FindLaw IM Template 2025-05-26T07:15:10Z https://www.bmcintyrelaw.com/feed/atom/ WordPress /wp-content/uploads/sites/1103069/2023/03/cropped-Law_Offices_of_Bryan_J_McIntyre_LLC_site_icon-32x32.png by Law Offices of Bryan J McIntyre, LLC https://www.bmcintyrelaw.com/?p=47441 2024-12-30T20:59:03Z 2024-12-30T20:59:03Z

much safer and cheaper ways to spend New Years. That said, it seems as good a time as any to give some general tips on what to do if you do happen to become the subject of a DUI investigation. As with any encounter with law enforcement, everything you say will be used against you so keep your comments to a minimum. Here are some other semi-random nuggets you'd probably prefer to hear before you pick up a charge rather than after it's too late:

• Teetotalers make great designated drivers. The law in Illinois allows drivers to consume some amount of alcohol and still drive, though the amount will vary by person and circumstance. Regardless of what the law allows, letting someone drive who can voluntarily blow a 0.0000% BAC can save you a significant amount of time on the roadside. We're talking the difference between a half-hour+ investigation and a five-minute stop. When available (and properly licensed), use the DD.
• Committing a DUI without a license, or without insurance, is a felony. Driving without a valid license is most often at least a misdemeanor on its own, but it can also make a DUI more serious. A few limited types of license suspension (for DUI or vehicular homicide) will elevate a DUI to a felony, as will not having a license or liability insurance at all. If your vehicle is involved in a felony, it can be seized permanently under Civil Asset Forfeiture. Yes, that actually happens for DUIs. Before you let someone else drive your vehicle home, maybe check to be sure they have a valid license on them.
• Any alcohol container with a broken seal needs to be in the trunk. If alcohol is in the "passenger compartment" of the vehicle, it must be in its original container with the seal unbroken. Even if it is, however, police will use the presence of alcohol to prolong a traffic stop into a DUI investigation. Just put it in the trunk (sealed up) and avoid the hassle.
• Cannabis can only be transported in a reasonably odor-proof, child-proof, sealed or resealable container which is inaccessible during travel. In other words, keep it sealed and keep it in the trunk. Many officers are trained to say they smell cannabis regardless of whether it's actually true or not; don't give them an excuse. Keep in mind, however, that the smell of burnt cannabis does not give the officers probable cause for a search according to the Illinois Supreme Court.
• You can commit DUI in seven different ways, only two or three of which involve alcohol. Driving Under the Influence includes a lot more than drinking. Prescription medication, street drugs, over-the-counter cold medicine, and even anxiety meds can all form the basis of a DUI charge. In addition, you can be convicted of "DUI, Combination" if you're under the influence of multiple substances (whether pills and wine or airplane glue and air duster) that combine to create a greater intoxicating effect. The point is, please don't say "I'm not drunk, it's just my medication" during the DUI stop. It will not help, it's an admission.
• Sleeping it off in your car is still a DUI, even if you're off the road. Because you can commit a DUI by either "driving" or being in "actual physical control" of a vehicle, the old "sleep it off and drive home in the morning" bit will still get you arrested for DUI. You don't have to be on the roadway to commit the crime, either: you can get a DUI in your own garage if the circumstances are right. If you have absolutely no other options, you can avoid a charge by locking yourself in the car and tossing the keys in a general direction away from any drains or culverts without watching where they land. Because this prevents you from starting the car and moving it at will (until you sober up and do some searching), you're technically not in actual physical control of the vehicle. However, you may place yourself in other types of danger so this should remain a last resort.
• Field Sobriety tests are not "Pass/Fail," and you should list every disability you can think of before you start. Officers conducting field sobriety testing are looking for "clues of impairment," according to their NHTSA training. They generally perform one preliminary test for alcohol consumption (follow this stimulus with your eyes only) and two "impairment" tests (the walk-and-turn and the one-leg stand). The HGN test evaluates the eyes for rough, jerky movements indicating that the person may have consumed alcohol, though officers are often improperly trained to believe that it indicates alcohol impairment. The other two tests are known as "divided-attention" tests, because they test your ability to process, remember, and follow a complex series of instructions in addition to testing balance and coordination. The officer is required to ask, before conducting any of these tests, if you have any disabilities which could interfere with your performance on the test. Tell them everything you can think of: talk about the time you fell off your bike when you were three and it hurt your tailbone; tell them about the bone spurs that keep you from walking normally, the way you slept wrong last night and can't stand up straight without hurting, or your especially bad cramps today. I'm only slightly exaggerating, here. That officer is going to be applying an incredibly rigorous (and frankly unrealistic) standard to the tests; by listing any and every disability which could cause you to misstep, you can largely invalidate those tests as a basis for arrest.
• You have the right to refuse a Portable Breath Test, or a blood draw, without additional penalty. If an officer asks you to blow into a device at the roadside (especially if they haven't observed the statutory 20-minute observation period), you can say "No," without consequences. This device is only for helping the officer decide whether they have probable cause to arrest you, and you can't be forced to submit to such a test before probable cause is established. However, they will try to pressure you into "consenting" to such a test so be clear that you do not wish to consent. If the officer does generate probable cause for a DUI arrest, they are allowed to collect a sample of your blood, breath, or urine. You don't have to consent, but your refusal will often be used like an admission unless you have a good explanation other than "I knew I'd be over the limit." Refusal may cause your license to be suspended and will force the officer to get a warrant. Once upon a time, they could also file felony charges for Obstruction when someone refused to comply with a warrant for the seizure of blood or urine. However, the Illinois Supreme Court has ruled that someone does not "conceal" their blood by leaving it in their veins: as long as you do not physically resist an attempt to collect your blood, it can't be obstruction of justice. Thankfully, most hospitals' insurance riders prevent them from forcibly taking blood from someone who denies consent, so it shouldn't come to that.

