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What To Expect After A DUI Arrest
Most DUI cases involve the officer administering Standardized Field Sobriety Tests (SFSTs) to you. These 3 tests are:
- Horizontal Gaze Nystagmus Test - an eye test looking for the involuntary jerking of your eyes. Some people have naturally occurring nystagmus regardless of whether they consumed alcohol. There are more than 20 other reasons a person might have nystagmus, so Illinois court have held this test is only indicative of whether a person consumed alcohol and not whether they are impaired.
- Walk and Turn Test - this is a part balance test, part ability to follow instructions test. The officer will explain and demonstrate the test. Things the officer looks for are whether you started to do the test before you were told to, whether you were able to stand heel-to-toe while he explained the test to you without breaking stance, whether you took 9 steps up walking a straight line with your arms at your side, touching heel-to-toe on each step. Whether you turned correctly, and then took 9 heel-to-toe steps back with your arms at your side and without stepping off the line.
- One Leg Stand Test - this is also a balancing test as well as cognitive to see if you can follow instructions. Again the officer should demonstrate and explain the test. You should get to select which leg you want to hold 6 inches off the ground, looking at your toe with your arms at your side counting one-one thousand-one, one-one thousand-two, etc until the officer tells you to stop when you've reached 30 seconds. If you put your foot down, used your arms to balance or hopped during this test will be taken into account.
The majority of DUI arrests in Illinois involve the officer asking the person to provide a breathalyzer sample (or blow) at the station. Do not confuse this with a breathalyzer test on the road. A breathalyzer test on the road is called a PBT (for portable breath test). These machines are so unreliable, the fact you took one on the road cannot even be mentioned at trial. The PBT is only used to help the officer decide if there is probable cause to arrest you.
The breathalyzer at the station is the test that is admissible at trial. This is because it's not as portable and less prone to mistakes (but certainly not fool proof.) If you provide a breath test at the station that is .08 or higher, you will be charged with a second DUI for being over a .08. At the time you are at the station, you have already been arrested for a different type of DUI, for being under the influence of alcohol. In order for breath tests to be admitted, there are a number of things we look at to verify it's accuracy such as was the officer certified as required, when was the last time the machine was calibrated, what was it calibrated with and how does it do during the calibration process? The machines in Illinois are mostly SELF calibrating which means on the first of every month they test themselves to see if they are accurate. This is the modern world we live in, but it's scary that we rely on the machine to tell us it's broken, but if it's broken, how would it know? This is why we thoroughly investigate every case.
The other less common chemical test if a blood test. A blood test can either be taken if you are injured and go to the hospital for treatment, the hospital can draw your blood in the course of treatment and test it for alcohol. Additionally, the officer may ask you to submit to a blood test (even if you've already had one done by the hospital in some instances) and then a nurse or phlebotomist will draw your blood and it will be sent to the crime lab to be tested. The crime lab is very busy, so blood tests sent to the crime lab routinely take 3 or 4 months to be tested. Important issues in any blood test case include the method in which the blood was drawn, how the tubes of blood were handled and treated, where they are sent and their condition, as well as a lot of information about the machine (called a gas chromatograph) that tested the blood. How was the machine trained to detect alcohol or drugs, how does it know what is what? There are many issues in blood testing that our hours of classes have taught us. It's very complex, but very important.
What To Expect After Your DUI Arrest
General Points About Your DUI Charge in Chicago
Most people don't know what to do after they've been arrested for getting a DUI. Getting a DUI may result in different charges or suspensions depending on where you live. Almost every DUI arrest in Illinois has two separate cases: your criminal charges (those are the DUI charges and other tickets you received) and also your license suspension. For the criminal charges, you are innocent until proven guilty and these won't appear on your record until the end of the case if you are found guilty or plead guilty.
The suspension is different. In Illinois, your driver's license will be AUTOMATICALLY be suspended 46 days after your arrest. You are entitled to a hearing to fight the suspension, and there is a time limit to do this. Not only that, we can file the Petition asking to fight your suspension right away, and because this starts a clock running, this could very much be in your favor. Waiting to file this Petition could greatly increase the chances of you being suspended.
What's the worst case scenario for your license suspension?
If this is your first time DUI offense and you want to drive (and haven't had your hearing on the suspension or lost it) you are still eligible to put a breathalyzer (called a BAIID device) in your car and drive during your suspension as long as you drive the car where the BAIID is installed. It's not great: you have to blow into it to start your car and it can also alert you to blow again while you're driving, but it's better than not driving at all for some people. Keep in mind the BAIID device is far from perfect and can register alcohol in your breath even if you've only just brushed your teeth or had been chewing gum.
