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

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

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

Ray Flavin

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

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

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

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

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

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

Ray Flavin

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

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

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

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