Frequently Asked Questions About DUI Defense
You can also be facing the same things on the state end, which can be coupled with up to one year in jail, so obviously you don’t want to go to jail and you want to take advantage of any parts of the law that would let you keep driving. However, there are certain timeframes that you don’t know about and an attorney would know these things. Most laypeople do not, and most times the officers will give you information that’s not true.
For example, they may tell you when you’re getting arrested, “Look, if you don’t blow into the Breathalyzer right now, you’re going to be suspended immediately for a year.” That’s absolutely false.
You have 46 days to have a hearing on that and that’s something you would want your attorney to get filed right away because once you file it, they have to give us a hearing within 30 days regardless of when it’s filed. That doesn’t stop the clock from ticking, so for 46 days you’re okay to drive, which a lot of people don’t know but after that, you have to get something in place so that you can drive after that, which would usually be a breath device.
For example, there are certain bits of evidence or parts of evidence that may very well be inadmissible or they may well be something you could keep out but if you don’t know when to object or how to object or what the relevance of that objection is and you try doing this yourself, the judge is going to get very irritated with you. They don’t treat you with the fairness that you should get and they don’t want to waste their time trying to educate somebody and it’s not their job to educate somebody.
It’s their job to rule on the evidence presented, you don’t know how to keep certain harmful evidence out such as hearsay or, say, a breath machine wasn’t certified, or if the blood wasn’t taken in compliance with the Department of Public Health standards. If you don’t know how to object to them, things that are going to come into evidence that will hurt you that maybe you shouldn’t be coming in at all. If somebody gets convicted without an attorney, they are going to say, “Oh, he didn’t really have any fair representation.”
The judge will tell you, “Look, you have every right in the world to represent yourself. I’m going to hold you to the same standard as an attorney.” I’ve seen it just recently where a judge really starting blasting a guy, asking, “What did you learn in law school?” The judge was being rude and he shouldn’t have said that stuff, but I see it all the time.
They don’t want to take the extra time it would take to do a case just because you don’t know what you’re doing; you’re just playing a lawyer. It’s not a good idea to represent yourself as the classic saying is, “Only a fool will represent himself as an attorney” because it’s just a bad idea. Even attorneys will have somebody else represent them if they get in trouble. You don’t want to represent yourself.
This is the worst part of a first DUI because that’s the part your insurance is going to see whereas the rest of the case probably will not be viewable by the public. Believe me, once your insurance sees that you’ve gotten an alcohol based DUI, they are going to jack your rates through the sky or drop you completely and then you are going to have to get SR-22 insurance. You’re going to be at high risk, and pay loads of money every year.
The public defender is not allowed to do the summary suspension hearings, not to mention they are usually way overworked. You’re going to a DUI court where there might be 50, 60 clients that day that have one or two public defenders. They only have so much time to allot to each case, so you’re not paying them anything, you can only expect so much for free.
I’m not knocking all public defenders. Some of them do a very good job, but you’re usually getting the public defenders that haven’t been doing it very long, so they are learning at your expense. If they mess up your case, that’s too bad for you but that’s your only swing at the plate, you don’t get to come up with another attorney after you’ve messed up. It’s usually not in your interest to have a public defender. There are some good ones but the chances of doing as well as a good private attorney just isn’t in the cards.
They’ll tell you, “Sir, step out of the car, I want you to do these tests.” They don’t tell you that you have the right not to do those tests. They’ll say, “I just want to make sure you’re safe to drive and if you’re safe to drive, I’m going to let you go home.” Guess what? Ninety-nine percent of the time, they are not going to let you go home. They are going to start building a case against you. I had one today that I just won the case on where the lady went through the tests, she blew a 0.07, it was under the legal limit but the officer still arrested her for a DUI and you don’t want to give them ammunition.
These standardized field sobriety tests are very difficult to do. If you’re a young athletic person, maybe you can do them well. If you’re an older person, if you’ve had any problems with your back, knees, or feet, you’re not going to be able to do these things, not to mention you’re nervous with a cop breathing down your neck. If you think you can walk a tightrope ten steps heel-to-toe without putting your arms out to balance, good luck. If you think you’re going to make the quick little steps at the end of the turn correctly, you’re not.