Can I Still Drive Right Now After My DUI Arrest?
As long as you had a valid license on the date of your arrest, you can STILL drive for 46 days after your arrest. However, at midnight on the 46th day, your license will be suspended. If you have an Illinois driver's license, the officer probably took your license. You are still able to drive without it.
The officer should have given you a thin, white piece of paper that says "Notice of Statutory Summary Suspension". If you turn it over, on the back there will be a "receipt to drive." The officer should have filled that out with your driver's license information, and you can use this to drive instead of having your driver's license on you.
Call a DUI Attorney Within a Few Days of Your Arrest
It is a misconception to think there is nothing that can be done until your first court date. It's actually the opposite. Like we mentioned above, your license suspension should happen automatically at midnight on the 46th day after your arrest. This cannot in any way be delayed until later by your attorney. The only options to prevent yourself from being suspended on that 46th day are to file a Petition to fight the suspension and sometimes win the hearing on that Petition, in order for the suspension to be taken off.
Keep in mind most of these suspension hearings are held on your first court date or later, which is usually after your suspension may start, so you should hire a lawyer right after your arrest in order to have time on your side before your suspension starts. There may also be key evidence your lawyer needs to request, like video footage, that will be destroyed or recorded over if it's not requested within a few days.
The DUI Court Process
Every courthouse is different. If your case is at Daley Center, 50 W. Washington, Chicago, IL your DUI case will be on the 4th floor. You will be assigned to the same room every court appearance. At Daley Center, the judges rotate every day, and you will not know beforehand which judge you will see. You can possibly have a different judge every time you appear in court. Court will either be at 9 am or 1 pm, and you cannot be late. If you are late, the judge may issue a warrant for your arrest.
If you have court in the Skokie courthouse, Bridgeview courthouse, Markham courthouse, the Maywood courthouse, the Rolling Meadows courthouse or 26th and California, you will also be assigned a specific room. The judges at these courthouses don't rotate as often, so you may have the same judge throughout your case. Appearance times at these courthouse include 9 am, 10:30 am, 1:00 pm, 1:30 pm.
DUI Court Appearances
In Illinois, a defendant must appear at every court date unless the judge specifically grants permission to the defendant not to appear. This is rare, and would only happen for very narrow circumstances. We read in the newspapers and tabloids about stars who get arrested in other states and their lawyers appear for them while they are off working in a different state, but that does not happen in Illinois. In addition, you must get permission from the judge to leave the state of Illinois after you've been arrested and while your DUI case is going on.
Your first appearance court date is set by the police officer and is listed on the tickets that were given to you, and also on your bond slip. All police officers have a "key date" schedule in which they appear in court every few weeks each year. Your case will be set on your officer's key date (or assigned date) to be in court. Usually your additional court appearances will also be set on your officer's preset key dates.
You should assume there will be at least a handful of court dates that you will have to appear at, although every case is different. Certainly for defendants who live out of town and were arrested while they were visiting Chicago, they want to limit the number of times they have to fly back for court. However, we generally tell our clients that if we are going to take the case to trial, they should plan on at least 3 or 4 court dates. Some cases take more than a year to fight, some take less.
Since the license suspension by the Secretary of State is the first consequence that happens as a result of your DUI arrest, that is the first thing we fight. Since your criminal DUI charges and other tickets will not go on your record until the end of the case if you lose, it is advisable to fight your suspension in court first. Once that has been done, you can move onto fighting the criminal charges.
The DUI court process can be confusing. Let our lawyers help, contact The Toney Law Firm, LLC today!
DUI Statutory Summary Suspension Issues
Unlike a trial for DUI where the prosecutor has to prove you guilty beyond a reasonable doubt, it is not the same for fighting a suspension. Because a suspension is civil in nature, it is the client's burden to win the hearing, not the prosecutor's. In addition, the standard is lower than beyond a reasonable doubt. Hearings on your suspension (called a hearing on your Statutory Summary Suspension) are limited only to a few issues, which is set by statute (625 ILCS 5/11-501.1). Whether you are guilty or innocent does not really come into play in this hearing.
