which are considered to be life threatening.
According to Metro Police, the driver of the BMW failed field sobriety tests administered at the scene of the accident. He was then arrested for Driving under the Influence of Alcohol/DUI and was transported to a local detention center.
While all arrests and convictions for DUI in Las Vegas (and throughout Nevada) are serious, it is important to remember that there are certain scenarios make a “typical DUI” far more severe in the eyes of the law. Not all DUI crimes are the same and there are several different types of DUI in Nevada. In the situation outlined above for example, the driver who is under the influence and is the cause of an injury to another driver or a pedestrian, makes the crime for more egregious under Nevada law.
While a typical arrest for a DUI is misdemeanor offense, an arrest for Driving under the Influence resulting in Substantial Bodily Harm or Death is a Felony. Unlike many other felonies, a DUI causing harm or death carries a MANDATORY PRISON SENTENCE. Nevada Revised Statute (“NRS”) 484C.430 outlines the penalties Driving under the Influence Resulting in Substantial Bodily Harm or Death. It states that any driver who is in actual physical control of a vehicle on any public road or highway in Nevada and is the cause of the death of, or substantial bodily harm to another person is guilty of DUI Death/Harm. This offense is a very serious crime and is categorized as a category “B” felony. While all felony crimes carry with them the potential for a prison sentence of more than one year, most crimes allow for the person to be punished under “supervised release” or “probation.” DUI resulting in Substantial Bodily Harm or Death however is different. A person convicted of this crime must be sentenced to prison and is not eligible for probation. The sentence is not a light one either. If a person is convicted they face 2-20 years in Nevada State Prison and a fine of between $2,000.00 and $5,000.00.
If you, or someone you know, has been arrested or charged with a DUI in Las Vegas, or elsewhere in Nevada, you should immediately call an experienced and knowledgeable DUI Defense Attorney to help you with these very serious charges. At the Las Vegas Law Firm of Hofland & Tomsheck, we specialize in the defense of these crimes and the intricate issues that present themselves in these cases. Attorney Josh Tomsheck, a partner in the firm, is a Nationally Board Certified Criminal Defense Trial Attorney and is a member of the National College for DUI Defense. Contact us today and allow us to help you with your case right away.
I always say: " 'Winning' a DUI case depends on the needs of each client." What is possible for one person is not even thinkable for another. Pro-footballer Josh Gordon of the Cleveland Browns illustrates my point nicely.
With the NFL changing its policy on DUIs and drugs, he and his lawyer decided it would be a great idea to pled guilty to DWI in North Carolina. In his case, it makes sense. Why? 1. Mr. Gordon is already in a year-long ban for multiple violations of the NFL's substance abuse policy. Mr. Gordon can't afford to miss more games. 2. Under current NFL rules, a DUI/DWI will cost a player up to $50,000 but no suspension. If Mr. Gordon waits for the new rules, it will cost him an automatic 2 game suspension. Of course, he still has to face North Carolina's punishments: a 60-day suspended sentence, a $100 fine and $290 in court costs, and submit to a drug assessment as part of his guilty plea.
I can list many professions where if you did that, you'd be out of a job. Airline pilots and commercial truck drivers definitely lose their jobs as do those whose careers involve access to prescription narcotics. People who are seeking jobs miss out on interviews when their background check reveals a DUI conviction, especially for jobs requiring security clearance or access to confidential information. Potential doctors and lawyers cannot sit for licensing exams while on probation for an alcohol or drug-related offense. Some colleges expel students who have an alcohol or drug-related conviction.
You can lose a lot with a DUI. If you've been charged with a Gwinnett or Forsyth County DUI, make sure you consult with a local DUI lawyer before you decide how to plea. At the very least, download my free book "What You Should Know About Georgia DUI Laws" so you know exactly what you are facing. After all, a "win" in your case will look different than a win does for Josh Gordon.
Unless you’ve been living under a rock – or you’ve been so totally overwhelmed by your Los Angeles DUI that you haven’t checked CNN or your Facebook feed in months – you probably are keenly aware of the explosive Ebola outbreak in the West African countries of Sierra Leone, Liberia, and Guinea.
In mid-October, officials with the World Health Organization (WHO) and other prestigious bodies panicked and worried that the epidemic could explode outside of West Africa and create a worldwide pandemic that could lead to the infection of hundreds of thousands if not millions of individuals. Thanks to alert action on part of the U.S. Military, health authorities, and philanthropists, it at least appears that we are finally staunching the Ebola tide. However, the Ebola outbreak – in particular, how it played out in the media – holds powerful lessons for DUI defendants. Here are three.
1. We tend to fear the disturbing and exotic as opposed to the mundane and realistic.
For instance, if you have been arrested for DUI, you might be terrified about going to jail for 2+ days. While staying in jail is not a picnic, you might be overlooking far more profound consequences… such as losing your California driver’s license for a year or longer. Imagine not being able to drive to work, take your kids to school, and even go on simple errand runs.
2. When things go wrong in life, it’s easy to spiral out of control into a panic, but overreacting can make problems worse.
For instance, despite statistical and epidemiological evidence that closing off the U.S. borders to West African countries would not stop the spread of Ebola in the U.S. — and potentially even impede efforts to contain disease, because rescue workers and doctors could not as easily travel back and forth — many people choose not to hear these rational arguments. Likewise, many DUI defendants react in nonstrategic fashion by, for instance, waiting way too long to hire attorneys to represent them and guide them through the process.
3. The right kind of help at the right time can make a huge difference.
If you look at the projections for Ebola before and after the massive international reaction, the data are stark. Our intervention really seems to have made a big difference. Likewise, if you find the right people, such as a qualified Los Angeles DUI defense attorney with the Kraut Law Group, you may be able to powerfully affect your future, win back your freedom, and avert personal catastrophe.
Call the Kraut Law Group today for a free and confidential consultation.
If police stopped you for Los Angeles DUI, you may be worried and anxious. Contact Harvard Law School educated, ex-prosecutor Michael Kraut for assistance at (323) 464-6453 or online. Our team is located at 6255 Sunset Boulevard, Suite 1480, Los Angeles, California 90028.
