The Legality of Search and Seizure in DUI Cases

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This book provides an insider's perspective on best practices for identifying and litigating Fourth Amendment violations in Driving Under the Influence cases. Leading defense attorneys guide the reader through the proper search and seizure procedures and NHTSA standards that law enforcement should follow during the initial stop, investigation, and DUI arrest.

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The Legality of Search and Seizure in DUI Cases

  1. 1. I N S I D E T H E M I N D S The Legality of Search and Seizure in DUI Cases Leading Lawyers on Leveraging Science and Process to Develop Winning Defense Strategies 2012 EDITION
  2. 2. 2012 Thomson Reuters/Aspatore All rights reserved. Printed in the United States of America. No part of this publication may be reproduced or distributed in any form or by any means, or stored in a database or retrieval system, except as permitted under Sections 107 or 108 of the U.S. Copyright Act, without prior written permission of the publisher. This book is printed on acid free paper. Material in this book is for educational purposes only. This book is sold with the understanding that neither any of the authors nor the publisher is engaged in rendering legal, accounting, investment, or any other professional service. Neither the publisher nor the authors assume any liability for any errors or omissions or for how this book or its contents are used or interpreted or for any consequences resulting directly or indirectly from the use of this book. For legal advice or any other, please consult your personal lawyer or the appropriate professional. The views expressed by the individuals in this book (or the individuals on the cover) do not necessarily reflect the views shared by the companies they are employed by (or the companies mentioned in this book). The employment status and affiliations of authors with the companies referenced are subject to change. For customer service inquiries, please e-mail West.customer.service@thomson.com. If you are interested in purchasing the book this chapter was originally included in, please visit www.west.thomson.com.
  3. 3. Issues in DUI Search and Seizure David B. Franks Partner Franks & Rechenberg PC
  4. 4. By David Franks Introduction The DUI defense attorney must understand Fourth Amendment issues regarding the search and seizure of motorists. The topic of Fourth Amendment search and seizure issues is addressed in numerous cases, articles, and treatises―an area of law that is too complex to be completely discussed in this chapter. The purpose of this chapter is to provide a broad overview of driving under the influence search and seizure issues, specifically referencing Illinois statutes and case law. A detailed and exhaustive analysis of all possible search and seizure issues and related cases is outside the scope of this chapter. This chapter will discuss a few Fourth Amendment issues and cases, rather than discuss the many relevant cases and search and seizure issues. This chapter will address, in the opinion of this author, the most prevalent search and seizure issues the DUI defense attorney faces. This chapter will address the definition of seizure; the violation most cited by law enforcement officers for stopping motorists―improper lane usage; other violations of the vehicle code and various scenarios for which motorists are stopped; the validity of random license plate checks; law enforcement’s stop of motorists based upon 911 calls and anonymous tips; Fourth Amendment issues with respect to roadside safety checks/roadblocks, law enforcement’s entry into a suspect’s home, and inventory searches and searches incident to arrest; the arresting officer’s administration and evaluation of standardized field sobriety tests; recent Illinois case law addressing law enforcement’s failure to provide video-recording evidence related to DUI investigations; Drug Recognition Expert (DRE) training and the standardized DRE evaluation process; and the increasing trend of DUI offenses based upon drug impairment. Police Officers Must Have Articulable Reasonable Suspicion to Stop a Motorist Vehicle stops are subject to Fourth Amendment analysis―reasonableness in all the circumstances.1 A traffic stop requires reasonable suspicion that the vehicle or occupant is subject to seizure for a violation of the law.2 An officer may make a valid investigatory stop provided the officer’s decision is based upon specific and articulable facts and reasonable inferences therefrom that 1 People v. Jones, 215 Ill.2d 261 (2005). 2 People v. Rush, 319 Ill.App.3d 34 (2d Dist. 2001).
  5. 5. Issues in DUI Search and Seizure warrant the investigative intrusion.3 A mere suspicion or hunch is insufficient.4 The officer must have knowledge of specific, articulable facts which, when combined with the rational inferences from those facts, create a reasonable suspicion that the person in question has committed or is about to commit a crime.5 The reasonableness of vehicle stops is analyzed under the principles set forth in Terry v. Ohio6: a law enforcement officer may briefly detain a person for questioning, based upon specific and articulable facts and reasonable inferences therefrom, if the officer reasonably believes that the person has committed, or is about to commit, a crime. This rule has been codified in 725 ILCS 5/107-14,7 which states: A peace officer, after having identified himself as a peace officer, may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense as defined in Section 102-15 of this Code, and may demand the name and address of the person and an explanation of his actions. Such detention and temporary questioning will be conducted in the vicinity of where the person was stopped. A DUI defense attorney must always analyze the propriety of the stop, and file a Motion to Suppress based upon an improper stop. Seizure A person is seized “‘when, by means of physical force or a show of authority,’ that person’s ‘freedom of movement is restrained.’”8 A seizure may occur when law enforcement officers block a motorist’s car.9 A police 3 Village of Lincolnshire v. DiSpirito, 195 Ill.App.3d 859 (2d Dist. 1990). 4 Rush, 319 Ill.App. 3d at 39. 5 DiSpirito, 195 Ill.App.3d at 863. 6 Terry v. Ohio, 392 U.S. 1 (1968). 7 725 ILCS 5/107-14. 8 People v. Brownlee, 186 Ill.2d 501, 517 (1999) (quoting United States v. Mendenhall, 446 U.S. 544, (1980). 9 People v. Gherna, 203 Ill.2d 165 (2003); People v. Beverly, 364 Ill.App.3d 361 (2d Dist 2006).
  6. 6. By David Franks officer’s activation of his or her emergency overhead oscillating lights as a show of authority is one factor to consider in determining whether or not a seizure has occurred.10 Traffic Stops Improper Lane Usage In Illinois, 625 ILCS 5/11-709 (a) states: “A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”11 Police officers cite the offense of improper lane usage most often as the reason for vehicle stops that ultimately result in charges of driving under the influence. In many cases a police officer will stop a vehicle because the vehicle traveled over the fog line―the solid line separating the driving lane from the shoulder―or because the left side tires of the vehicle traveled upon the opposite lane of traffic, or because the left or right side tires of the vehicle travelled upon another lane of traffic proceeding in the same direction. The Appellate District Courts in Illinois are not in agreement as to what constitutes the offense of improper lane usage. Neither the statute nor case law has provided guidance as to how far the vehicle must travel into another lane, or for what duration the vehicle must travel in another lane, in order to establish the required articulable suspicion to stop the vehicle, or to establish the level of proof required to sustain a conviction at trial. The author provides samples of appellate court decisions addressing the violation of improper lane usage: In People v. Decker,12 the Third District Appellate Court held that the motorist’s nonhazardous, momentary crossing of the center line was not a reasonable ground for the stop. In People v. Leyendecker,13 the Second District Appellate Court affirmed the suppression of evidence where a motorist was stopped for crossing the fog line only once, by one foot, as she traveled on a 10 Village of Mundelein v. Minx, 352 Ill. App.3d 216 (2d Dist 2004); City of Highland Park v. Lee, 291 Ill.App.3d 48 (2d Dist. 1997). 11 625 ILCS 5/11-709. 12 People v. Decker, 181 Ill.App.3d 427 (3d Dist. 1989). 13 People v. Leyendecker, 337 Ill.App.3d 678 (2d Dist. 2003).
  7. 7. Issues in DUI Search and Seizure hilly road with poor visibility. In People v. Smith14 the Illinois Supreme Court ruled that the stop of the motorist was proper where the police officer observed the motorist’s driver side wheels cross over the lane line dividing the left lane from the center turn lane by six inches and remain over the line for 100 to 150 yards. The motorist then crossed over the lane line dividing the left lane from the right lane by six inches for 150 to 200 yards.15 In People v. Greco,16 the Second District Appellate Court ruled that the police officer’s stop of the defendant’s vehicle was proper where the vehicle swerved two or three times from the center of the road toward the curb even though the vehicle remained within the same lane. In People v. Faletti,17 the Third District Appellate Court ruled that a single momentary crossing of the center line, without more, did not necessarily provide a sufficient basis for an investigatory stop. In People v. Rush, 18 the Second District Appellate Court ruled that a driver’s single, momentary crossing of the center line, without more, is a sufficient basis for a stop. In People v. Schaefer,19 the Second District Appellate Court ruled that driving in the wrong lane, or in the oncoming lane of travel, does not constitute the offense of improper lane usage. In People v. Geier,20 the Second District Appellate Court ruled that after a vehicle crossed the center line and the fog line, the initial probable cause did not dissipate merely because the arresting officer continued to follow the motorist for two to four miles, after observing a traffic violation, before stopping the motorist. In People v. Scott,21 the Fifth District Appellate Court reversed the trial court’s ruling on defendant’s motion to suppress where the trial court’s ruling, that evidence of endangerment was essential to the finding of probable cause, was based upon an erroneous interpretation of the improper lane usage statute. The author respectfully submits that the issue of whether or not proof of endangerment is required to substantiate the violation of improper lane usage has not been completely addressed by the courts. Perhaps guidance can be found from other jurisdictions that have considered whether or not the motorist endangered pedestrians or other vehicles, and 14 People v. Smith, 172 Ill.2d 289 (1996). 15 Id. 16 People v. Greco, 336 Ill.App.3d 253, 270 (2d Dist. 2003). 17 People v. Faletti, 215 Ill.App.3d 61 (3d Dist. 1991). 18 People v. Rush, 319 Ill.App.3d 34 (2d Dist. 2001). 19 People v. Schaefer, 398 Ill.App.3d 963 (2d Dist. 2010). 20 People v. Geier, 407 Ill.App.3d 553 (2d Dist. 2011). 21 People v. Scott, 358 Ill.Dec. 39 (App. Ct. 5th Dist. 2012).
