Here is a list of legal arguments attorneys at Hall, Rustom & Fritz, LLC have used in court to challenge the State after clients are arrested for DUI:
1. If your vehicle was stopped illegally by the police officer:
a. Officers must have reasonable, articulable suspicion that you have committed, are committing, or are about to commit a traffic violation to stop your vehicle. They cannot make up reasons nor can they stop you for reasons that are not violations of Illinois law.
b. In most circumstances, weaving inside your own lane without crossing any traffic lines is not illegal and we can challenge this observation in court.
c. Registration lights must be illuminated on your rear registration (license) plate so an officer can see it within 50 feet of your flank. If the officer is more than 50 feet from the rear of your vehicle when he/she turns on their emergency lights, we argue that no violation occurred and any stop of your vehicle for that reason is unlawful.
d. If you made a left turn onto a four lane roadway, you can turn into either the right or left lane. If you are pulled over for not turning left into the left (passing) lane, this is NOT a violation and we argue the stop was unlawful.
e. Pulling a vehicle over solely based on an anonymous report of drunk driving is not enough for an officer to pull your vehicle over lawfully. They must observe corroborating evidence that shows indicia of intoxicated driving or they must observe any traffic violation to pull you over.
2. The officer must have probable cause to arrest you for DUI:
a. Police officers have to witness reasonable and articulable suspicion that demonstrates you are intoxicated.
b. Police officers must have probable cause to believe you were the driver operating the vehicle under the influence of alcohol/drugs.
c. Officers look for the following signs of impairment:
i. Bloodshot eyes
ii. Soiled clothing
iii. Fumbling fingers
iv. Alcohol containers
v. Drugs or drug paraphernalia
vi. Bruises, bumps or scratches
vii. Unusual actions
viii. Slurred speech
ix. Admission of drinking
x. Inconsistent responses
xi. Abusive language
xii. Unusual statements
xiii. Odor of alcoholic beverages, marijuana, cover-up odors and unusual odors.
d. They can ask you to submit to field sobriety tests to also observe evidence of impairment. In most cases, it is advised to not participate in ANY of these field sobriety tests and to not answer any questions that would tend to incriminate you.
e. As of 2011 in Illinois, there are no driver's license ramifications if you fail to do the standardized field sobriety testing, such as the walk & turn test, the Horizontal Gaze Nystagmus test, or one-leg stand test. Further, your driver's license will not be suspended if you do not blow the Preliminary Breath Test (PBT) at the scene.
f. This PBT is solely designed to help the officer form the probable cause to arrest you. As of 2011, courts deem this PBT inadmissible as evidence against you in court in most circumstances in front of a jury. However, if you test over .08, the officer will usually have the requisite reasonable, articulable suspicion to form the probable cause to arrest you, the officer will likely arrest you, and you will have to be booked and processed.
g. Also, if you test under .080 on the PBT, the officer can still arrest you for DUI if he/she observes other signs of intoxication, such as your performance on the field sobriety tests, or if your driving was poor prior to the officer pulling you over. Prosecutors can still proceed with charges of DUI against you. They will have to prove to a judge or jury that you consumed any amount of alcohol that so impaired your mental or physical faculties from acting with ordinary care.
h. Just remember that any questions the officer asks you and any actions that show intoxication will be used against you in court.
i. Be careful and do not say or do anything that would tend to incriminate you.
3. Standard Field Sobriety Tests Are Frequently Inaccurate for Healthy Individuals:
a. 4 out of 10 times, the walk-and-turn test is inaccurate to determine intoxication of .10% or higher.
b. 4 out of 10 times, the one-leg stand test is inaccurate to determine intoxication of .10% or higher.
c. The Horizontal Gaze Nystagmus is considered the most "accurate" of the three standardized tests. It is defined as the involuntary jerking of the eyes. Nystagmus is a natural and normal phenomenon. Alcohol and certain drugs do not cause this phenomenon; they merely exaggerate or magnify it. The police are trained that it is 77% accurate in predicting that a person's blood alcohol concentration is .10% or higher. That means, 23% of the time, they are wrong. So for every 10 DUI's with HGN, 2 HGN results are inaccurate.
d. There are over 40 different kinds of nystagmus and many of them look the same as the HGN test that police look for as evidence of impairment.
e. The police are not trained to distinguish between the different kinds of nystagmus. However, some officers will testify they are. It is common for an officer to misdiagnose some other form of nystagmus, call it HGN, and use it as evidence against a person.
f. If the person has injuries or disabilities, these ailments can affect the results of the tests.
g. The officer is not supposed to use non-standardized tests to determine your intoxication. The ABCs, finger to nose, and Romburg balance tests are not standardized or accepted by the National Highway Traffic & Safety Administration and our attorneys can argue these tests should be inadmissible in court.
4. The Post-Arrest Breathalyzer Test is NOT always accurate:
a. Breath testing devices are designed to analyze a sample of a person's breath based on Henry's Law. Henry's Law states that in a closed system, the amount of ethanol in the airspace above the liquid is proportional to the amount of ethanol in the liquid.
b. These devices are designed to produce a breath alcohol result exactly corresponding to a simultaneous blood alcohol sample. But are these samples accurate?
c. The problem with these breath devices is it assumes the partitioning of alcohol from the blood into the breath at 2100:1. Explained, that means for every 2100 parts of ethanol in the blood, there is one (1) part ethanol in the breath. This creates a problem because some studies show partition ratios as low as 834:1. Other studies show partition ratios ranging between 1555:1 and 3005:1. The accepted level of 2100:1 was agreed upon by the deciding board because it resulted in a 95% confidence level among the studies. This means that there is a 95% probability that anyone tested will have a ratio of 2100:1 or higher.
