Archive for DUI and Traffic Law

UTAH LOWERS DUI BLOOD ALCOHOL CONTENT TO .05


Soon in Utah if you’re a man who weighs 150 lbs, you can be presumed under the influence after 2 beers, a woman who weighs 120 after one beer. The Utah governor just signed the new bill which is expected to go into effect in 2019. Most of Europe and Australia already have the .05 B.A.C. level, which is supported by our National Traffic Safety Board — but only Utah has adopted .05 in the U.S. Watch out, your state may be next!

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AUTO INSURANCE AND DUI IN ILLINOIS

When you are arrested for DUI, the Secretary of State makes an entry on your public driving record (abstract) that shows that you license is to be suspended for refusing to submit to breath or blood testing, or for taking a test and failing it. Your “Court Purposes” abstract will not include an entry for the arrest until you are found guilty, not guilty, or receive court supervision for the DUI. Court supervision is a court disposition in which even though you have pled guilty, or been found guilty, no finding of guilt appears on either driving record if you finish your (usually 12 months) of court supervision by paying your fine, completing alcohol treatment, and getting no new charges.

So meanwhile what’s your auto insurance company doing while all this is going on?

The Court Purposes Abstract is only available to law enforcement officers, state’s attorneys, and to the driver referred to in the abstract. If you get court supervision on the DUI, it is not a conviction and it is not on the public abstract, so the insurance company does not find out about the DUI court supervision when they request a copy of your public driving record. Usually such requests are made when one buys insurance from a new insurance company, or alters coverage, or any facet of an existing policy (maybe even a change of address). Your court supervision for a DUI, speeding, or most other traffic violations are reported on the Court Purposes Abstract, but not on the public abstract, because they are not convictions.

But if your insurance company gets a copy of the public driving abstract, there will be a listing for a statutory summary suspension for the DUI. This entry alone, regardless of whether you are guilty or not guilty of the DUI, can be expected to increase your auto insurance rates from around 40 to 100% (and 100% means your rates double). The length of time you pay the extra insurance charge penalty for the DUI depends on many things such as your age, your driving record, how long you have been with the company, etc.

The relationship between you and your auto insurance carrier is contractual, that means if either of you don’t like the deal you can cancel it according to the terms of the contract. Your contract might require you to periodically answer insurance company questions meant to disclose a DUI disposition, even if it does not appear on the public abstract. That answer could increase your insurance costs.

In short, a DUI can cost you thousands of dollars over many years, for increased insurance rates, along with numerous other related expenses. The Illinois Secretary of State estimates the cost of a DUI conviction (not court supervision which should be less) at $16,580. A DUI conviction will require 3 years of high-risk insurance for about $1,500 each year if you receive the right to drive after the DUI revocation.

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SHOULD I TAKE THE BREATH TEST AFTER AN ILLINOIS DUI STOP?

I have written two books primarily directed toward answering this question. There is no easy answer. The correct answer for one driver will not be the correct answer for the next driver. There is a multitude of issues that must be considered before making the proper decision in such a matter – and those issues usually only become evident in hindsight.

To begin with I will describe what happens when you are arrested for DIU. To be arrested there must first be a reasonable suspicion that you are violating a law. This suspension is usually speeding, or weaving (either in your lane or out of your lane). You may already have been recorded by a dashboard camera before the stop, so many times, the allegations of reasonable suspicion might be recorded, and not subject only to the testimony or memory of you and the officer.

After turning on his colored lights, the officer will direct you to the side of the road, all the time, he will be making either DVD recordings, or mental notes of your decision where to park your car – drive too far, choose an inappropriate location, or drive erratically and the officer will have more evidence to use against you.

All DIU arrest encounters begin the same way: “May I see your driver’s license and proof of insurance please?” the polite officer will ask.

HAVE YOUR LICENSE AND INSURANCE READY BEFORE YOU LEAVE THE PLACE WHERE YOU WERE DRINKING!!!