  8. 8. By David Franks ruled on the issue of improper lane usage. A few cases that have held that the police officer’s stop of the motorist was illegal include: United States v. Colin,22 where the motorist drifted onto the right fog line for ten seconds, signaled a lane change and moved into the left lane, and drifted to the left side of the left lane, where the left wheels traveled along the solid yellow line for ten seconds; Rowe v. State of Maryland,23 where the motorist crossed, by about eight inches, the white edge line separating the shoulder from the travel portion of the highway, returned to the travel portion, and a short time later touched the white edge line; Crooks v. State of Florida,24 where the vehicle drove over the right-hand line on the edge of the right lane, and drifted over the right-hand line two more times; and State of Montana v. Lafferty,25 where the driver crossed the fog line on the right side of the highway twice and drove on the fog line once. Driving Slowly Where a motorist was driving slowly, in an area with no posted minimum speed limit, and was not affecting traffic, the police officer’s stop of the motorist was improper.26 Where a motorist was driving ten miles per hour under the posted speed limit, and was not impeding traffic, the police officer’s stop of the motorist was improper.27 Where the motorist drove ten miles per hour in a twenty-five mile per hour speed zone, and demonstrated unusual behavior by stopping his vehicle in the middle of the street, the police officer’s stop of the motorist was improper.28 Random License Plate/Registration Checks Police officers may conduct a computer check of a license plate without first observing a traffic violation.29 22 United States v. Colin, 314 F.3d 439 (9th Cir.2002). 23 Rowe v. State of Maryland, 769 A.2d 879 (2001). 24 Crooks v. State of Florida, 710 So.2d 1041 (Fla. 2d DCA 1998). 25 State of Montana v. Lafferty, 967 P.2d 363 (1998). 26 People v. Rotkvich, 256 Ill.App.3d 124 (1st Dist. 1993). 27 People v. Isaac, 335 Ill.App.3d 129 (2d Dist. 2002). 28 People v. Dionesotes, 235 Ill.App.3d 967 (2d Dist. 1992). 29 People v. Blankenship, 353 Ill.App.3d 322 (3d Dist. 2004); Village of Lake in the Hills v. Lloyd, 227 Ill. App. 3d 351 (2d Dist. 1992); People v. Barnes, 152 Ill.App.3d 1004 (4th Dist. 1987); People v. Brand, 71 Ill.App.3d 698 (1st Dist. 1979).
  9. 9. Issues in DUI Search and Seizure Obstructed Windshield Police officers may stop a motorist for driving with an obstructed windshield. Section 12-503(c) of the Illinois Vehicle Code states: No person shall drive a motor vehicle with any objects placed or suspended between the driver and the front windshield *** which materially obstructs the driver’s view.30 In People v. Cole,31 the defendant was stopped because the officer observed a single strand of opaque beads, which were one-fourth of an inch in diameter, hanging four inches in length from the rearview mirror at eye level. The arresting officer, however, believed “anything suspended between the driver and the front windshield violated section 12-503(c).”32 The officer never testified that the beads constituted a material obstruction but only that they “hindered [the] defendant’s ability to observe other drivers.”33 Because the arresting officer did not have a reasonable suspicion or probable cause to believe the beads constituted a material obstruction based on his mistake of law, the appellate court reversed the trial court’s denial of the defendant’s motion to suppress. In People v. Johnson,34 the arresting officer stopped the defendant’s car after observing from the rear and side, at night, an air freshener shaped like two life-sized cherries hanging from the rearview mirror. The officer testified that the air freshener created a material obstruction of the defendant’s view of the roadway, but he did not tell that to the defendant during the stop. When confronted with photographs of the car, with the air freshener hanging from the rearview mirror, the officer concluded the driver’s view was not obstructed. Considering at the time of the stop the officer did not inform the driver that the air freshener was a material obstruction, the officer’s fleeting view of the air freshener in the dark, and the officer’s lack of understanding as to what constituted a material obstruction, the appellate court affirmed the trail court’s granting of defendant’s motion to suppress. 30 625 ILCS 5/12-503(c). 31 People v. Cole, 369 Ill.App.3d 960 (4th Dist. 2007). 32 Id. at 966. 33 Id. at 969. 34 People v. Johnson, 384 Ill.App.3d 409 (4th Dist. 2008).
  10. 10. By David Franks In People v. Mott,35 the arresting officer pulled over the defendant’s vehicle, which contained a leaf-shaped air freshener hanging from the rearview mirror. The officer estimated that the air freshener was 3½ to 4 inches wide and 4 to 5 inches tall. The officer believed that the air freshener hung about 1 inch below the mirror on a string that swung side to side. The officer had no formal training as to what constituted a “material obstruction,” and the trial court found the officer “mistakenly believed any object the size of a fingernail or larger hanging between the driver and the windshield constituted a ‘material obstruction’ providing reasonable suspicion for a traffic stop.”36 In addition to noting the air freshener was smaller than that estimated by the officer, the court found the officer did not testify to the relationship between the air freshener and the defendant’s eye level. In affirming the trial court’s decision to grant the motion to suppress, the appellate court noted the officer “failed to articulate any specific facts giving rise to an inference [the] Defendant’s view was obstructed.” The appellate court noted, however, “size alone does not determine whether an object materially obstructs the driver’s view,” and maintained that “all of the objects listed could be material obstructions in the proper situation.”37 However, see People v. Price,38 where the arresting officer’s testimony regarding the size of the air freshener, how it swayed back and forth, and that it would have obstructed the defendant’s view based on the defendant’s sitting position, provided the arresting officer reasonable suspicion, based on a material obstruction, to justify the arresting officer stopping the defendant’s vehicle. Anonymous Tips and 911 Calls Police officers may stop motorists based upon anonymous and 911 telephone calls. The practitioner must review the reliability of the caller, whether the conduct reported by the caller is conclusory (“erratic driving”) 35 People v. Mott, 389 Ill.App.3d 539 (4th Dist. 2009). 36 Id. at 163. 37 Id. at 166. 38 People v. Price, 2011 IL App (4th) 110,272, 962 N.E.2d 1035, 357 Ill.Dec. 134 (Ill.App. 4 Dist. Dec 12, 2011) (NO. 4-11-0272, 4-11-0273).
  11. 11. Issues in DUI Search and Seizure or describes specific facts (“the vehicle crossed the center line into oncoming traffic and then drove onto the shoulder and almost off of the road”), and whether or not the reporting is contemporaneous with the observed acts. When citizens make a 911 telephone call to law enforcement, they are presumed to be reliable since police can ascertain their identity, and because the citizen would face penalties should he or she provide false or misleading information to the police.39 “[W]hile reasonable cause to stop an individual may be based on an anonymous informant’s tip, … some indicia of reliability must be provided to justify the stop. Such evidence should include independent corroboration by the police of the information provided by the caller, and evidence that the information provided was specific enough to show that the caller had access to reliable information.”40 Informants’ tips regarding possible incidents of drunk driving require less rigorous corroboration than tips concerning matters presenting less imminent danger to the public.41 The Shafer Court relied on a decision from the Supreme Court of New Hampshire in State v. Sousa,42 to outline the factors for evaluating whether an anonymous tip gives rise to reasonable suspicion: 1) whether there is a “sufficient quantity of information” such as the vehicle’s make, model, license plate number, location and bearing, and “similar innocent details” so that the officer may be certain that the vehicle stopped is the one the tipster identified; 2) the time interval between the police receiving the tip and the police locating the suspect vehicle; 3) whether the tip is based upon contemporaneous eyewitness observations; and, 4) whether the tip is sufficiently detailed to permit the reasonable inference that the tipster has actually witnessed an ongoing motor vehicle offense. In People v. Ewing,43 the appellate court held that the stop, based upon a 911 telephone call tip, was proper, for several reasons: 1) the caller provided sufficient details about the car, including the make, model, color, and license plate, and the fact that the vehicle was traveling eastbound on Route 16 with two male occupants; 2) the time interval between the call and when 39 People v. Rollins, 382 Ill.App.3d 833, (4th Dist. 2008). 40 People v. Messamore, 245 Ill.App.3d 627, 629 (3rd Dist. 1993). 41 People v. Shafer, 372 Ill.App.3d 1044 (4th Dist. 2007). 42 State v. Sousa, 151 N.H. 297 (2004). 43 People v. Ewing, 377 Ill.App.3d 585 (4th Dist. 2007).
