Every now and then police might struggle with the decision to arrest for DUI or not…

We have all heard of the stories of over zealous officers looking to make an “easy” DUI arrest.

Cases From The News

* Chicago to pay $450,000 to 2 drivers falsely charged with DUIs* Cop Jailed For Falsely Arresting People For DUI* Heather Squires Was Arrested For DUI Without Drinking A Drop of Alcohol* Trooper accused of making false DUI arrests

I’m extremely confident we all have clients who report that their DUI arrest was a false arrest.

Are You Sure You Can Spot A False DUI Arrest?

Our task as defense attorneys is to do everything that we can to corroborate our client’s stories.

When our own digging reveals something different than what we are being told, that’s when it is time for the “talk“.

However, we always have to be careful to not have that “talk” too early. We just can’t be dismissive of our client’s without some type of inquiry.

When it comes to a false DUI arrest, DUI expert witness William Pelarenos sat down with me to walk me through one telltale sign of a possible false DUI arrest.

Alarm Bells

Now, to be clear the signal described by Bill is not an absolute diagnosis of a false DUI arrest. Bill explains that when we see what he describes it should set off alarm bells in our head.

We should dig a little deeper anytime we see a situation Bill describes as a …

“Double Refusal”

Bill Explains that in his nearly 30 year career as a DUI officer he has only had a handful of “honest double refusal” cases.

Therefore, when we have a report documenting a “double refusal” by the officer we have to make darn sure everything is on the up and up in that case.

Bill describes a “double refusal” as those cases where the subject refuses:

* All Field Sobriety Testing & Refuses* To Blow

…so it’s called a “double refusal” because an officer with no data to record for the field tests and the BAC sample simply marks the report with two “refusals”. 

Why Are They A Problem?

The point, is that it is quite rare to see a report with a “double refusal.” 

So, when you get one on your desk the task needs to immediately become one of identifying it as legitimate or “funny“.

An officer, who was quick to arrest without first establishing probable cause will have no data to report. Therefore, this officer is likely to mark the report as a “double refusal” even though the accused was never actually offered an opportunity to provide the DUI data in question.

If your research reveals that a specific officer has a knack for finding “double refusal” cases then you really ...

Episode 138 (Duration 19:30). DUI Expert, William Pelarenos, stops by to tell us about 4 DUI Suspensions we need to know about.

In fact, these are 4 kinds of Illinois DUI suspensions we should never accept.

In the litigation of a DUI case, sometimes the driver’s license status can become lost in the shuffle.

Often, there may be a reasonable defense to the criminal charge of DUI but very little to be done to save a person’s driving privileges.

This is why DUI Expert William Pelarenos came on the show to tell us about four different types of DUI suspensions that we don’t have to accept.

Those attorneys who can quickly identify these four different scenarios will definitely have some good news for the client. 

Generally, Bill Describes …

* Problems With Confirmations* Problems With Times* The Private-Public Property Distinction* Blowing Under .08

Listen in to this 19 minute and 31 second interview to get the details from Bill.

People v. Cummings,2016 IL 115769 (January 2016). Episode 131 (Duration 4:38)

Remember, the case where the officer stops a car because the owner is a women with a warrant? The officer quickly discovers the driver is a man and arrests him for suspended license. 

Well, in light of Rodriguez v. United States the United States Supreme Court asked the Illinois Supreme Court to take another look at this case.

Facts

Here the initial stop was lawful, because the officer knew the registered owner of the car had a warrant, thus “the driver was subject to seizure.”

But the officer’s reasonable suspicion that the driver was subject to arrest disappeared when he saw that the driver was a man and not, a woman.

Finding

The interest in officer safety permits a driver’s license request of a driver lawfully stopped. Such ordinary inquiries are part of the stop’s mission and do not prolong the stop, for fourth amendment purposes. Asking for driver’s license is part of the normal attending to a traffic stop, so this driver’s suspended DL status is admissible even the officer quickly determined the driver was a man and not the registered owner who was a women.

Analysis

A traffic stop is analogous to a Terry stop, and its permissible duration is determined by the seizure’s mission. Every traffic stop inherently includes traffic enforcement and “related safety concerns.” Those related safety concerns include ‘ordinary inquiries incident to [the traffic] stop,’ ” and typically “involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.”

Ordinary inquiries within the traffic stop’s mission clearly do not offend the fourth amendment. Additionally, officer safety justifies a check for criminal a record and outstanding warrants. Ordinary inquiries incident to the stop do not prolong the stop beyond its original mission, because those inquiries are a part of that mission.

See more Illinois search and seizure cases and The Ultimate Police K9 Case Law Guide And Legal Resource.

