May 07, 2008

How long should a case take??

McHenry County DUI's or DUI's written by local municipalities can vary in how much time it takes to resolve a case.  In a local blog a local politician argued that it took too long if the case took 12 court dates.  Of course, he has no clue.  It seems that every politician on the planet likes to talk about DUI as if they have any clue how the process works. 

The reason that these "politicians" like to do this is because no one ever calls them on it.  The reality is that DUI cases are complex and there are no easy answers to the question of what to do about the "DUI Problem."

Some DUI cases I complete before the first court date (I actually schedule the case earlier so we can get them done quicker).  I have had other cases run for years.  Each case is different.  I know that's not what the politicians want to hear but ... it's the truth.

Ray Flavin

April 29, 2008

Know your rights

A question was asked about what you have to do for the police during a DUI arrest, I will give you a short answer that applies in nearly all situations.

In a McHenry County DUI stop:

1.  You are not required to perform field sobriety tests

2.  You are not required to take the breathalyzer, urine test or blood test (but if you refuse your license will be suspended for a period of time)

3.  You do not have to speak to the police or answer questions

4   You do have to produce a license, if you possess one.

Never lie to the police.  If you are the subject of the investigation, do not talk with the police.  You do not have to answer questions regarding whether you were driving.  You do not have to allow the police to search your vehicle. Do not make any statement that are "off the record" because there is no such thing.

Remember that the police are there to document evidence of the crime.  The are really bad at documenting evidence which does not tend to prove the crime.  Generally, they will only record evidence that tends to incriminate.

Any questions:  just email me at "answers at ray flavin dot com"  (this was spelled out because when I list an email address on a blog it seems to attract spam.

Ray Flavin

 

 

Judges, gotta love 'em

Well the Chief judge for the county next to McHenry was arrested for DUI last night.  During the arrest he was pepper sprayed.  I have to think that he will be looking at DUI law a lot differently from now on.

It's funny, but there's really no substitute for real life experience with the law.  I dream of the day that laws are made by people with great wisdom and experience, rather than from out of work attorneys, business owners and other under-employed individuals driven by the desire to be re-elected.  I long for the day that the legislature will cancel crappy laws and simplify the remaining laws.  I deeply believe that laws should be easily understood by the people. 

Ray Flavin

New Website Look

If you find your way to this blog by a way other than through the webpage, please go take a look at the new webpage set up.  Also, all comments to this page that you would like me to see should be posted to answers at rayflavin dot com

Ray Flavin

April 24, 2008

Mandatory Minimum Sentences and the Economy

There are many traffic crimes that have mandatory minimum sentences.  DUI is one of them.  It is a popular crime for the legislature to rail against, because frankly there is no opposition to harsh DUI sentences.

Then came the Illinois State Recession of 08'

Now we will see how committed the legislature is to breaking the bank by jailing a very large number of non violent offenders.  My prediction is that we will see the implementation of new programs that allow the state to avoid paying for the bad legislation they have enacted.

Ray Flavin

McHenry County DUI Costs

Court costs are too high.  Recently the legislature enacted a law which allowed each city to charge an extra $500 "equipment fee" for the purchase of video equipment (and other equipment).  The idea was that we should make the "DRUNK DRIVERS" pay for new equipment.

Of course all of the state representatives agreed.

In McHenry County the reality is that the police departments like to collect this money but they don't like to buy video machines.  And the reason is: because they don't want me to use the video tape during trial.  It seems they have a hard time getting the police reports to match the video (because video don't lie).

Ray Flavin

March 29, 2008

Juries the last line of defense

In today's super secure, safe, right-free america, there is one institution that is there to protect the individual from the state.  An that institution is the JURY.  When the state makes up rules (to protect us -- "hey thanks, state!" -- the Constitution guarantees that a jury will be the one to apply the law to the facts, with not the state, so ....

When a girl is discovered nude and drunk, sleeping in a sleeping bag, in the back seat of a suburban, legally parked with the keys in the bottom of a sleeping bag ...  and

the state asks you to find her guilty of DUI because the law says she was in "actual physical control" of that vehicle while drunk

As a favor to me, and to show your love for America the Constituion and what is right ...

Just say no!

Tell the state that I would rather encourage people to sleep it off rather than trying to make it home.

Ray Flavin

The Illinois State Police are cheaters "Part Deaux"

So in my last blog I told you that the Illinois State Police are cheaters.  You might want to add liars to that list.

When a person takes a blood test at a hospital they use a kit.  The reason that they use these kits is that when you test the blood for alcohol you shouldn't use an alcohol swab to prepare the skin.  Well, the regulations that the Illinois State Police write say, in effect DON'T USE AN ALCOHOL SWAB.

The Illinois State Police said that there were no alcohol swabs in the kits.  And we all know what happened.  Turns out there was ALCOHOL in the swabs.  First the Illinois State Police denied it then they did what any self respecting, self regulating agency would do ....

THEY CHANGED THE RULES.

So now instead of the rules stating, don't use an alcohol swab, the rules say use proper medical procedure.

Sigh...

Ray Flavin

The Illinois State Police are cheaters

Now  I believe in fair play like the next guy, right! 

