The Legislature and Jessie White, our Secretary of State, have decided in a series of legislative maneuvers that Judge's should not be given discretion in sentencing certain moving violations.
To date, they have removed the possibility for Court Supervision from speeding 40+, speeding 31-39, and moving violations involving a fatality.
Unfortunately, these moves are a step in the wrong direction. Judges need and should have discretion to fashion a punishment that is appropriate to the crime. When the legislature removes discretion they create a "one size fits all" approach that rarely works. We saw how this failed on the Federal level with sentencing guidelines.
For example: A doctor who is an OB/GYN is called to deliver a baby in the middle of the night. The expressway is devoid of cars and the Doctor is traveling 86 in a 55. The Doctor has zero previous infractions of any kind. Does it make sense to convict this Doctor of a Class B Misdemeanor and subject her to 6 months of jail? Of course it does not. Historically, a Judge would find someone guilty of this and give them Supervision so that insurance rates would not be effected and the Doctor could avoid saying that "she was convicted of a misdemeanor." Furthermore, the Judge then could monitor the offender for a period of time up to 2 years to be sure the offense did not re-occur.
I understand and promote the importance of the law. I also understand that families who have suffered a loss because of a speeder or a drunk driver or any other traffic violation suffer greatly. It would be nice to do something for them. However, the Legislature must respect the seperation of powers and must respect the need to have a Judge exercise discretion. The temptation to grand stand by the Legislature and appear to be doing something is not productive. Let the Judge's judge...that is their job-- that is what they are elected to do.
Last Friday, firm founder and principal, Charles Beach shared his vast DUI knowledge with the Cook County Public Defender's Office. Mr. Beach spoke at the Public Defender Nutshell program where approximately 100 people came to watch Mr. Beach's lecture and presentation.
Charlie lectured on breath analysis and what the prosecutor must establish to introduce breath test results into evidence. Mr. Beach also did a demonstration using an actual breath machine licensed by the State of Illinois and used by the Chicago Police Department.
Charlie was able to demonstrate, with the help of an audience volunteer, Julie Koehler, how a positive alcohol result can be created when white bread is consumed just seconds before a breath test. False positives were produced using Bianca breath spray, Dr. Tichenor's mouth wash and by dipping a breath mouthpiece into a can of beer prior to the breath test.
Charlie will next be teaching a class this Friday the 14th of September for the Illinois Association of Criminal Defesne Lawyers (IACDL). The class will be at Northern Illinois University.
The Fourth of July is a yearly reminder that our country was founded based upon the concepts of liberty, justice and the pursuit of happiness. Most of us pursue happiness on the Fourth by hanging out with friends and family and sometimes having a drink or two. Charles S. Beach and Associates does not advocate drinking driving, but we do recognize that sometimes the pursuit of happiness and liberty collide head on when people drink and drive. This collision tends to happen more often around the Fourth because law enforcement is on high alert. DUI arrests around the major holidays always surge and that is where the third piece of this puzzle comes into play....Justice.
A DUI arrest is not the end of the world, however, Justice is more likely to be served properly if all sides of the Justice equation do their job. In other words, the Prosecutor needs to prosecute and the Defense Attorney has to defend and finally the Judge has to Judge. I point this out because to often in our society Justice is not served because one part of the equation fails to do their job. Often, that failure is the Defense Attorney who fails to properly defend.
I touch on this because we believe in our founding fathers principles... the pursuit of happiness and Justice. Charles S. Beach and Associates always strives to live up our end of the bargain...defending our clients to the best of our abilities... no matter what time of year it is. Enjoy the Fourth!
This past Wednesday, the founder of Charles S. Beach took time out of his day to speak to a group of 140 young and aspiring DUI defense attorneys. The seminar was hosted by the Chicago Bar Association and Charles Beach was the featured speaker.
During the seminar Mr. Beach discussed topics like Statutory Summary Suspensions, Vehicle Impoundments and basic DUI laws. The group was very interactive and asked some great questions.