People v. Ealy, 2015 IL App (2d) 131106 (December 2015). Episode 129 (Duration 5:18)

Harmless error to allow the State to argue consciousness of guilt when defendant refused voluntary DNA testing.

Why was it error for the state to let it slip that Defendant was the only refusal out of 22 people who were asked to provide a voluntary DNA sample?

Facts

A Burger King manager was murdered and the the safe was robbed.

Palm prints and fingerprints from 22 current and former employees were collected. However, when asked for a DNA sample, defendant adamantly refused while the 21 other employees complied.

Eventually, the get a warrant.

Scenario A

Immediately, I think of two very similar situations with different outcomes.

It takes no time to “know” that a prosecutor is not allowed to comment a Defendant’s right to refuse to testify or to talk to the police.

This clearly implicates an individual’s right to remain silent.

Scenario B

However, in a DUI arrest a person who refuses to provide a BAC sample can have that point used against them at trial.

A prosecutor can indeed argue to the jury that Defendant refused to provide a BAC sample because he knew he was drunk.

So what gives? Why are these scenarios different?

Explanation

A compelled DNA extraction undeniably constitutes a search under the fourth amendment to the federal constitution (U.S. Const., amend. IV) and the search-and-seizure provision of the Illinois Constitution (Ill. Const. 1970, art. I, § 6).

Thus, for a DNA sample generally a warrant is required.

At the time of his refusal, defendant had no legal obligation to provide his DNA.

It is fundamental that the admission of evidence that a defendant has exercised his rights is unduly prejudicial and deprives him of a fair trial because it permits the jury to infer consciousness of guilt from the defendant’s exercise of his rights.

The admission of defendant’s refusal to consent to DNA testing was an abuse of discretion because it permitted the jury to infer consciousness of guilt from defendant’s exercise of his rights.

Why BAC is Different?

Under 625 ILCS 5/11-501.1, the so-called ‘implied consent law,’ a motorist operating a vehicle on a public highway in Illinois is deemed to have consented, if arrested for DUI, to chemical testing to determine his or her blood alcohol level.”

Therefore the driver no longer has a “right” to refuse BAC testing. The end result is that it becomes entirely appropriate for the State to then argue consciousness of guilt when a Defendant refuses to blow.

Final Point

Had the police obtained a warrant for Defendant’s DNA, and he still refused to provide a sample, the prosecution WOULD HAVE BEEN WITHIN THEIR RIGHTS to argue consciousness of guilt.

Obviously, after a warrant defendant no longer has a right to refuse.

More DUI foundations can be found on this page.

People v. Wuckert, 2015 IL App (2d) 150058 (December). Episode 124 (Duration 3:46)

Trial court’s suppression of hospital drug test is reversed because 625 ILCS 5/11-501.4 trumps hospital policy that the results should not be used for legal purposes.

Facts

This was a one car accident.

Police find a drug pipe in the car and it smells like cannabis. Trial judge suppressed the state blood because there was no probable cause for the arrest.

At The Hospital

However, the hospital told defendant that their lab tests could only be used for medical reasons and not for any legal purposes. Relying, in part, on this hospital policy the trial judge suppressed the hospital drug tests.

Reversed

However, the reviewing court said that  625 ILCS 11-501.4 trumps the hospital policy.

The relevant section reads:

“(a) Notwithstanding any other provision of law, the results of blood, other bodily substance, or urine tests performed for the purpose of determining the content of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof, of an individual’s blood, other bodily substance, or urine conducted upon persons receiving medical treatment in a hospital emergency room are admissible in evidence as a business record exception to the hearsay rule”

The fact that the trial court was perturbed that defendant consented to the test under a misimpression created by the hospital personnel, however unfortunate, is not a legally sound basis to suppress the test results.

Here, because the test results here were procured by a nurse who was not acting as a State agent, neither the test nor the hospital’s disclosure of the results to the police, as the statute required, violated defendant’s rights.

Civil In Nature

Additionally, no fourth amendment analysis was appropriate here because these blood results were a completely civil process. 

Even assuming the arrest was improper, these results were coming in because no state actor was involved in their procurement.

See additional Illinois DUI case law.

People v.  Tsiamas, 2015 IL App (2d) 140859 (December 2015). Episode 122 (Duration 5:12)

Add this case to the list of “DUI Discovery Violation” cases we should know about. Defense team is entitled to the booking room video.

The Four Cases

These cases are:

* People v. Kladis, 2011 IL 110920

* People v. Moravec, 2015 IL App (1st) 133869

* People v. Aronson, 408 Ill. App. 3d 946 (2nd Dist. 2011)

* People v. Tsiamas, 2015 IL App (2d) 140859 (December 2015)

See also more Illinois DUI Opinions and Cases and more on Discovery Criminal Law.