Miranda warnings don't apply at the side of the road. The police do NOT have to read you the Miranda warning until you are in custody. When the police are talking to you at a traffic stop, they are gathering the evidence they need to determine if you can be arrested for DUI. They can, and will, ask you all kinds of questions during this process. Since you are not "in custody," they do not read the Miranda warning to you before they start asking you questions.
Officer Friendly knows how to make general statements designed to have you offer evidence in the spirit of cooperation. Thus you are not being questioned when Officer Friendly says "I'd like you to do these field sobriety tests to see if you're safe to drive." What he means is:
"I smell alcohol, but before I arrest you for DUI, I need more evidence.Will you admit that you've been drinking?Will you try these tests that have no correlation to driving that are designed for failure so I can capture you looking ridiculous on a camera that may or may not be working? Then, I'll have enough evidence to convict you of DUI."
Don't play along. Don't talk to Officer Friendly. Unless you really want to incriminate yourself.
What will the officer do when you refuse? He has a few choices.
You are driving home from drinks with friends when you are stopped by the police. After you fail field sobriety tests, the officer asks you to agree to a breath test to measure your blood alcohol concentration (BAC). You decline.
You are placed under arrest and taken to a nearby hospital. The officer asks you to agree to a blood test, telling you that in California, refusal to submit to a chemical blood or breath test can result in the automatic loss of your driver’s license for a minimum of one (1) year.
You again say no.
Can the officer order a lab technician to take your blood without your consent? Can the police literally strap you down and forcefully take a blood draw?
Not without a warrant, the United States Supreme Court held in Missouri v. McNeely, unless there are specific exigencies that make obtaining a warrant impractical.
Otherwise, taking the blood of someone suspected of a DUI, without a warrant, may constitute a violation of that person’s Fourth Amendment right to be free of unreasonable searches and seizures.
The warrant requirement is subject to exceptions, the court noted. One well-recognized exception is when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.
But just because motorists have a diminished expectation of privacy in their cars, the court said, that does not diminish their privacy interest in preventing a government agent from piercing their skin. In routine DUI cases, police may need to seek a warrant.
In the case before the court, the defendant had been stopped by a Missouri police officer for speeding and crossing the center line. The officer noticed several signs that the defendant was intoxicated, including bloodshot eyes, slurred speech, and the smell of alcohol on his breath.
The defendant declined to take a breath test to measure his BAC. He was arrested and taken to a hospital for blood testing, which he also refused.
The officer did not attempt to get a warrant, but directed a lab technician to take his blood anyway. The test showed that defendant’s BAC was well above the legal limit and the defendant was charged with driving while intoxicated in violation of Missouri statute 577.010.
The percentage of alcohol in an individual’s blood typically decreases by approximately 0.015 percent to 0.02 percent per hour once the alcohol has been fully absorbed, testimony in the case established.
The state of Missouri argued that because BAC dissipates so quickly, there are inherently “exigent circumstances” whenever an officer has probable cause to believe that a person has been driving under the influence.
But the justices disagreed, saying that the mere fact that BAC dissipates quickly does not, in and of itself, constitute exigent circumstances that justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations.
In some situations, the justices acknowledged, exigent circumstances may exist because obtaining a warrant may be impractical.
But in other situations, the warrant process will not significantly increase the delay before the blood test is conducted. As an example, the justices cited a situation in which an officer could take steps to secure a warrant while the suspect is being transported to a medical facility by another officer.
In such a case, they said, there would be no plausible justification for an exception to the warrant requirement.
In short, the court concluded, while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.
The case is Missouri v. McNeely, 569 U. S. ____ (2013).
In the last post I discussed the difficulty in DUI jury trials and why I enjoy DUI and criminal defense. In this blog entry, I will discuss clients and defenses. The two go hand in hand for a number of different reasons that will be explained. The last blog post in this series will examine the "cost-benefit" analysis which involves what is given up in the decision to go trial.
First, the mentality of the client is very important. Some clients go into an initial client meeting and the first thing they say is they want to plead guilty- they want to accept responsibility and all this over. On the other side of the spectrum, clients want a jury trial. For the first type, the advice is to wait- that the People's case must be examined prior to pleading guilty. Further, this is exactly the type of person that is least likely to be a risk to society- they recognize that their behavior must change- and can change their behavior on their own regardless of punishment. Personal responsibility is separate than the People's duty to prove their case beyond a reasonable doubt.
The client may also have to testify. This involves public speaking, which can terrify a person. I have taken the testimony of many civilians in criminal and civil proceedings, and can usually help a client work through their fears to give good testimony. It is also important to answer the question, and not go off on tangents. I've won jury trials where a witness spoke too much, and proved their own defense to be a sham. The witness must be credible, efficient, and confident. Or, again, they may be giving the prosecution a guilty verdict.
Second, is the defenses involved. There are a number of defenses I list in my mailings. However, for many defenses, the facts must fit the defense. Attempting to shoe-horn facts into a defense will not pass the common sense test- and common sense is the cornerstone of jury trials. For instance, a rising defense with a .15% BAC, necessity defenses where other options are obvious, driving defense in the middle of a lighted, populated area with witnesses, GERD defense with no medical history, etc.
Criminal defense attorneys sometimes lose sight of common sense and work themselves up into a righteous ignorance. A defense may exist that would score extra points in law school, but does not work in the real world. And jurors live in the real world. The defense must fit facts, albeit with room to squeeze some, but otherwise the client is headed straight towards a guilty verdict.
Finally, the client must be present for the jury trial. For misdemeanors, through Penal Code 977, defendants do not need to be present. But if the client/defendant is not taking the time to be present for their jury trial, the message to the jury is that it isn't worth their time either. The defense theory itself is compromised. The presence of a defendant humanizes the experience, and grounds the full weight of "beyond a reasonable doubt" which our land demands of criminal prosecution. If not present, the prejudicial effect of DUIs is magnified, and it is quite easy for the jury to convict.
