It’s that time of the year again when friends and family fly in from all over and can’t wait to eat and drink themselves into bad situations. Black Wednesday, Thanksgiving, the Friday after Thanksgiving, and Christmas and New
Year’s Eve are all on law enforcement’s radar as nights when people are likely to be drinking and travelling around the Chicago area. That’s right, police want to make sure people can get to their parties safely so they make sure they have plenty of officers looking for impaired drivers. The obvious lesson here is to take advantage of living in or around a big city and use public transportation, cabs, Uber, Lyft, pedicab, rickshaw, water taxi, you name it, Chicago has it.
As experienced DUI attorneys, take our advice and, if you are driving after having a drink or two, make sure you know the risks.
FIRST, POLICE CAN ONLY STOP YOU IF THEY HAVE PROBABLE CAUSE
In short, they have to have a legitimate reason to stop you or else anything they discover afterwards cannot be used against you. It doesn’t take very much for the police to have probable cause to stop you: a broken tail light, no turning signal, and driving faster or slower than Miss Daisy can be reason enough to get pulled over.
Your first line of defense is simply, don’t give them probable cause: don’t talk or text, obey all traffic laws; don’t speed; don’t obstruct your windshield; and don’t sit in a parked car for an extended period of time or sleep in a car. You can be convicted of DUI just by being in control of the vehicle, so go sleep it off somewhere else. In addition to giving police probable cause, if you end up getting charged with DUI, any poor driving can be used as evidence of impairment. Of course, it’s hard to be perfect, and even if you were doing everything fine, if someone hits your car, you may find yourself face to face with a police officer who suspects that you’ve been drinking.
SECOND, ANYTHING YOU DO OR SAY CAN AND WILL BE USED AGAINST YOU (BUT MAY ALSO HELP YOU OUT LATER)
The first thing police will ask you is “how much have you had to drink tonight?” In general, the rule is say as little as possible and always be polite, attentive, and cooperative without being overly engaged. That way, you won’t risk saying anything incriminating or that will anger the officers, and at trial, the state cannot argue that you were acting out of ordinary.
For example, if you tell the police that you only drank 5 beers, at trial, the state’s attorney will say “defendant admitted to drinking 5 beers before driving”- not good, better to just not say anything. Also, If you make any guilty statements such as “I know I shouldn’t have been driving,” this may also be used as evidence of consciousness of guilt- you know you were impaired. Keep in mind that the less evidence you give them , the less that can be used against you.
However, if you tell them that you’ve only had 2 drinks, you show you are not hiding the fact that you were drinking, you have not admitted to having too many drinks, most people would not be impaired by drinking 2 drinks, and it will help explain why your breath smelled like you had been drinking. Likewise, if your drinks were spread out over several hours, make sure the police know; it will go in their report and then they can’t argue later that you you impaired because you had too many drinks in a short period of time. Remember, consumption is not illegal, impairment is.
THIRD, KNOW YOUR RIGHTS TO REFUSE TO TAKE FIELD SOBRIETY AND BREATHALYZER TESTS
Once police suspect that you are impaired, they will ask you to perform field sobriety tests and to take a breathalyzer test. These are the two of the most common and important pieces of evidence that prosecutors rely on and prosecutors will use them to maximum effect. The good thing is that you can refuse to take both of them…as long as you understand the consequences.
Field Sobriety Tests. These are three tests developed by the National Highway Traffic Safety Administration that can be used to show that you were impaired. The tests will be administered by a police officer and he will score your performance, and unless you perform the tests on camera, his description of your performance will be the only thing that matters. If you’re already thinking that this doesn’t sound fair, you’re on the right track.
The first test is the horizontal gaze nystagmus (HGN) test, where the officer holds a stimulus (often his pen) approximately 8 inches from your face and asks you to follow it from side to side. The officer will look for involuntary jerking of the eyes (nystagmus) as you move them side to side. The jerking becomes more pronounced as the number of drinks increases. This is the toughest test because, besides being intimidating having an officer stand less than a foot from your face, nystagmus is involuntary so you can’t fake your way through it.
The second test is often the walk and turn test. During this test, you will be asked to take 9 steps on a line (sometimes real, sometimes imaginary) then turn around in a very specific way, and walk back. This test tests your ability to follow directions as well as your ability to walk a straight line late at night while police officers scrutinize every move and cars whizz past you on the street. Officers will look for “clues” of impairment such as starting too early, balancing yourself (during a balance test!), not walking perfectly heel-to-toe, and so on.
The third test is the one leg stand test, which consists of, you guessed it, standing on one leg and counting. When you’re done standing on one leg, then you stand on the other and count. Police will look for more “clues” of impairment so, again, don’t try to balance yourself, because this will be used against you.
The bottom line is that, if you like it when a stranger pulls you out of your car at 2 am, makes you stand on the side of the road and perform circus tricks, by all means, perform the tests. Just know that EVERYTHING you do will be used against you and in Illinois, you can refuse these tests with no consequences except the prosecutor arguing that it shows consciousness of guilt.
Breathalyzer Test. During the breathalyzer test, an officer will have you blow into a tube several times and the machine will measure your blood alcohol level. In Illinois, if you blow .08 or over, your driver’s license will automatically be suspended for 6 months and you will be convicted of DUI, no doubt. Plus, if you blow .16 or higher, you’ll be convicted and, if it is your first DUI, you will have to do 100 hours of community service. If you blow under .08, you can still be charged with DUI if there is other evidence of impairment such as poor performance on the field sobriety tests or other conduct described at the beginning of this article.
The bad thing is that every driver gives implied consent to taking a breathalyzer, so if you refuse to take the test, your driver’s license will be suspended automatically for a year. This is called statutory summary suspension. The suspension takes effect 46 days after you refuse and the Secretary of State will do this automatically even if there is no other evidence to support a DUI. The second time you refuse, the suspension is 3 years
At this point, you’re likely thinking that it sounds like you’re damned if you do, and damned if you don’t, and you’re partly right. The good thing is, you can challenge the automatic suspension by filing a petition to rescind the statutory summary suspension. If the evidence against you is weak, you may win your hearing and then you can get your driving privileges back. Otherwise, you can just wait out the suspension. Compare those consequences with blowing and getting convicted of DUI: in addition to the possible sentence, fines, treatment, community service, your driver’s license will get revoked indefinitely- not just suspended- which means that you have to have an administrative hearing to convince the secretary of state to let you drive again.
OKAY SO WHAT DO I DO AGAIN?
So you’re scared of Uber drivers, the L doesn’t go anywhere near your house, and you’re getting pulled over after having a few drinks, what’s the bottom line?
1) Limit incriminating yourself: don’t talk too much; don’t admit to having too many drinks; don’t act strange or otherwise intoxicated; don’t make any possible admission of guilt (“I know I should have just taken a cab”); and don’t be an asshole- police are more likely to give you a hard time if you give them a hard time.
2) Don’t perform the field sobriety tests. There’s no penalty for refusing the fields and there are a million reasons why someone might fail them besides being intoxicated (being nervous, tired, bad at balancing while under intense scrutiny, etc.) so you might as well just not do them.
3) Don’t take the breathalyzer unless you are SURE that you are well below .08 AND you haven’t done anything else that indicates that you are impaired such as hitting parked cars, committing multiple moving violations, or admitting that you should not have been driving. Remember, if you refuse to blow, your driving privileges will be suspended but you may be able to undo that if there is no other evidence against you.