One client I had did all nine steps perfectly but the officer said she didn’t turn taking the correct number of steps turning around. Then she did the nine steps perfectly on the way back. He still marked her as flunking. You never want to take these tests. On my business cards I have on the back that you should understand your rights and you’re politely refusing to take any test. That is your right.
Now, there are going to be ramifications because there could be a possible suspension coming into effect for refusing to take that test but that’s something you can contest. The officer can’t just pull you over for speeding and say, “I want you to take a test.” He has to have sufficient articulable facts to demonstrate to him that he believes you’re under the influence of alcohol such as, he’s going to say, a strong odor of alcohol, bloodshot eyes, slurred speech, all these things.
Don’t give the officer ammunition. If you’ve been pulled over and you think there is any question, you politely refuse all tests and say, “I’m sorry. I’m not trying to be a jerk; I would just like to talk to my attorney.” They are going to tell you, “Well, you’re not under arrest, you don’t really need to talk to an attorney right now.” You just try and leave, then.
Say, “Am I free to leave?” because the minute they tell you you’re not free to leave, you, in effect, have been seized as far as the law is concerned. At that point, you better make sure that you are not saying anything because they’ve got you! You may not be arrested but you’ve been seized and anything you say is going to be used against you, so you don’t need to do these tests.
They are not going to give you the choice, so they are not going to say, “Sir” or “Madam”, “Would you like to do these tests that demonstrate your sobriety?” You need to have the knowledge that you have the right to refuse that test.
You have the right to remain silent. It’s one of your constitutional rights. You have the right not to incriminate yourself, so listen to what I am telling you – don’t do the tests, ever. Don’t take the Breathalyzer test. The more talking you do, the more damage you’re going to do. I can’t tell you how many people get, “What have you had to drink tonight?” Don’t answer that question. Yes, you have to put your foot down and say, “I don’t want to answer any questions. I want to talk to my attorney.”
Now, understand the police officer is probably going to get upset because he’s going to understand himself he has got much less of a case built against you if you don’t help him hang yourself. If you don’t tell him where you’ve been and what you had to drink, he isn’t able to build a case against you.
Understand he’s going to say, “Fine, I’m going to arrest you for driving under the influence.” He’s going to do it anyway, more than likely. There comes a point where if you don’t take any of the tests, a judge is going to have to decide, at that point when he put you put under arrest when he said, “You’re not free to leave and go home,” did he have sufficient probable cause to believe you are under the influence of alcohol? Well, let’s go over a couple of things that would give him that indication.
You tell me if you can tell the difference between beer and nonalcoholic beer’s smell – you can’t tell the difference but don’t try and explain that. Don’t say, “I just had a couple.” Don’t say anything. There is a time and a place for talking and that’s at a trial or at a hearing. Obviously, you should always have your insurance card handy or your license handy so you’re not digging for your wallet.
That’s another thing they say: “He fumbled through his wallet and went by his license four times I saw him.” If you know you’re in that situation, you should have some gum in your mouth, you should have all your stuff ready, your license, your insurance, just in case, and again, I’m not trying to tell people how to beat DUIs but this is the safer thing to do because if it’s a close call, well, don’t take any of those stupid tests.
The minute you take those tests, they are going to start marking them against you, and certainly the minute you take a Breathalyzer, they are going to use it against you. They are going to ask you on the scene to take the portable Breathalyzer test. You don’t even need to take that. The way the law reads is that anything up to a 0.049 is presumed sober, a 0.05 to a 0.79, there is no inference whatsoever, so if you blow a 0.06, you’re like, “Oh, I’m under a 0.08, they’ll let me go.” No, he can still arrest you.
You have to understand that once you give them proof that there is alcohol in your system; they have got something against you. Don’t be a jerk, always be polite to the police, and tell them, “I haven’t been drinking. I don’t want to talk to you.” Then they’ve got nothing to go on, so later on you can explain, “That odor was of a nonalcoholic beer.”