  12. 12. By David Franks the officers located defendant’s vehicle was short; 3) the tip was based on contemporaneous eyewitness observations; and 4) the caller telephoned 911 as she observed the incident and the tip was sufficiently detailed to permit a reasonable inference that the tipster actually witnessed what she described. The caller would have had ample opportunity to observe defendant as he left, and in a position to observe defendant’s speech, odor, and gait.44 Law Enforcement Entry into the Residence In some instances, a citizen will contact law enforcement and report his or her observations of a motor vehicle driving erratically, causing an accident that resulted in damage to their vehicle or property, or damage to another person’s property, and leaving the scene of the accident. The motorist flees the scene of the accident and returns home, intending to avoid contact with investigating officers. The citizen often provides the license plate number, as well as the make, model, and color, of the fleeing vehicle. Armed with this information, the investigating officer(s) ascertain the registered owner of the vehicle that fled the scene, as well as the address of the registered owner. The police officer(s) then proceed to the registered owner’s address, usually without a warrant for the driver’s arrest. (This author has had the privilege of defending a DUI case where law enforcement, in addition to receiving a 911 telephone call reporting a vehicle that had fled the scene of a property damage accident, was able to follow the trail of debris and fluid leakage from the scene of the accident to the driveway of the defendant’s home, a distance of several miles!) Upon arriving at the motorist’s residence, the officer inquires as to who was driving the damaged vehicle, and requests to speak with the driver, either asking the driver to step outside the residence, or gaining access to the residence, and eventually arresting the driver. The practitioner must be aware of pertinent Fourth Amendment search and seizure issues when determining whether or not the officer’s entry into the residence, and subsequent arrest of the defendant, were lawful. 44 See People v. Smulik, 964 N.E.2d 183 (App. Ct. 2d Dist. 2012) (appellate court affirmed defendant’s motion to quash where the informant merely reported contemporaneous noninculpatory observations regarding the description and location of the defendant’s vehicle, and the informant’s information contained no “predictive value”).
  13. 13. Issues in DUI Search and Seizure The chief evil against which the Fourth Amendment to the United States Constitution is directed is the physical entry of the home.45 Thus, the Fourth Amendment “has drawn a firm line at the entrance of the house,”46 and warrantless searches and seizures inside a home are presumptively unreasonable.”47 Accordingly, absent exigent circumstances, police may not enter a private residence to make a warrantless search or arrest.48 The Fourth Amendment does not prohibit officers from entering a home without a warrant if exigent or compelling circumstances justify the entry.49 The burden of demonstrating exigent need for a warrantless search or arrest is on the state.50 The court in People v. White,51 outlined several factors to be considered in analyzing exigency in a particular situation: 1) whether the offense under investigation was recently committed; 2) whether there was any deliberate or unjustifiable delay by the officers during which time a warrant could have been obtained; 3) whether a grave offense is involved, particularly one of violence; 4) whether the suspect was reasonably believed to be armed; 5) whether the police officers were acting upon a clear showing of probable cause; 6) where there was a likelihood that the suspect would have escaped if not swiftly apprehended; 7) whether there was strong reason to believe that the suspect was on the premises; and 8) whether the police entry, though non-consensual, was made peaceably.52 In determining whether the police acted reasonably, the court must look to the totality of the circumstances confronting the officers at the time the entry was made.53 Illinois Appellate Courts have addressed the issue of exigency with respect to entries, warrantless searches and seizures, and DUI arrests within a residence. In People v. Krueger,54 the appellate court reversed the trial court’s 45 Payton v. New York, 445 U.S. 573 (1980). 46 Id. at 590. 47 Id. at 586. 48 Id. at 587-88. 49 People v. Foskey, 136 Ill.2d 66 (1990) (citing People v. Cobb, 97 Ill.2d 465 (1983)). 50 Id. (citing United States v. Aquino, 836 F.2d 1268 (10th Cir. 1988)). 51 People v. White, 117 Ill.2d 194 (1987). 52 People v. Davis, 398 Ill.App.3d 940 (2d. Dist. 2010); State v. Fisk, 192 P.3d 185 (Kan. Ct. App. 2008). 53 Fiske, 192 P.3d at 185; see also People v. Anthony, 198 Ill. 2d 194 (2001) (demonstrating that acquiescence to police apparent authority does not constitute voluntary consent to a search). 54 People v. Krueger, 208 Ill.App.3d 897 (2d Dist. 1991).
  14. 14. By David Franks order denying the defendant’s petition to rescind the statutory summary suspension of his driver’s license. On appeal the defendant argued that the statutory summary suspension of his driver’s license could not be predicated on an illegal arrest. The appellate court rejected the state’s argument that the arrest was lawful because the officers’ warrantless entry into the defendant’s home was validated by (1) their reasonable belief that the defendant was in need of their immediate assistance and (2) their need to preserve evidence of the defendant’s offense of driving under the influence of alcohol. Reversing the trial court’s ruling, the appellate court noted that the police had no reasonable grounds to believe that the defendant required their immediate assistance to safeguard his physical well- being, the state did not meet its burden to show that the entry into the defendant’s home was not motivated primarily by the intent to investigate or seize evidence in connection with the possible DUI offense, there was nothing in the record to indicate that the police sought to provide medical assistance for the defendant’s possible injuries, and this was not a case where the officers’ post-entry conduct was limited to achieving the objective justifying the entry, since the police plainly did more than was necessary to ascertain whether the defendant needed assistance.55 In People v. Feddor,56 the appellate court affirmed the trial court’s granting of defendant’s petition to rescind the statutory summary suspension of his driver’s license and his motion to suppress evidence. In Feddor, the police, after receiving information regarding a hit and run accident, and without a warrant or consent, gained forced entry into the defendant’s residence, claiming that defendant may have been injured. The court rejected the state’s argument that the entry was proper under an “emergency exception” because the police were concerned about the defendant’s health. Affirming the trial court’s rulings, the appellate court noted that at the time the police entered the defendant’s home, they knew only that the defendant had been in an auto accident and returned home, the witness following the defendant did not observe anything physically wrong with the defendant, the defendant was not answering his door, and one of the officers acknowledged that he did not know whether or not the defendant was injured. In addition, the appellate court concluded that the state did not meet its burden of proof in establishing 55 Id. 56 People v. Feddor, 355 Ill.App.3d 325 (2d. Dist. 2005).
  15. 15. Issues in DUI Search and Seizure that law enforcement’s entry into the residence was not based primarily on an intent to arrest and seize evidence.57 Roadside Safety Checks/Roadblocks During holiday periods, many police departments throughout the country conduct roadside safety checks/roadblocks ostensibly to ensure that motorists are using safety belts, have secured children in appropriate child restraint seats, and maintain current insurance for their vehicle. These holiday periods include Thanksgiving, Christmas and New Year’s, Super Bowl weekend, St. Patrick’s Day, Cinco de Mayo, Memorial Day, Independence Day, and Labor Day. In many instances, these are multi- department operations in which officers from a local police department and deputies from the local county sheriff’s police department, or officers from a local police department and troopers from the state police, or even a combination of officers from all three police agencies, participate in and operate the roadblock. When the state police are involved in a roadside safety check, troopers from the Illinois State Police usually lead the roadside safety check operations. In actuality, roadside safety checks/roadblocks are established during holiday periods to determine if motorists are committing the offense of driving under the influence. The United States Department of Transportation provides funding to each state, usually to the state’s Department of Transportation or equivalent department. In Illinois, after receiving funding from the United States Department of Transportation, the Illinois Department of Transportation (IDOT) provides roadside safety check (RSC) grant funding to the Illinois State Police and local police departments. Upon application from municipal police departments, the Illinois Department of Transportation (IDOT) distributes grant money to the municipal police departments to operate a roadside safety check. Many practitioners believe that if a driver is stopped and arrested for the offense of DUI at a roadside safety check, they have no chance of challenging the stop or beating the charge. Without question, a roadside 57 Id.
  16. 16. By David Franks safety check DUI arrest can be challenged, especially where there is seldom any evidence of bad driving. A DUI defense attorney must not presume that the law enforcement agency properly conducted the roadblock. The practitioner must be aware of Fourth Amendment search and seizure issues as they apply to roadside safety checks and must evaluate whether or not the roadside safety check passes constitutional muster. In order for a roadside safety check to pass constitutional muster, law enforcement officials must conduct the roadside safety check operation in accordance with National Highway Traffic Safety Administration (NHTSA) standards as described in the NHTSA manual entitled “The Use of Sobriety Checkpoints for Impaired Driving Enforcement,”58 the local police department Operational Plan, and pertinent case law. The United States Supreme Court, in Michigan Department of State Police v. Sitz,59 has ruled that roadside safety checks are not an impermissible intrusion on a motorist’s Fourth Amendment rights, and are necessary to prevent danger on our roads and highways. A Fourth Amendment seizure occurs when a vehicle is stopped at a roadblock or checkpoint.60 The police may not employ a roadblock primarily for the ordinary purpose of investigating crimes.61 The critical factor in determining whether or not a roadside safety check passes constitutional muster is whether the officers are acting with unbridled discretion. In order for a roadside safety check roadblock to be constitutionally valid, it is to be evaluated according to the factors enumerated by the Unites States Supreme Court in the various cases dealing with roadblocks and summarized by the Illinois Supreme Court in People v. Bartley.62 In evaluating whether or not the arbitrary enforcement and the use of discretion of officers in the field are reduced and the subjective intrusion minimized, the Bartley court outlined several factors to be evaluated in determining the constitutionality of roadblocks: 1) the absence of unfettered discretion on the part of individual officers; 2) the presence of procedural guidelines; 3) a decision made by supervisory 58 DOT HS 807 656 November 1990, available at http://stopdruggeddriving.org/pdfs/SobrietyCheckpoints.pdf (copy of which is provided as Appendix B). 59 Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990). 60 People v. Scott, 277 Ill.App.3d 579 (3d Dist. 1996) (citing Sitz, 496 U.S. 444). 61 City of Indianapolis v. Edmond, 531 U.S. 32 (2000). 62 People v. Bartley, 109 Ill.2d 273 (1985).