d. Explained in simple terms: 5% of the population will have their breath alcohol level overstated by the breathalyzer test machine when compared to their blood alcohol level. It has been shown that a person's breath alcohol level can be overstated by as much as 10 to 12% or more.
i. Real Life Example: If a person blows .10% on the breath test and his/her partition ratio at the time of the test is 1500:1, his/her actual blood alcohol concentration is closer to 0.06%! That means you are not legally intoxicated! So if there is no other evidence of your intoxication, you are NOT GUILTY.
e. The Breath Test Device must be approved:
i. The device used to test your breath alcohol content must be listed on the Federal List of Approved Breath Evidential Instruments and the ISP approved list of devices, or the results could be ruled as inadmissible.
f. The Breath Test Operator Must Be Validly Licensed:
i. In Illinois, breath test operators must possess a valid, unexpired operator's license, or the breath test result is inadmissible.
g. Breath Test Machines Malfunction:
i. If the machine has been serviced within 62 days before or after a suspect's breath test, the results may be ruled as invalid by the court.
5. Drug Related DUIs Can be challenged if Officer isn't a qualified expert:
a. If the police officer is not a Drug Recognition Expert, he/she will not be allowed to testify as an expert on recognizing whether or not a person is intoxicated from controlled substances.
b. Laypersons and unqualified police officers are not qualified to testify in court as to whether an individual is under the influence of drugs. To do so, the officer must be qualified by the court as an expert.
c. A Drug Recognition Expert (DRE) requires substantial training to become a DRE:
i. DRE Pre-Schooling (16 hour course)
ii. Drug Recognition Expert School (56 hour course)
iii. Drug Recognition Expert Field Certification (Approximately 40-60 hour course)
d. In these courses, DRE's are taught to investigate drug DUI's by using a 12-step process:
i. Breath Alcohol Test
ii. Interview of the Arresting Officer
iii. Preliminary Examination and First Pulse
iv. Eye Examination
v. Divided Attention Psychophysical Tests
vi. Vital Signs and Second Pulse
vii. Dark Room Examination
viii. Examination of Muscle Tone
ix. Check for Injection Sites and Third Pulse
x. Subject's Statements and other observations
xi. Analysis and Opinions of the Evaluator
xii. Toxicological Examination
e. Without this 12-step process, attorneys at Hall, Rustom & Fritz, LLC can challenge the officer's observations and win a "leg-up" in the trial/case.
f. Thus, if the officer has not gone through these training courses, they will likely be disqualified from testifying as an expert on recognizing drug intoxication.
6. Squad Car Videos & Booking Room Videos can Help or Hurt a DUI case:
a. Many video recordings by in-car video cameras and cameras located in the booking rooms can show signs of sobriety that may show a jury that you were not acting intoxicated.
b. Speech can be heard as spoken clearly, the person is walking without falling over, balancing properly, and not swaying while they are standing.
c. Squad car videos can record driving that does not seem impaired. This type of exculpatory evidence (exculpatory evidence is evidence that tends to demonstrate the innocence of the suspect) is required to be turned over to the Defense and the attorneys at Hall, Rustom & Fritz, LLC will be ready to use that evidence to their client's advantage.
7. Blood Testing can be inaccurate:
a. Police blood testing requires strict procedures. If not followed properly, we can argue against their admissibility at trial.
b. Hospital Blood Draws:
8. If placed under arrest and about to be questioned by the officer, he/she must read you Miranda Rights:
a. If a person in your position could reasonably conclude they were not free to leave, they are under arrest by the court's definition.
b. To determine if the reasonable person in your position would not feel they were free to leave, Courts look at certain factors, such as:
i. Whether the officer's squad car is blocking your vehicle from leaving.
ii. Whether there is more than one officer present.
iii. Whether the officers are armed, have their weapons drawn, or are saying commands in a forceful manner.
iv. Whether the officer is in uniform.
v. Whether the officer tells you that you cannot leave.
c. If some of these factors are present, you will likely be considered "under arrest" and if the officer is going to question you, he/she must read you Miranda rights.
9. If the officer makes misleading statements, the driver's license suspension could be rescinded (thrown out):
a. When requesting that you take a breath test after you are arrested, the officer must read a Warning to Motorist which states the length of time you will be suspended if you blow over .080 (6 months if you are a first offender or have not had a DUI or prior Summary Suspension within the last 5 years prior to the present DUI arrest), or if you refuse to test (1 year). If he/she does not read this warning verbatim, but says misleading or incorrect statements regarding the Warnings, the court may rescind the driver's license suspension and you will not lose your driving privileges.
b. It is very important to challenge these suspensions because if you receive 2 suspensions in a 5 year period, the second driver's license suspension will be for 3 years if you refuse to submit to chemical/breath testing. If you blow over .08 and it's your second time in a 5 year period, you are looking at a 1 year suspension instead of a 6 month suspension.
10. If Drug Detecting Dogs are used to search around your vehicle, the canine officer and the canine must arrive at the scene as to not unreasonably prolong the stop.
a. If the police pull you over for any traffic violation and they detain you, pay attention to how long you are waiting there at the scene before the drug detecting dog gets there. Illinois case law scrutinizes how long police officers keep you there at the scene beyond the scope of the original intent of the stop. For example, if a police officer pulls you over for a simple traffic violation, and they make you wait at the scene for the drug dog to arrive, if a court determines that the drug dog took too long to arrive at the scene, the court may throw out any evidence found from that search as inadmissible evidence due to the evidence being obtained unlawfully by the police.