I wish I had a dollar for every time one of my clients said, “I had two beers,” then they turn around and blow like a 22 on the Breathalyzer. Not only have you been drinking, but you become a liar for everybody knows two beers can’t make you a 22. So, there are a whole lot of reasons not to take these tests.
There are two types of DUI tickets. One for blowing a 0.08 or over, that’s presumed you’re drunk, but that is rebuttable because, let’s say, you’re a 400-lb lineman, you blow a 0.08, it’s probably not affecting you. If you’re a 60-lb ballerina, you blow a 0.08 then you’re probably hammered. If you don’t have any scores and nothing to go on, how is the judge supposed to say beyond a reasonable doubt you’re under the influence of alcohol?
First of all, there are a hundred different reasons you could have bloodshot eyes. You could have a cold, you could have allergies, there are a million things going on, but the minute you start spitting this story, “I had two beers,” you’re screwed. You don’t want to take the tests, you want to be polite to the police and say, “I’d like to speak to my attorney” and that’s it, understanding you’re going to get arrested anyway but you have to stick to your guns.
It’s hard to do but in the end, you will win out and it’s not about whether you win on the scene or not because 99 times out of a hundred, if the police think you have been drinking at all, they are going to arrest you anyway, just to cover themselves. If they let you go and then you cause an accident and they find out this cop let you go even though you had some indication you’ve been drinking and somebody gets hurt, he is going to be in big trouble. It’s easier for them to arrest somebody and say, “Let the judge figure it out later.”
Just keep that idea as the mainstay of what’s going to happen and then you can deal with what’s coming, understand you’re going to get taken down, they are going to tow your car, it’s not going to be pleasant but it’s going to be a whole lot more pleasant if you don’t get found guilty and have $1700 in court costs and $1000 in fines and $1000 for the school and a couple of thousand for an attorney, it’s a nightmare you don’t want to be doing. So, don’t take the tests.
Try doing that right now: stand with one foot in front of the other heel-to-toe, the hands by your side and see how well you can stand there without wobbling. You can’t do it. Nobody stands like a tightrope walker. If you’re standing with your feet shoulder width apart, you can stand there all day, but these tests are there to make you fail.
There’s another test called a horizontal gaze nystagmus test where they basically have your head standing still, they’ll put a pen or flashlight in front of your eyes and move from one far reach of your left eye to the one far reach of your right eye and they are measuring to see if your eyeball starts shaking a little; it’s called nystagmus. That’s supposed to be an indicator that you might be under the influence. But they don’t mention that 11% of the population has nystagmus regardless of any alcohol consumption.
If you could be in that lucky 11% that has it anyway, you take this test, now they’ve got some ammunition that the judge is going to look at and say, “You flunked the horizontal gaze nystagmus test.” You just don’t want to give that ammunition.
There’s another one that is a one-leg stand where you have to hold your leg up for about 30 seconds and count one thousand and one, one thousand and two, about six inches off the ground. Unless you are in perfect shape with really strong legs, it’s pretty tough to hold your leg up in the air for 30 seconds with your arms down and trying to balance. Try doing that when you’re cold and you’re freezing outside. The judge doesn’t care, he is just going to see if you were wobbling around or not.
They also have the alphabet test. I should say the alphabet without singing it, which most people grew up singing it, so when you start singing it, they mark that off because they are going to tell you, “Don’t sing it.” Everybody in the world’s been singing ABCs since kindergarten. That’s just something that’s a hard habit to get out of but it’s a strike against you.
If you’re really convinced 100% that you’re absolutely under the limit, then you say, “Look, let’s just cut to the chase here, give me the Breathalyzer.” Try to be aware of how much you’ve been drinking and whether you are going to be over, and also be aware they can still give you a ticket for any amount of alcohol that affects your ability to do normal things.
