Recent Cases
The excerpts below have been recently authored by Mr. Moran for publication in several newsletters specializing in DUI defense.
HGN
Defendant appeals contending that the trial court improperly admitted testimony regarding the administration of a HGN test. Specifically, the arresting officer testified that Defendant moved his head during the test thus not complying with instructions. The defendant asserts that since a proper foundation for the HGN was not properly laid, the comment about his head should not have come into evidence. The Appellate Court affirmed the trial court holding that a lack of foundation for the HGN test will not preclude an officer from testifying to an incidental observation (movement of head) which may be relevant and have probative value.
Plain Error
In sentencing Defendant to 13 years’ incarceration for a Class X Aggravated DUI, the trial court did not commit error when it discussed Defendant’s prior convictions for DUI in relation to Defendant’s likelihood to reoffend, protection of the general public and deterrence. People v. Morrow, 2014 IL App (2d) 130718, ___ N.E.2d ___, ___ Ill.Dec. ___
Warrantless Blood Draw
In People v. Armer, 2014 IL App (5th) 130342, 20 N.E.3d 521, 386 Ill.Dec. 359, Defendant was charged with a DUI pursuant to 625 ILCS 5/11-501(a)(1). Defendant filed a motion to suppress the results of a blood test because it was taken without his consent or a warrant.
The Appellate Court affirmed the trial court’s granting of the motion to suppress relying upon Missouri v. McNeely, 569 U.S. ___, 185 L.Ed.2d 696, 133 S.Ct. 1552 (2013). Like McNeely, the court held that the arresting officer was not faced with exigent circumstances which would provide for a warrantless search. McNeely also stated that the natural dissipation of blood in and of itself, absent other circumstances, will not constitute “an emergency” for purposes of an exception to the warrant requirement.
Prolonged Stop
In People v. Cummings, 2014 IL 115769, 6 N.E.3d 725, 379 Ill.Dec. 397, a police officer erroneously thought that Defendant’s registration sticker was invalid. When he ran the plate and determined that the sticker was valid, he learned that the owner of the vehicle, a women, had an outstanding warrant for her arrest.
The police officer then stopped the vehicle and immediately determined that the driver was in fact a man. That notwithstanding, he asked the driver for his license which was suspended.
Subsequent to his arrest, the defendant filed a motion to quash arrest challenging the stop. The trial court granted the motion as did the Appellate Court. The matter went to the Supreme Court which affirmed the lower courts, holding that the stop was impermissibly prolonged when the request of the police officer was unrelated to the original basis for the stop.
Due Process
In People v. Rennie, 2014 IL App (3d) 130014, 10 N.E.3d 994, 381 Ill.Dec. 585, Defendant was convicted of aggravated DUI because she had a trace of marijuana in her system. Given that one victim was killed and another suffered great bodily harm, after being struck on a motorcycle, Defendant was sentenced to six and two years to be served concurrently.
Defendant appeals arguing that putting marijuana in the same category as other controlled substances for purposes of the (a)(6) law violates her due process and equal protection rights given the current liberalization of marijuana in the State of Illinois. Defendant further argues that her sentencing was excessive and she should have received Probation because of “extra ordinary circumstances” pursuant to 625 ILCS 5/11-501(d)(1)(c), (d)(2) (F, G).
The Appellate Court affirmed the trial court holding that Defendant’s due process and equal protection rights were not violated since the State has a legitimate interest in protecting the public from impaired drivers and the DUI statute (a)(6) is rationally related to serve that purpose. The court noted that Defendant was treated as anyone else who unlawfully consumed a prohibited controlled substance. The court went on to say that the sentence of the defendant was appropriate because the trial court properly found that “extraordinary” circumstances were not present, particularly in light of the degree of harm suffered by the victims.
Strict Liability DUI
In People v. Kathan, 2014 IL App (2d) 121335, 16 N.E.3d 365, 384 Ill.Dec. 269, Defendant was convicted of DUI pursuant to 625 ILCS 5/11-501(a)(6). Defendant appeals alleging that the State failed to establish that drugs were present in her system and furthermore that such substances were “unlawfully” consumed.
The Appellate Court affirmed the trial court holding that Defendant’s admissions, erratic driving coupled with the other circumstantial evidence (confusion) established that drugs were present in her system for purposes of the (a)(6) law despite the fact that there was no chemical analysis. The court went on to say that it is not the State’s burden to show that the drugs in the defendant’s system were “unlawful.” Once the State shows that drugs were consumed it is up to the defendant to establish that she had a valid prescription and were therefore taken lawfully.
Reasonable Suspicion
Making a valid U-Turn just before a safety check point, absent other traffic violations, does rise to the level of reasonable articulable suspicion to justify a traffic stop. People v. Timmsen, 2014 IL App (3d) 120481, 14 N.E.3d 1267, 383 Ill.Dec. 656
Retrograde Extrapolation
In People v. Floyd, 2014 IL App (2d) 120507, 11 N.E.3d 335, 381 Ill.Dec. 704, Defendant was found guilty of aggravated DUI where he had a BAC of .069 one hour and twenty minutes after his arrest.
Defendant appeals arguing that the trial court abused its discretion by permitting expert testimony at trial in the form of retrograde extrapolation.
The Appellate Court reversed the trial court holding that the expert made certain assumptions leading to his opinion that Defendant was over a .08 at the time of his arrest. The court specifically found that the expert’s assumption that Defendant was in the “elimination phase” at the time of his submission to a breath test was erroneous given that he was unfamiliar with a number of facts (when Defendant stopped drinking, eating and drinking habits, what food Defendant consumed, type of alcohol counseling), which would ultimately establish a valid opinion.