Alcohol is not illegal to possess or transport unless it’s open in your car, or you are under 21. And open doesn’t mean out of the container, it means open in order to be able to drink. Amazingly we’ve seen “open” intoxicant cases where people were charged for just having a beer taken out of its case. This is not what an “open” intoxicant is. Drugs (illegal drugs, or prescriptions for which you don’t have prescriptions) are NEVER legal to possess in your car, or anywhere else.

So how do the police find drugs (or alcohol) in your car?

One way is obvious. They see them. There is a bag of weed sitting in the console, or on the back seat, or under someone’s leg, but it is visible to the naked eye. This is known as “plain sight” and the police do not need a search warrant to search your car for drugs if they can see them out in the open.

The second way is that you, the driver, give the police consent to search your car. The police, if they don’t have reason to believe that there is alcohol or drugs in the car, must ask your permission to search. You do not have to give them permission to search. It is your right to refuse a search. If the police are asking you to search your car, it’s probably because they don’t have a reason to and are just hoping you will say yes. A lot of people say yes.

If you say no, and you exercise your 4th Amendment right to be free from unreasonable searches and seizures, then the police may briefly detain you to bring around a search dog to walk around (not in) your car, and smell for drugs as long as the stop is not unreasonably prolonged. This precedent was set in Illinois v. Cabelles (2005) in which it was held to be legal to have a drug sniffing dog brought around your vehicle during a traffic stop. This means that your stop could be for something completely unrelated to drugs, like speeding, and as long as the stop is not unreasonably prolonged, you will have to wait while the dog sniffs around your vehicle . If it alerts (barks) then the police can go inside it. So beware, an officer with a K-9 unit will almost certainly do a perimeter search of your car.

The third way the police can search your vehicle is because they have a search warrant specifically to look inside your vehicle. It is most likely that this will not be executed when you’re driving, but who knows. This is a very uncommon occurrence (few people are going to be pulled over and have the police in possession of a search warrant of the car).

If you are stopped by the police, they can only search your car if you are letting them do so, or they have a reason to believe that you have drugs or other contraband in the car. That “reason to believe” has to be something more than just a hunch.

If you have been stopped by the police and they found drugs or open intoxicants in your vehicle, give Weisz, Botto & Gilbert, P.C. a call at (815) 338-3838.

In fact, that was only 1 year over the minimum that he could have received, which was 6 – 30 years in jail. This meant he was charged with a Class X felony, the stiffest penalty Illinois law carries for DUI.

DUI is a serious business. If you are facing DUI charges, give us a call at (815) 338-3838. We can help.

These rights are rooted in your 4th Amendment right not to be searched without probable cause. A traffic violation doesn’t automatically lend itself to a search of your vehicle. When you are stopped by the police for violating a traffic law, they may ask you whether they can search your car. They may ask you if they can search during the first few sentences, while issuing the ticket, or after issuing the ticket. You have the right to tell them that they CANNOT search your vehicle. Further, if the police have no suspicion of you having broken any laws other than a traffic violation, then they do not have the right to search your vehicle, and your lack of consent should end that inquiry.

However, should you be stopped for a violation where you can be arrested, the answer becomes more murky. It used to be that an arrest at the scene would allow the officers to search your vehicle, pursuant to an officer safety or evidence of the crime exception. This was what was often termed a seach incident to arrest. Searches of this nature were recently severely limited in the United States Supreme Court case of Arizona v. Gant and then by the Illinois Supreme Court in People v. Bridgewater.

Essentially, if there is nothing in the car that the police will find to help their investigation, they do not have authority to search, whether you are arrested or not. And if you are removed from your car then there is no officer safety precaution because you cannot reach anything that may cause an officer a safety concern.

Nonetheless, with or without an arrest, the police may still ASK you if they could search the car . Remember, you do not have to consent. However, if the police impound your vehicle they may be able to do what is known as an “inventory search” in order to look through it. Keep in mind that your vehicle can be impounded for violations even if the driver is not arrested, for example on insurance violations.

Sometimes the police may lead you to believe that they can search whether or not your give permission. Sometimes the police will tell you that they can wait until the Canine Unit arrives so you may as well consent now. You are entitled to say no. Whether or not they can search with a Canine Unit is a subject for another day, but once you consent to a search, the chances that a defense attorney can suppress evidence against you is lessened.