So What Happened Here

People v. Kladis supports some kind of discovery sanction in this DUI case where police failed to turnover booking room video.

After a traffic stop, Defendant gets arrested for possession of cannabis. At the station they say he failed the fields. The events in the booking room were recorded on video maintained by the police department.

Notice To Produce

The same day defendant filed his rescission petition, he also filed a motion for pretrial discovery under Illinois Supreme Court Rule 214 and a notice to produce at trial under Illinois Supreme Court Rule 237.

After 30 days, the police department informed the court, that it “ha[d] no recordings” responsive to the subpoena. Thereafter, defendant made an oral motion for sanctions against the State.

Trial Judge Refused To Find a Discovery Violation

Here, the trial court incorrectly framed the controlling issue: The question was not whether Kladis specifically had yet been “extended to the booking room.” Rather, the question was whether, in the trial court’s discretion, a properly requested recording of field sobriety testing or the warning to motorists—regardless of where either was performed— was discoverable in a rescission proceeding.

The answer is YES, and it would have been an abuse of discretion had the trial court exercised its discretion and found otherwise.

Booking Room Video Discoverable

The FSTs were done in the booking room, accordingly, because the booking room recording was discoverable, a subpoena to obtain the recording was not required. Once defendant filed his motions, the State was officially on notice to take action to preserve the recording for its eventual production either before trial or at trial. The State also suggested that it was defendant’s burden to determine when the recording was destroyed. This notion was handsomely struck down.

For one thing, the State simply ignored the request for discovery. It is well settled that when counsel presents his adversary with a Rule 237 notice to produce, absent being served with objections, “he has the right to assume that his opponent has complied.”

The court held that if the police record a driver’s field sobriety tests or the officer’s recitation of the warning to motorists, and the driver timely requests that recording in discovery in his or her rescission case, it should be provided as expeditiously as possible.

Not Over…

Trial court was reversed, and the case remanded so the trial judge can craft an appropriate remedy. The court need not automatically impose the sanction used in Kladis, viz., barring the arresting officer’s testimony. Rather, the court is free to exercise its discretion and craft a sanction befitting the situation at hand.

People v. Chambers, 2016 IL 117911 (January). Episode 134 (Duration 8:58)

Defendant should have been granted a Franks Hearing, People v. Gorosteata, 374 Ill. App. 3d 203 (2007) is overruled.

“John Doe” Warrant

This was a “John Doe” warrant, meaning the CI was brought before the judge and swore to the judge in person that he had bought drugs from Defendant in his home.

Search warrants play a big part in Illinois search and seizure jurisprudence.

Franks Hearing

Defendant filed a motion for a Franks hearing alleging that the officer either knew that the allegations in the complaint were false or that he made the statements with reckless disregard for the truth.

Defendant had affidavit saying he was not at the house when the CI said he bought the drugs. The alleged CI also signed an affidavit saying the police coerced him into identifying the Defendant. The trial court denied Defendant’s motion because the trial court the case law said that a Franks motion cannot be granted under “John Doe” circumstances.

Purpose of Franks Hearing

However, the Illinois Supreme Court refused to adopt this rule. This rule only shields police misconduct such as conspiring with an informant or coercing an informant into making false statements in an affidavit or in testimony to the court.

Such a rule would undermine the purpose of Franks. The purpose of Franks is to provide meaningful, albeit limited, deterrence of and protection against perjurious warrant applications.

How To Get A Franks Hearing

What is required is that the defendant’s preliminary showing be more than a mere request and more than an unsubstantiated denial and certainly something less than proof by a preponderance.

The rule is that when a defendant claims intentional, knowing, or reckless conduct by the affiant officer resulting in the presentation of false information to the issuing judge, the presence of the informant who allegedly provided that information is merely a factor to be considered when deciding whether a substantial preliminary showing has been made.

Follow These Steps

So here are the steps to getting a Franks hearing:

First, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine.

Second, there must be allegations of deliberate falsehood or of reckless disregard for the truth.

Third, those allegations must be accompanied by an offer of proof” and must “point out specifically the portion of the warrant affidavit that is claimed to be false.” The defendant must furnish affidavits or sworn or otherwise reliable statements of witnesses.

Final Note

Additionally, if the informant has self identified and the defendant has otherwise sufficiently alleged intentional, knowing, or reckless falsehoods in his Franks motion, whether this individual was the actual informant can be ascertained at an evidentiary hearing and the court does not need to depend on the State’s disclosure of the informant. 