Hopefully, these tips will help you avoid any unpleasant detours this holiday season. If not, there's a reason I do free consultations! Happy New Year]]> by bmcintyre https://www.bmcintyrelaw.com/?p=47423 2024-09-27T15:51:42Z 2024-09-27T15:51:25Z

People v. Redmond, 2024 IL 129201. In case you aren't, the ILSC just ruled that the odor of burnt cannabis (unless there's some other factor) does not provide probable cause for a search. Not only that, paragraph 54 makes it clear that this applies to any search conducted after 1/1/2020. At the time of this post, the ILSC has not yet issued its decision in the companion Molina case, which dealt with the odor of raw cannabis. What does this have to do with the title of this post? Well, the Supreme Court of the United States (SCOTUS) has repeatedly held that canine alerts could provide probable cause to search, as long as the State can show that the animal and the alert are reliable. They do this by showing that the dog will only alert to those items which no individual has any right to possess, and will not alert to things like beef jerky or cigarettes. However, now that the ILSC has found that the odor of burnt cannabis does not justify a search, law enforcement is about to have a big problem. You see, drug detection animals are trained to alert to a wide variety of substances which were illegal when they were trained. In Illinois, to my knowledge, they've all been trained to alert to the odor of burnt cannabis. Moreover, drug dogs are not trained to give different alerts for different substances. This means that, since January of 2020, every dog alert has been unreliable because it was just as likely to indicate burnt cannabis (which does not justify a search) as it was contraband. What does this mean? In the short term, it means that a lot of lower court judges are going to try to find ways to get around the clear ruling in Redmond. In the long term, it may well mean that police have to retire a generation of drug detection animals and start over. Of course, as that requires them to addict a new generation of animals to the drugs they're supposed to detect, it also provides an opportunity to stop abusing animals altogether.]]> by bmcintyre https://www.bmcintyrelaw.com/?p=47367 2024-03-26T20:09:30Z 2024-03-26T20:00:57Z