We should touch upon if you’re someone who smokes marijuana. This is a very difficult part of the law because any amount of marijuana in your system is automatically grounds for a DUI and it’s not a rebuttable presumption. This is absurd because anybody who smokes marijuana knows if you smoked three weeks ago, it is certainly not affecting you today; however, it’s still in your bloodstream, it’s still in your urine, so if you take that test because you know you haven’t smoked in three weeks, guess what? You’re still going to get a DUI. It’s another reason you don’t take the tests.
Let’s say you’ve been smoking and you haven’t been drinking but your eyes are glazed or bloodshot and you’re like, “Well, go ahead, give me the Breathalyzer” and you blow double zeroes, well, guess what the cop’s going to do if you blow double zeroes?
There are three different tests they can have you do – breath, blood and urine. You have to take all three if they ask you to. Of course, you have the right to refuse, but let’s say you passed the breath test double zeroes and then you take the urine test and he’s like, “Yes, I don’t know if that’s real good, I still want you to take the blood test” and you refuse, it’s still going to go down as a refusal and, believe me, the cop’s going to say, “I’ve had training in marijuana testing and I saw the person had dilated pupils, bloodshot eyes, they were glassy.”
The judge who is probably conservative as hell like most judges are and they all run the law and order campaigns, they’d all much rather convict somebody than find somebody not guilty if there is any chance of that coming out, you know, the person might have been guilty. They are going to make you take these tests and also, it takes courage to refuse but that’s the only chance you have of beating it if you’re a smoker. You cannot take these tests because it doesn’t matter when you smoked, you’re going to have a non-rebuttable presumption you’re under the influence and that’s a DUI.
If they say, “I smell alcohol,” you say, “Look, I don’t want to talk without my attorney,” and like I said, they can get to a hearing later where you can explain, “Look, I was drinking O’Doul’s beer, it smells like beer, it’s got no alcohol in it.” The safe thing is not to take any test. Don’t say, “Two beers,” don’t try and outsmart the cop, don’t think he’s going to give you any favors. Those days are long past where the cop might give you a ride home. I hear about that maybe once in every hundred cases.
It is much easier for them to arrest you and get found not guilty than to let you go down the street and maybe you run somebody over and then they lose their job. Don’t tell them that you’ve been drinking at all. When they start asking you those questions, the first thing you should do is ask, “Look, am I free to leave?” and if they say, “No, you’re not free to leave,” then you’ve been seized and you say, “I’d like to talk to my attorney, I’ve nothing else to say.”
It’s absolutely at the prosecutor’s discretion and I was a state’s attorney for five years, so you always have that opportunity as a prosecutor to, in your discretion, drop a case or file the charges or whatever you want to do.
One more thing I should mention about DUIs is that you have to be aware that if you’re under the influence of anything, like, let’s say, you have a prescription for a painkiller like Norco or OxyContin, even stuff for ADHD, any prescription drug, if it affects your ability to do normal things, you can’t be driving with it.
I don’t care if the doctor prescribed it for you, that’s great he prescribed it for you, that does not mean he can turn you loose on the road when you’ve taken three Norcos and you look like you’ve had a case of beer inside you. You just can’t do it, so you have to be aware of the fact that some of your prescription drug does not get away from the issue of whether you’re under the influence of something or not. You have to be very careful. That actually happens quite a bit now.
You are not looking for drunks at 2 o’clock in the afternoon, you’re looking for people that have been at the bars and coming home at night. If you go to any sports bar in the world, watch the people pouring out of there drunk and getting into their cars and driving off. It’s all across the country, just the way it is.
The first mistake people make is they don’t stay out of trouble on the way home. They are texting, they are listening to the radio, next thing they will be going six, seven miles an hour over the limit or they are driving on expired registration or they are driving with one headlight off. Those are things that just are big red flags saying, “Please pull me over and screw with me because I’m giving you a reason to pull me over.” Biggest mistake in the world! Don’t give them a reason to pull you over.
When you’re going home, if you had a couple of drinks and you’re close, you must absolutely turn off your radio, turn off your phone, don’t be texting anybody, pay particular attention to the speed limit, stay in your lane, stay awake, get home safely. That’s the whole thing. 99% of the time you are not going to get bothered but almost every single time somebody is speeding.