I have written about and blogged before about how it is that a person accused of a DUI should go about trying to find the best dui lawyer for their case. If you have been accused of driving under the influence, I would suggest starting with this article if you haven’t already read it. Every attorney seems to offer a “free consultation”. This “free consultation” typically consists of you sitting down with the attorney, the attorney telling you how much trouble you are in, and the attorney telling you how great he or she is and why you ought to hire him or her. The person charged with the DUI is overwhelmed, confused and nearly paralyzed by the gravity of the situation. They are usually too engulfed with fear to ask questions, or are never even given the opportunity to do so. However, this “consultation” should be about you getting consultation – answers to your questions – from an experienced professional. You are interviewing the attorney. The attorney isn’t interviewing you! The lawyer’s purpose in this meeting is to try to get hired. Your goal for this interview is to get to know the person so that you can determine whether this lawyer is the best one to handle your DUI case.
Anybody who graduates from law school can put out an ad or throw up a website that proclaims that he or she is an “experienced” DUI lawyer, that they will “fight for you” and that they have a “track record of results”. These are all relative terms and basic advertising slogans. It does not make any of that true. Some attorneys that I see advertising on their websites that they are “experienced” have been out of law school for two years and probably have never tried a case. You have to do your due diligence to ask questions and figure out if the lawyer is for real or just giving you a sales pitch. Here are some questions that I would suggest to help determine if an attorney is experienced and will fight for you:
When is the last time you went to trial in a case like this? (not just filed motions but litigated a case to a verdict in front of a judge)When is the last time you had a trial in front of a jury?Have you ever appealed a municipal court DUI charge to district court?Have you ever been successful at beating a case on appeal from municipal court?How many DUI cases do you handle a year?What percentage of your cases go to trial in front of a judge or jury?How much experience do you have with blood test cases? Urine test cases? Have you ever taken one to trial?Have you ever hired an expert to consult with you on a breath test case?Have you ever tried a DUI with a breath test coming in to evidence?Have you ever appealed an administrative driver’s license suspension to district court?Have you ever been successful in overturning a driver’s license suspension on appeal?Have you ever appealed a case to the Kansas Court of Appeals and/or Kansas Supreme Court?Will you personally handle appearances, negotiations and litigation on my behalf or will it be handed off to an underling or outsourced?Will you send me copies of the police reports, video recordings and any other evidence you receive from the prosecution?Have you ever appeared in front of the judge in this case in a contested proceeding? What was your experience?Have you ever subpoenaed documents from the Kansas Bureau of Investigation or a crime lab regarding a blood test or urine test in a DUI case? Ever cross-examined a forensic lab technician about a blood or urine test?Have you ever worked with an accident reconstructionist before?Do you charge additional fees in order to file motions or go to trial?Do you have a policy on how quickly you return telephone calls or emails?How many open cases do you have right now?
These questions need to be asked in person, not over the phone. You need to meet with the attorney at his or her office and ask the questions that are relevant to your case and which address whatever concerns that you might have. You need to tell the attorney what your primary concern is in the case – is it jail time? Losing your driver’s license? Having a conviction on your record? Losing a professional license, i.e. nursing certificate, physician certificate, SEC licensing, etc.? Those concerns should be very familiar to the lawyer and he or she should be able to tell you what you can expect and what his or her experience has been with that issue. Any lawyer that won’t answer your questions, seems annoyed by them or who is not able to answer them should be suspicious.
If you take the time to ask some questions and do your own research you should be able to find the right person for you and be confident in your choice. The decision of who to hire is an important one and should not be based on advertising, a phone call or a website alone. Ask questions and get answers.
Police pulled over a woman allegedly driving 5 mph in Plainsboro on Aug. 16. The authorities received a call about an erratic driver, and the woman may have been under the influence of alcohol.
The 39-year-old woman from Trenton was traveling on Birch Drive when authorities stopped her at about 11:40 a.m. She reportedly drove a Toyota 4-Runner over multiple curbs in a residential neighborhood. The responding officer said that she was obstructing traffic and traveling at an extremely slow rate of speed.
The authorities detained the woman on suspicion of driving under the influence, and she was issued summonses for DWI, delaying traffic, consumption of an alcoholic beverage in a motor vehicle, possession of an open or unsealed alcoholic drink in a vehicle, driving without a license, reckless driving, obstructing the passage of other vehicles, operating an uninsured car and having a nonresident vehicle registration with expired touring privileges. The Trenton woman has a pending court appearance and was released on her own recognizance.
In New Jersey, a drunk driving conviction can mean fines, jail time, a license suspension and the required installation of an ignition interlock device at a driver's expense. Drivers also face a license suspension when refusing to take a chemical test after being pulled over. Consequences are harsher for repeated offenses and when someone is injured in an alcohol-related car accident, but even a misdemeanor DWI may result in large monetary costs and a ruined personal record.
Those facing DWI charges may wish to discuss options for defense, probation or a plea bargain with an attorney. One of the most accurate ways to determine impairment is through a blood test, but mistakes can still be made with this method. Field or breath tests are less reliable.
Source: NJ.com, "Woman driving 5 mph charged with DWI in Plainsboro, cops say", Anthony G. Attrino, August 28, 2014
People v. Jones (2013) No. 1-11-3586 (Unpublished)Appellate Court of Illinois,First District, Second Division.
It often seems like a waste of time and gratuitous torment, but this case demonstrates that polling a jury after a guilty verdict occasionally bears fruit.
