IMPORTANT INFORMATION

 

Did you know Crossing a Lane Marker without Signaling is not always Illegal?

Oftentimes police pull people over for crossing over the fog line lane marker and subsequently gather enough information to charge that driver with DUI or DWI.   In Illinois this issue has been addressed and the Appellate Court there has held this to be an improper basis for a stop.    

In the case of People v. Leyendecker, 272 Ill.Dec. 543, 787 N.E.2d 358 (2 Dist. 2003),  the Defendant driver crossed the fog line on the right edge of the roadway for just a brief period of time.    A police officer pulled him over and gathered evidence to be used against him in court for the offense of Driving Under the Influence of Alcohol (DUI), also known as Driving While Intoxicated (DWI).  The driver’s attorney did not believe this was a good or proper stop under the constitution and brought a 4th Amendment challenge to the stop.   

Typically, a police officer needs probable cause to stop a driver before investigating for DUI or DWI.   This usually comes from violations of a state’s vehicle code.    Traffic violations such as Speeding, Failure to Signal or Reckless Driving usually amount to this qualified probable cause.  With the driver charged with DUI in the Leyendecker case, the appellate court approved of the ruling by the trial judge who stated that a brief crossing of the fog line was not enough to give an officer “reasonable suspicion” that the driver had violated the vehicle code.     

As a result, the charge of DUI had to be dismissed because the stop by the police officer was found to be improper.  If you are ever charged with a DUI or a DWI, the first point of inquiry for your attorney should be whether the officer had “probable cause” or a “reasonable suspicion” to pull you over in the first place.    A serious charge like DUI or DWI must begin with a serious and valid basis for a stop, and, sometimes as we’ve seen in the Leyendecker case, officers don’t always have those reasons.  

It is important to retain an attorney who is highly experienced in Illinois DUI law.  In addition, your attorney must be familiar with the county in which you are charged.  Your Lee County DUI Attorney may be able to challenge various portions of summary suspension.  In addition to challenging the suspension, your Lee County DUI Attorney may able to have the criminal case dismissed or reduced from a DUI.

Can You be Stopped for DUI or DWI for Driving Too Slow?

Police have sometimes been known to pull people over for driving too slow, or driving well below the posted speed limit, and subsequently gaining enough information to charge that driver with Driving Under the Influence of Alcohol (DUI) or Driving While Intoxicated (DWI). 

Many people would think that driving slow and cautiously would be a good thing, but this was not the case in the People v. Rotkvich, 195 Ill.Dec. 424, 628 N.E. 2d 888 (1 Dist. 1993).    In Mr. Rotkvich’s case, his cautious and slow driving led to a DUI arrest.    The police officer in that case could not point to any specific violation of the traffic laws so decided to pull the driver over for driving too slow.    After the stop, the officer gathered enough evidence to make an arrest. 

Thankfully for the driver, the Appellate Court found that slow driving by itself is not illegal, especially in the absence of a posted speed limit.    The court found that the officer’s decision to make the stop of the driver’s vehicle was without proper or “probable” cause.   The driver was not impeding traffic and there was not a minimum posted speed limit.   The officer could not point to any statute in the law books or the vehicle code that demonstrated the driver was breaking the law.    

The DUI was dismissed before it ever got to a jury trial because of protections afforded by the Constitution.  

If you or someone you know gets charged with a DUI or a DWI, the first question that should be asked by a good and competent attorney is did the officer have “probable cause”, or a good reason, to make the stop in the first place.    A serious charge like DUI or DWI must begin with a proper stop, and, sometimes as we’ve seen in Mr. Rotkvich’s situation, police officers don’t always have valid reasons.

It is important to retain an attorney who is highly experienced in Illinois DUI law.  In addition, your attorney must be familiar with the county in which you are charged.  Your Lee County DUI Attorney may be able to challenge various portions of summary suspension.  In addition to challenging the suspension, your Lee County DUI Attorney may able to have the criminal case dismissed or reduced from a DUI.

 

FREQUENTLY ASKED QUESTIONS

 

If I am pulled over by a policeofficer and suspected of driving under the influence of alcohol, should I blow into the breathalyzer device?