  17. 17. Issues in DUI Search and Seizure personnel to establish the roadblock; 4) the selection of the site by supervisory personnel; 5) the systematic stopping of vehicles; 6) sufficient showing of official authority; and 7) advance publicity. In order to evaluate the constitutionality of a roadside safety check, the practitioner must obtain a copy of the following documents: 1. National Highway Safety Administration (NHTSA) manual entitled: “The Use of Sobriety Checkpoints for Impaired Driving Enforcement.”63 2. The operational plan prepared by the police department to establish and conduct the roadside safety check. 3. Any and all documents, memoranda, reports, records, paperwork and forms whatsoever used to prepare the operational plan. 4. Any and all attachments to the operational plan to include any and all documents, memoranda, reports, records, forms, diagrams, charts, and pictures. 5. Any and all reports, records, forms, memorandum, and paperwork whatsoever regarding the administration and operation of the roadside safety check. 6. Any and all documents, memoranda, reports, and records regarding: a. The date, time, and location where the roadside safety check was to be conducted (should be contained in the operational plan). b. The selection sequence of the vehicles to be stopped (should be contained in the operational plan). c. Any adjustments or changes to the operational plan (should be contained in the operational plan). d. Details publicized by the public information officer (should be contained in the operational plan). e. The sign-in sheets for all participants in the roadside safety check (should be contained in the operational plan). 63 DOT HS 807 656, November 1990, available at http://stopdruggeddriving.org/pdfs/SobrietyCheckpoints.pdf.
  18. 18. By David Franks 7. After-Action Report. In Illinois, the Illinois State Police refers to this form as Roadside Safety Check Form, ISP5-267. 8. Any and all video/audiotapes/CD-ROMs/DVDs taken of the roadside safety check. 9. Final report, any and all after-action report(s), and data collection form(s) regarding the roadside safety check. Provided as Appendix C is a sample subpoena duces tecum, to be issued to the police department, to obtain the materials described in subparagraphs 2 through 9 above. In addition, the practitioner should obtain, from their respective state Department of Transportation, documentation regarding National Highway Traffic Safety Administration Basic Traffic Safety Funding grants and National Highway Traffic Safety Administration Alcohol Impaired Driving Countermeasures Program grants regarding the roadside safety check/roadblock operation. This information can be obtained through a Freedom of Information Act request. Provided as Appendix D is a sample Freedom of Information Act request for this purpose. The defense attorney must consider the following factors in order to evaluate if law enforcement personnel conducted a constitutionally valid roadside safety check operation: • Who decided to establish the roadside safety check, and who selected the site for the roadside safety check? The decision to use an intrusive roadblock should be made by politically accountable public officials or higher ranking officers at the policy-making level.64 • Which law enforcement agency had the operational lead for the roadside safety check? • Did law enforcement personnel prepare and implement a written policy or procedure to conduct the roadside safety check?65 • What was the selection criteria/sequence for stopping vehicles? Every vehicle? Every third vehicle? Every fifth vehicle? 64 People v. Fullwiley, 304 Ill.App.3d 44 (2d. Dist. 1999); People v. Adams, 293 Ill.App.3d 180 (2d Dist. 1997). 65 Id.
  19. 19. Issues in DUI Search and Seizure • Did law enforcement personnel deviate from the written policy or procedure? Did law enforcement deviate from the established selection sequence? If law enforcement personnel deviated from the established selection sequence―i.e., from stopping every third vehicle to stopping every fifth vehicle―did law enforcement personnel document this deviation, as well as the time of and the reason for the deviation, in the after-action report? Did law enforcement personnel consider this possible deviation as part of a contingency plan? At what time did law enforcement personnel return to the initial selection sequence? • Did the written policy include a contingency plan, taking into consideration traffic flow or weather conditions? • Did law enforcement personnel provide adequate warning to approaching motorists regarding the roadside safety check? Did your client know that he or she was, in fact, approaching a roadside safety check? Did law enforcement personnel set up the roadside safety check near the crest of a hill, or around a curve with poor line-of-sight detection? What kinds of signs did law enforcement personnel use to warn approaching motorists? Did the signs comply with municipal and state regulations? Where did law enforcement personnel set up the warning signs in relation to where law enforcement personnel directed motorists into the checkpoint? Where did law enforcement personnel set up the warning signs in relation to the location of cones and flares used to direct and channel approaching traffic? • What steps did law enforcement personnel take to demonstrate the official nature of the roadside safety check? Where were squad cars located within the roadside safety check? Where were squad cars located in relation to where law enforcement personnel directed motorists into the roadside safety check? Were the squad cars visible to approaching motorists? Did law enforcement personnel activate the squad car overhead emergency lights for the duration of the roadside safety check? Did law enforcement personnel use signs that clearly advised motorists that they were approaching a roadside safety check?
  20. 20. By David Franks • Did law enforcement personnel issue a press release before the establishment and operation of the roadside safety check advising the community of the impending roadblock? • Did law enforcement personnel video-record the entire roadside safety check operation? • Did law enforcement personnel set up the roadside safety check in such a manner to ensure the safety of motorists? • Did law enforcement personnel permit motorists to avoid the roadside safety check? In light of all of the various factors, outlined above, to consider when determining whether or not a roadside safety check/roadblock passes constitutional muster, a DUI defense attorney must not presume that the law enforcement agency properly conducted the roadblock. These factors must be analyzed so that the attorney can prepare and proceed to hearing on an effective Motion to Quash. For example, testimony by the roadside safety check operational commander, or testimony by field officers, that they stopped vehicles “randomly” may establish an issue for your client, if necessary, upon appeal. Suspicious Vehicle/Vehicle Leaving Closed Business Parking Lot In People v. Leggions,66 the Fourth District Appellate Court held that the stop of the defendant was improper; the observations of the officers were too minimal to support reasonable suspicion where the officers observed two people exit one vehicle and enter another vehicle in a high crime area. In People v. Safiran,67 the Third District Appellate Court held that the officer’s stop of the defendant’s vehicle was improper where the police officer testified that he stopped the vehicle because it was “suspicious,” but provided no information describing why the vehicle was “suspicious.” In People v. Cordero,68 the Second District Appellate Court held that the stop of the defendant was not supported by a reasonable and articulable suspicion where the officer observed a car in the parking lot of a closed restaurant, the car pulled out of the parking lot when the officer entered the parking 66 People v. Leggions, 382 Ill.App.3d 1129 (4th Dist. 2008). 67 People v. Safiran, 229 Ill.App. 3d 639 (3d Dist. 1992). 68 People v. Cordero, 358 Ill.App.3d 121 (2d Dist. 2005).
  21. 21. Issues in DUI Search and Seizure lot, the officer did not testify that she observed the car drive off rapidly or recklessly, the officer did not testify that the area was a high crime area, and the officer did not testify that the defendant was startled or scared upon first observing the officer. Inventory Searches/Searches Incident to Arrest A search conducted without prior approval of a judge, conducted without a warrant, is per se unreasonable under the Fourth Amendment. One exception to the warrant requirement is the inventory search. An inventory search is a judicially created exception to the warrant requirement of the Fourth Amendment.69 Three requirements must be satisfied for a valid warrantless inventory search of a vehicle: (1) the original impoundment of the vehicle must be lawful; (2) the purpose of the inventory search must be to protect the owner’s property and to protect the police from claims of lost, stolen, or vandalized property and to guard the police from danger; and (3) the inventory search must be conducted in good faith pursuant to reasonable standardized police procedures and not as a pretext for an investigatory search.70 For a customary inventory search to be deemed reasonable, it must further these three objectives.71 In determining whether an inventory search is proper and reasonable, the threshold question is whether the prior impoundment was proper since the need and justification for the inventory arises from the impoundment.72 Police have authority to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience.73 This authority arises from the police department’s “community caretaking functions.”74 The fact that the arrestee’s car would be left unattended is not a sufficient reason for impoundment unless the vehicle would be illegally parked.75 There is no requirement that a police department’s inventory procedures be in writing.76 69 People v. Hundley, 156 Ill.2d 135 (1993) (citing Illinois v. Lafayette, 462 U.S. 640 (1983)). 70 Id.; see also People v. Clark, 394 Ill.App.3d 344, (1st Dist. 2009). 71 People v. Ursini, 245 Ill.App.3d 480 (2d Dist. 1993). 72 Id. 73 Id. 74 Id. 75 Id. 76 People v. Gipson, 203 Ill.2d 298 (2003).
  22. 22. By David Franks The only requirement is that, in conducting inventory searches, the police act in accordance with standardized department procedures.77 When evaluating the constitutionality of the impoundment and inventory search of a vehicle, the defense attorney should consider the following factors: whether or not the police department took the vehicle into custody, whether or not the vehicle was threatening public safety or impeding/obstructing traffic, whether or not another licensed driver could have driven the vehicle from the scene, and whether or not the arresting officer(s) was acting pursuant to standard police procedures. In cases where police officers claim that they impounded and conducted an inventory search of a vehicle pursuant to a written department inventory policy, the defense attorney should obtain a copy of that written inventory policy. This author provides a sample subpoena duces tecum, as Appendix E, requesting the production of a police department’s written inventory policy. Another exception to the warrant requirement of the Fourth Amendment is the search-incident-to-arrest. In Arizona v. Gant,78 the United States Supreme Court clarified the search-incident-to-arrest exception that applies to vehicles. The Gant Court stated that there are two circumstances under which a search-incident-to-arrest is permissible: law enforcement may search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search, and when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.79 Countering the Arresting Officer’s Impairment Assessments Police officers throughout the country are trained in DWI detection according to United States Department of Transportation National Highway Traffic Safety Administration (NHTSA) guidelines and standards. The NHTSA student manual entitled “DWI Detection and Standardized Field Sobriety Testing” (February 2006) teaches police officers, in part, that 77 Id. 78 Arizona v. Gant, 556 U.S. 332 (2009). 79 Id.
  23. 23. Issues in DUI Search and Seizure the DUI detection process occurs in three phases: 1) vehicle in motion; 2) personal contact; and 3) pre-arrest screening. Police officers are instructed at their respective police academies to administer, score, and evaluate Standardized Field Sobriety Tests (SFSTs) in a standardized manner. These phases constitute the systematic and evolving process by which the police officer investigates and gathers evidence to establish probable cause to arrest and charge a driver with the offense of driving under the influence. The author will briefly discuss each of these phases. Phase One: Vehicle in Motion During Phase One, the officer observes the driver operating the vehicle. The officer observes the vehicle to determine whether or not the vehicle is being driven in such a manner that would suggest that the motorist may be impaired. The officer can stop a vehicle for any violation of the Illinois Vehicle Code. In addition, the NHTSA guidelines instruct the officers to observe, for example, the following cues that could indicate that a driver is impaired: weaving, weaving across lanes, straddling a lane line, drifting, almost striking another object or vehicle, stopping too short or beyond a line at an intersection or stopping in a jerking manner, accelerating or decelerating rapidly, varying speed, driving in an opposing lane of traffic, slow response to traffic signals, slow or failure to respond to the officer’s signals to stop, stopping for no reason, driving without headlights, failure to signal or signals inconsistent with maneuvers, improper lane change, or an illegal turn. The NHTSA guidelines also instruct the officer, after signaling the driver to stop, to observe the stopping sequence. Cues of impairment regarding the stopping sequence may include an attempt to flee, no response, slow response, an abrupt swerve, a sudden stop, or striking the curb.80 In Illinois, the police officer needs reasonable and articulable suspicion, and not probable cause, that a motorist has committed an offense in order to stop the vehicle. The most common vehicle code violation cited by police officers for stopping a vehicle is improper lane usage, discussed in depth above. The DUI defense attorney must analyze the alleged traffic 80 National Highway Traffic Safety Administration, VEHICLE IN MOTION, STUDENT MANUAL: DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING VIII-1 (2006).
  24. 24. By David Franks violation to determine whether or not the driver actually committed a violation, to determine whether or not the arresting officer had reasonable and articulable suspicion to stop the driver. Where the arresting officer’s stop of a vehicle is improper, or questionable, the attorney must file a Motion to Suppress challenging the lawfulness of the stop. If the court denies the motion, and the attorney and client proceed to trial in order to try to beat the DUI charge, then the attorney must elicit testimony stressing the client’s good driving and smooth stop. Phase Two: Personal Contact If the police officer has reasonable and articulable suspicion that the driver has committed an offense, the officer will stop the vehicle. The officer then makes contact with the driver. The officer observes and “interviews” the driver. Based upon these observations and the “interview,” the officer then decides whether or not to direct the driver to exit the vehicle for additional investigation―i.e., the administration of the Standardized Field Sobriety Tests. The NHTSA guidelines instruct the officers to observe, for example, the following cues which could indicate that a driver is impaired: bloodshot eyes, soiled clothing, fumbling fingers, alcohol containers in the vehicle, drugs or drug paraphernalia, slurred speech, admission of drinking, inconsistent responses, abusive language, the odor of alcohol, and “cover up” odors such as breath mints or sprays. During this phase, the police officer may conduct the following divided attention tests: 1) asking the driver for two things simultaneously, or asking distracting questions; 2) an alphabet test, requesting the driver to recite certain letters of the alphabet; and 3) a counting test, directing the driver to count backwards from a particular number to a particular number. The NHTSA guidelines also instruct the officers, after directing the driver to exit the vehicle, to observe how the driver exits the vehicle. Cues of impairment regarding how a driver exits the vehicle may include: cannot follow instructions; cannot open the door; leaves the vehicle in gear; and once outside the vehicle, leans against the vehicle for balance, and keeps hands on the vehicle for balance.81 81 National Highway Traffic Safety Administration, PERSONAL CONTACT, STUDENT MANUAL: DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING IV-2 (2006).
  25. 25. Issues in DUI Search and Seizure The DUI defense attorney must stress what tasks the driver performed well, and how the driver demonstrated good motor skills. At hearing on a Motion to Suppress, or at trial, the defense attorney, for example, should elicit testimony describing that the driver pulled over and stopped appropriately, answered the officer’s questions without hesitation and in an appropriate manner, retrieved and produced his or her driver’s license and proof of insurance with no difficulty, provided the driver’s license to the officer using his or her fingertips, recited the alphabet correctly, exited the vehicle smoothly and in a coordinated manner, and once outside the vehicle, did not lean on the vehicle at any time for balance or support. Phase Three: Pre-Arrest Screening Phase Three entails the police officer administering the structured Standardized Field Sobriety Tests: the horizontal gaze nystagmus (HGN) test, walk-and-turn/heel-to-toe test, and one-leg-stand test. With respect to the HGN test, the NHTSA guidelines instruct the officers to observe the following cues which could indicate that a driver is impaired: lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation, and onset of nystagmus prior to 45 degrees.82 In the landmark case of People v. McKown,83 the Illinois Supreme Court, adopting the trial court’s conclusion of law, ruled on the admission of HGN evidence and its use at trial. The Supreme Court adopted and affirmed the trail court’s five conclusions of law: 1. HGN testing satisfies the Frye standard in Illinois. 2. HGN testing is but one facet of field sobriety testing and is admissible as a factor to be considered by the trier-of-fact on the issue of alcohol or drug impairment. 3. A proper foundation must include that the officer has been adequately trained, has conducted testing and assessment in accordance with the training, and that the officer administered the particular test in accordance with his training and proper procedures. 82 National Highway Traffic Safety Administration, CONCEPTS AND PRINCIPLES OF THE STANDARDIZED FIELD SOBRIETY TESTS, STUDENT MANUAL: DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING VIII-5 (2006). 83 People v. McKown, 236 Ill. 2d 278 (2010).
  26. 26. By David Franks 4. HGN testing results should be limited to the conclusion that a “failed” test suggests that the subject may have consumed alcohol and may have been under the influence; there should be no attempt to correlate the test results with any particular blood-alcohol level or range or level of intoxication. 5. In conjunction with other evidence, HGN may be used as a part of the police officer’s opinion that the subject was under the influence and impaired.84 With respect to the walk-and-turn/heel-to-toe test, a divided attention test, the NHTSA guidelines instruct the officers to observe the following cues which could indicate that a driver is impaired: Cannot keep balance while listening to instructions, starts before instructions are finished, stops while walking, does not touch heel-to-toe, steps off the line, uses arms to balance, improper turn, and incorrect number of steps. Two or more clues may indicate that the motorist is impaired.85 Regarding the one-leg-stand test, another divided attention test, the NHTSA guidelines instruct the officers to observe the following cues which could indicate that a driver is impaired: sways while balancing, uses arms for balance, hopping, and puts foot down. Two or more clues may indicate that the motorist is impaired. The NHTSA SFST training manual instructs officers that validation of these tests applies only when the tests are administered in the prescribed, standardized manner; the standardized clues are used to assess the driver’s performance; and the standardized criteria are used to interpret that performance. According to the NHTSA SFST student training manual, if any one of these standardized field sobriety test elements is changed, the validity of the test is compromised.86 84 Id. 85 National Highway Traffic Safety Administration, CONCEPTS AND PRINCIPLES OF THE STANDARDIZED FIELD SOBRIETY TESTS, STUDENT MANUAL: DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING VIII-13 (2006). 86 National Highway Traffic Safety Administration, CONCEPTS AND PRINCIPLES OF THE STANDARDIZED FIELD SOBRIETY TESTS, STUDENT MANUAL: DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING VIII-19 (2006).