Well, the Illinois State Police are the guys who write the regulations on how the breathalyzer machines are run and which machines should be used.  And, that will be the subject of an entirely different article on why that is like having the fox run the chicken house.-

But, as it is, the Illinois State Police decided to rewrite rules (which is OK, they can do that)

They wanted to get rid of the old Intoxilzer 5000's so they took them off of the approved list.  Only problem is that they have some Intoxilizer 5000's still at police stations.  When we moved to strike the tests perfomed on these machines that were not now approved, they said that all of their rules are retroactive.  Interpretation: everything that we do is OK just ask us.

Ray Flavin

 

Welcome to Illinois

For those of you who don't know: My opinion is that Illinois is a state run by a band of retards.  Now I don't say that to be mean. No, I really mean it, and it's true.

Why? you ask.

Well let me count the ways.  How many versions of the DUI laws are on the books right now.  In many states run by adults or the mentally competent that number would almost always be one.  Sometimes in those states the number would be 2, because the law was being revised.

Illinois: SIX

enough said.

Ray Flavin

January 19, 2008

Comments, questions etc.

If you have any comments or questions please feel free to email me at ray@rayflavin.com.  When you do email me, in the subject line CAPITALIZE THE WHOLE THING.  It will make it easier for me to find your comment among the spam.

Ray Flavin

The Difference

What is the difference between an average attorney and a DUI attorney, both doing a DUI case?  Well let's look at "Bob's" case.

Bob saw me for a DUI two months ago.  The prosecutor offered supervision for a DUI, which I rejected.  I argued that the stop was bad because it was likely that the officer could not make the observations which he claimed he made, and the prosecutor offered to reduce the charges to leaving the scene (not a DUI) and threw out the suspension.  An average lawyer would have taken the no conviction supervision offer.

Yesterday Bob got another DUI.

Here's the difference.

If Bob hired the average attorney for the first DUI, he has real problems.  First he can't use supervison on the second DUI because you only can get one supervision.  So if Bob loses his case and gets a conviction his license is revoked.  He can avoid a revocation by getting the charges reduced to reckless driving, but he still has a suspension problem.  Because his last DUI was less than 5 years ago he will be suspended for one year if he takes the breathalyzer and fails.  If he refused to take the breathalyzer his license is suspended for three years.  Remember that drivers who have had a DUI within the past five years can't get judicial driving permits, or restricted driving permits.

Because Bob hired me for the first DUI, he can still get supervision because he didn't use it on his first.  Because there was NO DUI, he can qualify for a judicial driving permit.  Bob will be happy, and his nosey neighbors will wonder how Bob does it?

Remember, every case is different and your results may vary.

Ray Flavin

Long time, no blog?

I have to apologize to the few people who read this blog for not updating.  I am sorry.  I have had two jury trials and I lost both.  While I am as mad as a wet cat about both, I will take a little time here to explain what happened.

In Illinois in a DUI trial an attorney gets to challenge 5 jurors.  That means exclude them from a jury for no reason given.  Remember we can always have jurors removed for good cause.  The problem with this system goes something like this.

You pick your jurors four at a time.  The state questions jurors until they have 4, then you get to question them.  Here are my first three jurors answer to the question "Have you or a friends or family ever had any experience with DUIs?"

Juror #1 Yes, my niece was killed by a drunk driver.

Juror #2 Yes, my wife was injured by a drunk driver and he got away with it.

Juror #3 Yes, my next door neighbors entire family was killed by a drunk driver.

Ok, now you say, that's ok because they should be removed for "good cause."  Well, no.  The judge asks "but can you be fair in this case?"  Of course the jurors answer, "Yes." because who on the planet doesn't think they are "fair"  So the judge tells you because they can be fair, you have to use 3 three of your challenges to remove them.  You have two left.  You use the next two in the next couple of jurors, so now you have no challenges left.

Then the next 4 jurors come up for questioning.  The first juror says, "I believe that you shouldn't drink and drive."  You obviously want him removed, you ask several questions that demonstrate that he is a biased juror.  The judge again asks him if he can be fair, and when he answers yes you get stuck with him.

Now what do you think the result of this trial will be?

 

Ray Flavin

December 18, 2007

Why is my state so stupid?

If you are from a state other than Illinois, you probably haven't asked this question, but if you come from Illinois ... you probably have.

Today's Lesson:  Don't let the state decided who gets to have guns.

Some of you might want the state to keep guns out of the hands of criminals.  Those of you who think that we must believe that the state is capable of making good decisions.  You are wrong.

If a person gets sentenced to conditional discharge (convicted with conditions) in Illinois the State Police will ask the person to turn over their FOID (firearm owner's identification card).  This sounds reasonable until the State Police apply this to people who drive while license suspended, or commit the offense of reckless driving and receive conditional discharge.  Why would someone's bad driving be a reason for the state to take a person's right to bear arms.

Answer:  from the State of Illinois "Because we can."

So the next government that we form, we should be careful to write down what rights the people have that the government can't infringe on .... whoops, we already did that.  Oh well.

Ray Flavin

December 10, 2007

Merry Christmas

Well we are about to start a new year and I can hardly wait to see how the state legislature is going to screw up DUI law in their never ending mission to "be tough on DUI."  I guess the reason that I am so tough on them is that over the 15 short years that I have been representing those charged with DUI, the number of arrests for DUI has risen each year. 