A guilty verdict was announced by the foreperson following deliberations. The court told the jurors it was “going to ask each and every one of you whether or not that verdict was your verdict and if it's still your verdict.” After polling four jurors, the following exchange occurred:“THE COURT: Nicholas Mack, was that your verdict and is this now your verdict?JUROR MACK: No, but yes and no. THE COURT: Well, your answer can't be yes and no. Is that your verdict now?JUROR MACK: Yes. THE COURT: Okay. And was that your verdict when you signed the verdict paper?JUROR MACK: No. THE COURT: Okay, when you signed the verdict, that was not your verdict, a finding of guilty?JUROR MACK: According—excuse me, according to the law, yes. But, it was other things that I felt that made him not guilty.THE COURT: Okay. So let me ask you that question again: Was that your verdict and is this now your verdict that he is guilty?JUROR MACK: Yes.”Defendant appealed the guilty verdict on the ground that the trial judge erred in the way he questioned the juror and that the juror’s equivocal responses created doubt about the validity of the verdict.The appellate court made the following points based on prior case law:The purpose of polling a jury is to determine that the verdict accurately reflects each juror's vote and that the vote was not the result of coercion.While the trial court should not turn the polling process into an opportunity for further deliberations, the court also must not hinder a juror's expression of dissent.If a juror indicates some hesitancy or ambivalence in his or her answer, then the trial judge must determine the juror's present intent by affording the juror the opportunity to make an unambiguous reply as to his or her present state of mind.If the court determines a juror dissents from the verdict, the proper remedy is for the trial court, on its own motion if necessary, to either direct the jury to retire for further deliberations or to discharge the jury. The trial court's determination as to the voluntariness of a juror's assent to a verdict will not be set aside unless the trial court's conclusion is clearly unreasonable. The Court affirmed the conviction, determining that the juror's response established his agreement that defendant was guilty under the law, and that the jury verdict reflected his intentions. It further determined that the complete colloquy indicated the juror was given the opportunity to dissent and ultimately stated that the guilty verdict reflected his vote. Finally, it found the trial court’s determination that the juror voluntarily assented to the verdict was reasonable.EDITOR’S NOTE: One cannot determine the tone of the judge’s questioning from the cold transcript (well, maybe you can!), but that is the key as to whether this juror was bullied by the trial court into capitulating. The defense made a post-trial motion for a new trial, contending that the verdict was not unanimous. However, it does not appear that any objection was made to the judge’s manner of questioning as it occurred. One tactic the defense might have considered is to request an immediate recess once the juror responded, “No, but yes and no.” What would you have done? Have you ever even prepared for this type of response from a juror being polled? Will you ever pass on the right to poll a jury after reading this case?Have you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? Paul Burglin is a Board Certified in DUI Defense San Francisco Bay area attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. He is also the co-author of "California Drunk Driving Law"
New Florida DUI Laws Give Drivers a Choice | Orlandoduiteam#topnav ul li a,.sidebar h4,.tk-news-gothic-std{font-family:"news-gothic-std",sans-serif;}p{margin-left:0 !important;}a{color:#0D8BB7 !important;} Orlando DUI Team Published by Orlando, Florida DUI Lawyers :: Katz & Phillips, P.A.(321) 332-6864 HOMEBLOGCONTACT US David S. Katz Founding partner Katz & Phillips, P.A James D. Phillips Founding partner Katz & Phillips, P.A Annmarie Jenkinson Associate Attorney Matthew R. Gunter Associate Attorney David A. Faulkner Associate Attorney Catherine Gleason Attorney
Miranda rights are back in the news. The New York Times Science Section under "Well" on October 14, 2014 had an eye-opening article on juveniles and police interrogators. Researchers determined that the brains of adolescents are different than adult brains, and teens don't necessarily understand the implications of telling the police what their involvement in a crime may or may not have been.
It's not just juveniles who quickly waive their Miranda rights.
These are very important rights that many of us have heard on TV, in the movies, and perhaps live and in person.
To simplify the decision that gave us our Miranda rights in 1966, the U.S. Supreme Court held that without proper safeguards, the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and compel him to speak where he would otherwise not do so freely. Therefore, a defendant must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney, one will be appointed for him prior to any questioning if he so desires.
In other words, even our Supreme Court recognizes that the cards are stacked in favor of the police. Someone who's being questioned doesn't know the criminal laws and procedures like the police do, just like the police don't know how to do your job. It's only fair that the police tell you before they question you that the entire purpose of this question-and-answer session is to gather evidence to prosecute you and put you in jail.
EVERYTHING YOU NEED TO KNOW ABOUT CANNABIS CHARGES AND PENALTIES - Illinois DUI Lawyer Blog @import url(http://www.illinoisduilawyer-blog.com/css/styles.css); window.jQuery || document.write(' Illinois DUI Lawyer Blog Published by Illinois DUI Attorneys :: Gullberg, Box & Worby LLC HomeWebsiteAttorneysPractice Areas Contact Us « Previous | Home | Next » March 25, 2014 |Share EVERYTHING YOU NEED TO KNOW ABOUT CANNABIS CHARGES AND PENALTIES by Gullberg, Box & Worby LLC
The penalties and fines for possession, distribution, growing, and driving under the influence (DUI) of cannabis span a range from probation to 30 years in prison. When you are charged with any crime relating to cannabis, you should consult an effective trial attorney. If you want to find out on your own what you are faced with, this material should help.
First-Time Offenders The punishments if you are a first-time offender tend to be more lenient than if you are a reoccurring offender. For purposes of leniency, you are a first time offender if you plead guilty or are found guilty of possessing, or possessing with the intent to deliver, 30 or less grams of cannabis. To qualify for leniency you must not have been previously convicted, placed on probation, or placed on court supervision for any offense under the Cannabis Control Act or other law concerning cannabis or other controlled substances.
