http://IllinoisCaseLaw.com/dui-sentencing-winning-on-a-technicality

Here is a DUI sentencing example of winning on a technicality. In Podcast Episode 042 of the Criminal Nuggets Podcast, I discuss the idea of "winning on a technicality". Is it time to retire this term?

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To download a summary of the arguments I use to defeat the 6 month "child in the car" jail provision in DUI cases click the image below. 

In regards to the concept of "winning on a technicality," there is a large difference in opinions.

Individuals who use that phrase, typically use it as a description of an illegitimate tactic. Yet, the attorneys who are employing a specific legal tactic never think of themselves as doing something improper.

Is there something wrong with winning on a technicality?

So, how can two sides be thinking so differently about the same thing?

As you contemplate a possible answer to that question, all I ask is that you not jump to any conclusions.  It will be easy to conclude that  defense attorneys must be so morally corrupt that they have lost all sense of a moral compass.

However, that explanation is no more filling than jumping to the conclusion that all prosecutors are so zealous about locking up bad guys that they have gone blind to the rule of law.

Obviously, none of these are true. Let's just start with the basic and true idea that both defense attorneys and prosecutors are intelligent, moral beings.

I begin the discussion by talking about where I think the source of the disagreement begins. It begins by taking note of the 3 pillars that support a victorious legal case.

Most cases can be described as consisting of three pillars that hold them up:

Legal experts believe that these three pillars  support any  legal case. This is all theoretical stuff. It is not complicated at all. It is helpful here, so bare with me for a couple paragraphs.

One of the pillars is the facts of the case.

All cases depend on the facts or the story that make it up. Another pillar is the law that is applied to the facts of the case. Literally, we are just talking about the code. These are the boring sections in the code book and body of case law that address the situation made up by the facts.

You see, nothing hard here. The final pillar is the skill and expertise of the lawyer.

The idea is that the side that can "win" or capture at least two of the three pillars is going to be the victorious side.

Much of the difference in opinions that exist between those who believe in improper "technical" defenses and those who don't can be understood by understanding these pillars.

You see, I believe that those who perceive winning on a technicality as something being illegitimate are putting much of their emphasis on just one of the pillars. Those who see no moral hang-ups with winning on a technicality are emphasising a completely different pillar.

Listen to the podcast to see what I am talking about. 

There is a provision in the Illinois Sentencing Code that describes DUI sentencing. 

In the podcast, I talk about  a section of the Illinois DUI sentencing code. The section I talk about says that:

"A person who violates subsection (a) is subject to 6 months of imprisonment...if the person was transporting a person under the age of 16 at the time of the violation." 625 ILCS 5/11-501(c)(3).

This part of the law seems to be saying that whenever a person is charged with a DUI and they had a child in the car with them then that person must serve 6 months of incarceration.

Listen in as I explain that the words in the box do not actually mean what they say. 

If you go back and look at section (c)(2) of the section I described above. You'll notice that section uses the term "shall".  

In the code, that word means that the law requires or mandates that something happen. When the term is used in a sentencing statute it means a mandatory sentencing provision is being described.

However, the "child in the car" provision does not use the word "shall."

The lawmakers were using the "shall" to make mandatory sentencing provisions. They did exactly that in the (c)(2). If they didn't use the term in (c)(3) that must mean they did not intend to make that section mandatory!

Additionally, if a court were to interpret section (c)(3) as being a mandatory jail provision other crazy and ridiculous consequences would follow.

For one thing, a first time DUI offender would be disqualified from receiving court supervision. One thing we know that lawmakers knew how to do is how to prevent court supervision.

They have a whole section on who can and who cannot receive court supervision. See 730 ILCS 5/5-6-1(c). 

Noticeably absent from the "no supervision" sections is any mention of a person with a DUI and a child in the car. Sending a person to jail would effectively mean that they cannot receive court supervision. 

This true because jail is not an allowed sentencing condition for those on court supervision. See 730 ILCS 5/5-6-3.1.

If we look at the section (d), which comes right after (c)(3), aggravated DUI's are being described. These are class 4 and above charges of driving under the influence.

Notably, what is missing from these sections is any requirement of at least 6 months incarceration. So even the most serious DUI charges don't have this 6 month requirement. It would be completely ridiculous to send a first time misdemeanor DUI offender to jail for six months when felony offenders don't have to suffer the same consequences.

For clearly more serious conduct there is no additional penalty of 180 days jail.

Aggravated DUI's include stuff like

If these cases are subjected to the 6 month jail requirement it makes no sense to send a first time DUI offender to jail for 6 months.

Here is the link to my DUI sentencing example:  625 ILCS 5/11-501(c)(3).

Also, I mention the Illinois court supervision law. It is helpful in this discussion. It can be found at 730 ILCS 5/5-6-1(c).

After you listen, let me know what you think by hitting either the facebook, twitter, or google + button below or above the article.

If you are interested in a word document which summarizes the arguments described in this podcast and post you can click here for arguments.