Another thing you should understand is improper lane usage, which is one of the most common things that they pull you over for that time of night. You don’t have to be going outside of your lane to get pulled over for improper lane usage, you can be entirely within your lane and never touch the line on either side and the cop can still say you’re swerving within your lane and it’s enough to get pulled over, that’s what the law is.
Obviously, you’re not driving on a railroad track so it’s a perfect equidistant 24 inches from one white line to the yellow line but you’ve got to keep that way as much as possible. You’ve got to use your turn signals, you’ve got to pay attention to what’s going on, you have to be very, very observant of all the laws and knock off the stupid stuff like arguing with your girlfriend or texting your girlfriend or wife or whatever. Those things can wait till you get home.
Turn your radio down, don’t be thumping to the latest rock and roll song and then, all of a sudden, you realize you’re 10 miles an hour over and here are the lights behind you. These are things you’ve got to do. Those are the biggest mistakes; bad when you start talking to the police and just making things worse.
That’s the state’s brilliant idea of “just how we’re going to keep you from doing it again.” But your question answered succinctly was drug cases, prescription drugs are treated just as driving under the influence can be under the influence of alcohol, influence of marijuana, influence of prescription drugs, influence of illegal drugs. Any of those meets your DUI with the same penalties – class A misdemeanor, up to a year in jail and a $2500 fine for your first offense.
Everyone is nervous and they are made for you to fail. You’re standing with one foot in front of the other with the hands on your side, you have to stand that way for a minute listening to instructions before you even start. No one in the world can stand there without starting to tip over. You just can’t do it and if you’re older at all or you’ve got bad knees or something else, try standing with one leg up in the air for 30 seconds; you can’t do it. These tests are very bad tests.
If you don’t take them, the judge won’t hold those against you. The judge doesn’t get into that as far as the DUI goes. That would be subject to the hearing whether you get the initial suspension, whether you also have probable cause to ask you to take a test like the Breathalyzer test or blood or urine test but don’t give them ammunition because these things are set up for you to fail, you just can’t do them, they are almost impossible to do too.
Again, it’s what the officer says, too. You’ve got to hope the officer is being honest. I had one where there was a person doing the field sobriety tests back in the station and the officer who was the observer, you could see him, this is all on video, he’s checking off all the person did and he’s not even watching the person doing the test.
Once he has made up his mind, he thinks you are under the influence, he is just going to write you flunked. He will have the same standardized words on every single piece of paper saying “bloodshot eyes,” “slurred speech,” “strong odor of alcohol,” or “failed field sobriety tests.” You see it on every single case. So, stop building a case against yourself, you’re in enough trouble.
It’s the same penalties for the second DUI but on the first DUI, they’ll usually allow you to get what’s called court supervision, which means you will have one year to stay out of trouble or up to two years, you’ll have to pay a fine, you’ll have to do a DUI and drug counseling. If you finish that and stay out of trouble for that year, at the end of that year, if you have done all those things successfully, you have remained arrest free, then the case is never entered as a conviction. That means you keep your license.
On a second DUI, things get much more strict. If you’re found guilty or plead guilty to a second DUI, then you don’t have the opportunity to get court supervision. By statute, you’re barred from getting court supervision, which means you will get a conviction, which means you will get revoked, not just suspended but revoked, for a full year.
You’ll not be entitled to have any breath device put in your car unless it has been more than five years since the previous one. It doesn’t matter, it can have been 20 years ago, if you get a second DUI, you cannot get court supervision, so you’re going to get revoked for a year; no permit to drive. There is a minimum either couple of days in jail or 240 hours of public service and that conviction is just brutal because not only can’t you drive for the year.
When you’re eligible to be reinstated after a year, you then have to do a full formal hearing with the Secretary of State to try and get part of your license back, so they’ll start you off with a permit and then they’ll give you a license but I had a friend who did that and it took him five years to get his license back. You don’t ever want to get a conviction.