•If you are a first time offender who is found to knowingly possess less than 30 grams of cannabis the penalty you generally face is "First Offender Probation" for 24 months. (720 ILCS 550/10)
Possession of Cannabis If you knowingly possess cannabis or other substances containing cannabis you may be charged with the possession of cannabis. The penalties for possession of cannabis will vary depending on the amount of cannabis you are charged with possessing. (770 ILCS 550/4)
•If you are found to knowingly possess less than 2.5 grams of cannabis you will generally be charged with a class C misdemeanor (720 ILCS 550/4). The penalty you generally face for a class C misdemeanor is up to 30 days in jail along with fines which are not to exceed $1,500 (730 ILCS 5/5-4.5-65). •If you are found to knowingly possess more than 2.5 grams but less than 10 grams of cannabis you will generally be charged with a class B misdemeanor (720 ILCS 550/4). The penalty you generally face for a class B misdemeanor is up to six months in jail along with fines which are not to exceed $1,500 (730 ILCS 5/5-4.5-60). •If you are found to knowingly possess more than 10 grams but less than 30 grams of cannabis you will generally be charged with a class A misdemeanor (720 ILCS 550/4). The penalty you generally face for a class A misdemeanor is less than one year in jail along with fines which are not to exceed $2,500 (730 ILCS 5/5-4.5-55). If you have been previously convicted of a cannabis related offense, and are found to possess more than 10 grams but less than 30 grams of cannabis, you will generally be charged with a class 4 felony. The penalty you generally face for a class 4 felony is one to three years in prison and fines which are not to exceed $25,000 (730 ILCS 5/5-4.5-50) (730 ILCS 5/5-4.5-45). •If you are found to knowingly possess more than 30 grams, but less than 500 grams you will generally be charged with a class 4 felony (720 ILCS 550/4). The penalty you generally face for this offense is one to three years in prison and fines which are not to exceed $25,000 (730 ILCS 5/5-4.5-50) (730 ILCS 5/5-4.5-45). If you have been previously convicted of a cannabis related offense, and are found to possess more than 30 grams but less than 500 grams, you may be charged with a class 3 felony (720 ILCS 550/4). The penalty you generally face for a class 3 felony is two to five years in prison and fines which are not to exceed $25,000 (730 ILCS 5/5-4.5-50) (730 ILCS 5/5-4.5-40) •If you are found to knowingly possess more than 500 grams but less than 2,000 grams of cannabis you will generally be charged with a class 3 felony (720 ILCS 550/4). The penalty you generally face for this offense is two to five years in prison and fines which are not to exceed $25,000 (730 ILCS 5/5-4.5-50) (730 ILCS 5/5-4.5-40). •If you are found to knowingly possess more than 2,000 grams but less than 5,000 grams of cannabis you will generally be charged with a class 2 felony (720 ILCS 550/4). The penalty you generally face for a class 2 felony is three to seven years in prison and fines which are not to exceed $25,000 (730 ILCS 5/5-4.5-50) (730 ILCS 5/5-4.5-35). •If you are found to knowingly possess 5,000 grams or more of cannabis you will generally be charged with a class 1 felony (720 ILCS 550/4). The penalty you generally face for a class 1 felony is four to fifteen years in prison and fines which are not to exceed $25,000 (730 ILCS 5/5-4.5-50) (730 ILCS 5/5-4.5-30). * County jail is where people may be held for up to 364 days and prison is where people are held or confined for more than one year.
Manufacture or Delivery of Cannabis If you are found to manufacture or deliver cannabis, or possess cannabis with the intent to manufacture or deliver you may be charged with the manufacturing or delivery of cannabis. The penalties for this offense will vary depending on the amount of cannabis you are charged with manufacturing or delivering, or possessing with the intent to manufacture or deliver (720 ILCS 550/5).
•If you are found to manufacture or deliver, or possess with the intent to manufacture or deliver less than 2.5 grams of cannabis you may be charged with a class B misdemeanor (720 ILCS 550/5). The penalty you generally face for a class B misdemeanor is up to six months in jail and fines which are not to exceed $1,500 (730 ILCS 5/5-4.5-60). •If you are found to manufacture or deliver, or possess with the intent to manufacture or deliver more than 2.5 grams but less than 10 grams of cannabis you may be charged with a class A misdemeanor (720ILCS 550/5). The penalty you generally face for a class A misdemeanor is up to one year in jail and fines which are not to exceed $2,500 (730 ILCS 5/5-4.5-55). •If you are found to manufacture or deliver, or possess with the intent to manufacture or deliver more than 10 grams but less than 30 grams of cannabis you may be charged with a class 4 felony (720 ILCS 550/5). The penalty you generally face for a class 4 felony is one to three years in prison and fines which are not to exceed $25,000 (730 ILCS 5/5-4.5-50) (730 ILCS 5/5-4.5-45). •If you are found to manufacture or deliver, or possess with the intent to manufacture or deliver more than 30 grams but less than 500 grams of cannabis you may be charged with a class 3 felony (720 ILCS 550/5). The penalty you generally face for a class 3 felony is two to five years in prison along with fines which are not to exceed $50,000 (720 ILCS 550/5) (730 ILCS 5/5-4.5-40). •If you are found to manufactures or deliver, or possess with the intent to manufacture or deliver more than 500 but less than 2,000 grams of cannabis you may be charged with a class 2 felony (720 ILCS 550/5). The penalty you generally face for a class 2 felony is three to seven years in prison along with fines which are not to exceed $100,000 (720 ILCS 550/5) (730 ILCS 5/5-4.5-35). • If you are found to manufacture or deliver, or possess with the intent to manufacture or deliver more than 2,000 grams but less than 5,000 grams of cannabis you may be convicted of a class 1 felony (720 ILCS 550/5). The penalty you generally face for a class 1 felony is four to fifteen years in prison along with fines which are not to exceed $150,000 (720 ILCS 550/5) (730 ILCS 5/5-4.5-30). •If you are found to manufacture or deliver, or posses with the intent to manufacture or deliver 5,000 grams or more of cannabis you may be charged with a class X felony (720 ILCS 550/5). The penalty you generally face when charged with a class X felony is six to thirty years in prison along with fines which are not to exceed $200,000 (720 ILCS 550/5) (730 ILCS 5/5-4.5-25). * County jail is where people may be held for up to 364 days and prison is where people are held or confined for more than one year.
Possession or Production of Cannabis Sativa Plant If you possess or produce the cannabis sativa plant you may be charged with possession or production of cannabis sativa plant. The penalty you generally face for possession or production of the cannabis sativa plant may vary depending on the number of plants you are charged with possessing (720 ILCS 550/8).