If you have a pending criminal case, or believe you need a lawyer, call Weisz, Botto & Gilbert, P.C. at (815) 338-3838 for legal advice. Reading this post does not create an attorney / client relationship. Call us if you think you need a lawyer.

FICTION: You have to blow into the Breathalyzer.

FACT: It is your right to refuse to blow into the Breathalyzer. HOWEVER, this will automatically trigger a 12-month suspension of your driver’s license from the Secretary of State if it is the first time you’ve been stopped for a DUI. If you’ve been convicted of a DUI before and you refuse to blow, you’ll get a 3 year suspension. Keep in mind, this is not a criminal penalty, just a penalty imposed by the Secretary of State.

FICTION: If you drink one drink an hour you will not be legally “drunk” and can drive.

FACT: Everyone metabolizes alcohol differently. Generally speaking the consumption of one drink in one hour will increase your blood alcohol content around %.02 to %.05. However, this depends on stomach contents, weight of the drinker, amount of body fat, temperature and alcoholic content. A normal “drink” is a 12 ounce beer (standard bottle or can), a single shot of alcohol around 80 proof (1.5 ounces), or a glass of wine (five ounces). While this should conceivably keep you under the legal limit it is not a perfect solution.

If you feel impaired, the obvious answer is don’t drive, no matter how little you’ve had to drink. Illinois law provides that someone can be found guilty of DUI even if their blood alcohol content (BAC) is under .08 simply because they aren’t sober enough to handle driving, whether or not they are over the legal limit. There is a PRESUMPTION that over .08 you are intoxicated and therefore it is illegal to drive. There is also a PRESUMPTION that if you are under .05 you are sober and are OK to drive. But if you’re all over the road, or crash, a prosecutor may argue that you were certainly not sober enough. Prosecutors do not automatically drop DUI’s because you’ve blown under .08.

FICTION: You can fool a Breathalyzer with mints, a penny under tongue, a battery in your mouth.

FACT: There is no known way to fool a Breathalyzer. There is no magic bullet. The only way to make a Breathalyzer be inaccurate (besides manufacturer error) is to have mouth alcohol when you submit to the test. This means, you’ve either just drank alcohol or you’ve burped or belched and alcohol has traveled up your esophagus into your mouth. This is specifically why people who submit to Breathalyzers are subjected to a 20 minute observation period by the police. No alcohol (or any liquid) should be consumed in that time, and if the person belches or burps, the observation period needs to start again.

FICTION: The first DUI isn’t that bad.

FACT: All DUI’s are bad. The average Illinois driver, if convicted or placed on supervision for their first DUI, will face thousands of dollars in fines and court costs, will be ordered to take classes and get treatment. In addition, as mentioned earlier, you will get a Statutory Summary Suspension if you DO blow into the machine of 6 months and a 12-month Statutory Summary Suspension of if you do not blow.

If you get a DUI, just remember, you’re facing serious consequences. If you’ve been charged with a DUI, call Weisz, Botto & Gilbert, P.C at (815) 338-3838 and arrange an appointment with Robert Deters. We can help.

The restrictions on under 18 drivers are meant to make it safer for teen drivers. As can be seen with disturbing regularity, teen drivers are frequently the cause of traffic accidents.

One restriction for drivers under 18 includes not transporting more than 1 person under the age of 20 in the vehicle unless the passengers are siblings or children of the driver. Another is that if a driver with a G.D.L. commits a traffic offense and is convicted then those restrictions on passengers extend 6 months after the conviction, even if the G.D.L. holder becomes older than 18.

Minors convicted of offenses under the Cannabis Control Act, the Illinois Controlled Substances Act, or the Methamphetamine Control Act, while in a motor vehicle, can have their G.D.L. cancelled, which means their license will no longer exist.

Drivers under 21 convicted of transporting alcohol EVEN ONCE can have their licenses revoked or suspended. Getting convicted of transporting alcohol twice while under 21 is a mandatory revocation of your license. Also, crimes relating to motor vehicles, including those not related to driving, such as breaking into a motor vehicle, committed while the G.D.L. holder was a minor can cause the license to be revoked.

