“Field-sobriety tests in Illinois may be refused without penalty, and the risk of erroneous interpretation by an officer far outweighs the benefit of performing them.”
This article gives non-DUI practitioners a general overview of the DUI laws, describes how a DUI arrest occurs, and offers general information to help you answer that all-too-often asked question by clients and others: “What should I do if I’m stopped for DUI?”
To begin with, note that there are two basic parts to a DUI; the summary suspension and the criminal charge.
The criminal charge
“DUI” stands for “driving under the influence” of alcohol, drugs, or a combination thereof. 625 ILCS 5/11-501. The penalty for a first time DUI is a Class A criminal misdemeanor punishable by up to 365 days jail and/or a $2,500 fine. There are four basic DUI elements:
o Driving or actual physical control
o of any vehicle
o anywhere in the state
o while under the influence of alcohol and/or drugs.
Let’s look at the first three elements individually.
“Driving or actual physical control.” The phrase “driving or actual physical control” means that a person may get a DUI even is he or she is simply sleeping or sitting in a parked motor vehicle. See, e.g., City of Naperville v Watson, 175 Ill 2d 399, 677 NE2d 955 (1997). Whether a person is in actual physical control is a question of fact. Courts look to such factors as possession, whether the subject has the keys, whether the keys are in ignition, whether the subject is in the driver’s seat, whether he or she owns the vehicle, where the vehicle is located, etc., to determine actual physical control. See, e.g., People v Brown, 175 Ill App 3d 676, 530 NE2d 74 (2d D 1998).
Further, the police need not observe the person in the car to prove that he or she was in “actual physical control.” Circumstantial evidence such as being the only person walking down a lonely street one block from a car in a ditch can be enough to establish actual physical control or recent operation. People v Jones, 198 Ill App 3d 572, 555 NE2d 1143 (3d D 1990).
“Of any vehicle.” In Illinois, a vehicle is defined as “[e]very device, in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices moved by human power, devices used exclusively upon stationary rails or tracks and snowmobiles.” 625 ILCS 5/1-217.
Thus, cars, motorcycles, mopeds, and even electric scooters could be considered vehicles. In fact, even a horse may be considered vehicles. See 625 ILCS 5/11-206.
The fact that a vehicle is inoperable is not a defense unless it has been issued a junk certificate or falls within the definition of a junk vehicle under 625 ILCS 5/1-134.1. People v Cummings, 176 Ill App 3d 293, 530 NE2d 672 (3d D 1988).
“Anywhere in the state.” It is not a defense to the criminal charge of DUI that the car was not on a highway. (“But I was parked in my driveway!”) People v Guynn, 33 Ill App 3d 736, 338 NE2d 239 (3d D 1975).
The summary suspension
In Illinois, drivers may receive up-front (i.e., beginning on the 46th day following arrest) suspension of their driving privileges if they are arrested for a criminal DUI and then score a .08 or greater on a breath/blood test or have illegal drugs in their system, or if they refuse chemical testing. 625 ILCS 5/11-501.1.
Drivers who have not been arrested for DUI in the past five years face a three-month suspension if they fail the test(s) or a six-month suspension if they refuse. 625 ILCS 5/11-500; 625 ILCS 5/6-208.1. Either way, they can apply for a hardship license for work or school effective on the 31st day of the suspension. 625 ILCS 5/6-206.1. For all others, the length of suspension is one year for failing and three years for refusing. 625 ILCS 5/6-208.1. No hardship license is available to them. 625 ILCS 5/6-206.1.
Thus, in most cases, your client is faced with a dilemma at the police station; “Do I take the breath test or do I refuse?”
Right to attorney prior to chemical testing. Most DUI lawyers would recommend that clients not take the test unless they’re absolutely sure to pass. In Illinois, however, a person has no right to consult with an attorney prior to deciding whether or not to submit to a test. People v Gaddi, 145 Ill App 3d 227, 494 NE2d 696 (1st D 1986).
However, if an officer affords the defendant an opportunity to consult with an attorney prior to testing, he or she cannot unreasonably interfere with the exercise of that right. People v Kern, 182 Ill App 3d 414, 538 NE2d 184 (3d D 1989). Further, the mere insistence on consulting with an attorney, standing alone and not as a condition of taking the test, does not constitute a refusal to submit for summary suspension purposes. Id.
A typical DUI arrest
The typical DUI arrest involves four phases: (1) vehicle in motion, (2) personal contact, (3) pre-arrest screening, and (4) post-arrest processing.
Vehicle in motion. At this stage, the officer is asking himself the following question: “Should I stop the vehicle?”
Typically, a vehicle may be stopped for any violation of the rules of the road, such as improper lane usage, speeding, or even an equipment violation. See, e.g., People v Hood, 265 Ill App 3d 232, 638 NE2d 264 (4th D 1994).
A police officer may not, however, stop a vehicle based solely on an anonymous tip about “drunk driving.” See, e.g., People v Moraca, 124 Ill App 3d 561, 464 NE2d 312 (2d D 1984). Further, driving too slowly, weaving within the lane, and unusual (but legal) behavior do not justify stopping a vehicle. City of Highland Park v Lee, 291 Ill App 3d 48, 683 NE2d 962 (2d D 1997); People v Dionesotes, 235 Ill App 3d 967, 603 NE2d 118 (2d D 1992); People v Manders, 317 Ill App 3d 337, 740 NE2d 64 (2d D 2000).