If you are scrambling around under the seat, or in the glove box as the officer walks up to you, you may give him the reason to believe that you are reaching for a gun, and he will greet you with one. If you have been drinking, the officer will smell alcohol coming from car, and will nonchalantly ask if you have had anything to drink tonight. You are under no obligation to answer this question, but whether you answer or not, your reply may later be presented to a judge or jury at your trial. If you have been drinking, answer honestly, but don’t tell the officer how much you have had to drink. When he asks, ask him if you are being arrested for DUI. If he says no, and you tell him you had one drink, you may not be arrested. If he says yes, it is not to your advantage to offer any evidence that can be used against you.

He’s going to offer to let you go if you convince him you are not under the influence of alcohol – but wait a minute! It is his job to prove that you ARE guilty if arrested. It’s not your job to prove your innocence. He will tell you that if you don’t cooperate you will but put under arrest, will have to post bail, and you will have your car towed – all of which will cost you from $500 to $1,000 depending on where you are arrested, even if you are later proven not guilty.

OK, here’s the solution to this scenario. If you have never been arrested for DUI before, if you have never had a statutory summary suspension before, if you are certain you have a blood level that is below .08, if you have witnesses who will testify how much you have had to drink, if you have no legal or illegal drugs in your system that could effect your ability to drive, if you know you can pass the field sobriety tests, if your driving has not suggested that you are drunk, and if you have a witness in the car with you who will testify as to what happens at the scene of the traffic stop – cooperate with the officer and demonstrate your innocence.

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TO BLOW OR NOT TO BLOW ILLINOIS DUI SUSPENSION LAW

I recently represented a client charged with DUI who was found not guilty, but his driver’s license was suspended for three years, and he has no right to a hardship license during those three years. He had only two beers before his arrest, but because the officer had the right to stop him, and because the driver refused the breath test, he will pay the price for years to come. It is a good idea to understand Illinois Statutory Summary Suspension law, in case you ever get stopped for DUI.

The law states that if you have had no DUI nor Statutory Summary Suspension on your record in the last five years, that you are a “first offender” for suspension purposes. As a first offender, if you take the breath test and score .08 or greater, your license will be suspended for six months. If you refuse the test as a first offender, your suspension will be for one year.

The portable breathalyzer that is handed to you by the officer does not count. It is the breathalyzer score on the machine at the police station, or if arrested by the State Police, the breathalyzer in the police car, that can be used to suspend you.

If you have had a DUI, or a Statutory Summary Suspension in the last five years – you are not a first offender, and different rules apply to you. Non-first offenders who fail a breath test, are suspended for a full year. If they refuse the breath test, they are suspended for three years.

First offenders have the right to have a Breath Alcohol Ignition Interlock Device (BAIID) installed in their cars. You may have to spend $500, but after the first 30 days of a suspension, you can drive anytime, anywhere with the BAIID, as long as you haven’t been drinking.

If convicted of a DUI, your suspension is overridden by a revocation. When suspended, you get your license back after the period of suspension – when revoked, there is no guarantee you will ever get your license back, and to do so, you have to attend a hearing at the Office of the Secretary of State.

If your score on the breathalyzer is too high, you can expect a more harsh sentence for your DUI, and you will be required to complete more hours of alcohol treatment unless you are found not guilty of the offense.

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ILLINOIS DRIVER FRIENDLY DUI LAW?

In 1991 I wrote my first book meant to help drivers understand DUI law. I stated that the pendulum had started to swing in the direction of driver friendly laws, based on the assumption that the laws had become so strict that they were due to ease to some degree. My conclusion was wrong. Since then, the blood alcohol level at which one is presumed under the influence has been reduced in nearly every state, and new laws with mandatory minimum sentencing rules, make DUI, and driving after DUI, subject to more punishment than ever.