  27. 27. Issues in DUI Search and Seizure As part of Phase Three, the officer may also administer a preliminary breathalyzer test (PBT), a portable hand-held breathalyzer device which can be used to establish probable cause to arrest a motorist suspected of driving under the influence. In Illinois, the PBT result is inadmissible evidence at trial.87 Again, the DUI defense attorney must stress what elements of the Standardized Field Sobriety Tests the driver performed well, and how the driver demonstrated good motor skills. At hearing on a Motion to Suppress, or at trial, the defense attorney, for example, should elicit testimony describing that the driver: walked normally while outside the vehicle; did not sway or lose balance during the HGN test; touched heel-to- toe, took the required nine steps each way, did not use his or her arms for balance during the walk-and-turn/heel-to-toe test; and did not hop or use his or her arms for balance, and actually achieved the count of thirty, during the one-leg-stand test. The defense attorney should also elicit testimony regarding any environmental factors that may have adversely affected the driver’s performance on the SFST’s. Poor lighting, extreme cold, strong winds, an uneven surface, the driver facing the squad car with activated overhead oscillating lights, and closely passing traffic could adversely affect a driver’s ability to successfully complete these tests. For example, if the officer administers the horizontal gaze nystagmus test while the driver is facing the squad car with activated overhead oscillating lights, the results of this “test” are meaningless since the arresting officer will be unable to distinguish between nystagmus caused by the ingestion of alcohol, and optokinetic nystagmus, caused by flashing lights. The defense attorney should elicit testimony regarding the driver’s physical condition, which may have adversely affected the driver’s performance on the SFST’s. Fatigue, age, weight, and leg, back or foot injuries are factors that could adversely affect a driver’s ability to successfully complete these tests. The defense attorney should also review the video (if available) depicting the arresting officer’s contact with the driver at the scene to analyze the manner in which the arresting officer administered the SFST’s. The DUI 87 People v. Rose, 268 Ill.App.3d 174 (4th Dist. 1994).
  28. 28. By David Franks defense attorney should obtain a copy of and become very familiar with the NHTSA manual to determine whether or not the arresting officer provided the correct instructions to the driver; administered the SFST’s in the prescribed, standardized manner; used standardized clues to assess the driver’s performance; and used the standardized criteria to evaluate the driver’s performance. For example, the author has handled more than one case where the arresting officer has failed to document that the driver reached the count of thirty during the one-leg stand test, or provided incorrect instructions to the driver regarding the SFST’s, and then documented a clue of impairment after the driver followed the incorrect instruction. The DUI defense attorney must note discrepancies between the information provided in the arresting officer’s police report, and what is contained in the video depicting the arresting officer administering the SFST’s to the driver. The defense attorney should issue a subpoena duces tecum requesting a copy of the arresting officer’s training records, specifically requesting a copy of the officer’s basic and advanced training in DUI detection and standardized field sobriety testing. The author provides, as Appendix F, a sample subpoena duces tecum to obtain these materials. The defense attorney can also issue a subpoena duces tecum to the police academy the officer attended, requesting a copy of the NHTSA DWI Detection and Standardized Field Sobriety Testing Student Manual used to train the officer. At hearing on a Motion to Suppress, or at trial, the defense attorney should establish through the officer’s testimony that the NHTSA is the authority for providing training in DWI detection and standardized field sobriety testing. Ideally, the defense attorney should obtain testimony from the arresting officer that the NHTSA manual presented in court to the officer is a copy of the manual from which he was trained. Depending on a client’s resources, the defense attorney may wish to consider retaining the services of an expert, such as a former police officer or police academy SFST instructor, who can review the police report and video, and testify regarding how the arresting officer incorrectly administered and scored the SFST’s. Recent Discovery Issues/Destruction or Loss of Video Recordings Many police departments video record DUI arrests. The video recordings often depict the arresting officer following and stopping the defendant’s
  29. 29. Issues in DUI Search and Seizure vehicle, and administering Standardized Field Sobriety Tests to the defendant. The loss or destruction of these video recordings, important and relevant evidence with potential exculpatory value, has become a significant issue in defending drivers arrested for the offense of driving under the influence. In People v. Aronson,88 the appellate court affirmed the trial court’s ruling to rescind the statutory summary suspension of the defendant’s driver’s license where the content of the video would have been relevant to the issue of reasonable grounds, whether or not the arresting officer had reasonable grounds to believe that the defendant was driving or in actual physical control of a motor vehicle upon a public highway of the state of Illinois while under the influence of alcohol, drugs, or a combination thereof. In Aronson, the arresting officer video recorded the defendant’s arrest, but the department could not download the video recording. The trial court relied upon a principle of civil law which states that if there is evidence in possession of one party that is destroyed, whether inadvertently or not, there is an inference that such evidence was detrimental to the party in control of the evidence. The appellate court noted that the trial court determined that the defendant’s testimony, when bolstered by the presumption that the video would have been detrimental to the state, outweighed the officer’s testimony. In People v. Kladis,89 a landmark Illinois decision, the arresting officer videotaped the defendant’s arrest for driving under the influence. Five days later, the defendant filed a notice to produce pursuant to Illinois Supreme Court Rule 237 that commanded the state to produce the videotape depicting defendant’s arrest and detention. The defendant did not issue a subpoena duces tecum for the videotape. The police department, however, destroyed the videotape pursuant to its thirty-day automatic purge policy. The Illinois Supreme Court held that the destruction of the videotape, after a written request for its production, was a discovery violation. The Supreme Court held that the trial court did not abuse its discretion in barring the arresting officer’s testimony regarding anything that would have been depicted in the video as a discovery sanction, characterizing the sanction as “narrowly tailored.”90 88 People v. Aronson, 408 Ill.App.3d 946 (2d Dist. 2011), 89 People v. Kladis, 960 N.E.2d 1104 (Ill. 2011). 90 Id.
  30. 30. By David Franks Kladis “clarified” and expanded the scope of People v. Schmidt,91 which defined the scope of discoverable materials. In Schmidt, the Illinois Supreme Court held that the state is required to furnish defendants in misdemeanor cases with a list of witnesses, any confession of a defendant, any evidence negating a defendant’s guilt, and, in a case for driving while intoxicated, the results of a breathalyzer test. The Kladis court concluded that “the routine video recording of traffic stops has now become an integral part of those encounters, objectively documenting what takes place by capturing the conduct and the words of both parties.”92 The Kladis court held that under Schmidt, video recordings of traffic stops are discoverable in misdemeanor DUI cases.93 Writing for the court, Justice Freeman stated: The video recording is relevant and admissible evidence because it reveals what transpired during the traffic stop which serves to further the truth-seeking function of a trial. This evidence may be helpful to both the defendant and the State. Indeed, the flow of cases actually going to trial may be eased upon allowing defendants and their counsel to review these recordings: those which reflect events favorable to the State may result in defendants willing to enter pleas which they otherwise may not have contemplated. This also advances the purpose of our DUI statutes to ensure that our roads remain safe from impaired drivers.94 The DUI defense attorney must issue a subpoena duces tecum to the police department in order to obtain all video recordings with respect to a driver’s arrest for the offense of driving under the influence. If the police department does not produce an in-squad video recording, then the defense attorney should determine whether or not the squad car operated by the arresting officer was equipped with an in-squad video system.95 The defense attorney should also consider preparing and filing a Motion for the 91 People v. Schmidt, 56 Ill.2d 572 (1974). 92 Kladis, 960 N.E.2d at 1110. 93 Id. 94 Id. at 1112. 95 The author provides a sample subpoena duces tecum as Appendix I.
  31. 31. Issues in DUI Search and Seizure Sequestration, Preservation, and Production of police radio transmission recordings, and video-taped and video-recorded communications. See Appendix H. The defense attorney should also obtain a copy of the operator’s manual for the in-squad video system, a copy of the police department’s operational orders for video recording traffic and DUI stops, and copies of documents reflecting the arresting officer’s training in the use of the in-squad video system. If the arresting officer video recorded the driver’s arrest for DUI, and the police department loses or destroys the video recording, and thereby fails to produce the video recording pursuant to a subpoena duces tecum or court order, then the DUI defense attorney must file a Motion for Sanctions. The defense attorney must bear in mind that bad faith is not necessarily an issue in a Motion for Sanctions. The defense attorney should argue that the destruction/loss of the video recording, or gap in the video recording, is a discovery violation, and even when said discovery violation is inadvertent, the court should impose a sanction against the prosecutor and law enforcement agency. The defense attorney should not demand the dismissal of the case, unless the police conduct was especially egregious. Rather, the defense attorney should argue for a sanction proportionate to the discovery violation―i.e., barring the arresting officer(s) from testifying about the events that would have been depicted in the video.96 The Expansion of Kladis to the Police Station The DUI defense attorney should consider requesting the sanctions upheld in Kladis to address the destruction of video recordings depicting the driver’s processing at the police station and the administration of the evidentiary breathalyzer test. Specifically, defense attorneys should argue for proportionate sanctions when the police department loses or destroys video recordings that would have depicted the officer’s or breathalyzer operator’s compliance with the twenty-minute observation period preceding the administration of the evidentiary breathalyzer test. 96 People v. Aronson, 408 Ill.App.3d 946 (2d Dist. 2011). See also People v. Camp, 352 Ill.App.3d 257 (2d Dist. 2004); People v. Johns, 336 Ill.App.3d 682 (1st Dist. 2002); People v. Petty, 311 Ill.App.3d 301 (2d Dist. 2000); People v. Schambow, 305 Ill.App.3d 763 (2d Dist. 1999); People v. Koutsakis, 255 Ill.App.3d 306 (3d Dist. 1993); People v. Kladis, 960 N.E.2d 1104 (Ill. 2011) for discussions of proportionate sanctions for a discovery violation.