Mr. Beach is next scheduled to speak on September 7 for the Cook County Public Defender's Office where he will teach a course entitled: "Defending the DUI"
Mr. Beach speaks as many as 5 times a year on various DUI topics and is considered an authority on DUI law, particularly in Cook County.
"Restaurant worker calls police on alleged drunk driver
The following was taken from Arlington Heights police records April 13.
DUI
- A 26-year-old man of the 1200 block of Inverrary Lane, Palatine was arrested at 10:13 p.m., April 10, in a parking lot at 69 W. Rand Road and charged with DUI, aggravated DUI for not having a valid driver’s license and aggravated DUI for not having a valid insurance. An employee at Smash Burger called police when the man walked into the restaurant and appeared intoxicated before leaving and getting into his vehicle. His court date is May 29." TribLocal
Whether or not a stop is justified based on a "tip" of drunk driving depends mainly on the type of person who makes the call to authorities.
Where a citizen complaint is made face to face with the police or by the use of the 911 system, they are given enhanced reliability because that person is taking a risk by reporting such activities, which if false, would subject that complainant to possible arrest for disorderly conduct.
While reasonable grounds to stop an individual may be based on an anonymous informant's tip, there must be some indicia of reliability to justify the stop. Case law provides that certain factors may aid the courts in determining reliability, such as, independent corroboration by the police of the information provided by the caller and evidence that the information provided was specific enough to show that the caller had access to reliable information.
Informant's tips of drunk driving require less corroboration than tips related to matters presenting less imminent danger to the public.
The appellate court has held that information provided by a 911 caller justified a stop of a vehicle where the caller was not anonymous (e.g. smashburger employee above) and gave sufficient details about the suspect vehicle, including make, model, color and license plate; the 911 dispatcher reported the number of occupants in the vehicle; the time between the call and the stop was short; and the 911 operator informed the officers that the caller reported that the defendant had just left the caller's workplace and was extremely intoxicated.
Let's hope our Smashburger fan didn't take any of the tests that were offered him once he was pulled over!
MV v. State of Illinois
MV was arrested for driving under the influence on February 3, 2012. On February 21, 2012 our office filed a Petition to Rescind the Statutory Summary Suspension. On the first court date of March 19, 2012 we answered ready for a hearing on the petition. A review of the notice of summary suspension within the court file along with a review of the Warnings to Motorist showed that the officer indicated that the offender refused the breathe test over an hour before he was allegedly read the warnings. Based on this issue, the State agreed to rescind the statutory summary suspension. (The case was also dismissed.) A very strong reminder that a review of all of the relevant paperwork before the hearing is of the utmost importance.
People v. CB
CB was involved in a single car accident where his vehicle hit a tree. He was charged with DUI, Driving on a Suspended/Revoked License, and Damage to Public Property. At a bench trial, two Chicago Police Officers testified against CB. Neither officer had any knowledge of how the accident occured, when it occured, or how long after the accident they arrived on the scene. They had a brief conversation with paramedics when they arrived on scene but no information about the accident was discussed (nor would it have been admissable at trial). The officers contradicted themselves as to which officer approached the vehicle first. Beyond that, the officers were impeached about observations that CB could not walk unassisted to their vehicle and that they actually had to lift his legs into their squad car; none of that information was contained in any of their reports. Beyond that, the second officer to testify indicated that she prepared all of the reports related to this arrest but that her partner actually signed them! There was a finding of not guilty on the DUI and the Damage to Public Property, but a finding of guilty on the driving on suspended license (the State refused to dismiss the charges even though CB now has a clear and valid license).
People v HC
HC was stopped for failure to wear a seatbelt as well as failure to use headlights on July 4, 2011 at around 2:00 A.M. HC was a second offender for DUI but we were able to lift the three year suspension from his license. Subsequent to that hearing, we were tendered a video by the State. Upon reviewing that video, it became clear that HC had his lights on (they could be seen reflecting off of a wall as he made a right hand turn) and also had his seat belt on (he was seen on the video removing the seat belt in front of the arresting officer). Although HC failed the field sobriety tests and later provided a breathe sample over the legal limit of .08, we filed a motion to quash based on a lack of reasonable articulable suspicion to stop the vehicle. We were prepared to go forward on the motion but pointed out the State that the video clearly contradicted the officer's basis for the stop. Justice prevailed and the State dismissed all the charges.