Until recently, I have never seen a law that makes life easier for those subject to DUI arrest or sentencing. At the present time, House Bill 4206, which is meant to restore eligibility to drivers with multiple DUI’s to have their driver’s licenses reinstated, is being considered by the General Assembly. Last year a similar bill was defeated. This one was introduced in January 2014. It is still in committee, and stands a good chance of being submitted to legislators.

I know what you’re thinking – “anyone with repeated DUI’s should be kept off the roadways!” But both Mothers Against Drunk Driving, and the Alliance Against Intoxicated Motorists, support this law. At the present time, if you have four DUI convictions, you will never be able to get a driver’s license in Illinois. Even if the four convictions were thirty years ago, and you have been sober since the last one – no driver’s license ever! The concept of paying your debt to society is meaningless in the realm of repeat DUI offenders, and is similar only to the punishment that sex offenders receive – a scarlet letter that stays with them forever.

The new law would allow repeat offenders to apply for a restricted permit to drive, five years after their release from jail on their last offense, if they have been sober for three years, and have completed the necessary alcohol treatment. Those drivers whose DUIs resulted in a death are not eligible for reinstatement. If a permit is granted, the driver would only be allowed to drive his or her personal vehicle if equipped with a machine that would not let the car start if there is alcohol on the driver’s breath, and the device would have a video camera to confirm that it is the permit holder who blows into it.

At the present time there are about 5,000 people in Illinois who could benefit by this bill. It is a practical recognition that many of these people continue driving illegally for good reasons like: to work to support their families, to buy food, to look for work, or to get medical treatment; and for bad reasons like to buy more alcohol. The bill gives those people who have paid their debt to society, and who can prove to the Secretary of State, that they have conquered their alcohol problem, an incentive to remain sober so they can drive legally.

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STEREO EAR BUDS AND MUD FLAPS

As a DUI lawyer, I know that many, if not most of the people arrested for DUI, are stopped by an officer for something other than impaired driving. Failing to use turn signals, speeding, failure to dim headlights, and equipment violations (inoperable lights and signals) all give the officer the right to stop the driver, and if there is an odor of alcohol on the driver’s breath, he can be convicted of a DUI, and/or subject his vehicle to a search.

My other point is that even if you were totally innocent of anything other than the equipment violation, and you did not know you were committing such a violation, you need to know about some of these obscure legal driving requirements.

Years ago in college, too poor to buy new speakers, I installed a jack in my car stereo system so I could use stereo headphones. That was back when all headphones looked like a can of soup beside each ear held from a strap over your head – an officer couldn’t help but see the headphones. I was ticketed for wearing stereo headphones.

Fast forward years later to now, and Illinois has a law that says that you must use a headset, or hands free device if you use your cellphone while driving. I therefore logically concluded that surely if it was now legal to play loud stereo speakers in your car, and to wear a headset for your cellphone, that it is OK to wear stereo headphones. Of course, today we have ear buds that are not the stereo headphones of forty years ago.

BUT the law has not changed. You still cannot wear speakers (or receivers) on BOTH ears. So when you use your I-Phone to listen to your music list, and wear ear buds, there is a (usually bright white) wire coming from each of your ears that will be visible to the police. Having those buds in each ear is a traffic violation that gives any officer the right to pull you over, and could result in a search of your vehicle.

And I recently discovered that if you drive a pick-up truck without mud flaps, that you are committing an equipment violation. The relevant statute goes on for a whole page, describing exactly how those flaps should be shaped. You don’t need flaps for your SUV, for your station wagon, a van, or even a passenger van that carries as many as nine people. After twenty five years as a lawyer, and having read thousands of police reports, without ever hearing of such a law, I now know, and so do you, that you can’t legally drive a pick-up truck without mud flaps.

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NEW ILLINOIS CELL PHONE LAW

You have probably heard that Illinois has passed a new cell phone law that makes it illegal to drive while using a cell phone – that is partly true.