The big, big issue is the following. Any driver under 21 who receives convictions for TWO offenses of traffic regulations in Illinois within a 24 month period can have their license suspended.

This means that if you do not receive supervision, and instead get conditional discharge or a straight conviction, and you do so twice within a 24 month period you will get your license suspended. That’s not good news for a young driver. Many people think that they should just pay their ticket at the clerk’s office in the court house and just get their ticket over with. This is a CONVICTION and doing this twice within 2 years when you are under 21 will cause your license to be suspended. This includes out of state tickets as well!

This is why you will want the services of an attorney to try to make sure that if your license is threatened you get the best deal possible. We can help make sure that your ticket is handled appropriately if you are under 21. If you are over 18, go ahead and call us. If you are under 18, make sure your parents know because they will have to accompany you to court anyway.

Without the input of a attorney, you can make serious mistakes in regards to your driving privileges. Let us help!

Otherwise, you’ll need to get tested for and pass a separate road test and get your C.D.L. If you study hard, it’s not an unattainable goal. Thousands of Illinois drivers have a C.D.L. and the hard part isn’t necessarily getting it, it’s keeping it.

However, keeping your license in good standing without suspension is much tougher when you’re a commercially licensed driver. Here is a short list of things you CAN’T do when you have a C.D.L. without getting a suspension of your license.

– Refuse a Breathalyzer, even if you haven’t been drinking.
– Operate a motor vehicle with a BAC of .04 or more or any amount of drug in your system. Remember, for a regular driver, it’s illegal to operate a vehicle with a BAC over .08, so it’s half that amount for a C.D.L. holder. To put this in perspective, having a beer and getting on the road as a trucker would put you VERY close to over .04 in about 20 minutes after consumption.
– Being convicted of knowingly leaving the scene of an accident while driving a commercial vehicle.
– Causing a fatality while negligently driving a commercial vehicle.
– Committing any other felony while driving or a commercial OR NOT driving a commercial vehicle.
– Getting convicted of TWO serious traffic violations within 3 years.

Some of the above listed violations are no brainers. Killing people while driving a commercial vehicle would generally result in your losing your driving privileges for a period of time.

It’s the last provision…two serious traffic convictions in three years that is most C.D.L. holders fear.

What is a serious traffic violation? The Illinois Secretary of State lists the following violations as “serious” traffic violations.

– Speeding more than 15 mph over
– Reckless driving
– Following too closely
– Improper lane usage
– Disregarding traffic control signal (blowing a red light or stop sign, etc.)
– Driving too fast for conditions
– Speeding in a school zone or a construction zone
– Improper passing on the right OR left
– Passing a school bus discharging children
– Driving on the sidewalk
– Improper passing of a vehicle
– Improper merge

There are a handful of others but any of these violations, committed while driving a commercial vehicle, with two or more convictions in three years, means NO LESS THAN TWO MONTHS suspension of your C.D.L. Given today’s job market, making yourself unavailable as a driver for your boss for two months could mean the difference between having a job to come back to or not.

If you have any questions about your C.D.L., give us a call.

Let’s describe a “no refusal” DUI stop. First, on weekends that Barsanti announces in advance, and generally tied to weekends where gatherings where drinking is commonplace take place, such as Memorial Day, Halloween, and the Fourth of July, that Kane County Sheriffs will be setting up DUI roadblock checkpoints. He does not announce where, but presumably on high traffic corridors in Kane County.

Then, the roadblock is set up. These roadblocks have been ruled to be Constitutional in Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990). The U.S. Supreme Court found that the State’s interest in preventing drunk driving was serious and the infringement upon your Fourth Amendment rights low, so a sobriety checkpoint could lawfully be carried out as long as there were guidelines and procedures set forth prior to the checkpoint being set up and the officers did not have unbridled discretion in who to stop. In fact, the Illinois State Supreme Court had ruled back in 1985 in People v. Bartley 109 Ill.2d 273 (1985) for substantially the same reasons.

The Kane County Sheriff will follow a set of guidelines, generally pulling to the side every third or so vehicle. The driver will be asked to produce license and proof of insurance. The officer will be allowed to flash around the vehicle with a light and “look over” the vehicle for approximately 15 – 20 seconds. The courts have found that switching the driver and passenger as you approach a roadblock is probable cause to stop a car on suspicion of drunken driving (of the person who is now the passenger).

