10 Ways HRF Can Beat Your DUI Charges

By Jeffrey R. Hall of Hall, Rustom & Fritz, LLC

Here are examples of arguments attorneys at Hall, Rustom & Fritz LLC (HRF) will use in court to challenge DUI charges for their clients.  While each argument depends on the precise facts of client cases, the following points should be raised by any diligent attorney if appropriate to the circumstances and the attorney has a good faith basis to argue the points.

      1.      If your vehicle was stopped illegally by the police officer: 

a.      Officers must have reasonable, articulable suspicion that you have committed, are committing, or are about to commit a traffic violation to stop your vehicle.  They cannot make up reasons nor can they stop you for reasons that are not violations of Illinois law. 

b.     In most circumstances, weaving inside your own lane without crossing any traffic lines is not illegal and we can challenge this observation in court.

c.      Registration lights must be illuminated on your rear registration (license) plate so an officer can see it within 50 feet of your flank.  If the officer is more than 50 feet from the rear of your vehicle when he/she turns on their emergency lights, we argue that no violation occurred and any stop of your vehicle for that reason is unlawful.

d.     If you made a left turn onto a four lane roadway, you can turn into either the right or left lane.  If you are pulled over for not turning left into the left (passing) lane, this is NOT a violation and we argue the stop was unlawful.

e.      Pulling a vehicle over solely based on an anonymous report of drunk driving is not enough for an officer to pull your vehicle over lawfully. They must observe corroborating evidence that shows indicia of intoxicated driving or they must observe any traffic violation to pull you over.

      2.      The officer must have probable cause to arrest you for DUI:

a.      Police officers have to witness reasonable and articulable suspicion that demonstrates you are intoxicated.

b.     Police officers must have probable cause to believe you were the driver operating the vehicle under the influence of alcohol/drugs.

c.      Officers look for the following signs of impairment:

                                                    i.     Bloodshot eyes

                                                   ii.     Soiled clothing

                                                  iii.     Fumbling fingers

                                                 iv.     Alcohol containers

                                                   v.     Drugs or drug paraphernalia

                                                 vi.     Bruises, bumps or scratches

                                                vii.     Unusual actions

                                               viii.     Slurred speech

                                                  ix.     Admission of drinking

                                                   x.     Inconsistent responses

                                                  xi.     Abusive language

                                                xii.     Unusual statements

                                               xiii.     Odor of alcoholic beverages, marijuana, cover-up odors and unusual odors.

d.     They can ask you to submit to field sobriety tests to also observe evidence of impairment.  In most cases, it is advised to not participate in ANY of these field sobriety tests and to not answer any questions that would tend to incriminate you.  

e.      As of 2011 in Illinois, there are no driver’s license ramifications if you fail to do the standardized field sobriety testing, such as the walk & turn test, the Horizontal Gaze Nystagmus test, or one-leg stand test.  Further, your driver’s license will not be suspended if you do not blow the Preliminary Breath Test (PBT) at the scene. 

f.       This PBT is solely designed to help the officer form the probable cause to arrest you. As of 2011, courts deem this PBT inadmissible as evidence against you in court in most circumstances in front of a jury.  However, if you test over .08, the officer will usually have the requisite reasonable, articulable suspicion to form the probable cause to arrest you, the officer will likely arrest you, and you will have to be booked and processed.

g.      Also, if you test under .080 on the PBT, the officer can still arrest you for DUI if he/she observes other signs of intoxication, such as your performance on the field sobriety tests, or if your driving was poor prior to the officer pulling you over.  Prosecutors can still proceed with charges of DUI against you. They will have to prove to a judge or jury that you consumed any amount of alcohol that so impaired your mental or physical faculties from acting with ordinary care.

h.     Just remember that any questions the officer asks you and any actions that show intoxication will be used against you in court.

i.       Be careful and do not say or do anything that would tend to incriminate you.

      3.      Standard Field Sobriety Tests Are Frequently Inaccurate for Healthy Individuals:

a.      4 out of 10 times, the walk-and-turn test is inaccurate to determine intoxication of .10% or higher.

b.     4 out of 10 times, the one-leg stand test is inaccurate to determine intoxication of .10% or higher.

c.      The Horizontal Gaze Nystagmus is considered the most “accurate” of the three standardized tests.  It is defined as the involuntary jerking of the eyes.  Nystagmus is a natural and normal phenomenon. Alcohol and certain drugs do not cause this phenomenon; they merely exaggerate or magnify it. The police are trained that it is 77% accurate in predicting that a person’s blood alcohol concentration is .10% or higher.  That means, 23% of the time, they are wrong. So for every 10 DUI’s with HGN, 2 HGN results are inaccurate.

d.     There are over 40 different kinds of nystagmus and many of them look the same as the HGN test that police look for as evidence of impairment.

e.      The police are not trained to distinguish between the different kinds of nystagmus. However, some officers will testify they are. It is common for an officer to misdiagnose some other form of nystagmus, call it HGN, and use it as evidence against a person.

f.       If the person has injuries or disabilities, these ailments can affect the results of the tests.

g.      The officer is not supposed to use non-standardized tests to determine your intoxication.  The ABCs, finger to nose, and Romburg balance tests are not standardized or accepted by the National Highway Traffic & Safety Administration and our attorneys can argue these tests should be inadmissible in court.

      4.      The Post-Arrest Breathalyzer Test is NOT always accurate:

a.      Breath testing devices are designed to analyze a sample of a person’s breath based on Henry’s Law.  Henry’s Law states that in a closed system, the amount of ethanol in the airspace above the liquid is proportional to the amount of ethanol in the liquid.

b.     These devices are designed to produce a breath alcohol result exactly corresponding to a simultaneous blood alcohol sample.  But are these samples accurate?

c.      The problem with these breath devices is it assumes the partitioning of alcohol from the blood into the breath at 2100:1.  Explained, that means for every 2100 parts of ethanol in the blood, there is one (1) part ethanol in the breath.  This creates a problem because some studies show partition ratios as low as 834:1. Other studies show partition ratios ranging between 1555:1 and 3005:1.  The accepted level of 2100:1 was agreed upon by the deciding board because it resulted in a 95% confidence level among the studies.  This means that there is a 95% probability that anyone tested will have a ratio of 2100:1 or higher.

d.     Explained in simple terms:  5% of the population will have their breath alcohol level overstated by the breathalyzer test machine when compared to their blood alcohol level. It has been shown that a person’s breath alcohol level can be overstated by as much as 10 to 12% or more.

                                                    i.     Real Life Example:  If a person blows .10% on the breath test and his/her partition ratio at the time of the test is 1500:1, his/her actual blood alcohol concentration is closer to 0.06%!  That means you are not legally intoxicated! So if there is no other evidence of your intoxication, you are NOT GUILTY.

e.      The Breath Test Device must be approved:

                                                    i.     The device used to test your breath alcohol content must be listed on the Federal List of Approved Breath Evidential Instruments and the ISP approved list of devices, or the results could be ruled as inadmissible.

f.       The Breath Test Operator Must Be Validly Licensed:

                                                    i.     In Illinois, breath test operators must possess a valid, unexpired operator’s license, or the breath test result is inadmissible.

g.      Breath Test Machines Malfunction:

                                                    i.     If the machine has been serviced within 62 days before or after a suspect’s breath test, the results may be ruled as invalid by the court.

      5.      Drug Related DUIs Can be challenged if Officer isn’t a qualified expert:

a.      If the police officer is not a Drug Recognition Expert, he/she will not be allowed to testify as an expert on recognizing whether or not a person is intoxicated from controlled substances.

b.     Laypersons and unqualified police officers are not qualified to testify in court as to whether an individual is under the influence of drugs.  To do so, the officer must be qualified by the court as an expert.

c.      A Drug Recognition Expert (DRE) requires substantial training to become a DRE:

                                                    i.     DRE Pre-Schooling (16 hour course)

                                                   ii.     Drug Recognition Expert School (56 hour course)

                                                  iii.     Drug Recognition Expert Field Certification (Approximately 40-60 hour course)

d.     In these courses, DRE’s are taught to investigate drug DUI’s by using a 12-step process:

                                                    i.     Breath Alcohol Test

                                                   ii.     Interview of the Arresting Officer

                                                  iii.     Preliminary Examination and First Pulse

                                                 iv.     Eye Examination

                                                   v.     Divided Attention Psychophysical Tests

                                                 vi.     Vital Signs and Second Pulse

                                                vii.     Dark Room Examination

                                               viii.     Examination of Muscle Tone

                                                  ix.     Check for Injection Sites and Third Pulse

                                                   x.     Subject’s Statements and other observations

                                                  xi.     Analysis and Opinions of the Evaluator

                                                xii.     Toxicological Examination

e.      Without this 12-step process, attorneys at Hall & Rustom, LLC can challenge the officer’s observations and win a “leg-up” in the trial/case.

f.       Thus, if the officer has not gone through these training courses, they will likely be disqualified from testifying as an expert on recognizing drug intoxication. 

      6.      Squad Car Videos & Booking Room Videos can Help or Hurt a DUI case:

a.      Many video recordings by in-car video cameras and cameras located in the booking rooms can show signs of sobriety that may show a jury that you were not acting intoxicated. 

b.     Speech can be heard as spoken clearly, the person is walking without falling over, balancing properly, and not swaying while they are standing.

c.      Squad car videos can record driving that does not seem impaired.  This type of exculpatory evidence (exculpatory evidence is evidence that tends to demonstrate the innocence of the suspect) is required to be turned over to the Defense and the attorneys at Hall & Rustom, LLC will be ready to use that evidence to their client’s advantage.

      7.      Blood Testing can be inaccurate:

a.      Police blood testing requires strict procedures. If not followed properly, we can argue against their admissibility at trial.

b.     Hospital Blood Draws:

                                                    i.     Consent/Blood Draws using a DUI Kit & Emergency Treatment Blood Draw: 

1.      Consent/Blood Draws using a DUI Kit

2.      First, a consent draw or DUI Kit under 725 ILCS 5/11-501.2 is the most similar to evidence of a breathalyzer. It requires the consent of the client and warnings to the motorist should be read before the blood is drawn. The hospital usually has the DUI kit in a secure location within the emergency room and officers should use kits provided by the department and/or hospital. The police officer must obtain consent from the defendant and then request the hospital personnel to obtain the kit. A consent draw blood kit will not be done by the hospital without the police officer’s request for it. The consent draw must be obtained pursuant to Illinois State Police regulations found in the Administrative Code.¹ A kit contains two vials for blood with industry standard anti-coagulant and preservative indicated by a gray vacuum top.² A kit will also contain vials for the collection of urine. Urine is the preferred evidence for testing for drugs, not alcohol.³ The Illinois State Police regulation requires that the blood be collected by a licensed physician, registered nurse, trained phlebotomist, or certified paramedic.⁴ The identity of the person collecting the blood may appear in the officer’s Alcohol Drug Influence Report or at the least in the medical records from the hospital. A law enforcement officer shall be present when the sample is drawn to authenticate the sample.⁵ The medical records may indicate which officer requested the DUI kit and which one was present for the draw.

3.      The tubes of blood must be labeled with the name of the patient and date of withdrawal and treated as biohazard evidence.⁶ The kit is subject to chain of custody requirements.⁷ The kit should be sealed in front of the officer and both the hospital personnel and officer should initial the tape on the box. The officer then takes custody of the kit and submits it to the Illinois State Police laboratory for analysis as soon as practicable.⁸ A forensic scientist with the Illinois State Police will photograph the kit in its box and each vial prior to analysis. Through discovery, you may request or receive photocopies of the seals and chain of custody documents from the Illinois State Police Laboratory. Consider your trial strategy before subpoenaing these items, you may want to argue a lack of chain of custody and the state may not tender the entire laboratory file.

4.      It is not necessary for every person involved the chain of custody to testify at trial.⁹ People v. Bishop states that the evidence may be admitted with a missing link if there is testimony sufficiently describing the condition of the evidence when collected and delivered that matches the description of the evidence when examined.¹⁰ At trial, this means that the officer who was present for the draw and took custody of the DUI Kit must describe the kit, the seals, the initials and that description must match the one given by the forensic scientist who examined it at the Illinois State Police Laboratory. If the witnesses cannot sufficiently describe the evidence or the state fails to elicit sufficient descriptions, then there is an argument that the chain of custody is compromised and that the state has failed to meet its burden to show that reasonable measures were used to protect the evidence from being altered.¹¹

5.      The DUI kit containing the blood should be kept in a cool environment because it is biohazard evidence and improper handling could destroy the sample. The forensic scientist will describe a cooler at the lab and you can cross on its security and appropriate regulation. It is important to question the officer about the transportation of the DUI Kit. Ask if he placed it in the trunk of his squad car and for how long and then to whom and when it was transferred. Blood evidence can be damaged by mishandling.¹² If there is lack of testimony regarding the safekeeping of the blood evidence, you have an argument that it was damaged and thus the results are not reliable. The state must show that reasonable measures were employed to protect the evidence.¹³ You should also note that the arresting officer is probably not the officer who transports the evidence to the ISP lab and the forensic scientist witness is probably not the person at the lab who receives the evidence. Watch for dates and names on the discovery from the ISP laboratory to build your chain of custody argument.

6.      The ISP laboratory will conduct an analysis using headspace gas chromatography and return a result in whole blood.¹⁴This is important because a whole blood result is required by statute and it is the state’s burden to present whole blood result.¹⁵ There will not be a conversion of this result. You can cross the forensic scientist on the testing procedures and lab certifications. The forensic scientist may run fifteen samples or more at one time.¹⁶ If you are arguing chain of custody, be sure to ask the forensic scientist about how blood decomposes and whether it could be detected by the human eye.¹⁷

7.      The consent blood draw/DUI Kit requires at least three witnesses. The state must present the officer, the person who drew the blood, and the scientist who analyzed the blood. You can create doubt about the chain of custody and the reliability of the sample.

8.      Emergency Treatment Blood Draw

9.      The second type of blood draw is the emergency room draw exception under 725 ILCS 5/11-501.4. This statute states that a blood alcohol test conducted as part of emergency medical treatment is admissible in a DUI prosecution.¹⁸ The state will generally request the court to sign a Qualified Protective Order for use with a subpoena for your client’s medical records. Upon receipt of the medical records by the court, an in camera inspection will be done by the court prior to releasing the records to the parties. When you review the medical records, look for the injuries and diagnosis to determine what treatment was being rendered and to see if it qualifies as necessary emergency medical treatment. The lab report and relevant medical records can be admitted under the business record exception to the hearsay rule.¹⁹ Most often, the state will call the person who collected the blood and qualify them as the custodian of records. To meet the business record exception, the witness must testify to the business record and additionally foundation found in the statute.²⁰ The witness must testify that the sample was tested by the lab the hospital routinely uses and there must be some testimony that test was ordered in the regular course of treatment.²¹ It is not necessary that the witness testify to a chain of custody.²² The lab technician who received and tested the blood is not required to testify, nor is subject to cross-examination. An objection can be made that this violates Defendant’s right to confront witnesses.²³

10.   The issue with the hospital blood draw is that hospitals generally will conduct a serum blood test.²⁴ They spin out the water in the blood and then test it for the presence of ethanol. So the alcohol test result will be higher than a whole blood test result.²⁵ A serum result can be anywhere from 12 percent to 20 percent higher than a whole blood result because alcohol is attracted to water in the body and the serum has a higher relative percentage of water which results in the higher concentration of alcohol.²⁶ The state must then convert the serum test result into a whole blood test result.²⁷ The administrative code has provided a regulation and conversion factor specifically for this situation. The administrative code requires the serum result to be divided by 1.18.²⁸

11.   The state may utilize a forensic toxicologist with the Illinois State Police to perform this calculation and present a conversion report. This expert can be cross-examined regarding how the conversion factor is determined, the studies done to determine the average conversion factor, and what medical conditions may affect an individual’s specific conversion factor. The state may ask the court to take judicial notice of the conversion rate and not present this expert with his report.²⁹ However, you should object and argue that judicial notice is proper for the conversion factor, but not for the result. A court is limited to the exhibits offered and admitted; it should not be completing its own math equations to determine if the defendant’s whole blood alcohol concentration was over .08 beyond a reasonable doubt.³⁰ The court has held that the conversion factor is not a mandatory presumption, but a permissive one. The court does not have to accept the conversion factor and resulting math.³¹

12.   Over the years, there have been many challenges to blood evidence. Most of these issues—whether medication was given to the defendant, or whether alcohol was used to swab the arm, or the effect of an IV on the blood test—have been found to be unconvincing and not a bar to admissibility of the blood result. Overall, the appellate court has held that there must be evidence that the medication, IV, or alcohol swab affected the test results to make it unreliable.³²

1. 20 Ill. Admin. Code ‘ 1286.320 (2011).

2. 20 Ill. Admin. Code ‘ 1266.320(d).

3. 20 Ill. Admin. Code ‘1286.330.

4. 20 Ill. Admin. Code ‘ 1286.320(b).

5. 20 Ill. Admin. Code ‘ 1286.320(a).

6. 20 Ill. Admin. Code ‘ 1286.320(e).

7. People v. Bishop, 354 Ill. App. 3d 549, 559 (1st Dist. 2004).

8. 20 Ill. Admin. Code ‘ 1286.320(f).

9. Bishop, 354 Ill. App. 3d at 560.

10. Bishop, 354 Ill. App. 3d at 560.

11. See People v. Harris, 352 Ill. App. 3d 63, 69 (1st Dist. 2004) (citing People. v. Irpino, 122 Ill. App. 3d 767, 775 (2nd Dist. 1984)).

12. Don Ramsell, Illinois Practice Series, Vol 25: IL DUI Practice & Guidebook, Appendix A (West 2010).

13. People v. Bynum, 257 Ill. App. 3d 502, 510 ( 1st Dist. 1994).

14. For a detained explanation, please see Don Ramsell, Illinois Practice Series, Vol. 25: IL DUI Practice & Guidebook ‘4:71.

15. See 726 ILCS 5/11-501 (2011); People v. Thoman, 329 Ill. App. 3d 1216 (5th Dist. 2002).

16. Don Ramsell, Illinois Practice Series, Vol. 25: IL DUI Practice & Guidebook ‘ 4:71.

17.Id.

18. 725 ILCS 5/11-501.4 (2011).

19. 725 ILCS 5/11-501.4.

20. People v. Massie, 713 N.E.2d 110 (1st Dist. 1999); 725 ILCS 5/11-501.4.

21. 725 ILCS 5/11-501.4

22. People v. Lach, 302 Ill. App. 3d 587 (1st Dist. 1998), appeal denied, 184 Ill. 2d 566 (1999).

23. See Crawford v. Washington, 541 U.S. 36, 54 (2004); Melendez-Diaz v. Massachussets, 129 S. Ct. 2527 (2009);Bullcoming v. New Mexico, 11 S. Ct. 2705 (2011).

24. Ramsell, supra note 16.

25. See People v. Menssen, 263 Ill. App. 3d 946, 953 (5th Dist. 1994).

26. People v. Green, 294 Ill. App. 3d 139 (1st Dist. 1997).

27. People v. Thoman, 329 Ill. App. 3d 1216, 1219 (5th Dist. 2002).

28. 20 Ill. Admin. Code ‘ 1286.40 (2011).

29. People v. Thoman, 329 Ill. App. 3d 1216, 1219 (5th Dist. 2002).

30. See State v. Rivers, 410 Ill. 410 (1951); Murdy v. Edgar, 103 Ill.2d 384, 394 (1984).

31. See People v. Olsen, 388 Ill. App. 3d 704, 716 (2nd Dist. 2009).

32. See People v. Miller, 166 Ill. App. 3d 155 (3rd Dist. 1988); People v. Rushton, 254 Ill. App. 3d 56 (2nd Dist. 1993);People v. Hirsch, 355 Ill App. 3d 611 (2nd Dist. 2005).

13.   Taken from “Don’t be intimidated by DUIs with blood evidence” By: Erica Nichols http://www.isba.org/sections/trafficlaw/newsletter/2011/08/dontbeintimidatedbyduiswithbloodevi

8.      If placed under arrest and about to be questioned by the officer, he/she must read you Miranda Rights:

a.      If a person in your position could reasonably conclude they were not free to leave, they are under arrest by the court’s definition.

b.      To determine if the reasonable person in your position would not feel they were free to leave, Courts look at certain factors, such as:

                                                    i.     Whether the officer’s squad car is blocking your vehicle from leaving.

                                                   ii.     Whether there is more than one officer present.

                                                  iii.     Whether the officers are armed, have their weapons drawn, or are saying commands in a forceful manner.

                                                  iv.     Whether the officer is in uniform.

                                                   v.     Whether the officer tells you that you cannot leave.

c.      If some of these factors are present, you will likely be considered “under arrest” and if the officer is going to question you, he/she must read you Miranda rights.

9.      If the officer makes misleading statements, the driver’s license suspension could be rescinded (thrown out):

a.      When requesting that you take a breath test after you are arrested, the officer must read a Warning to Motorist which states the length of time you will be suspended if you blow over .080 (6 months if you are a first offender or have not had a DUI or prior Summary Suspension within the last 5 years prior to the present DUI arrest), or if you refuse to test (1 year).  If he/she does not read this warning verbatim, but says misleading or incorrect statements regarding the Warnings, the court may rescind the driver’s license suspension and you will not lose your driving privileges.

b.      It is very important to challenge these suspensions because if you receive 2 suspensions in a 5 year period, the second driver’s license suspension will be for 3 years if you refuse to submit to chemical/breath testing.  If you blow over .08 and it’s your second time in a 5 year period, you are looking at a 1 year suspension instead of a 6 month suspension.

10.   If Drug Detecting Dogs are used to search around your vehicle, the canine officer and the canine must arrive at the scene as to not unreasonably prolong the stop.

a.      If the police pull you over for any traffic violation and they detain you, pay attention to how long you are waiting there at the scene before the drug detecting dog gets there.  Illinois case law scrutinizes how long police officers keep you there at the scene beyond the scope of the original intent of the stop.  For example, if a police officer pulls you over for a simple traffic violation, and they make you wait at the scene for the drug dog to arrive, if a court determines that the drug dog took too long to arrive at the scene, the court may throw out any evidence found from that search as inadmissible evidence due to the evidence being obtained unlawfully by the police.

If you have further questions, please visit our website at www.centralillinoislawyers.com and complete our online submission form. Or, you can call our office at 309-699-4691 or email us at how@howlawfirm.com.

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The attorneys at Hall & Rustom LLC represent clients throughout the entire state of Illinois, including, but not limited to, the cities of Peoria, Morton, Washington, Pekin, Eureka, East Peoria, Dunlap, Metamora, Bartonville, Bloomington, Normal and any legal matter located in Peoria County, Tazewell County, Woodford County, Marshall County, Stark County, Henry County, Knox County and McLean County.

Article Author: Jeffrey R. Hall

Jeff Hall is managing partner at Hall, Rustom & Fritz LLC and concentrates his law practice in Criminal Law, DUI & Traffic law, driver's license reinstatement hearings and criminal record expungements.

If you have a legal question, email Jeff Hall.

Jeffrey R. Hall

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