The fight against DUI in Illinois isn't taking place only out on the
highways.
Lawyers, lawmakers and others are debating how easy it ought to be for
police to gather evidence against a driver suspected of driving under the
influence.
The battle lines are being drawn between those who want stricter laws and
those who believe existing laws are sometimes exploited by overzealous
police and prosecutors.
For example, state law says a driver suspected of DUI can choose between
taking a breath test designed to measure his or her blood-alcohol level or
losing his or her driver's license. That suspension runs anywhere from three
to 36 months, depending on the driver's record.
But there is no such penalty for refusing a field sobriety test, which
police often use to establish the probable cause to arrest and charge a
person with DUI.
Police and prosecutors say the test - which involves walking a straight
line, standing on one leg, reciting the alphabet and other challenges of
coordination and alertness - should be made mandatory.
"You have a better-educated drunk out there, and this is particularly true
for people with multiple offenses, who know their chances of being convicted
are much less if they do not test," Roselle police Detective John Lawson
said.
Lawson is one of the leaders in the move to make the field tests mandatory.
"Even in cases where there is a chemical test, if the judge throws out a
case because there was no probable cause to arrest the person without a
field test, the chemical test is worthless," Lawson said.
Test Debate
On the other hand, Oak Park attorney Christopher Cronson defends DUI cases
throughout the Chicago area and said he has been able to persuade juries to
acquit clients in spite of police testimony that his clients failed a field
sobriety test.
"The field tests can be very difficult even for a person who is not
impaired, and I believe the average person can discover that just by trying
to stand on one leg for 30 seconds," Cronson said.
"Unless you're (Olympic gymnast) Olga Korbut, I believe a jury will look on
a field sobriety test with a certain amount of skepticism," he said.
State police estimate that 26 percent of the people stopped last year on
suspicion of drunken driving refused to take field sobriety tests and say
that number could reach 30 percent this year.
Wheaton attorney Don Ramsell said he believes the field sobriety tests are
an "absolute joke" that police use to reinforce what they already believe
when they stop a driver.
"I have never seen a greater arena for tester bias in my life, because the
person giving the field sobriety test has a tendency to get the results he
or she wants," Ramsell said. "The police officer stopping your car has
already convinced himself you are drunk, and the test is only going to give
him the right to think he was correct."
State Rep. Tom Dart, a Chicago Democrat, has tried to get the state
legislature to pass a law mandating four-year driver's license suspensions
of anyone who refuses to take field sobriety tests. He has failed each time.
Dart said that although his proposal has support from officials of both
political parties, other lawmakers oppose the idea because they believe the
tests are too subjective.
"I think it comes down to if you believe the police are out there to enforce
the law and serve public safety or if you believe they are out there to put
innocent people in jail," Dart said. "We have not decided yet if we will
introduce the bill again in the spring, but there is a chance we will try
again."
Court challenges
The law does provide for automatic suspensions of drivers' licenses if a
person refuses to take chemical tests that measure the level of alcohol in a
person's blood through examinations of breath, blood or urine. Defense
attorneys, however, say those results can be challenged as well.
Waukegan attorney Charles Smith said that as a prosecutor he believes the
average results of blood-alcohol tests of drunken drivers have showed
reduced levels of alcohol since the state lowered the legal level of
intoxication to .08 percent from .10 percent in 1997.
"It is rare for us to see many BAC (blood alcohol content) results over .20
these days, when in the past they were quite common," Smith said. "Now, I
believe the average range is between .08 and .13, so it appears a sense of
moderation is out there."
Defending people against DUI charges in cases with blood-alcohol evidence is
more difficult than in cases in which no such evidence exists, Smith
concedes, but it is still not impossible.
"Breathalyzer evidence is not infallible; it does have some faults," he
said. "We can bring an opinion expert, challenge the machine results to
match the situation our client was in and see if it makes sense to the
people on the jury."
Ramsell said Breathalyzer machines do not require routine preventive
maintenance to keep from breaking down, but are repaired when they do break
down by inspectors from the Illinois Department of Public Health.
"The average machine is repaired one or two times a year, and the arrested
person has no right of access to the repair records," Ramsell said. "The
machines are supposed to be recalibrated every 45 days, but without routine
maintenance, there is no way to tell when a machine goes out of
calibration."
Cronson said that to overcome chemical evidence in a DUI trial, he tries to
have his clients present a reasonable explanation of the circumstances that
led to the arrest, but there are limits.
"If I can show the jury the guy who may have had one too many at his
sister's wedding reception and wound up blowing a .09, I may give them
something to think about when reaching a verdict," he said. "But the farther
that result is away from the legal limit, you can almost hear them thinking,
'What are we talking about here,' while the case is going on."
Video evidence
As complex a problem as DUI is, there are conflicting views as to what
should be done to decrease its impact on society.
Ramsell and other defense attorneys favor increased videotaping by police of
both on-road encounters with DUI suspects and interviews held at police
stations.
"Without a doubt, videotaping has been a blessing in disguise for defense
attorneys," Ramsell said. "If a person is borderline, we can use the tape to
try to sway the jury. If a person is falling down drunk, we show the tape to
the client and convince him there is no reason to attempt a defense."
Lake County Assistant State's Attorney Suzanne Fitzgerald, chief of the
traffic prosecution division, says she would like to see the element of
choice in both field sobriety and chemical testing taken away from drivers.
"The tests should both be mandatory, and instead of license suspension,
refusal should carry jail time," she said. "There is a certain segment of
the population which does not take it seriously, but driving is a privilege,
and a person driving impaired does not have that privilege."
As for complaints from lawyers that police sometimes reach too far in
looking for drunken drivers, police themselves are unapologetic.
Lake Zurich is a community where they know something about drunken driving
enforcement, having officers ranked first and fifth in the state in total
DUI arrests last year.
But Police Commander Pat Finlon said officers there are not overzealous in
their pursuit of DUI arrests.
"DUI is a public safety issue and it has never been related to numbers,"
Finlon said. "Our officers do not lurk outside of taverns waiting for
someone to drive off, and if we have a lot of DUI arrests it is because they
are doing their jobs out on the road where the drunken driver is placing
innocent people at risk."