much easier than that. The movant just has to make a prima facie case (some evidence of a constitutional violation) in order to shift the burden of proof to the State. This is incredibly easy to do, and can usually be accomplished with four or five questions. To quote the Illinois Supreme Court, "Here, defendant made his prima facie case by showing that Sergeant Byrd searched the trunk of defendant's car without a warrant." People v. Gipson, 786 N.E.2d 540, 545 (2003). Better yet, because a motion to suppress exists to preserve constitutional rights (generally under the Fourth, Fifth, and Sixth Amendments as applied to the States through the Fourteenth), a defendant's testimony at a suppression hearing cannot be used against them at trial except to impeach any inconsistencies in trial testimony. "[W]hen a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt[.]" Simmons v. United States, 390 U.S. 377, 394 (1968). What does this mean in practical terms? It means the defendant can just testify that they were searched or arrested without a warrant and that they weren't doing anything illegal. Then the prosecution has to prove that the search/arrest were lawful. If the prosecution presents some evidence suggesting an exception to the Fourth Amendment's warrant requirement (or whichever amendment is at issue), the defendant can still present additional evidence because the "burden of persuasion" lies with the defense. However, part of that "persuasion" can be made by pointing to the holes in the State's case. "With the burden of production on the State (as here), 'it is not a defendant's responsibility to assist the prosecution by signalling gaps in the State's evidence.' [Citation]. We agree that the burden of persuasion remained on Davis (Gipson, 203 Ill. 2d at 306-07,* * *), but Davis could meet that burden, in part, by allowing the gaps in the State's evidence to suffice." People v. Davis, 2019 IL App (1st) 181492, ¶ 31. As any attorneys reading this may realize, the difference between direct examination of an uncooperative witness and cross-examination of that same witness is huge. Rather than the officer being able to pretend they don't remember or don't understand the question, they give their testimony willingly and are then stuck with those answers when the defense attorney picks them apart. More importantly, anything that gets missed in the examination (whether training, foundation, what questions were asked pre-arrest, whatever) count against the State instead of counting against the defendant. Worst-case scenario, the judge finds that the State has shifted the burden back to the defendant and the defendant gets another opportunity to present evidence. This doesn't mean every motion to suppress will win but, as I quickly realized a year or so into criminal practice, it gives you a much better shot. I've had several people ask me why I'm so free with this information. Why give away the secrets you could charge for? Aren't you running a business? Well, it's the same reason you don't want to represent yourself even if you have all the case law in front of you. There's a world of difference between knowing what to do and knowing how to do it effectively. I've been cross-examining people with something to hide since the Christmas before my third birthday and I'm quite good at it. I would still be completely at a loss if I hadn't been trained in the specific rules and procedures used in a criminal court. Similarly, not all attorneys are comfortable with (or good at) cross-examining witnesses. It's a very confrontational process, requiring quick thinking and a firm grasp of the facts. Those of us who can do it well are in short supply and, frankly, I'd be perfectly happy if there were more attorneys out there doing everything in their power to protect our constitutional rights. In short, winning a motion to suppress is relatively easy* and requires the State to do most of the heavy lifting. That said, it only works if you know how to make it work. This post is not intended to replace an attorney, but it might help you figure out if you've found the right one for the job. *: Provided you have years of experience as a trial attorney, favorable facts, and an encyclopedic memory of the law.]]> by bmcintyre https://www.bmcintyrelaw.com/?p=47363 2024-01-17T16:57:30Z 2024-01-17T16:57:30Z

you should not copy, was to buy a 6-month insurance policy, pay only the first month, and find a new company for my next policy. These days, as soon as your policy lapses for nonpayment, the insurer just informs the Secretary of State (Illinois's DMV). The Secretary of State will then suspend your vehicle registration/driver's license until you provide proof of a valid insurance policy. Please don't repeat the foolish mistakes of my youth. But this post isn't about the stupid things I did in my teens and twenties; it's about how Illinois handles no-insurance tickets. Although "Operating an Uninsured Motor Vehicle" is a "petty" or "business" offense (punishable by fine only), it can lead to greater penalties. When I was a public defender, I saw countless people pick up misdemeanor driving while license suspended offenses because they had resolved a no-insurance ticket the wrong way. Since you don't get a public defender for non-criminal offenses, no one ever told them what the consequences of the insurance ticket would be. You, on the other hand, will be well-prepared to avoid any extra penalties. Illinois has three possible outcomes for an uninsured motor vehicle: 1) If the vehicle was insured on the date of the offense, and you bring proof to court, the case must be dismissed without any penalty. If you can, do this. 2) If the vehicle was not insured on the date of the offense, but it's insured now (and you've never had an insurance offense before), you're eligible for 6 months of "Court Supervision." That means there's no conviction on your license and you just have to stay out of trouble for six months for the case to be dismissed. This option sounds good, but it's dangerous! See more below. 3) If the driver cannot provide proof of insurance, a conviction will enter with a $500-1,000 fine and their license will be suspended for 3 months. If this is your third (or higher) conviction, you will have to obtain SR-22 insurance in order to get your license reinstated (see below). Looking at the above options, they seem to get worse as the list progresses. But what most people never realize when accepting the second option is the fact of "SR-22" or "financial responsibility" insurance. SR-22 is required when someone gets "after-the-fact" insurance or a 3rd+ conviction for no insurance; in short, you have to pay a higher insurance premium for 3 years in exchange for your insurer sending confirmation of payment to the Secretary of State every month. If you make a late payment, or your insurer makes a mistake in the paperwork, they'll notify the Secretary of State and your license will be suspended (often without notice to you). Driving while your license is suspended is a Class A misdemeanor in Illinois; it can result in up to 364 days in jail, up to $2,500 in fines, and a new suspension of your driving privileges. However, in my experience, no one tells you this when you resolve your insurance ticket. In summary, be careful with insurance tickets. They quickly escalate from a steep fine to criminal liability; keeping up with your insurance premiums is both faster and easier. Also, if you happen to be late with normal insurance, you will generally get a phone call instead of a suspended license. In some cases, it's easier to just accept a 3-month suspension than a 3-year SR-22 policy. When in doubt, talk to an attorney before resolving your case!]]> by bmcintyre https://www.bmcintyrelaw.com/?p=47293 2023-05-16T20:28:15Z 2023-05-16T16:55:45Z