See People v. Jones, 2015 IL App (1st) 142997 (December). Episode 117 (Duration 8:59).

 An investigative hold is not probable cause and could not be used to detain/arrest this defendant. As a result the kilo of cocaine he had in his car is suppressed.

 

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It Begins With a Traffic Stop…

Defendant makes a right hand turn at a light without stopping.

* Officer pulls him over.

* He has no warrants, but

* He has an “investigative hold” for a homicide. 

Detained so cop could look into it. Defendant is moved to the back seat of the squad. Notably, the cop escorted Defendant to the backseat of the police car by holding onto his back belt area and told Defendant he was being detained. 

If Illinois Search & Seizure Issues…

Are Important to you then make sure to visit the 4th amendment resource page on this website.

Go there now: Recent Search & Seizure Resource Page now.

Then The Police Look Around

More cops arrive.

Eventually, one of them looks inside the car. Through the window of the back passenger door, an officer sees a black square object wrapped in cellophane and black tape in the back seat.

Clearly, this has to be cocaine!

Without permission, an officer goes into the car and discovers a kilo of cocaine. (I told you it was cocaine.)

A bunch of cash is then found in Defendant’s front pocket.

But An Investigative Hold Is Not Probable Cause

What is an investigative hold?

It’s just the…

…possibility that other officers might possess facts sufficient to support probable cause to actually arrest defendant.    

This reviewing court and the trial court both said that what happened in this case was an arrest. Further, this arrest was based solely on the investigative alert unsupported by probable cause.

The Case Law

There is a case on point.

See People v. Holmes, 2015 IL App (1st) 141256 (November). Episode 108 (Duration 4:30).

People v. Aguilar invalidated some gun charges, in Illinois this means some seizures are also unconstitutional.

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Issue

How does the Aguilar decision affect a probable cause determination justifying a police seizure?

Facts

This officer sees a gun on defendant’s waistband. He is stopped, arrested, and the gun seized. Then the police discover Defendant has no FOID.

Defendant argues the stop was unconstitutional because it was based on a crime that itself is unconstitutional and the police did not not know he had no valid FOID.

Unconstitutional Gun Law Leads to Illegal Search and Seizure

This stop and seizure were unconstitutional because a facially invalid statute that is unconstitutional is void ab initio.

The good-faith exception does not apply here because to apply it would run counter to our single subject clause and void ab initio jurisprudence—specifically, that once a statute is declared facially unconstitutional, it is as if it had never been enacted. Court was unwilling to create a grace period for unconstitutional stops. The court recognized a conflict between their decision, the case law and 725 ILCS 4/114-12(b)(2)(i).

Yes, this means the same exact conduct could establish probable cause if a case is brought in the federal system but not if it was brought in our state courts. Those cases are notable, but this court felt that had to follow the Illinois Supreme court which says something different.

Additionally, the recent case of People v. LeFlore, 2015 IL 116799 invalidated judicial precedent and did not invalidate a statute. This is a crucial distinction.

Conceal and carry law also should not affect the outcome of this case.

See People v. Moravec, 2015 IL App (1st) 133869 (November). Episode 105 (Duration 8:00).

Something different for a change. DUI discovery sanctions upheld! Get the scoop right here.

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Haven’t I been going on and on about winning discovery sanctions at the trial level only to lose them at the appellate level.

* Discovery In Criminal Cases

See DUI Discovery Violation Suppression of Evidence.

* Find More Illinois DUI Information Here.

Well that didn’t happen here.

Facts

This case involved a defendant arrested for a DUI.

The POD (police observations devices) cameras the Chicago Police Department actually captured the defendant’s:

Traffic Stop

Interactions With Police

Field Sobriety Tests

…so ya, kind of relevant.

Subpoena

The defense team quickly served the CPD with a subpoena putting them on notice that they wanted the digital evidence associated with the case.

These recordings get erased after day 15.

However, the subpoena was served on day 13, so check!

The Problem

You know what happened. Police erased the images and therefore could not tender the material.

DUI Discovery Sanctions Upheld

The defense team then files for discovery sanctions. The trial judge granted the motion. In podcast Episode 105, I report that the appellate court upheld the sanctions.

Thus, all evidence of the police interaction with defendant was excluded. Hard to see this DUI charge going anywhere but to a nolle bin.

Quickly, we see what the cases have in common:

* Recordings Actually Existed

* Subpoena or Preservation Notice Filed Promptly

* Police Fail to Disclose

Kladis, Moravec & Aronson

Definitely, whenever you think you may a sanctionable discovery violation in a case the three cases you want to have in front of you are: