Ray Flavin's Legal Blog

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

Posted by lawblog at 02:02 PM | Permalink

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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

Posted by lawblog at 01:54 PM | Permalink

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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

Posted by lawblog at 01:22 PM | Permalink

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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

Posted by lawblog at 09:49 PM | Permalink

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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

Posted by lawblog at 09:34 PM | Permalink | Comments (1)

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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

Posted by lawblog at 01:26 PM | Permalink

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