Other forms of contact include arriving at accident scenes or locating a driver sleeping behind the wheel. These two areas are considered community care-taking functions, where no “stop” actually occurs. See People v Murray, 137 Ill 2d 382, 560 NE2d 309 (1990).
Personal contact. After stopping a vehicle, the officer makes observations to determine whether to ask the driver to exit the vehicle. The officer is observing for the odor of alcohol, bloodshot and/or glassy eyes, slurred speech, fumbling with the license, and other indicia of intoxication. The officer will also generally ask whether the driver has been drinking and, if so, how much, when, and where. He or she may also ask a question that requires two unrelated answers, such as “what year is your car and where are you heading this evening?” to see if the driver can think properly.
The last part of the personal contact phase may be to ask the subject to say a part of the alphabet, or to count backwards from 67 to 43, in attempt to gauge mental impairment.
At this point, the driver might be requested to exit the vehicle for further testing.
Pre-arrest screening. Pre-arrest screening consists mainly of field-sobriety tests and portable breath testing. In Illinois, field-sobriety tests and portable breath tests are optional, and a driver faces no penalties for refusing to submit to these tests.
Further, in Illinois there is no requirement that the field-sobriety tests be valid or standardized, with the exception of the horizontal gaze nystagmus (“HGN”) test. See People v Bostelman, 325 Ill App 3d 22, 756 NE2d 953 (2d D 2001); People v Basler, 193 Ill 2d 545, 740 NE2d 1 (2000).
The most common field tests are the “one-leg stand,” “walk and turn,” and HGN tests. These three tests have their source from the National Highway Traffic Safety Administration (NHTSA) development of standardized field-sobriety tests, which were created and validated in the early 1980s.
Modified versions of the “one-leg stand” test in Illinois still generally require a person to stand on one foot with the other raised in the air for at least 30 seconds.
Testimony in court about whether a person has passed or failed this test often varies depending on the police department, or even the particular officer, administering the test. The validity of these tests, when not conducted in accordance with NHTSA standards, has never been established.
The “walk and turn” test also varies among officers and departments. Generally, however, the test requires a person to walk nine steps heel-to-toe in a straight lane, pivot, and walk back nine steps heel-to-toe in a straight line. Unfortunately, whether a person has passed or failed has been left to officer discretion in Illinois, despite the clear dictates of NHTSA that the tests are not valid unless standardized administration and scoring is followed.
The portable breath test employs hand-held devices designed to estimate a person’s blood alcohol concentration. All manufacturers of these devices require a minimum 15-minute deprivation period to validate these test results.
Post-arrest processing. Post-arrest processing of a DUI includes chemical testing of an arrestee and an interview process. Drivers have the right to refuse to be interviewed after being arrested for DUI, and their silence may not be used against them in a court of law.
The chemical testing may include blood, breath, or urine testing for alcohol and drugs. 625 ILCS 5/11-501.2. Out of those three, blood testing is considered the most accurate for alcohol or drugs. Urine is considered the least accurate. Regarding breath testing, the Illinois Supreme Court stated that it is an “empirical fact that breathalyzer tests, while generally valid, are not fool-proof.” People v Orth, 124 Ill 2d 326, 530 NE2d 210 (1988).
A person who submits to chemical testing has the right to obtain an independent test of his or her own choosing by statute. The courts, however, have never spoken about how this right can or should be enforced. 625 ILCS 5/11-501.2(a)(3).
Answering the late-night call
As a general rule, think about the following issues when you receive that late-night call from a client.
Field-sobriety tests in Illinois are optional and may be refused without penalty. Because Illinois does not require these tests to be validated by the scientific or medical community, the risk of erroneous interpretation by an officer far outweighs the benefit of attempting to perform them.
Portable breath tests in Illinois are optional. Because the rules governing portable breath testing no longer require the officer to comply with the manufacturer’s recommended operating procedures, the risk of an erroneous result far exceeds the benefit of taking one.
Chemical testing in Illinois consists of breath, blood, or urine analysis. Because a driver may be penalized for refusing these tests, an attorney may want to avoid advising a client whether to take (or refuse) these tests. Note, however, that it is generally much harder to successfully defend a person who has failed chemical testing.
Statements by an accused about consumption of alcohol and/or drugs rarely help the situation. A client should always be advised to decline an interview and thus avoid possible misinterpretation by the investigating police department.
Clients who have recently been arrested should be advised to take the following steps.
o Videotape their condition after they are released from custody for potential useful evidence at trial.
o Photograph the area where any field tests were taken for weather conditions, uneven areas or other conditions that may have affected the fairness of the tests.
o Videotape the route driven by the motorist.
o Tape record their speech as soon as possible.
o Obtain independent blood tests as soon as possible, if helpful.
o Seek the advice of an experienced DUI attorney as soon as possible.
DUI defense has become an extremely technical area of practice over the past 15 years, incorporating aspects of criminal law, civil law, forfeiture law, and forensic science.
Nevertheless, general practitioners can provide front-line assistance even if they intend to refer the case to an experienced DUI practitioner. This article provides a thumbnail sketch of the DUI process for lawyers who concentrate their practices in other areas.
By Donald J. Ramsell