That brings up another point. You have to be very careful if you’re driving in Wisconsin. Wisconsin treats DUIs differently than Illinois. They are kind of the same yet kind of different. They have two different laws between the two states, so they both treat you kind of equally where they both will give you an initial suspension or revocation period but they will both give you an ability to drive to get to and from work, to and from whatever you’ve got to do.
In Wisconsin it’s called an occupational permit, in Illinois it’s a statutory summary suspension and they’ll give you the breath device. In Wisconsin, they do not have this court supervision, so on your first DUI, you are going to get a revocation for a year.
Now, they will give you an occupational permit to get to and from your work but that’s only in Wisconsin. If you’re in Illinois and you decide to have some drinks and you get a DUI, you’re in big trouble. I’m licensed in both states, so I know the difference between the laws and I deal with them every day.
If you get that first DUI in Wisconsin, they are going to send it down to Illinois and Illinois is going to say, “So, you’ve got a conviction? As far as we’re concerned, that’s the same as a second DUI. Now, we’re going to revoke you down here, you’re going to have some mandatory jail or public service but on top of that, you’re not driving for a year, then you’ve got to come begging to us to get a permit and good luck with that”.
They are not very sympathetic. There are some big differences between the two states and you definitely don’t ever want to get a conviction. The reason you need an attorney on a second DUI is that it has much more serious consequences. Anybody can get you court supervision on a first DUI if it’s not anything aggravated. But you get your first DUI somewhere else that turns into a conviction, you’re in a world of hurt because you won’t be driving for a year. Most people just do anyway, then they get caught, then they get the driver’s license revoked, if they get one more, it’s a felony.
Things get a lot worse in a hurry, it’s just a downward spiral and the police these days, there’s so many of them out that are sitting around their computers, they’ll be sitting by a stoplight or the gas station, they are just running license plates, they do it all the time. Somebody will pop up, “They are suspended for a DUI” or, “They’re revoked from a DUI” and you get pulled over, you’re done.
If you had a driving license suspended or revoked, there’s no defense to that. You’re driving where you’re not supposed to be. They put that in your record. Now, why get an attorney for those cases? There’s a possibility that you can still get court supervision on that, so it keeps your availability to keep your license or to get it reinstated after a year.
If you get a conviction during a period when you have a DUI or any of those suspensions or revocations, it’s going to extend your suspension or revocation, maybe, even for a whole year for getting pulled over driving. You have to avoid that at all costs. But you definitely want to have someone on your side to try to help you with these because otherwise you’re going to get crucified.
So, you’ve got the 400-lbs lineman that’s doing everything normally, he was driving normally, there’s nothing to indicate he was drunk, but he agrees to take a blood test or he had an accident, they take a blood test, if you got over 0.08, it’s going to be very difficult to beat it. It’s a possible one but it’s not likely and if they take a blood test and you’ve got marijuana in your system, you’re done. It’s not rebuttable, you’re going to get a conviction or you’re going to get found guilty. Whether it’s a conviction or not depends on if it’s Illinois or Wisconsin.
The DMV holds your license, so they tell you to come in for something and you don’t come in for it, they are going to pull your license and then you’re going to be in a world of hurt, then with your driving license suspended or revoked, even if you’re just going to the gas station to get diapers for the baby and you’re revoked, they are going to see that, they are going to extend your revocation and they are jail-able offenses.
Just driving under suspended or revoked, you can get up to a year in jail and a $2500 fine, not to mention if you drive during the suspension or revocation from a DUI case, your car is forfeitable, they’ll take your car and keep it.
If you’re driving during that first six-month suspension you have and you don’t have a permit, or that first one-year suspension you are on that breath device in your car, they will keep your car and they will say, “Thank you very much.” It’s a mandatory 10 days in jail or 240 hours of public service and that’s another one you definitely want to get an attorney for because you might be able to get around that.
If you just pay the price, you’re so screwed that it’s going to kill you and it’s going to kill your insurance, they’re going to jack your rates up and that goes on for years and years and good luck trying to fight your insurance company because they are all about making money, they are not necessarily the good hands people.
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