  32. 32. By David Franks 20 Illinois Administrative Code 1286.310 states, in part: “The following procedures shall be used to obtain a breath sample to determine a subject’s BrAC with an approved evidentiary instrument: a) Prior to obtaining a breath analysis reading from a subject, the BAO or another agency employee shall continuously observe the subject for at least 20 minutes.” When a police department video-records the administration of the evidentiary breathalyzer test, and then loses or destroys the video recording, and thereby fails to produce the video recording pursuant to a subpoena duces tecum or court order, then the DUI defense attorney should file a Motion for Sanctions. The defense attorney should argue that as a result of the police department’s failure to record, or to preserve, copy, and store the requested video recording, the defendant/petitioner is unable to review and study the only piece of evidence―the video recording that would have depicted the officer’s compliance with the mandatory twenty-minute observation period―to ensure that the arresting officer(s) in fact complied with the required twenty-minute observation period before administering defendant/petitioner’s evidentiary breathalyzer test. See Appendix K. Future Trends Blood Draws Law enforcement agencies may begin to demand that drivers suspected of driving under the influence submit to a blood draw and analysis to determine either the blood-alcohol concentration of, or the presence of drugs or the combined presence of alcohol and drugs in, a driver’s blood. Law enforcement agencies obtaining Department of Transportation grants for a Sustained Traffic Enforcement Program (STEP), such as a roadside safety check/roadblock operation, may decide that the blood test results are the “gold standard” to ensure a plea of “Guilty” or a conviction at trial. At least one county in Illinois has required motorists to submit to a blood draw by on-scene civilian phlebotomists when stopped at a roadside safety check and suspected of driving under the influence. With an available on-call judge to sign search warrants, the officers conducting the roadblock could obtain a blood draw if a motorist refused to consent to the draw. Law enforcement personnel, however, are not permitted to use force to obtain a
  33. 33. Issues in DUI Search and Seizure sample of bodily fluids. In People v. Farris,97 the appellate court held that law enforcement has no statutory authority to use force to obtain a blood sample if the defendant refuses to cooperate. The court held that taking a blood sample by force serves no legitimate law enforcement purpose. Id. Check Cite Number The court noted that a defendant’s refusal to comply with the request for a blood sample is sufficient to justify a statutory summary suspension of the defendant’s driver’s license. In Arizona, some police officers have been trained in phlebotomy. Referred to as “phlebocops,” these officers are trained to draw blood from a driver, and do so, even on scene for routine DUI arrests. Drug DUIs Although most driving under the influence offenses are the result of alcohol-induced impairment, DUI offenses caused by the ingestion of drugs is a growing trend. Drug-induced DUIs are not limited to illegal drugs, and may also include impairment caused by prescription medications. In response to this growing trend, law enforcement agencies have allocated funding for some police officers to complete training to become Drug Recognition Experts (DRE). In order to qualify as a DRE, a police officer must attend and complete a two-day, sixteen-hour DRE pre-school (Phase I); attend and complete a seven-day, fifty-six-hour DRE school (Phase II); obtain field certification, which requires, in part, the student to participate in and document the results of at least twelve drug evaluations, often requiring several months to complete (Phase III); and pass an eight-hour final knowledge exam. Every two years the DRE must “recertify” in order to maintain his or her certification. Recertification requires four DRE evaluations over the two-year period; eight hours of recertification training; and submitting an updated rolling log to the DRE state coordinator (or designee).98 DREs receive instruction in identifying and classifying the seven categories of drugs: 97 People v. Farris , 2012 IL App (3d) 100,199, 968 N.E.2d 191, 360 Ill.Dec. 112 (Ill.App. 3 Dist. Apr 10, 2012). 98 International Association of Chiefs of Police, THE INTERNATIONAL STANDARDS OF THE DRUG EVALUATION AND CLASSIFICATION PROGRAM (2007), available at http://www.chp.ca.gov/dre/docs/dre_standards.pdf.
  34. 34. By David Franks 1. Central Nervous System (CNS) depressants (alcohol, barbiturates, and antidepressants) 2. CNS stimulants (cocaine, amphetamines, and methamphetamine) 3. Hallucinogens (LSD, Ecstasy) 4. Dissociative anesthetics (PCP) 5. Narcotic analgesics (opium, heroin, Vicodin) 6. Inhalants (paint, gasoline, paint thinners) 7. Cannabis (THC and synthetic cannibinoids)99 DREs are taught to conduct a standardized twelve-step drug evaluation process. This standardized twelve-step drug evaluation process, used to assess those suspected of drug-induced impairment, entails the following: 1. Breath Alcohol Test. The DRE can determine, in part, whether or not the concentration of alcohol is sufficient to be the only cause of impairment. 2. Interview the Arresting Officer. The DRE speaks with the arresting officer to determine what he or she saw or heard during contact with the suspect. 3. Preliminary Examination. The DRE asks the suspect a series of questions and observes the suspect to determine if the subject could be injured, or demonstrates signs of drug influence. 4. Examination of the Eyes. The DRE conducts the HGN test, vertical gaze nystagmus test, and checks the suspect’s eyes for lack of convergence toward the bridge of the nose. 5. Divided Attention Psychophysical tests. The DRE conducts the Romberg balance test, walk-and-turn test, one-leg-stand test, and the finger-to-nose test. 6. Vital Signs Examination. The DRE conducts a systematic check of the suspect’s blood pressure, pulse rate, and temperature. 7. Dark Room Examination. The DRE conducts systematic checks of the size of the suspect’s eyes, the reaction of the pupils to light, and looks for signs of ingestion of drugs by nose or mouth. 99 See NHTSA, DRUG EVALUATION AND CLASSIFICATION TRAINING: THE DRUG RECOGNITION EXPERT TRAINING SCHOOL (2010); Preliminary Training for Drug Evaluation and Classification, HS172A R01/10, available at http://www.wsp.wa.gov/ breathtest/docs/webdms/DRE_Forms/Manuals/drepre/Instructor%20Manual%20%20Jan uary%202010.pdf.
  35. 35. Issues in DUI Search and Seizure 8. Examination of Muscle Tone. Certain drugs will cause a suspect’s muscles to be rigid, while others may cause a suspect’s muscles to be flaccid. 9. Examination for Injection Sites. The DRE officer looks for signs of scars or needle tracks. 10. Subject’s Statements and Other Observations. The DRE should have articulable suspicion regarding the category or categories of drugs the suspect may have ingested. 11. Opinion of the Evaluator. The DRE should be able to determine whether or not the suspect is under the influence of drugs, and the category of drugs that is the probable cause of the suspect’s impairment. 12. Toxicological Examination. A chemical test or tests to provide evidence to substantiate the DRE’s conclusions.100 Unlike rendering an opinion regarding impairment induced by alcohol consumption, the arresting officer’s skills, experience, and training are critical in determining whether or not the officer can provide testimony, and his or her opinion, that a defendant was under the influence of drugs. A layman is competent to testify regarding intoxication from alcohol, since such observations are within the competence of all adults of normal experience.101 With respect to drugs, the testimony of a police officer that a defendant was under the influence of drugs would be sufficient, provided that the officers had relevant skills, experience, or training to render such an opinion.102 The opinion of an officer regarding whether a person is under the influence of drugs is circumstantial evidence that may be considered sufficient provided that the officer has the relevant skills, experience, or training to render such an opinion. In other words, the officer would have to be qualified by the court as an expert in order to reach such a conclusion.103 In Workman, the appellate court reversed the trial court’s judgment because, in part, the arresting officer did not demonstrate the level of expertise to sustain the charge―the arresting officer had no 100 See id. 101 People v. Jacquith, 129 Ill.App.3d 107 (1st Dist. 1984). 102 People v. Bitterman, 142 Ill.App.3d 1062 (1st Dist. 1986); People v. Vanzandt, 287 Ill.App.3d 836 (5th Dist. 1997) (ruling that the officer was not qualified to provide expert testimony on the complex physiological effects that alcohol produces in diabetics); People v. Foltz, 403 Ill.App.3d 419 (5th Dist. 2010). 103 People v. Workman, 312 Ill.App.3d 305 (2d Dist. 2000).
  36. 36. By David Franks knowledge of Lorazepam, its nature, or its effects on a driver. In People v. Shelton,104 the appellate court reversed the judgment of the trial court, ruling that the trial court erred in allowing the arresting officer to state his opinion concerning whether the defendant was under the influence of drugs since the arresting officer had no extensive experience with drug users and where there was no evidence of the effects of any drugs. Whether or not a certified DRE officer arrested the defendant, the defense attorney should issue a subpoena duces tecum to the police department or the arresting officer requesting the production of all records regarding the officer’s basic and advanced training, if any, in DUI drug detection. With respect to a DRE officer’s training, the defense attorney should obtain the following records: any and all records regarding the officer’s training in drug recognition, copies of the officer’s DRE certifications, a copy of the officer’s rolling logs prior to and after certification, a copy of the officer’s DRE student manual, a copy of the officer’s SFST certificate of training, a copy of any manuals, books or treatises upon which the officer relies for continued proficiency, and a copy of the drug recognition forms the officer used to evaluate your client. The officer’s skills, experience, and training could be critical factors for a defense attorney in determining whether or not to prepare and proceed to hearing on a Motion to Suppress, and would be crucial to an effective cross-examination of the arresting officer at trial. This author respectfully submits that in light of the complexities and nuances associated with pharmacology, pharmacokinetics, toxicology, and physiology, police officers completing a DRE curriculum should be referred to as “drug recognition estimators.” Conclusion The DUI defense attorney must be knowledgeable about the requirement of reasonable and articulable suspicion, rather than probable cause, in order for an officer to stop a vehicle; Fourth Amendment issues as they pertain to a police officer’s entry into a suspect’s home, roadside safety checks/roadblocks, and inventory searches and searches incident to arrest; 104 People v. Shelton, 303 Ill.App.3d 915 (5th Dist. 1999).