First, the things NOT covered by the change in the law: GPS devices or communication devices “physically or electronically integrated into the car.” In other words, if your car has a built in hands free phone with voice activation, it is still legal. This obviously means, and is expressed by the law, that hands free cellular phones or those with headsets can still be used. You can still use your CB, or a two way mobile radio licensed by the FCC.

Presumably you can use a cell phone that allows you to dial by using a single button (a cellular memory with phone numbers stored permitting you to dial or hang up using one button), or to hit redial – as long as you are using a speaker phone, or a headset. You will still be able to use a hands-free cell phone with voice activation.

To paraphrase the law in plain English, you can’t drive with a cell phone in one hand, and the steering wheel in the other, and you can’t dial a milti-digit phone number while driving.

Use of hand held phones, digital assistants or mobile computers are prohibited.

Your first violation of this law should not count against you for a “three moving violation in one year” suspension, but after the first violation, any subsequent breaking of this law is a moving violation. Get a second violation of this law, and two speeding tickets in one year, and your driving privileges should be suspended. Beginning January 1, 2014, you can no longer drive with a phone to your ear. A first offense costs $75, a second costs $100, a third $125 and a fourth will cost $150.

You can still use your hand held phone while parked on the shoulder of a road, or when traffic is stopped, and you have your car in neutral or park. You can use a normal cell phone while driving if you are reporting an emergency.

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DUI BLOOD ALCOHOL LEVEL WILL DROP TO .05

Not today, not next month, maybe not by January 1, 2014, but the current Illinois blood alcohol content (B.A.C.) of .08, at which you are presumed to be under the influence if in control of a vehicle, will eventually drop to .05.

The National Transportation Safety Board (N.T.S.B.) recently voted to “recommend” to all the states in the U.S. that they should lower their B.A.C. to .05. Their position is something much more than a recommendation. In reality, the N.T.S B. will require all the states to lower their presumed level of intoxication, which currently is .08 in all fifty states – to .05. No state will refuse to do as told by the N.T.S.B., or they will lose millions of dollars in federal funding. Just as the N.T.S.B. did when the states lowered the B.A.C. to .15, then .10, then .08, we can expect another new lower B.A.C. in a few years after the .05 level is implemented by all the states.

It must be made clear, that this new .05 level has not yet been made the law, but it is only a matter of time before it will be the law.

At the .05 level, a 120 pound woman will be classified as drunk after drinking 2 twelve ounce beers in one hour and a 200 pound man will be drunk after 4 beers in two hours. As you can imagine, the bar and restaurant associations will do all they can do to oppose the reduction in the legal limit, but it is only a matter of time before the .05 limit is the law.

There are estimates that lowering the B.A.C. to this level will save 1000 lives per year, and clearly that is a good thing. The other side of the change is that hundreds of thousands of drivers who are law abiding, careful driving, normal citizens – will become criminals after that last beer.
In my experience as a DUI lawyer, too many people are arrested for lighting cigarettes, or not using turn signals, or changing radio stations, rather than being actually unable to control their cars due to intoxication. Any momentary weaving within your lane of traffic gives an officer the right to pull you over for DUI, and lowering the B.A.C. will permit the police to cast an even broader net to criminalize the most responsible drinkers.

In most instances it is not illegal to work 6 ten hour shifts in one week, and drive home, in a daze after dark; or to talk on your cellphone paying inadequate attention to those around you; or to pay attention to the crying child in the back seat; or to be half asleep driving to work in the morning. All these activities involve some level of personal responsibility that can diminish one’s ability to control a vehicle – yet none are criminal like driving after two beers. (Note that the Illinois General Assembly is presently considering whether to make it illegal to drive a car while using a cell phone.)

I don’t advocate criminalizing these activities, but do suggest that driving after two beers should be no more criminal than all the other things we do that compromise our ability to flawlessly control a vehicle. Lowering the B.A.C. punishes the wrong people.