•If you are found to possess or produce less than five cannabis sativa plants you may be charged with a class A misdemeanor (720 ILCS 550/8). The penalty you generally face when charged with a class A misdemeanor is up to one year in jail and fines which are not to exceed $2,500 (730 ILCS 5/5-4.5-55). •If you are found to possess or produce more than five cannabis sativa plants but less than 20 plants you may be charged with a class 4 felony (720 ILCS 550/8). The penalty you generally face for a class 4 felony is one to three years in prison and fines which are not to exceed $25,000 (730 ILCS 5/5-4.5-50) (730 ILCS 5/5-4.5-45). •If you are found to possess or produce more than 20 but less than 50 cannabis sativa plants you may be charged with a class 3 felony (720 ILCS 550/8). The penalty you generally face when charged with a class 3 felony is two to five years in prison and fines which are not to exceed $25,000 (730 ILCS 5/5-4.5-50) (730 ILCS 5/5-4.5-40). •If you are found to possess or produce more than 50 but less than 200 cannabis sativa plants you may be charged with a class 2 felony (720 ILCS 550/8). The penalty you generally face when charged with a class 2 felony is three to seven years in prison along with fines which are not to exceed $100,000 (720 ILCS 550/8) (730 ILCS 5/5-4.5-35). •If you are found to possess or produce more than 200 cannabis sativa plants you may be charged with a class 1 felony (720 ILCS 550/8). The penalty you generally face when charged with a class 1 felony is four to fifteen years on prison along with fines which are not to exceed $100,000 (720 ILCS 550/8) (730 ILCS 5/5-4.5-30). * County jail is where people may be held for up to 364 days and prison is where people are held or confined for more than one year.
Driving While Under the Influence of Cannabis You may be charged with driving under the influence of intoxicating compounds, drugs, cannabis, or any combination thereof, if it has made you incapable of driving safely. Illinois' DUI statute provides that you shall not drive or be in actual physical control of any vehicle while you are: •under the influence of any intoxicating compound or combination of intoxicating compounds to a degree that makes you incapable of driving safely; •under the influence of any other drug or combination of drugs to a degree that makes you incapable of safely driving; or •under the combined influence of alcohol, other drug or drugs, or intoxicating compound or compounds to a degree that makes you incapable of safely driving. (625 ILCS 5/11-501(a)(3), (a)(4), and (a)(5)).
Further, you can be charged with driving under the influence of cannabis if there is any evidence of cannabis in your breath, blood or urine. If that is the charge, impaired driving (unsafe driving) is not required to support the charge. The presence of cannabis in your blood or urine is sufficient even if the person was driving perfectly safely. This is the statute:
•a person shall not drive or be in actual physical control of any vehicle there is any amount of a drug, substance, or compound in the person's breath, blood, or urine resulting from the unlawful use or consumption of cannabis (625 ILCS 5/11-501(a)(6)). •For the definition of unlawful use of cannabis, see Possession of Medical Cannabis in a Motor Vehicle below. Just having a medical card for use, especially from another State, will not necessarily exonerate you from having or using cannabis inside of a vehicle. •The punishments you may face when charged with driving while under the influence of cannabis will depend upon whether or not it is your first time being charged with a driving under the influence offense. •If you are charged with driving under the influence of cannabis for the first time, you may be charged with a class A misdemeanor. The penalty you generally face for a class A misdemeanor is up to one year in prison (730 ILCS 5/5-4.5-55). Also, a first time offender may be charged with fines up to $2,500 and be placed on court supervision for up to two years (625 ILCS 5/11-501). •If you are charged with driving while under the influence of cannabis for a second time the penalties are more severe than the penalties for first time offenders. If you are charged with driving while under the influence of cannabis for a second time you may be charged with a class A misdemeanor. The penalty you generally face for a class A misdemeanor is up to one year in jail and fines which are not to exceed $2,500 (730 ILCS 5/5-4.5-55). Also, if you are charged with driving under the influence of cannabis for a second time you will generally face the penalty of a mandatory 5 days in jail or 240 hours of community service. Along with these penalties, you may also be penalized with the revocation of your driving privileges (625 ILCS 5/11-501). •If you are charged with driving under the influence of cannabis for a third time the penalties are more severe than the penalties for first and second time offenders. If you are charged with driving while under the influence of cannabis you may be charged with a class 2 felony. The penalty you generally face when charged with a class 2 felony is three to seven years in prison (730 ILCS 5/5-4.5-35). When you are charged with driving under the influence of cannabis for a third time, you might also face the penalties of probation of up to 48 months along with mandatory 10 days in jail or 480 community service hours. You may also be fined up to $25,000 (625 ILCS 5/11-501). * County jail is where people may be held for up to 364 days and prison is where people are held or confined for more than 1 year.
Cannabis Trafficking If you bring 2,500 grams or more of cannabis into the State with the purpose or intent to manufacture or deliver, you may be charged with cannabis trafficking. If you are charged with cannabis trafficking, you cannot also be charged with possession of cannabis. The penalty you might generally face for cannabis trafficking cna vary depending on the amount of cannabis you are charged with trafficking (720 ILCS 550/5.1). •The generally faced penalty if you bring more than 2,500 but less than 5,000 grams of cannabis into the State with the purpose or intent to manufacture or deliver, you will generally face the penalty of eight to thirty years in prison along with fines no less than $150,000 and no more than $300,000 (720 ILCS 550/5.1). •The generally faced penalty if you bring more than 5,000 grams of cannabis into the State with the purpose or intent to manufacture or deliver you will generally face the penalty of 12 to 60 years in prison along with fines no less than $200,000 and no more than $400,000 (720 ILCS 550/5.1). *County jail is where people may be held for up to 364 days and prison is where people are held or confined for more than one year.
Possession of Cannabis and Other Contraband in a Penal Institution If you bring cannabis or other contraband into a penal institution, which is a place where persons are confined for punishment, or you possesses cannabis or other contraband in a penal institution you may be charged with possession of cannabis and other contraband in a penal institution (720 ILCS 5/31 A-1.1).
•If you bring cannabis or other contraband into a penal institution or possess cannabis other contraband in a penal institution you may be convicted of a class 3 felony. The penalty you generally face when convicted of a class 3 felony is two to five years prison and fines which are not to exceed $25,000 (730 ILCS 5/5-4.5-50) (730 ILCS 5/5-4.5-40) (720 ILCS 5/31 A-1.1). *County jail is where people may be held for up to 364 days and prison is where people are held or confined for more than one year.