If there are no obvious signs of gross intoxication (slurry speech, smell of alcohol on the breath, red, blood shot, glass eyes, open containers, etc.) then the driver will be allowed to proceed. If there ARE signs of intoxication, the driver will be asked to exit the vehicle.

At this point, the stop is going to look like the stop described in our earlier post on what to expect during a DUI stop. But keep in mind, you’re surrounded by a plenty of Sheriff’s vehicles, there’s probably going to be an ambulance present, perhaps lights set up to illuminate the roadway. This is going to look more like the site of a gigantic accident or a major crime in progress than one cruiser on the side of the road.

You will be asked to exit the vehicle and perform F.S.T.’s. Remember, you don’t have an obligation to perform these tests. I remind our clients that these tests are what is going to be used against you. Also, you might be asked to blow into a small P.B.T. or portable breath tester, although, more likely, the Sheriff’s will have brought out their Breathalyzer (which is normally at the station) and will ask you to submit to a breath test. I always advise my clients to refuse the Breathalyzer. Of course, this is exactly what infuriates State’s Attorney Barsanti.

Now here is where State’s Attorney Barsanti has authorized a procedure that most people find intrusive and disturbing to their notions of what it means in America to be allowed to exercise our rights.

If you refuse the breathalyzer, the police officer will bring you to a State’s Attorney’s representative (a government lawyer) and tell the attorney why he believes that you are drunk. Then he will say you refused to take the Breathalyzer. The State’s Attorney will look at you and if he believes the Sheriff (which he will) he and the Sheriff will fill out a search warrant for YOUR BODY. They will then present it to a judge, a judge who will be standing there among all the lights and police and emergency personnel. They will describe to the judge why they believe you are drunk and if the judge agrees there is probable cause to search your body, he will sign the search warrant. Once that warrant is signed, you now MUST submit to a blood test. A friendly EMT will be standing there with rubber gloves and a swab and he will roll your sleeve up and poke you with a needle and draw a vial of your blood to be marked as evidence in a future prosecution against you.

If you try to refuse this blood draw, then you will be charged with resisting and felony obstruction of justice. All of this is legal (so far) in the State of Illinois.

When I describe this procedure to people, they are generally shocked. Not all think that it’s all that bad a thing to be this tough on drunk drivers, but most agree this is not something they thought was legal in the United States. It is.

This Halloween in Kane County, somewhere, this will happen. Although it is your Constitutional right not to have to submit to testing, it’s not when the police have a search warrant.

The big twist to this is that State’s Attorney Barsanti wants these search warrants available to Sheriff’s and ALL police officers nationwide at the touch of a finger. This is feasible. The question is, do you want to live in an America where this sort of intrusion into your body and your person is commonplace?

UPDATE: Not all places condone this sort of roadblock behavior. Check out Austin, TX where the city council passed a non-binding resolution on the police NOT to conduct blood draws. As we noted, this sort of action may be legal, but it doesn’t mean voters in any given area have to like it.

First, you’re going to most likely see flashing lights behind you and possibly hear a siren. You will maneuver your car to the side of the road. A law enforcement officer will approach you.

Out in northwest Chicagoland, you’re going to be stopped by either 1) a County Sheriff or 2) a municipal or city police officer or 3) a State Trooper if you are on an Interstate. This officer will ask you for your license and proof of insurance. You must produce both upon request. If you don’t have either of them ON you but in fact you do have a valid license or insurance for your vehicle, you will receive a ticket for not having them, but it will be dropped later upon proof you really had them.

After that the police officer is going to probably start talking to you. If he believes that you’ve been drinking he’s probably going to ask you if you’ve had anything to drink. You are not obligated to answer that question. Of course, not answering that question is likely going to make the officer suspicious…but remember, in America you ALWAYS have the right to remain to silent. There is no need to provide this information unless the answer is “None, officer.”

Once the officer believes you’ve been drinking (he will claim that he can smell alcohol on you, perhaps he sees alcohol containers in the car, or maybe your eyes are bloodshot and glassy) he will ask you to exit the vehicle.

At this point you are now detained for the purposes of an investigation as to whether you’re drinking and driving. You are not under arrest…not yet. The officer will then have you do three tests of coordination. They will be the walk and turn test (walk down a line, heel to toe and turn and come back), the one legged stand (just like it sounds, stand on one leg for 30 seconds) and the Horizontal Gaze Nystagmus test (this is where he will pass a pen or other “stimulus” in front of your eyes back and forth). You have the right to refuse these tests. You SHOULD refuse these tests. This is the evidence that the government is building against you to prove that you are drunk driving. If you don’t perform the tests you are not breaking the law, you exercising your rights.

If you have performed the tests and you have “failed” them or even if you have not, he will ask you to perform a “preliminary breath test” which is to blow into a little box to determine your blood alcohol content. This device is NOT a breathalyzer…it’s not the real machine used to determine your BAC. In fact, just like telling the officer what you’ve had to drink, you do NOT need to take this test. Unless you’re confident that you’ve had absolutely nothing to drink, there is nothing, no law that requires you to take this test.

However, not taking the test and combined with failing the field sobriety tests will most likely result in your arrest. At this point, you will probably be handcuffed and placed in the back of the squad car. Your car will be towed, unless you have sober passengers in which case they will probably be left with the vehicle.

You will now be taken to your local jurisdiction for “processing.” If you have been arrested by a municipality or city (such as Woodstock, Harvard, Elgin, Belvidere, etc.) you are going to be taken to the police station and then told that you are going to be asked to take a Breathalyzer. Here’s your next Catch-22. If you take the Breathalyzer and you fail, you will have your license suspended for 6 months, assuming it was valid when you were pulled over. If you refuse the test, which is YOUR RIGHT, then your license will be suspended for 12 months, regardless. The officer needs to warn you of this fact, so pay attention to what he says. Normally he or she will read it to you off a card or sheet of paper, but sometimes they forget. Keep in mind, this test of your breath is the most important piece of evidence that will be used against you…and you do not need to submit to it. SO DO NOT TAKE THE TEST.

After you’ve taken or not taken the test, you will then be given a bond and if you can pay it, released right from jail, or you will be taken to the County Jail of wherever you are. Most bonds these days average around $3000, of which you pay 10%, so roughly $300 (it’s a little extra because you pay a “processing fee” of around $28).

Once you’ve paid the bond you’ll be released with a copy of your tickets on which will be your next court date. At that point…you need to call a lawyer. Because your trouble has just begun. Don’t forget, you are facing up to a year in jail and most certainly over a $1000 in fines, which after fees and other penalties will exceed $2000 and possibly go up to $3000. You need legal assistance to make sure you’re getting the best advice possible and making the best decisions you can.

However, most of us don’t try to get out of a ticket by waving a BB gun around in a police station.

This angry Huntley resident actually drew a BB gun equipped with a laser sight on a Huntley police sergeant. Eventually the man was disarmed without incident, but he was arrested for unlawful use of a weapon.

He’s lucky. He could have been charged with 725 ILCS 5/12-2(a-5) for aggravated assault for “knowingly and without lawful justification shines or flashes a laser gunsight or other laser device that is attached or affixed to a firearm, or used in concert with a firearm, so that the laser beam strikes near or in the immediate vicinity of any person.” This would be a Class 4 felony carrying 1-3 years in prison.

Of course, maybe the laser sight wasn’t on. And maybe his BB gun is not considered a “firearm.” Most BB guns are not firearms. If they have a muzzle velocity of less than 700 feet per second and a projectile not exceeding .18 inches in diameter they are not a “firearm.”

However, if his BB gun is not a firearm as defined by statute, then it seems as if he couldn’t be charged with “Unlawful Use of a Weapon” either, which lists possession of firearms or revolvers as being unlawful in public places. Either his BB gun is a firearm or it isn’t, in which case, this old Huntley resident may be guilty of nothing more than reckless or disorderly conduct.

This is why, as a practical matter, even with your first DUI you need to get an attorney. We are the best positioned to give you the right advice as to what the impact of your conviction or convictions will have.

These days prosecutors in McHenry County want jail time on DUI’s. It surprises a lot of people to know that your third conviction of DUI carries between three and seven years or prison and on your fourth DUI there is no possibility of probation.

We can help advise you, guide you and let you know your rights and responsibilities after a DUI conviction.