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A Police Threat to “Kick Down the Door” Is an Arrest
How far may police go in pursuing a suspected drunk driver? Driving under the influence is a criminal offense in Illinois and police must follow certain procedures when detaining and charging a suspect. Failure to follow these procedures may lead a court to dismiss a drunk driving case even when there is substantial evidence of a defendant's guilt. A recent Illinois appeals court decision offers one example of how police error can affect a drunk driving case.
When Is a Suspect Under Arrest?
In June 2012, a woman returned home after attending a local festival in Joliet. Shortly thereafter, the woman's husband answered the door to find two police officers. The police were investigating a report of a hit-and-run accident. They asked to speak with the wife. The husband permitted the officers to enter the residence.
The woman was in the bathroom at the time. The officers heard her vomiting. The police demanded she open the door. One of the officers said, “If you don't open up the door, I am going to kick it in.” The woman complied and later told another officer that she had been drinking and got into an accident. She then agreed to go down to the police station, where she took and failed a sobriety test. The state then charged her with driving under the influence.
Protecting a Defendant's Right to a “Speedy Trial”
Drunk driving in Illinois can legally mean a few different things. Illinois law defines driving “under the influence of alcohol” as a separate offense from driving when “the alcohol concentration in the person's blood or breath is 0.08 or more.” In other words, the state can prove a person drove under the influence without necessarily proving he or she also drove with a blood-alcohol level above the legal limit. And while it is not uncommon for prosecutors to charge defendants with both offenses, the state must always obey important constitutional safeguards.
The Illinois Constitution requires a defendant to receive “a speedy public trial” on any charges. Illinois defines “speedy” as “within 160 days from the date defendant demands trial unless delay is occasioned by defendant.” Failure to comply with this deadline means a court must dismiss the charge against the defendant, regardless of the evidence against him or her. For example, in a recent Illinois appeals court decision, the judges agreed with a trial court's dismissal of a DUI charge added more than a year after the case began.
What is Post-Conviction Relief?
A criminal conviction has serious and lasting consequences for a person accused of a serious crime. Many convictions are based on circumstantial and incomplete evidence. In some cases, evidence discovered after trial may serve to prove a defendant's innocence, or at least raise reasonable doubt about the conviction. For that reason, Illinois law does make it possible for convicted defendants to seek post-conviction relief if there is evidence of “actual innocence.”
The Illinois Post-Conviction Hearing Act establishes a three-stage process for determining whether a defendant is entitled to relief. In the first stage, a judge must decide if the defendant's petition is “frivolous” or wholly without merit. If it is not, the petition proceeds to the second stage, where the defendant must make a “substantial showing” that his or her constitutional rights have been violated. The second stage is not an evidentiary hearing. Rather, the judge must decide whether the defendant has offered sufficient new evidence which, if true, would justify setting aside the conviction.
Illinois Court Reverses DUI Conviction Due to Improperly Admitted Breath Test
Police administration of Breathalyzer tests is standard procedure in driving under the influence (DUI) arrests. Illinois law makes it unlawful for a driver to operate a motor vehicle if his or her blood-alcohol level is 0.08 or higher. A Breathalyzer test, properly admitted into evidence before a judge, can prove that a driver exceeded this legal limit.
It is important to understand “drunk driving” is not limited to passing or failing a Breathalyzer test. The law prohibits a person from driving “under the influence of alcohol.” This influence may be observed by police, or even other drivers, and does not necessarily require a blood-alcohol test.
Challenging a Breathalyzer Test
Appeals Court Rebukes Judge for Ordering Jury to Convict Drug Defendant
The right to a trial by jury is the foundation of the American legal system. Both the Sixth Amendment to the United States Constitution and the Illinois Constitution guarantee every person accused of a crime the right to present a defense to an “impartial jury.” No prosecutor or judge may waive or take away that right on behalf of a defendant.
Unfortunately, in the government's zeal to convict individuals charged with serious drug offenses, even the right to a jury trial may be compromised. Recently a federal appeals court reversed the drug conviction of a defendant after the judge ordered the jury to return a guilty verdict. While there are cases where a judge may enter such a “directed verdict” in favor of a defendant (if the prosecution presents insufficient evidence to convict) no judge should ever unilaterally convict a defendant who has pleaded not guilty and asserted his or her right to a jury trial.
An Untimely Confession
The case involved a defendant accused of conspiring to distribute cocaine and other related offenses. The defendant pleaded not guilty and demanded a jury trial. At trial, the defendant's attorney argued his client initially agreed to participate in the illegal drug conspiracy, but ultimately withdrew before any illegal drug deal took place. However, the defendant later took the stand in his own defense, against the advice of counsel, and confessed to all of the charges against him.