Possession of Medical Cannabis in a Motor Vehicle If you are in unlawful possession of medical cannabis in a motor vehicle and are a medical cannabis card holder using cannabis within the passenger area of a car; or a medical cannabis card holder, designated care-giver, or dispensing organization agent, with cannabis in the passenger area of a car without it being sealed in a tamper-evident medical container for cannabis, you may be charged with possession of medical cannabis in a motor vehicle. If you are a medical cannabis cardholder in Illinois you may drive with cannabis in your system as long as you are not impaired. Note, however, that simply having a medical cannabis card is not a defense if you are charged with driving under the influence (625 ILCS 5/11-502.1).
•If you are found guilty of possession of medical cannabis in a motor vehicle you will generally be charged with a class A misdemeanor. The penalty you generally face when charged with a class A misdemeanor is up to one year in jail and fines which are not to exceed $2,500 (730 ILCS 5/5-4.5-55) (625 ILCS 5/11-502.1). •Other penalties you generally face when charged with possession of medical cannabis in a motor vehicle are the revocation of your medical cannabis card for two years from the end of the imposed sentence and the revocation of your status as a medical care giver, cultivation center agent or dispensing organization agent for two years from the end of the imposed sentence (625 ILCS 5/11-502.1). *County jail is where people may be held for up to 364 days and prison is where people are held or confined for more than one year.
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People v. Jones (2013) No. 1-11-3586 (Unpublished)Appellate Court of Illinois,First District, Second Division.
It often seems like a waste of time and gratuitous torment, but this case demonstrates that polling a jury after a guilty verdict occasionally bears fruit.
A guilty verdict was announced by the foreperson following deliberations. The court told the jurors it was “going to ask each and every one of you whether or not that verdict was your verdict and if it's still your verdict.” After polling four jurors, the following exchange occurred:“THE COURT: Nicholas Mack, was that your verdict and is this now your verdict?JUROR MACK: No, but yes and no. THE COURT: Well, your answer can't be yes and no. Is that your verdict now?JUROR MACK: Yes. THE COURT: Okay. And was that your verdict when you signed the verdict paper?JUROR MACK: No. THE COURT: Okay, when you signed the verdict, that was not your verdict, a finding of guilty?JUROR MACK: According—excuse me, according to the law, yes. But, it was other things that I felt that made him not guilty.THE COURT: Okay. So let me ask you that question again: Was that your verdict and is this now your verdict that he is guilty?JUROR MACK: Yes.”Defendant appealed the guilty verdict on the ground that the trial judge erred in the way he questioned the juror and that the juror’s equivocal responses created doubt about the validity of the verdict.The appellate court made the following points based on prior case law:The purpose of polling a jury is to determine that the verdict accurately reflects each juror's vote and that the vote was not the result of coercion.While the trial court should not turn the polling process into an opportunity for further deliberations, the court also must not hinder a juror's expression of dissent.If a juror indicates some hesitancy or ambivalence in his or her answer, then the trial judge must determine the juror's present intent by affording the juror the opportunity to make an unambiguous reply as to his or her present state of mind.If the court determines a juror dissents from the verdict, the proper remedy is for the trial court, on its own motion if necessary, to either direct the jury to retire for further deliberations or to discharge the jury. The trial court's determination as to the voluntariness of a juror's assent to a verdict will not be set aside unless the trial court's conclusion is clearly unreasonable. The Court affirmed the conviction, determining that the juror's response established his agreement that defendant was guilty under the law, and that the jury verdict reflected his intentions. It further determined that the complete colloquy indicated the juror was given the opportunity to dissent and ultimately stated that the guilty verdict reflected his vote. Finally, it found the trial court’s determination that the juror voluntarily assented to the verdict was reasonable.EDITOR’S NOTE: One cannot determine the tone of the judge’s questioning from the cold transcript (well, maybe you can!), but that is the key as to whether this juror was bullied by the trial court into capitulating. The defense made a post-trial motion for a new trial, contending that the verdict was not unanimous. However, it does not appear that any objection was made to the judge’s manner of questioning as it occurred. One tactic the defense might have considered is to request an immediate recess once the juror responded, “No, but yes and no.” What would you have done? Have you ever even prepared for this type of response from a juror being polled? Will you ever pass on the right to poll a jury after reading this case?Have you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? Paul Burglin is a Board Certified in DUI Defense San Francisco Bay area attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. He is also the co-author of "California Drunk Driving Law"
Home > Fourth Amendment > Another Shot Fired Over the Constitutionality of Minnesota's DWI Test Refusal LawPosted on May 19, 2014 by Dan Koewler
Minnesota is one of very few states that make it a crime to refuse to submit to a DWI test - the vast majority of states simply impose a longer license revocation against drivers who refuse. Minnesota's rare and troubling practice - making refusal to submit to a warrantless search an independent crime - appears to be unconstitutional. That appearance is causing a major conflict between defense attorneys and prosecutors, between prosecutors and cops . . . and also between Minnesota judges and other Minnesota judges.
Is it constitutional to put someone in jail for refusing to submit to a warrantless search and seizure? This is the question that has plagued Minnesota courts for over a decade, and it is a question that is quickly coming to a head. The Minnesota Supreme Court is in a position to answer that question once and for all later this year.
But in the meantime, Minnesota's DWI law is in a state of pure turmoil. In the past year, many district court judges around the state have concluded that the crime of test refusal is unconstitutional. After judges started declaring the law unconstitutional, the Minnesota Court of Appeals stepped in and in the case of State v. Bernard, crafted a brand-new doctrine that appeared to make the crime of test refusal legal. This Bernard decision was famously ignored by at least one judge who was completely unpersuaded by the newly crafted "inevitable warrant" doctrine.
Today, the Court of Appeals issued another decision finding the test refusal law constitutional, in the unpublished case of State v. Mawolo. And while it was completely expected for the Court of Appeals to follow the logic of the recently issued Bernard case, what was completely unexpected was to see another judge step up and proclaim, in effect, "we are getting this wrong, and we need to fix it before it's too late."