Below is an outline for issues to consider in a Kladis motion during a DUI case. Please contact me if you would like copies of the case law, ISP directives, or ISP training materials that were used to generate this list.
Kladis:
- Officer testified that the in-car video system begins recording 5 seconds prior to the activation of the emergency lights. At that time the microphone is also activated.
- According to the Trooper, the video would have captured: images of defendant’s car 5 seconds prior to the stop; the manner in which the defendant pulled over and curbed her vehicle; defendant’s actions when he approached her vehicle; the manner in which defendant opened her car door and exited her vehicle; the defendant’s performance on SFST.
- This Trooper turned off the emergency lights prior to transport to the station and it was then that the recording ended.
- Court held both at SS and MTQ that “the video may not be used, or any testimony regarding what is on the video pertaining to just before the officer stopped the defendant and the time that the defendant was placed in the squad car, which would mean anything that happened on the street prior to her being placed in the squad car.”
- State argued that Schmidt set out an exhaustive list, it did not. Since Schmidt, 4 decades ago, video records made by in-squad cameras in misdemeanor DUI cases have become as relevant to the issue of proving or disproving guilt as the materials specifically mentioned in Schmidt.
- 2009 General Assembly clarified and broadened the production and preservation safeguards for police recordings. It established the general rule that when any law enforcement agency makes an in-squad video and audio recording in connection with either law enforcement or investigative duties, that recording shall be retained for a minimum period of 90 days. 720 ILCS 5/14-3(h-15). Significantly, the legislature has also mandated and extended period of storage for certain recordings. Where “the recordings *** are made as a part of an arrest or *** are deemed evidence in any criminal, civil, or administrative proceeding” they cannot be destroyed except “upon a final disposition and an order from the court.”
- These legislative enactments express the clear legislative intent that the purpose of recording traffic stops and preserving these recordings for later production is to assist in the truth-seeking process by providing objective evidence of what occurred between law enforcement and the citizen.
- Upon receiving the written Rule 237 notice to produce the video recording 5 days after defendant was arrested—and 25 days before it was destroyed—the State was placed on notice and should have taken appropriate steps to ensure that it was preserved.
ISP Directives:
- V.B.3. Emergency equipment will be set to automatically activate the in-car video camera when the emergency lighting is activated. In addition, officers will have the ability to activate the equipment manually.
- V.B.4. The recording will not be interrupted or stopped until completion of the enforcement stop. The enforcement stop is considered complete when the subject of the stop or officer has left the scene. In case where the officer is transporting a subject, the stop is considered complete upon arrival at the destination.
- V.B.8. Officers are encouraged to activate the camera any time it would be beneficial, such as observed suspicious activity, traffic problems, or crowd problems.
- V.B.10. Officers will record activities inside the vehicle when transporting an arrestee or when an officer believes recording may assist with prosecution, enhance safety, or for any other lawful purpose.
Student Outline for In-Car Video Training (IL State Police Academy):
- What the camera sees: the area in and around the violator’s vehicle, both while in motion and after the traffic stop. Page 3
- ICVS Record Activation immediately when observing impairment indicators and reasonable suspicion or probable cause does not yet exist, when violation observed, when decision to stop has been made. Page 7
- Leave on audio/video until violator escorted into jail. Page 12
Instructor Outline for In-Car Video Training (IL State Police Academy):
- Automatic ICVS activation policy (camera comes on when emergency lighting activated). Page 5
- Reasonable suspicion (articulate to the ICVS what you see). Page 6
- IVC violation (stop after you see the 1st violation…too many violation may work against you – Liability!!). Page 7
- Transport to jail (option-turn camera on violation i.e. impaired driver). Page 8