ANSWER: While the answer to that question will differ depending onhow much alcohol an individual has consumed, it is important to keep in mindthat collecting breath samples and/or requesting drivers to perform fieldsobriety tests is for the purpose of collecting evidence against the driver. Apolice officer may tell you prior to administrating any tests that he or sheonly wants to determine that you are "ok to drive", but they areactually more concerned with building their case against you. Finding yourselfbeing asked to exit the vehicle and take a variety of tests usually means youare likely not going to avoid an arrest no matter what you do. Since that isoften the case, refusing to take sobriety tests leaves the State withoutnecessary evidence to later convict you of DUI. Likewise, when you are told byan officer that you will lose your license if you do not blow, it is important to know that you will also lose your license if you blow over the legal limit.This means that you will not only lose your license, but then the State willhave strong evidence in the form of the breathalyzer results on the DUI portionof the case. Finally, while most police officers do not mention this fact,there is a hearing procedure available to contest the "automatic"suspension. However, it is your burden of proof. Consult our office for furtherdetails.

Because I took the breathalyzer and"blew" over .08, which is over the legal limit in the State ofIllinois, will I automatically be convicted of driving under the influence ofalcohol?

ANSWER: No. First, there are many procedures required to properlyadminister a breath test. Improper administration of breath tests means thatsome errors could result in the test not holding up in court. Furthermore, evenwith a breath test result against you, the State must still prove that you areunder the influence of alcohol. Finally, unlike an "automatic"suspension for blowing over the legal limit (or refusing to blow), there is noautomatic conviction for driving under the influence. Every citizen has the rightto a trial by a jury of his peers, wherein the State would have the burden ofproving you guilty. Consult our office for further details.

I am a first time offender and Ihave recently been to court and the Prosecutor told me that I would be granted"supervision", a fine and no jail time, if I plead guilty to DUI.This sounds like a pretty good deal. I was told that the supervision will keepthe DUI from affecting my driving record, which I understand could lead to adifficult revocation, if I am convicted without supervision. Should I just goahead and get it over with?

ANSWER: There is absolutely no drawback in pleading not guilty,requesting a trial, and then consulting our office. Whatever offer that hasbeen made will likely stay on the table. In Illinois, you are only allowed supervision for DUI once in a lifetime. There is no reason to use it prior tohaving an attorney review your case to determine if that in fact is theappropriate course. If an attorney can get your case effectively negotiated, reduced,thrown-out on a technicality, or won at trial, you have preserved yoursupervision in the event that you are arrested for another DUI. In fact, ouroffice has special reduced attorney's fees for first offenders. Consult ouroffice for further details.

I had a trial and was found not guilty of DUI. I was told that my suspension is still on-going. Is this true?

ANSWER: There is a hearing available to contest your suspension,which is not the same as a DUI trial. Although, your DUI and your suspensioninvolve the same evidence, they are separate procedures. Unless you aresuccessful in your "Statutory Summary Suspension" hearing (referredto above), your suspension remains for the duration of it. Success in your DUItrial does not change that, however, ironically, often the success of the DUItrial is the result of no breath test results, which would have meant that thesuspension is longer due to a refusal. Consult our office for further details.

I have multiple arrests (orconvictions) for driving under the influence of alcohol. Will I ever be able to obtain an Illinois Driver's License?

ANSWER: Yes. The proof necessary to obtain full reinstatementdepends upon whether you are classified by the treatment provider as being aSignificant Risk - Level II, High Risk - Level III Non-dependent, or High Risk- Level III Dependent. A High Risk, Level III Dependent needs to establishproof of abstinence, a good support system (preferably Alcoholic's Anonymous)and verification of appropriate treatment. If the hearing officer for theIllinois Secretary of State is inclined to grant driving relief, he or she willlikely issue a Restricted Driving Permit (RDP) requiring a breath alcoholignition device (BAID). The restricted driving permit (RDP) is usually used bythe hearing officer as probationary service prior to full reinstatement ofdriving privileges. Hiring an attorney experienced in the practice of driver'slicense reinstatement, will certainly increase the chance of obtaining arestricted driving permit (RDP) and/or full reinstatement of drivingprivileges. Consult our office for further details.

[source: Holley,Rosen & Beard, 440 South Grand Avenue West, Springfield, IL 62704]