In the hearing to fight your suspension, the issues you can raise are:
- Whether the officer had reasonable grounds to stop your car or to arrest you
- Whether the officer read you the warnings to motorist (the white piece of paper which outlines that you'll be suspended for 6 months if you blow over a .08 and 1 year if you refuse to blow for first offenders)
- Whether you were given notice of the suspension from the officer
- Whether you submitted to a chemical test that actually showed a BAC of .08 or higher
- Whether you actually refused to submit to a chemical test
- Whether there are any due process problems
- Whether you were driving or in actual physical control of a vehicle
- Whether you were on a public roadway
Usually on your first court date, your lawyer will request and receive a copy of the discovery. This includes the police reports, your alcohol and drug influence report, the warning to motorist, the sworn report, arrest reports, copies of your tickets and a video if one exists in your case.
Certain Chicago Police Officers have squad cameras in their cars as well as audio mics they wear on their uniform and one inside the car. These videos are meant to capture what happens as the officer drives, what happens outside the squad car, as well as a reverse camera that shows what is happening in the back seat of the squad car. All Illinois State Police squads are supposed to be equipped with working video cameras. And other municipalities may also have squad cameras but it depends on whether they can afford them or not. There may also be video of what happens in the police station after you've been arrested. Usually this is the booking room where you were taken while the officer completes paperwork and asks you to submit to a breathalyzer test.
What Documents Should I Have After My DUI Arrest?
When you are let out of the police station or jail, you should have a handful of documents. These documents will usually include:
- Your Tickets: these documents will have each of your charges listed.
- Bond Slip: tells you how much bond you were released on (if any, you can be released on an "I Bond" meaning you were released on your own recognizance. A "D Bond" means you paid a deposit of 10% of your bond, or a "C Bond" is a cash 100% paid bond. The bond slip also tells you when and where your court date is.
- Warning to Motorist: the officer should have read this to you and had you sign it before he asked you to take a breath or blood test.
- Notice of Statutory Summary Suspension: tells you how long your suspension will be. If you took a breath or blood test it will tell you what the result was, it will list some of the reasons you were arrested for DUI, whether you surrendered your driver's license, whether the office gave you notice of the impending suspension in person or by mail, and the officer will sign and date it. On the back of this notice is the Receipt to Drive. If you have a valid license on the day of your arrest, the officer will fill this out and this is what will allow you to drive up until your suspension because the officer will take your physical driver's license as part of your bond. You will get it back when the case is over and as long as your license is not suspended, you do not need it to drive. Instead, the Receipt to Drive will be your driver's license while the case is pending.
Example of a Bond Slip:
Example of the Notice of Summary Suspension (Front):
Notice of Summary Suspension (Back) Has the Receipt to Drive:
I Just Want to Take a Plea on My First Court Date. Can I?
It might be possible to take a plea on your first court date in an attempt to get it over with, but in most circumstances this is both a bad idea and very hard to do. First, you cannot take a plea in Cook County without first having had a Drug and Alcohol Evaluation done by Central States Institute. You need an appointment and documents and sometimes it's not possible to be done in time for your first court date.
Bigger issues that I see is the fact you would be pleading guilty without having seen the evidence against you since the reports and videos are only just provided on the first court date. You may FEEL as though you have the worst case or that you are guilty, but the evidence doesn't always show that.
And, you lessen the likelihood of a favorable plea if you do it on the first court date since your lawyer won't have had time to review the evidence or potentially talk to the prosecutor's supervisors. You may think on a first DUI you'll take supervision and be done with it, but as you'll read below, this will follow you for the rest of your life and is only available one time ever.
What Exactly Is Supervision on a DUI?
As we discussed here, supervision can have both positive and negative implications. For some clients it's a fantastic resolution, but for others it is absolutely not. Do not believe that if you get supervision it means it won't go on your record. This is very wrong. In fact, supervision for a DUI will always stay on your record, it is not eligible for expungement and can prevent you from entering Canada. The upsides to supervision is that it is not a conviction if you complete it without an issue, and this prevents you from having your driver's license revoked, which will happen if you get convicted of a DUI.
In addition, it can make you more prone to getting rearrested and officers routinely drive down the road running license plates and they will be able to see your prior supervision for a DUI. This may plant a seed in their head that you are someone who routinely drinks and drives, and if you make a moving violation while changing the radio station, you may find yourself pulled over and under suspicion for a DUI. We love our clients, but we understand you don't want to have to see us a second time.
Getting a DUI expunged
Getting a DUI is not something to be taken lightly, as Illinois takes these charges very seriously. In fact, in recent years the state has implemented a number of policies and regulations designed to crack down on drunk driving, including stricter minimum sentences and mandatory driving classes or community service.
Additionally, getting a DUI expunged is no longer an option for most individuals, as many misdemeanor or felony convictions cannot be erased from one's record.
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