That is a paraphrase from the dissent in the Mawolo case, where one member of the three judge panel made it clear that "the analysis in Bernard" was "flawed" because it "creates an exception that renders the Fourth Amendment meaningless . . ." I highly suggest reading the whole dissent - it is both scholarly and very much to-the-point.
This likely will not be the last judge to openly defy the holding in the Bernard decision, and with every new voice in opposition, the constitutional crises in Minnesota deepens.
You can look all you want, but you won’t find “good intentions” in the Fourth Amendment. As strange as it sounds, the Fourth Amendment has always existed as a form of civil rights that makes it harder, not easier, for law enforcement to investigate crimes. And while we can all agree that society would be safer if impaired drivers stayed off the roads, wishful thinking has never created an exception to the Constitution. That’s not our “spin” on the Constitution - the United States Supreme Court has already pointed out the absence of “good intentions” in the Fourth Amendment. In the 2001 case of Ferguson v. City of Charleston, the Court held that social policy objectives – no matter how valid or laudable – are not a sufficient reason to discard the warrant requirement. When the primary purpose of a search is the collection of evidence for use in a criminal case, the Fourth Amendment requires a warrant. If law enforcement want to skip the all-important step of getting a warrant, and try to argue that they had “consent” to execute a warrantless search, they’d better make sure that any consent they relied upon was truly voluntary. The Court makes this clear in Ferguson, when it says: The interest in using the threat of criminal sanctions to deter drug use cannot justify a departure from the general rule that an official non-consensual search is unconstitutional.
Ferguson involved pregnant women receiving prenatal treatment at a state hospital. Staff grew concerned about the rate of cocaine use among its pregnant patients. The staff tried a medical response – referral to treatment and counseling – but the incidence of mothers and babies who tested positive for cocaine remained unchanged.Looking for a way to coerce the women into treatment, the hospital staff approached city officials and offered to cooperate in the prosecution of mothers whose children tested positive for cocaine at birth. Together, hospital staff and local law enforcement crafted a policy to identify and prosecute cocaine-using patients. The policy was broad, almost as complicated as Minnesota’s Implied Consent laws, and was geared towards prosecutions for drug offenses and/or child neglect, depending on the stage of the patient’s pregnancy.The problem was that no one bothered to tell the patients about the policy and no one asked for their consent. Instead, the State gathered evidence without consent or a warrant, and then used the threat of prosecution to inspire patients to heed the hospital’s treatment recommendations.In defense of the policy, the government claimed that it needed to coerce patients into treatment – they had “good intentions” – and that their noble goal was totally separate from the law enforcement interest in prosecution.Sound familiar? It should, because this tactic bears a striking resemblance to Minnesota’s Implied Consent law. DWI suspects are required to “consent” to a warrantless search of their blood, breath, or urine, because refusal is a crime. “If you don’t let me take your blood, I’ll charge you with a felony.” Where is the choice in that?In Ferguson, the Court didn’t buy the government’s “good intentions” argument, and reminded everyone that even if you think you have a “special need” to perform a warrantless search, if that search is being used to gather evidence of a crime you’re either going to need a warrant or true consent to the search. Ultimate social policy goals – even beneficent goals like protecting the health of mother and child – do not trump individuals’ privacy interests. The Fourth Amendment right to be protected from nonconsensual, warrantless searches doesn’t falter in the face of social policy.These issues stir our emotions and rouse our personal values. Impaired drivers and pregnant drug-users both put others at risk. We Americans value fairness, and that’s not fair . . . but, in the eyes of our forefathers, neither is extracting “consent” by using the threat of criminal sanction. In a free society, we rely on the law to protect everyone, and the law is clear: without voluntary consent or a warrant, searching someone’s blood, breath, or urine is not only unfair; it’s unconstitutional.Let’s not forget, the road to hell is paved with "good intentions."Trackbacks (0) Links to blogs that reference this article Trackback URL http://www.mndwidefenseblog.com/admin/trackback/318489
The acronyms DUI, DWI, OMVI and OVI all refer to the same thing: operating a vehicle under the influence of alcohol or drugs. The most commonly used terms are DUI, an acronym for Driving Under the Influence, and DWI, an acronym for Driving While Impaired.
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By Jessica Towne
Don't do it! As a defense attorney and DUI practitioner, I get asked a lot of questions by my clients, friends, and fellow attorneys. But no question is more common than, "should I refuse the breathalyzer and/or the field sobriety tests (FSTs)?" 
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Minnesota is one of very few states that make it a crime to refuse to submit to a DWI test - the vast majority of states simply impose a longer license revocation against drivers who refuse. Minnesota's rare and troubling practice - making refusal to submit to a warrantless search an independent crime - appears to be unconstitutional. That appearance is causing a major conflict between defense attorneys and prosecutors, between prosecutors and cops . . . and also between Minnesota judges and other Minnesota judges.
You can look all you want, but you won’t find “good intentions” in the Fourth Amendment. As strange as it sounds, the Fourth Amendment has always existed as a form of civil rights that makes it harder, not easier, for law enforcement to investigate crimes. And while we can all agree that society would be safer if impaired drivers stayed off the roads, wishful thinking has never created an exception to the Constitution. That’s not our “spin” on the Constitution - the United States Supreme Court has already pointed out the absence of “good intentions” in the Fourth Amendment. In the 2001 case of Ferguson v. City of Charleston, the Court held that social policy objectives – no matter how valid or laudable – are not a sufficient reason to discard the warrant requirement. When the primary purpose of a search is the collection of evidence for use in a criminal case, the Fourth Amendment requires a warrant. If law enforcement want to skip the all-important step of getting a warrant, and try to argue that they had “consent” to execute a warrantless search, they’d better make sure that any consent they relied upon was truly voluntary. The Court makes this clear in Ferguson, when it says: The interest in using the threat of criminal sanctions to deter drug use cannot justify a departure from the general rule that an official non-consensual search is unconstitutional.