  37. 37. Issues in DUI Search and Seizure the NHTSA standards and procedures police officers must follow when administering, evaluating, and scoring standardized field sobriety tests; discovery issues and sanctions with respect to law enforcement losing or destroying video recordings; the increase in DUI offenses based upon drug impairment and the state’s burden in proving the essential elements of these offenses; and Drug Recognition Expert (DRE) training and certification. As more officers are trained in the DRE protocol, and since drugs are so prevalent, this author respectful submits that there will be an increase in DUI offenses based upon the ingestion of drugs. In order to stay current with this trend and to acquire the necessary, particularized skills and knowledge to defend these cases, this author recommends that defense attorneys attend legal education seminars that specifically address DUI drug defense, and acquire and become familiar with the training manuals used by law enforcement to train officers to become Drug Recognition Experts. The development and use of synthetic drugs will present further challenges in this area of DUI defense. If one decides to commit to, pursue, and become knowledgeable in this area of criminal defense―specifically, DUI defense―counsel will be constantly challenged since this area of the law continues to evolve. Key Takeaways • With respect to improper lane usage violations, which often form the basis for stops leading to DUI arrests, each case must be evaluated on its own specific and particular facts. The attorney must consider all of the specific facts related to the alleged improper lane usage violation, and analyze the facts and circumstances known by the officer at the time. The attorney must ascertain the specific details of the officer’s observations in order to determine if the statute has been violated. For example, the DUI defense attorney must determine the following: the number of times the defendant’s tires crossed the fog line or lane divider line, the distance the defendant’s tires crossed the fog line or lane divider line, the traffic conditions at the time of the alleged violation, and whether or not other vehicles took evasive action to avoid colliding with defendant’s vehicle.
  38. 38. By David Franks • The DUI defense attorney should always review and evaluate the officer’s reasonable and articulable suspicion for stopping a vehicle. In other words, challenge the stop! In those cases where a stop is improper or questionable, the defense attorney should file a Motion to Suppress arguing that the arresting officer had no reason to stop the client’s vehicle. • The DUI defense attorney must become familiar with Fourth Amendment issues as they relate to roadside safety checks/roadblocks, a police officer’s entry into a suspect’s home, and searches incident to arrest and inventory searches of motor vehicles. • The DUI defense attorney must become familiar with the NHTSA student manual entitled “DWI Detection and Standardized Field Sobriety Testing” in order to learn the standardized procedures for administering, evaluating, and scoring the tests so that the attorney can counter the arresting officer’s assessments of impairment. Similarly, the attorney must review the video depicting the arresting officer administering the Standardized Field Sobriety Tests to the client. The DUI defense attorney should subpoena the arresting officer’s training records reflecting the officer’s basic and advanced SFST training, as well as a copy of the NHTSA manual used to train the officer. • The DUI defense attorney should be familiar with case law addressing discovery violations where the police department fails, pursuant to a subpoena or court order, to provide necessary and critical evidence: the video recording depicting the arresting officer’s contact with defendant and containing information/evidence that established the probable cause to arrest the defendant. In the event of this discovery violation, the DUI defense attorney should file a Motion for Sanctions, asking the court to impose a sanction against the prosecutor and the police department proportionate to the discovery violation―barring the officer(s) from testifying to information that would have been depicted in the video. • The DUI defense attorney should become familiar with the case law addressing the prosecutor’s burden of proof with respect to DUI drug cases. • The DUI defense attorney must also learn the arresting officer’s
  39. 39. Issues in DUI Search and Seizure skills, training, and experience to determine whether or not the arresting officer can provide his or her opinion that the defendant was impaired as a result of ingesting drugs. The DUI defense attorney should become familiar with Drug Recognition Expert (DRE) training, and the standardized twelve-step drug evaluation process. The defense attorney should acquire copies of the DRE training manuals. David B. Franks, a partner at Franks & Rechenberg PC, is a criminal, DUI, and traffic defense attorney who has practiced criminal law since 1990. He has more than nineteen years of criminal prosecution and criminal defense experience, and now focuses his practice on DUI defense. Mr. Franks is a past chair of the Illinois State Bar Association (ISBA) Traffic Laws and Courts Section Council, and is currently a member of that Section Council and the ISBA Criminal Justice Section Council, where he also served from 1990 through 1999. Mr. Franks will again chair the Illinois State Bar Association Traffic Laws and Courts Section Council in 2014. Mr. Franks served as an assistant state’s attorney in both Cook County and McHenry County. In McHenry County he served four years as a prosecutor in the Misdemeanor and Felony Divisions, and also served as the Misdemeanor and Traffic Division Supervisor. Mr. Franks is a member of the National College for DUI Defense and the National Association of Criminal Defense Lawyers. Mr. Franks has completed training in administering and evaluating Standardized Field Sobriety Tests (SFSTs), as well as the Standardized Field Sobriety Testing Instructor Course, according to National Highway Traffic Safety Administration standards. Mr. Franks has attended several Illinois Institute for Continuing Legal Education- sponsored DUI defense seminars. Since 2004, he has contributed as an annual speaker during ISBA Traffic Laws and Courts-sponsored Continuing Legal Education (CLE) programs. In January 2007, Mr. Franks appeared on Chicago Cable Access Channel 21 Television as a panelist on Illinois Law, DUI Issues: General and Specific. Mr. Franks earned his Bachelor’s degree from Carleton College, Northfield, Minnesota, and his JD from the American University Washington College of Law in Washington, D.C. Mr. Franks is a member of the Illinois State Bar Association and McHenry County Bar Association. He is admitted to practice in the state of Illinois, before the Federal District Court for the Northern District of Illinois and the United States Supreme Court. He is a Navy veteran, having served for twenty-seven years as an
  40. 40. By David Franks Intelligence Officer on active and reserve duty. He completed national security courses at the U.S. Naval War College in Newport, Rhode Island and National War College in Washington, D.C. He retired in 2007, achieving the rank of commander. In 2012, Martindale-Hubbell recognized Mr. Franks with an “AV” Preeminent peer review rating. Acknowledgment: This chapter would not have been possible without the mentorship and guidance of Attorney Donald J. Ramsell of Ramsell and Associates, LLC and Attorney J. Brick Van Der Snick of the Van Der Snick Law firm, and the support of my law partner, David N. Rechenberg, and our receptionist, Marlo Kreczmer, who has been rock solid in our front office. I would also like to acknowledge the National College for DUI Defense for the information and support this organization provides. I also thank the judges of McHenry County, including the Hon. Charles Weech, Hon. Robert Wilbrandt, Hon. Robert Beaderstadt, Hon. Gordon Graham, Hon. Michael Feetterer, Hon. Joel Berg, Hon. Sharon Prather, Hon. Joseph Condon, and Hon. John Young in Boone County, who have demanded the best from me and other attorneys appearing before them. I also thank my parents, Herbert Hoover and Eileen Pepper Franks, who decided, probably at the moment of my birth, that I would be a lawyer, whether I wanted to or not. Dedication: I dedicate this chapter to my family, the descendants of a Polish-Jewish farmer who immigrated to the United States at the turn of the last century with the clothes on his back, a third-grade education, and a gritty determination to ensure that his family would succeed in America. We became farmers, lawyers, business people, and visionaries. Thank you Grandpa Karol and Grandma Lottie; may you both rest in peace. To my wife, Andrea, whose support for me has always remained strong. To my beautiful and bright daughter, Miriam, and my entrepreneurial son, Kevin, I hope this chapter serves as an example of what you can accomplish with hard work and determination. Finally, I dedicate this chapter to my fellow DUI and criminal defense attorneys, who diligently fight to protect the rights of the citizen accused, and to the prosecutors, who continually challenge us and make our work rewarding.
  41. 41. Aspatore Books, a Thomson Reuters business, exclusively publishes C-Level executives and partners from the world's most respected companies and law firms. Each publication provides professionals of all levels with proven business and legal intelligence from industry insidersdirect and unfiltered insight from those who know it best. Aspatore Books is committed to publishing an innovative line of business and legal titles that lay forth principles and offer insights that can have a direct financial impact on the reader's business objectives. Each chapter in the Inside the Minds series offers thought leadership and expert analysis on an industry, profession, or topic, providing a future- oriented perspective and proven strategies for success. Each author has been selected based on their experience and C-Level standing within the business and legal communities. Inside the Minds was conceived to give a first-hand look into the leading minds of top business executives and lawyers worldwide, presenting an unprecedented collection of views on various industries and professions.

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