You can refuse to talk to the police: You have a constitutional right to refuse to speak to the police. Under the Fifth Amendment (which is applied to the States by the Fourteenth Amendment), you have a right to remain silent and to refuse to provide any information which might incriminate you. Under the Fourth Amendment, you have a right to be free from involuntary searches or seizures except in certain limited circumstances. Although police officers can ask any questions they want of a random pedestrian on the street, that pedestrian is under no obligation to answer. Only if the officer has a "reasonable, articulable suspicion of criminal activity" (whether past, ongoing, or future) can they legally detain you even for a moment. Even then, the scope of the detention is limited. Reasonable Suspicion, Terry v. Ohio, & 725 ILCS 5/107-14:  Both under federal constitutional law and pursuant to Illinois statute, police can briefly detain and question a person without arresting them. However, the officer must first have a "reasonable, articulable suspicion" that the person stopped is engaged, has engaged, or is about to engage in criminal activity. In Illinois, if the officer has such a reasonable, articulable suspicion, they may ask for your name, address, and a short explanation of your presence in the area. You do not have to provide a driver's license except during a traffic stop. In any other situation only those three pieces of information must be disclosed to the officer, and only if the officer can articulate a reasonable suspicion that the particular individual is engaged in crime. "You're in a high-crime [read: over-policed] area" is not good enough. Resisting or Obstructing and Authorized Acts:  First and foremost, you cannot resist an arrest in Illinois -- even if the arrest is actually unlawful  -- unless the police use such excessive force that you are required to defend yourself (and the judge had better agree with that assessment). For any police action short of an arrest, "suspects" are only required to comply with lawful orders by police. If an officer orders you to pay them money, to babysit their children, or to engage in criminal activity, you are free to refuse. Illinois law does allow some brief discussion with the officer about the legality of the order, and allows civilians to verbally argue with officers as long as they do not physically resist. However, "prolonged noncompliance" has supported convictions for obstruction in instances where (for example) people refused to exit their car for a long period of time after being so ordered. Additionally, you cannot lie to police, but they can lie to you. If you provide material misinformation to an officer, and they rely on it, you can be charged with a felony offense. However, officers are allowed to lie to you about anything and everything to get you to say something incriminating. Be smart: keep your mouth shut instead. The Student: In the above example, police might have been authorized to seize the student's phone if they had a reason to believe the phone held evidence of a crime and they had reason to believe that the student would destroy the evidence before they could obtain a warrant. However, upon watching the video, it is quite clear that none of the officers had any good-faith belief that the phone held any evidence. In my opinion, they were simply trying to intimidate the student into giving a statement to the detective against her wishes. Although such tactics by police are blatantly unconstitutional, they are not at all uncommon. This student may have been able to secure her release within a few hours but many people are not so lucky. The moral of this story, if there is one, is that standing up for your rights can be a difficult and grueling experience. However, if we don't fight for our rights then we will lose them. I encourage everyone to fight for our rights after learning what they are. Please don't just trust some random person on YouTube; they can get you in a great deal of trouble with their ignorance. For now, we will wish this student luck in overcoming Qualified Immunity (an explanation of which will wait for a later post) and applaud her resolve. Bryan J. McIntyre, Attorney at Law]]>