Every year, another "tough" law; every year the number of DUIs in our county rises.  Why doesn't the law have any effect?  Well, its really easy to explain, and for Christmas I will give the state legislature a present and tell them why "tougher" laws don't work.

Why do people get DUIs?  It is because they make a bad decision to drive at the end of the night.  Why do they make these bad decisions?  Because "Alcohol impairs judgment."  No matter how tough you make the law, the person reacting to the law change (by definition) will have decreased ability to make good judgments to comply with the silly "tougher" law.  I like to explain it like this to my kids.  No matter how many times I yell at the dog to play the piano, or how loud; the dog just ain't gonna play the piano.

If you want to solve the DUI problem you will have to find a way to make that bad decision to drive harder to accomplish if a person has had too much to drink before he drives.

Merry Christmas everyone, drive safe

Ray Flavin

November 03, 2007

Loopholes and mashed potatoes

Many times people are upset that drivers have avoided their DUI charges due to loopholes.  In this blog I am not going to examine loopholes, but I am going to blog about a couple of "loopholes" that have been closed by the State of Illinois.

The State of Illinois has decided that if you refuse to take the breathalyzer when asked your license will be suspended.  However, if you win your DUI case after being suspended, YOU ARE STILL SUSPENDED.

Do you see how the State is getting tougher on DUIs here by "getting tough" on drivers who weren't DUI?

The legal limit has dropped to 0.08.  When the State "gets tougher" on DUI.  Will they move it to 0.05? 

There has been about 30 years of aggressive legislative action against DUI, and yet the number of DUIs in Illinois has NEVER went down.  Is there some stone that they have left unturned?

Each time the Illinois legislature attempts to close a loophole, they create defenses and other ways to deal with the charges.  The problem is like mashed potatoes.  The more you try to squeeze it in your hand the more it escapes between your fingers.  I don't know what the solution to the "problem" is, but I know that I am going to keep helping people avoid the state's misguided attempts to solve it.

Ray Flavin

Blog, I'll give you a blog

A friend of mine commented that I had not posted in some time, and he missed my sarcasm.  Anyway, I tried a case to jury two weeks ago, and I lost.  (I know, I am the only attorney in the world that has ever admitted to losing a case).  The jury was out for about 3 hours, when they came back guilty.

Part of me wanted to say, "If there is a reasonable explanation for the behavior, outside of being under the influence of alcohol, then there's a reasonable doubt."  I had said as much in my closing argument.  The other part of me wanted to jump over the short wall and start battering jurors.  What idiots!

The officer had testified that he did not know why field sobriety tests demonstrated intoxication, he only knew that they did, if you failed them.  He didn't know why failing them meant intoxication.  My client did not take the breathalyzer.

Also picking a jury had been difficult.  In the first 8 or so jurors, one had a daughter killed by DUI, one had a niece killed by DUI, one had a friend who had lost his whole family to DUI, and another's wife had been injured by a DUI Chicago Alderman that according to the juror "had gotten away with it'"  Of course, I had all of those jurors excluded, however the entire juror pool had heard the potential jurors tell their stories.

In short, DUI cases can be tough.  The State of Illinois is always trying to close "loopholes" and juries have more and more bad experiences with DUI drivers.  But they are cases that can be managed to successful results too.  And people can recover from DUI charges.

So, I apologize for not blogging as much.  I have just had a lot on my mind.

Ray Flavin

 

Can trust be a part of DUI defense?

You get a DUI.  You hire a lawyer.  He tells you one thing when you meet.  He changes it the next time.   You don't trust the lawyer.

Is trust a part of DUI defense?

Probably.  If your case is particularly routine and the lawyer is affordable, perhaps you don't need that much trust.  However, if you have a difficult case and it is going to be a challenge and tough decisions are going to be made, well ... then trust is going to be important.

I had a former client, who received a second DUI in Cook Co.  I don't work in Cook Co., so he hired another attorney.  At some point the Cook Co. attorney waffled, and my former client wanted a referral to a Cook Co. attorney. 

Now this is a difficult issue for me for a number of reasons.  First, I don't practice in Cook Co. so I don't know who does the work and who doesn't.  Second, I don't want to refer when I don't have that information.  So, I did a little internet research  ... 

First, I want to say how hilarious some of the sites are.  For example, "I have been rated in the top 4 DUI attorneys by a big newpaper."  In the 15 years that I have been doing this it is obvious to me that the newspapers know about as much about something as you can gain from a telephone call to some one you think knows a subject, made by someone who has a preconceived idea about what the answer should be.  Let's just say they get it wrong a fair number of times.  So an endorsement by a newspaper, really isn't the gold standard.

Really, it is difficult to pick a good attorney.  That's really the truth.  Some of them have drinking problems, some of them have money problems, and others just don't do the work well.  There are others who really push the envelope.  It all comes down to how important the case is to you.

Ray Flavin

 

 

August 28, 2007

New news

Apparently in the newspaper they picked up the news that JDPs (or judicial driving permits) have been cancelled.  If you read this blog you knew that back on June 22nd.

So much for the news being current

Ray Flavin

July 02, 2007

www.rayflavin.com

Although most of you found this blog through my website, there are others who just discovered it.  If you have a topic that you would like me to comment on please email me at ray@rayflavin.com

Ray Flavin

June 27, 2007

CDL's and DUI's

A few recent clients have had CDL's and have been arrested for DUI.  There has been some discussion about what are the effects, and some CDL holders are not up to date.  For clarity sake there are two rules to know:

First, if you refuse a breathalyzer, you are DQ'd (disqualified) for 12 months.

Second, if you enter a plea of guilty, even if you get SUPERVISION, you are DQ'd for 12 months.

The disqualifications are not separate, that is they don't add to one another.

When dealing with the CDL holder is is very important to negotiate the charge to something other than DUI.

Ray Flavin

June 22, 2007

JDP will now be MDDP

Although I seriously doubt this blog's effect on McHenry County DUI statistics or even Illinois DUI law. awhile ago I wrote that Illinois should change the way they allow drivers to drive during their suspensions. Unbelievably, the "rocket scientists" in our legislature decided to change the law.  Perhaps they read my blog.   It appears that beginning 2009 drivers will receive a MDDP (a new kind of driving permit) automatically.  An idea to which I can only reply, Duh! (or its about time)

However, as always with our pre-paid legislature (a lot like a pre-paid phone card, but it screws up more), there is an interesting twist.  ALL DRIVERS WILL HAVE TO HAVE A BREATHALYZER INSTALLED IN THEIR CARS IN ORDER TO DRIVE DURING THEIR SUSPENSIONS.

Why is this interesting?  Well, in the last session of the legislature they passed a law that all houses must have a Carbon Monoxide Detector (making the detector makers giddy).  One question, how much did the breathalyzer makers pay to get this law passed?

Ray Flavin

May 31, 2007

How valuable is it to be tough?

The McHenry County State's Attorney has taken a "tough" stance on rescission of statutory summary suspension.  Also, they are tough when it comes to reduction of charge as a bargaining tool for DUIs.

Well, yesterday that toughness resulted in ALL of the charges being dismissed for my client.  He was charged with possession of cannabis, open alcohol, failure to reduce speed (accident) and DUI (his third).  I subpoenaed the officer to be at court.  I tried to work the case out with the state and of course they refused to deal.  He didn't show.  Result = All charges are dismissed.

Is that being tough on DUI?

Ray Flavin

April 25, 2007

Oh, Canada...

There's some news from Canada.  Apparently EVERY DUI conviction in Canada is a felony: Add to that. a rule that felons can't cross the border into Canada, and you have another unintended result of Illinois DUI supervision .... and that is.

Canada bars those who receive a DUI in Illinois from going to Canada.

The only problem is that DUI supervisions (are supposed to be a method to) AVOID conviction in Illinois, so that the Canadian rule shouldn't apply.  (Of course you could argue that DUI's shouldn't affect a person's border privileges in any case, but that is a different article).

At the end of supervision for DUI in McHenry County, our courts do not issue an order that discharges the case, as a result, anyone who is crossing the border and admits to a DUI will be turned back.  We can petition the court for an order that dismisses the case and Canada has respected that in the past.

It's unfortunate that laws are not more straightforward.

Ray Flavin

 

March 14, 2007

Houston we have a problem

We may have passed the point of no return.  Court costs are now more than the fine amount for a McHenry County DUI.  You see in McHenry County we charge costs EXCLUSIVE of fines, in Kane County for example there is only one fine amount, from which costs are deducted.

In short:   Fine $1000, plus court costs of $1,210 = total costs of $2,210

That's right you get more punishment from the costs than you do from the fine.  Nice system, very nice.

Ray Flavin

March 08, 2007

A lot of clients ask me, WHY MCHENRY CO. ONLY

From time to time clients will ask me why I practice in McHenry County exclusively.  Other times people will attempt to hire me for other county DUIs, and become upset that I don't go.

The reason that I don't travel to Other counties, is first:  In order to represent someone for DUI you have to be able to estimate with accuracy what will happen to a case, so that you can inform the client what the likely outcome of a case will be.  This takes knowing the judge, knowing which courtroom and knowing which prosecutor will be handling the case.  Without this knowlege how would you inform your client on the case?

Secondly:  I primarily work on DUI cases in McHenry County.  This work is full time all by itself, as a result if I were to take more cases from different counties it would dilute my effectiveness.

Lastly:  I want to know how this case looks from a jury point of view.  What the local quirks in the system are, and I want to know where the weak spots are.   In another county I would have no idea.  Is this a case where a threat of a jury trial would be effective in resolving the case, or do I have to take it to trial?

It's so important to know where your at in a case.

Ray Flavin

 

March 05, 2007

Law Change ALERT

As many of you know, DUI law changes way too much.  The Illinois Legislature has changed DUI law every six months for the past decade.  They can't seem to keep their hands off of it.

There is a proposal before the legislature which will require all those who receive a Judicial Driving Permit to have a device in their car which requires them to blow to start their car. 

Now this is another stupid idea for a variety of reasons:

1.  For those suspended three months the JDP is only 60 days long (that's a big hassle to have a driver get one of these devices installed for this short of a period).

2.  Most of my clients avoid a JDP by having the suspension thrown out (so they avoid that hassle all together).

3.  There are better ways to control driving (see my JDP idea below)

The bottom line is that state legislators will get no argument from anyone (except me) when unnecessarily tinkering with the law.  In fact, they can tell the voters that they got "tough on DUI" for the ten millionth time (when all they did was fowl the law up and make it easier to beat, again).

Ray Flavin

February 21, 2007

Pretty Technical, eh

After confusing some with my other post on 0.08, I thought I would do one better.

If you blow between 0.0 and 0.05 you are presumed innocent. (Aren't you presumed innocent anyway?)

If you blow between 0.6 and 0.079 there is no presumption. (But aren't you presumed innocent, at a trial under our Constitution?)

If you blow above 0.08 and above, you are presumed to be under the influence of alcohol. (Another nagging question, shouldn't the state have to prove you were under the influence, as that should be an element of the crime of DUI?)

I hope that clears up some of the issues.  Although I am sure it does not.

Ray Flavin

The "Speed" Limit

I was driving to the airport the other day and I saw the Secretary of State sign that appears to mimic a speed limit sign and reads:

0.08 "It's the limit"

Ok, folks ... this is WRONG.  It implies that if you drive under 0.08 you would be fine.  This is NOT the law, it has NEVER been the law.  You may be arrested for DUI if your blood alcohol is 0.06.  The 0.08 is not a limit.  It is just the blood alcohol level at which you will be presumed to be under the influence.

It would be a lot easier if the Secretary of State didn't have a graphic design artist attempt to explain in pictures and words the law.

Ray Flavin

The inconvenient truth

I just picked up the most recent Secretary of State publication regarding DUI.  Once again they were not entirely truthful.  You be the judge.

 The manual says when a person gets a DUI their license gets revoked.

The truth is when a person is convicted their license is revoked.  So, if a person gets a DUI and they get supervision, no conviction = no revocation.  If a person gets another DUI, and the charges are reduced, no conviction = no revocation.

So are they telling the truth or trying to scare you?

Ray Flavin

February 13, 2007

A new idea for JDPs

The Illinois Legislature didn't ask me to fix their laws, but there's one I could fix in about a millisecond given the chance.

Illinois gives Judical Driving Permits to people who have not had DUIs within five years.  With a JDP a driver may drive back and forth to work, back and forth to DUI counseling and for medical reasons.  In order to get a JDP the driver must petition the court, get a letter from their employer and an Alcohol Evaluation.  JDPs don't work for the first 30 days of the suspension.

If you read the law you will notice.  You can't get groceries with your JDP, you can't get gas for your car, can't go to court, can't go to church.  You must drive at the exact times of your JDP, and in the exact routes specified.  If you are driving outside of the scope of your JDP you may be arrested for driving while license suspended.  In some cases an officer must determine whether you are driving within the parameters of the JDP.  That's asking a lot of a police officer.  JDPs only last a matter of months.

Here's my fix:

Why don't we not suspend DUI offenders driving privileges during the day time hours?  Shockingly simple, eh? Instead of this suspension or that suspension, we just say that a driver can't drive between the hours of 10 p.m. and 4 a.m. (Coincidentally the hours between which 95% of the DUIs occur).

No one would have to get a judicial driving permit, except for night time hours.  We could reserve the right to revoke after considering the case after its disposition. (afterwhich we could assess whether the driver has sucessfully completed counseling, violated the law in the meantime, etc.)

I know, it's like the guys on the Guiness Beer Commercial say, "BRILLIANT"

Ray Flavin

Gossip

My wife reads The Globe and the Star and other tabloid journalism.  She claims that their stories are accurate and its the best place to get the news early.

I have heard some gossip that I predicted would happen sooner or later.  I have written extensively with respect to McHenry County DUI prosecutions.  I have always maintained that the villages just don't understand the law and if they did there would be changes.

When a driver gets their first DUI they are suspended.  They may get permission to drive during this suspension, with a Judicial Driving Permit, but not for the first 30 days.  Many villages will allow drivers to avoid their suspensions entirely for an additional fine (usually about 500 dollars).

Well, here's what happened.  Cary and Algonquin and Huntley have always taken a stance of no tossing the suspension for a higher fine.  Kind of a churchy preachy blah blah blah stance "sinners must pay b.s."  The secret was that all of the other villages were getting 500 a pop more than the dumb villages. 

I'm being a little hard, I should explain why they are dumb.  The only difference between two is 30 days of driving.  Its not like the driver is never going to drive again, they are.  Its not like half of them don't drive anyway during the suspension, they do.  So some villages are getting rich, while the others have to raise money with village stickers, etc.

Well, Cary used to have a prosecutor that collected the extra fine for them, but now they have instructed the new prosecutor not to toss suspension for increased fines.  Of course, we all know what happened next.  The village is wondering, "Where did all the DUI money go?"  I think they just figured it out.

I have a fix for this problem, I'll write it up later.

Ray Flavin

 

February 08, 2007

McHenry County DUIs

If drivers understood the variance of results in McHenry DUI arrests, they would be upset.  There are generally two schools of thought in McHenry County.  The first is the "no rescissions" stance.  This stance is held for DUI written by the Sheriff, Illinois State Police, Algonquin and Huntley.  This belief comes from the "people should pay for their crimes" school of thought.  The idea being that all drivers arrested for DUI should serve some form of suspension.

All too frequently, a driver will challenge this stance and not be punished at all (and receive no counseling, fines, jail or anything) by proceeding to trial and winning.  Generally first offenders would rather receive no conviction for a promise to pay fines and attend school, but this stance encourages drivers to challenge their stops.

The second is the "rescind for higher fines".  This stance has the advantage that all of the drivers will receive some counseling, however the entity may get in trouble if a driver later is involved in a fatal car accident while he would have been suspended.  The part of the analysis that they don't want you to know is that many drivers will "drive anyway" and the suspension period that we are talking about is relatively short, 30 days long.

Drivers subjected to these two schools of thought in one county will feel they have been treated unfairly.  "Why did the other guy not lose his license?" they will ask.

The answer is that different prosecutors see this offense in different ways, and that can lead to different results .... even in the same county.

Ray Flavin

January 24, 2007

DUI Evaluations

1 Each driver charged with DUI will be required to obtain a DUI evaluation.  After an evaluation drivers are classified into four groups.  Following long established Illinois tradition these groups are separated into Level One, Level Two and Level Three.  Yes, you read right: four groups placed into three levels. BRILLIANT.  The reason:  there is none.

Level one is for all drivers who have never had a DUI before and blow under .14.  These folk will be asked to do 10 hours of remedial driving education

Level two is split.  The "moderate" level is for those who blow from .14 to .19 or refuse.  The significant level is for all drivers that have had a DUI in the past or show signs of abuse of alcohol.  Moderate level drivers will do 10 hours of remedial driving education and 10 hours of group counseling.  Significant will do the same, except for an extra 10 hours of group counseling, and will have to have some follow-uo (aftercare).

Level three is for drivers who have had multiple DUI's or show signs of abuse of alcohol.  These drivers will be ordered to complete 75 hours counseling.

McHenry County DUI defendants can expect to pay about $75 for an evaluation.  In Cook county you will pay over $185.  Why, because in Cook County you have to pay for the political fix.

Ray Flavin

December 31, 2006

Happy Holidays!

I have just returned from my vacation in the caribbean, and I hope that you have enjoyed your holiday season.  A couple of DUI tips for the holidays.

Your body can eliminate one ounce of alcohol in an hour.  I have been told that a person can drink one shot or beer or wine per hour and still be under the legal limit.

You are not required to do ANY field sobriety tests for the police.  You can't be required to talk to the police.  You are required to identify yourself with your driver's license.

Of course all of the rules that apply to breathalyzers still apply.  If you have had a DUI in the past, your should make plans to have others drive to avoid any possibility of police error.

Drive smart, stay safe and Happy New Year.

Ray Flavin

 

December 18, 2006

After a lot of work ...

The Law Office website is up and running.  Although it is not exacty what I would like it to look like, it does function correctly.  Take a look and email me with any comments.

Ray Flavin

December 11, 2006

Refusal of Breathalyzer

There are a lot of opinions on whether you should take the breathalyzer or not.  Most of the opinions are wrong.  Its time to clear up at least one aspect of DUI law.

If you had a DUI, and completed the case less than five years ago, and you decide not to take the breathalyzer; you will be suspended for THREE YEARS.  You will not be able to get a work permit (JDP).

Why Illinois hasn't made this clear to drivers is beyond me.  Forget what your friend told you, I'm telling you now, that's the rule.  Illinois changed that rule because everyone would say, "Don't take the breathalyzer."  For that specific situation, now you know the rule.

If you are suspended for three years you may still have a hearing to challenge the suspension.

Ray Flavin

1

December 07, 2006

Executive Service

I have represented doctors, lawyers, and CEOs.  Often in those cases, time is of the esence.  They would like to have the charges resolved quickly and the supension rescinded quickly (where available).   They would like this all to occur in one court date, with the paperwork being sent by FedEx.  They would like to arrange not to have to return to court.  I wonder how many driver's would be interested in this "expedited service?"  Feel free to comment whether you would use such a service.

Ray Flavin

December 04, 2006

It't time to take the "tax" out of traffic tickets

For those of you that don't know already:  COURT COSTS ARE TOO HIGH.  For example did you know that the court costs on a Marengo DUI are about $1,350.  That is before fines.  A simple traffic ticket for a seat belt violation could have a fine as little as $10, yet the court costs will bring the total charge to over $130. 

It's time to put a stop to these hidden fees. I would suggest that you write your state legislator, however you can blame this whole mess on the Illinois Supreme Court.  They actually write the rules that govern court costs.  There should be a rule that costs can't exceed the amount of fines, period.

Ray Flavin

November 27, 2006

Rules you should know

A driver's license can be suspended for many things,  Here are a few that you should memorize.  Read them closely, because they can be tricky.  For example: how many tickets does a person usually get in one year before suspended (answer at the end) 

You can only get two supervisions for ANY type of moving violation per year.

Three or more moving convictions in a year, suspends your license.

Two or more in 24 months if your under 21.

Your first DUI conviction revokes your license -- Good news for those charged with DUI: drivers are rarely convicted on their first DUIs

Two open alcohol convictions in a year suspends your license.

One conviction for leaving the scene of an accident suspends your license.

Your license can be suspended for multiple violations of: Toll Booths, Parking Tickets, Failure to pay child support, Possession of alcohol by an minor, zero tolerance for minors (in all there are 36 ways to get your license suspended)

Ray Flavin

Answer: 5  ... two supervisions, then three convictions, then suspension (if you got that you're good)

1

Good News, Bad News?

Well it appears that the federal government is going to rain on Illinois' party.  For years Illinois has had an alternative sentence (or disposition) for those charged with DUI.  Only one other state has a similar system.  The system works like this:  a person charged with a first DUI can avoid a conviction, by paying a fine, completing school and attending a VIP (Victim Impact Panel) if the judge and the prosecutor can agree.

It was a great system, it allowed many people to avoid DUI conviction which generally followed them for life.

Problem: The federal government, the same folks that brought you standardized CDLs (commercial drivers licenses) have a tracking system for drivers that they would like to implement to track us all better.  Seems listening to our phone calls just wasn't satisfying enough.  This tracking system works well when every state reports uniformly.  It doesn't work well when you have stand out states who won't report uniformly. 

Solution, demand those states change their laws to fit the federal model.  I don't have a clear read on how long this change will take to happen, but you can tell your friends you heard it first here.

Ray Flavin

1

November 23, 2006

"Driving" Under the Influence in Illinois

It should be no surprise that the courts and the legislature like to "fix" the law so that catches the "bad guys" fairly or not.  DUI law is a prime example of this.

If you didn't know the law you would assume that to get charged with a DUI you would have to be driving.  Well, not so (in Illinois).  There have been a couple of cases decided by our very imaginative judges that demonstrate how far they are willing to stretch the language in order to make a DUI stick.

Case #1:  A girl, naked, sleeping in a sleeping bag in the back seat of her car with the keys stuffed in the bottom of the sleeping bag.  Police find her, wake her up, she fails both field sobriety tests and the breathalyzer.  Ok what is your ruling, was she driving under the influence?

Case #2:  A man pushing a car, with the drivers door open, keys in the ignition (to unlock the steering wheel), motor off.  Police stop to ask him why he's pushing the car and he replies, "So that I'm not driving under the influence."  He fails the field sobriety tests and the breathalyzer.  Ok, what is your ruling, was he driving under the influence?

The law says that to be DUI, a person must be in actual physical control of a vehicle.  The courts have interpreted that to apply in both cases.  No surprise here, the state is going to do whatever it can to make every DUI stick, whether that is the right thing to do or not.

Ray Flavin

1

Statutory Summary Suspensions-Private Property

Many drivers do not know that you can get a DUI driving a lawn tractor on your own property while intoxicated.  This is because Illinois law says that operating a "motor vehicle" anywhere in the state can result in a DUI.  The definition of motor vehicle covers the lawn mower, golf cart, etc.  And, if your lawn is in Illinois the law applies.

The interesting thing is that statutory suspension law doesn't apply anywhere but "highways." So you can't have your driver's license suspended for mowing your lawn under the influence or MUI,  (I couldn't help myself on that one.)

The law has been expanded by the courts interpretation of highway. Now highway means any parking lot, access road, or publically maintained road.  The courts have cut one exception into this definition of highway, and that exception works like this: You can't be suspended if there is no evidence that you ever drove on the highway, for example, crashed the car in the ditch on the way OUT of the bar parking lot.  I know that its confusing but with our legislators and judges we're damn lucky its in complete sentences.

Short test:  So if your DUI and driving INTO a bar parking lot can you be suspended.   Answer, Yes.

Ray Flavin

November 22, 2006

Taking the breathalyzer

There is a section on taking the breathalyzer in the "book" that is behind the password.  Don't miss it.

Ray Flavin

1

November 17, 2006

To pay the reinstatement fee, or not to pay the reinstatement fee, that is the question

About 12 days after your arrest you will receive a confirmation from the Secretary of State that defines your suspension period, and asks you to send from $250 - $500 in a blue envelope enclosed in the letter.

Generally speaking you should talk to your attorney before you pay the fee.  First, if the municipality who arrested you agrees to throw out the suspension YOU DONT HAVE TO PAY THE REINSTATEMENT FEE.  If you do have to pay the reinstatement fee it will be $250 if this is your first DUI, and $500 if it is your second or more (including DUI supervisions).  For you second offenders there are some exceptions so make sure and check with me before paying.

When should you pay the reinstatement fee.  Well the Secretary of State's office is among the slowest in the nation.  Which means that if you are paying by check you should give them 45 days (before the end of your suspension).  You can pay by VISA by calling them at 217 782 3619, inexplicably it will take them another 3-5 days to process the VISA charge. (I told you they were slow)

As in all of these situations, it is better to ask before you pay, because getting a refund from the Secretary of State can be a slow affair, no surprise there.

Ray Flavin

November 16, 2006

I hate to go on and on but seriously,

I am always talking with people about DUIs.  No not my clients.  Other people hear I'm an attorney, specifically a DUI attorney, and the stories start.

There is one thing that I have heard about a dozen times and it's starting to make me crazy.  I ask the person how much they paid for their DUI (first timers).  And without exception they will say, "Oh, $2,500," or more.  Okay, folks, that's CRAZY.  Hiring out-of town (area code 847, 312, etc.) attorneys for a local DUI is NUTS.

My fees are a little more than half that, and you will be thrilled with the customer service, personal attention and the depth of my knowledge of DUI. 

So much for the shameless plug.

Ray Flavin

A lot of Attorneys Letters

When a person gets charged with DUI, he will get from 9 to 15 letters from attorneys soliciting business.  When the real estate market goes bad, the person might get 25 letters.  It all depends on how much business that the real estate attorneys lost to the economic downturn.  If you look at these attorneys closely you'll be able to spot them a mile away.

Look at their yellow page ads.  They list Real Estate, Wills, Traffic, DUI, Personal Injury, Etc.  There's always a long laundry list of what they do.  DUI law keeps changing.  It's one of the favorite areas for the legislature to attack (We've all heard from our state reps trying to get your vote, how tough they're gonna be on DUIs).  It's hard to keep up with the changes. Do you think these Real Estate/DUI attorneys keep up?  No, I didn't think you did.

I guess it's one of those, "would you go to the Dentist for a problem with your foot?" things.

In the yellow pages, you'll find me under DUI, and only DUI .... it's what I do.

Ray Flavin

November 14, 2006

Why it's important to act fast

Currently I am having a fight with the Secretary of States office over how long it takes for them to take action on suspensions after the court orders the suspension thrown out.  They claim it only takes a short time which is a lie.

Generally, the Secretary of State has taken 5 days to three weeks to act.  We can speed that up by using Fed-Ex to get the certified court orders to our courier in Springfield who will walk the orders into the appropriate office at the Secretary of States office.  But, should we have to do that?

The reason it is so important to act fast in DUI cases is that the suspension will start 46 days after the DUI stop (in most cases).  The police officer will set the court date on about that date (15 to 60 days, generally).  This means that when you get to court the suspension may have already started, or will start shortly.  What we need to do is reset the date earlier, so that if we can convince the court to throw out the suspension, the Secretary of State will act before the suspension is scheduled to start, so that you are never suspended.

Ray Flavin

November 13, 2006

DUI Letters - I KNOW THE PLAYERS

I have been sending out DUI letters for about 12 years.  When I started, there were a whole different set of lawyers sending out letters.  I remember one lawyer that sent out letters that said you should hire him because he was a former PD "Public Defender."  In his letter he said, "I've had a lot of experience, and I KNOW THE PLAYERS."

From time to time my clients will bring me all of the letters that they get, and I saw his letter.  A few days later in court, he comes up to me and asks, "Do you know who the prosecutor for Lake in the Hills is?"

Priceless.

Ray

The Super Secret Secretary of State Phone Number

I have several friends who work for the Secretary of State.  There is an automated number you can call to find out whether your license is suspended or not.  I told them about the number, and none of them knew it existed.  Priceless.

Just for you guys, it's:  217 782 6212

Ray Flavin

Revocation vs. Suspension

Another confusing topic, well no more .... read on.

A lot of drivers don't know the difference between revocation and suspension.  When you think of revocation, I want you to think of Pete Rose.  Pete Rose is revoked from baseball, in order to get back in he will need to beg.  If he doesn't beg he won't get back in.

A revocation of a drivers license occurs when a drivers receives a conviction for DUI.  The first conviction will revoke a drivers license.

When you think of suspension, I want you to think of Daryl Strawberry.  Daryl Strawberry is suspended from baseball, he just has to wait until the suspension is over and he can get back in.  He doesn't need to do anything just wait.

A suspension of a drivers license occurs when a driver refuses or fails a blood alcohol test (breathalyzer, blood, or urine).  The suspension lasts for a certain period of time (it starts on a certain date and ends on a certain date), after that if the driver has paid his reinstatement fee, his license will automatically be reinstated.  Generally, first offenders (DUI) are suspended not revoked.

There is one exception.  An Illinois driver who receives a Wisconsin DUI.  Although most all Illinois first DUIs receive supervision, Wisconsin has no supervision.  So Illinois will count the Wisconsin DUI as a conviction...... AND REVOKE the drivers license.  It just doesn't seem fair.

Ray

1

Supervision

A lot of drivers are confused about what supervision is, so I'm going take a minute to get you up to speed.  Supervision is an alternative disposition.  Before supervision, you could be convicted or found not guilty of a crime.  A record of convictions (or rap sheet) was kept on every person who received a conviction for a crime.

Illinois has a policy of revoking the driving privileges of anyone who was convicted of DUI.

What happens with supervision is this:  the conviction is withheld, and the driver is given a chance to complete alcohol counseling, attend a victim impact panel (one hour session), pay fines and not violate the law for a year while on supervision.  If he successfully completes supervision the charges are dropped.

In Illinois you can only get one supervision for DUI in a lifetime.

Because you can only get supervision once in a lifetime, Illinois needs to keep track of who has used up their once in a lifetime supervision.  They do this by keeping a DRIVERS ABSTRACT FOR COURT PURPOSES.  This record keeps track of all supervisions.  Only drivers, their attorneys,and the prosecuting attorney can get copies of this special record.  Insurance companys do not get to access this record

Also, at the beginning of this year the legislature changed the law, so that a driver may only get 2 supervisions per year on any traffic violation.

Hope that helps,

Ray Flavin