Study Shows Chicago Police Continue to Make Large Number of Arrests for Misdemeanor Marijuana Possession
The movement towards legalization of marijuana has gained steam in recent years with successful initiatives in Colorado and Washington state permitting residents to possess a small amount of the drug for “recreational use.” But marijuana possession remains a serious crime under federal and most state laws. In Illinois, law enforcement takes illegal marijuana use quite seriously, as detailed in one recently released study.
The Illinois Consortium on Drug Policy (ICDP), a project of Roosevelt University in Chicago, recently analyzed statewide police practices with respect to arresting and ticketing persons accused of misdemeanor marijuana possession. The ICDP found widespread inconsistencies in enforcement among localities. Over 100 Illinois cities and municipalities afford police the option of ticketing, rather than arresting, for misdemeanor marijuana possession. But this has produced a “patchwork” approach to law enforcement, according to the ICDP, leading to a system where “[g]eography, not justice, determines whether marijuana possession results in a fine or arrest.”
Restitution in a Criminal Case
Restitution is a common punishment in federal criminal cases. A judge may order a convicted defendant to compensate the victims of his or her crimes. While we commonly think of victims as individuals, the government itself may also be a victim. In fact, as a recent decision by a federal appeals court in Cincinnati demonstrates, a criminal's restitution to the government may be significantly higher than that owed to an individual victim.A Costly Error in Judgment
The crime in this case may not sound like much at first glance. The defendant pleaded guilty to a single charge of “making a false report of a boat in distress.”he is a pilot. According to the court opinion, one night in 2012, as part of an aviation training program, the defendant flew from Bowling Green, Ohio, to Cleveland and back again. During his return flight to Bowling Green, he thought he saw a flare arising from a watercraft on Lake Erie. The defendant, who was training to become a Coast Guard pilot, reported this apparent finding to the airport in Cleveland.
Bank Robbery, “Dangerous” Weapons and Due Process
According to the most recent statistics from the Federal Bureau of Investigation, there are more than 5,000 bank robberies each year. Many of these robberies involve the use (or threatened use) of a firearm. While there are only a handful of injuries, including death, as the result of bank robberies, the federal government nonetheless punishes offenders severely, especially if the a weapon is brandished by any of the robbers.Many bank robberies are carried out by groups of two or more individuals. In the eyes of the law, anyone who participates in a conspiracy to rob a bank is equally guilty, even if some of the conspirators do not take part in the actual robbery. This issue came up in a recent case involving a convicted bank robber in Illinois, who unsuccessfully argued for a more lenient sentence after he “got cold feet” and abandoned his co-conspirators in mid-robbery.
United States v. Bey
What Is a “Speedy” Trial?
The Sixth Amendment to the United States Constitution famously guarantees a criminal defendant's right to “a speedy and public trial” before a jury of his or her peers. But how “speedy” is speedy? Congress and the United States Supreme Court have established certain time limits that prosecutors must obey in bringing charges against a defendant. This does not always guarantee a speedy trial however, as many criminal cases can drag on for months or years depending on the circumstances.The Speedy Trial Act
In 1974, Congress passed the Speedy Trial Act, which sets various milestones for criminal prosecutions. For example, the act requires the government to issue an information or indictment within 30 days of arresting or serving a summons upon the defendant. The trial must then begin within 70 days of the latter of the date of the indictment or the defendant's first court appearance. In order to give a defendant adequate time to prepare a defense, the act further stipulates the trial may not begin within the first 30 days following the initial court appearance.
Lying to the Court Means Additional Prison Time
If you have engaged in illegal activity, it may be in your best interest to enter plea negotiations with the government, accepting responsibility in exchange for a reduced sentence. It is also important to understand that you must tell the truth as a part of any plea bargain. Prosecutors and judges will treat a defendant more harshly if he or she has lied or misled them during the plea bargaining process. A recent decision from the U.S. 7th Circuit Court of Appeals in Chicago underscores this point.United States v. Hargis
Lori Hargis faced a common problem among many homeowners in a down economy. She wanted to sell her Kentucky residence but could not find a buyer. She decided to burn the house down and collect on the insurance covering her as a homeowner. In 2007 she hired Leslie White to set the house on fire, which he did in December of that year. Hargis subsequently filed an insurance claim for $866,000 to cover the value of the house and its contents.
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