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TINTED WINDOWS ON VEHICLES IN ILLINOIS

I’ve always been curious about the Illinois laws concerning tinted windows on vehicles, and until recently have failed to read the statute to understand them. Like nearly every other thing in the practice of law – it’s not that easy. The Illinois tinted windows law is four pages long. Obviously this is one of those laws that will affect few of us, but there are some drivers that like the style of tinted windows, and some who are older who have medical needs for tinting. Following is a distilled version of the law:

1) Windshields can be tinted from the top to six inches below the top.
2) Driver and passenger side windows cannot be tinted unless:
a) The windows behind the driver are tinted to block less than 30% of the light, the front side windows may be tinted to block no more than 50% of the light.
b) All windows except the windshield may be tinted to admit at least 35% of light.
c) Original manufactured installed smoked glass may be permitted on vehicles that permit at least 50% of light to enter.
d) Tint waivers may be authorized by a physician.
e) Rear window screens are permitted, if the side windows are not tinted, and if there are mirrors outside the car on each side.
3) These rules do not apply to vehicles properly registered in other jurisdictions.

I was surprised to learn that police officers have at their disposal, a mechanism used to measure the amount of light that shines through tinted windows.

As a DUI lawyer, I am inclined to advise anyone who drives after consuming alcohol, to never drive a vehicle with tinting other than on the top six inches of the windshield. If there is any tint on a side or rear window, you are inviting the police to stop you, and to determine if your glass is illegally tinted, and whether there is anything else for which you can be arrested.

These laws have a legitimate purpose. They save the lives of police officers who need to see what you are doing after the police pull you over. If the officer can’t see you, he will realize that his life – and yours – is in jeopardy as he approaches your vehicle after a stop with his gun in his hand.

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Backseat Drivers III

We’ve all dealt with them, even those of us who are not married – BACKSEAT DRIVERS! You know, the riders who seem to know more about traffic laws than the drivers. Following are more of the common criticisms that we have all been through, and the actual Illinois law that determines whether the front seat, or back seat driver is right.

BACKSEAT DRIVER — You’d better watch it when you merge onto the interstate, you’re gonna hit someone one of these days.
DRIVER — Quit kiddin’, they have to get out of MY way, I’m merging and I can’t see them behind me. The law says they have to move over!
THE LAW – The driver’s wrong again. When you merge onto an interstate highway, the traffic on the highway has the right of way. The merging traffic has to yield to the traffic already on the interstate.

BACKSEAT DRIVER – Jack, don’t you see those “slow, construction area” signs? You’ve got to slow down.
DRIVER – No I don’t, there’s no construction going on anywhere around, they’ve shut down for the day.
THE LAW – You are subject to construction area speed signs even if there are no workers present. The speed limit is not only to protect the workers, but you too. There can be unexpected hazards in the area, and you can never be sure there are no workers.

BACKSEAT DRIVER – What do you think you’re doing, you can’t pass on the right, when stopped in traffic.
DRIVER – I’m not waiting any longer, there’s plenty of room, I’m gonna pull up there so I don’t have to wait for all this traffic to make my right turn.
THE LAW – Once in a while he’s right. You CAN move out of your lane to make a right hand turn at an intersection, if you do so safely, do not leave the pavement, and if there’s 8 feet in width of unobstructed pavement. (So obviously, motorcycles can’t make such maneuvers, if there’s not enough room for a car to do so.)

BACKSEAT DRIVER – Now what do you think you’re doing? You can’t just pull that old truck to the mechanic using a chain, that’s dangerous.
DRIVER – Don’t worry, Junior will be in the old truck, he can hit the brakes if we get too close, and we’re only going a few miles anyway.
THE LAW – I’m sure you guessed this one already. You can’t have a person in a towed vehicle except in emergencies, when towing less than 15 miles per hour, or in a parade, or for farming-related activities, and the rider is over 18 years of age.

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