The Law Office of Brian J. Mirandola

CALL FOR A FREE CONSULTATION

47 DuPage Court, Elgin, IL 60120

847-488-0889
Subscribe to this list via RSS Blog posts tagged in your rights

Kane County license suspension lawyerWhen you get behind the wheel of a car or truck on Illinois roadways, you have certain rights, but you also assume certain responsibilities. While you may not be able to control the actions of other drivers, you have the responsibility to operate your vehicle in a manner that promotes safety to both other individuals and the public at large. Safe driving means that, among other considerations, you are not impaired by alcohol, drugs, or other substances. With that in mind, Illinois law maintains that by exercising your driving privileges, you are granting implied consent to blood-alcohol content (BAC) testing if you are ever arrested on suspicion of driving under the influence. If you are asked to submit to a BAC test including breathalyzer testing, following a DUI arrest, refusing to cooperate will cost you your driving privileges.

Separate From Criminal Prosecution

Technically, refusing a BAC test is not a crime, but that does not mean you cannot be punished. Based upon the state’s implied consent laws, refusing a test subsequent to an arrest on suspicion of DUI is an administrative offense for which the penalties are imposed by the Secretary of State’s Office. Any administrative penalty is in addition to those that could result from eventual prosecution on charges of driving under the influence.

Statutory Summary Suspension

If you refuse to submit to BAC testing when you have been arrested for DUI, your driving privileges will be suspended for 12 months. A second or subsequent refusal will result in a three-year suspension. It is worth noting that the penalty for refusing a BAC test is substantially more severe than for failing one. A failed breathalyzer or other chemical test for BAC results in a six-month suspension for a first offense and a one-year suspension for a second or subsequent offense.

DUI Conviction Still Possible

Some drivers may believe—in the moment, at least—that if they refuse a BAC test, prosecutors will not have enough evidence to secure a conviction on DUI charges. While blood-alcohol content is a standard that can be easily quantified, it is far from the only factors that can lead to a DUI conviction. Other signs of impairment include slurred speech, careless driving, inability to maintain focus, and the presence of alcohol on a driver’s breath. It is also important to remember that your refusal to comply with testing can be presented as evidence against you as your case moves along.

Get Help Today

While a statutory summary suspension is automatically imposed, the suspension may be overturned in certain situations. Doing so requires the assistance of an experienced Kane County driver’s license suspension lawyer. Contact the The Law Offices of Brian J. Mirandola to schedule your complimentary consultation today. Call 847-488-0889 and let us show you how we can help you protect your future.

 

Source:

https://www.cyberdriveillinois.com/publications/pdf_publications/dsd_a118.pdf

Last modified on

breathalyzer, Kane County DUI defense attorneyWhen a police officer has a reason to suspect that you are driving under the influence of alcohol, the officer may ask to submit to a blood alcohol content (BAC) test. These tests are usually conducted during a traffic stop. The stop may have been initiated based on a minor traffic violation or erratic driving, but if something during the stop triggers the officer’s suspicion, the request for a BAC will usually follow.

The most common type of BAC test—and the easiest to conduct—is a breath test. BAC breath tests are usually known simply as "breathalyzer" because of a particular brand of testing machine that has become synonymous with the test. You probably know that if you blow a 0.08 or higher on your breathalyzer, you are considered to be statutorily intoxicated and can be charged with driving under the influence (DUI). But, do you have to take the test when you are asked to do so?

Preliminary Testing

There are several points during the course of a stop and potential arrest when the officer could ask you to take a breathalyzer. The first is a preliminary test. Preliminary testing is a way for the police to develop a full understanding of the situation and to establish probable cause—if there is any—for an arrest. The officer will usually ask about preliminary breathalyzer while you are still sitting behind the wheel.

You have every right to refuse a preliminary breathalyzer with no direct consequences. Keep in mind that if you say no, the officer may look a little harder for other signs that you are intoxicated, such as trouble focusing and slurred speech. There are many ways for the officer to establish probable cause, and the breathalyzer is only one of them.

When You Are Arrested

If the preliminary investigation gives the officer enough probable cause to arrest you on suspicion of DUI, you will be asked to submit to a breathalyzer again—or a blood or a urine test, alternatively. This time, the test will be conducted at the police station. Refusing to take the test at this point will result in the suspension of your driving privileges for one year. The suspension is three years if you were arrested and refused previously.

It is important to keep in mind that failing a BAC test after your arrest will result in a six-month license suspension for a first offense and one year for a subsequent offense. A failed test also gives prosecutors quantitative evidence that you were intoxicated. This means that there is a potential upside to refusing the test. Without the evidence of a failed test, it may be harder for prosecutors to prove that you were under the influence, though your refusal can be used against you.

Let Us Help

If you have additional questions about the DUI laws in Illinois, contact an experienced Kane County DUI defense attorney. Call 847-488-0889 for a free consultation at The The Law Office of Brian J. Mirandola today.

Sources:

http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=062500050K11-501.1

https://www.cyberdriveillinois.com/publications/pdf_publications/dsd_a118.pdf

Last modified on

Elgin criminal defense attorneyIt can be hard to know exactly what your rights are when it comes to police searches. Under federal law, police may only search homes and vehicles under certain circumstances. If a police officer wishes to search your home, he or she will usually need to acquire a search warrant before entering the property. Cars, trucks, motorcycles, and other motor vehicles do not always necessitate a search warrant. One way police may legally search a person’s vehicle is if the driver gives them permission to do so. Most legal experts believe that citizens should never give police permission to search their vehicle—even if they have nothing to hide.

When Police May Search Your Car

The Fourth Amendment to the United States Constitution protects American citizens from unreasonable searches and seizure of personal property. In order to legally search a vehicle, police must have a valid reason, a search warrant, or the driver’s permission. More specifically, police may lawfully search a vehicle only if:

  • The driver or owner of the vehicle gives the officer permission to search the vehicle;
  • The police officer has probable cause to believe there is evidence related to a crime in the vehicle;
  • The vehicle was towed and impounded by police;
  • The officer believes a search is necessary to protect his or her own safety; or
  • The driver has been arrested.

Agreeing to a Vehicle Search

If police suspect that a vehicle contains illegal drugs, contraband, hidden weapons, or other evidence of a crime, they may wish to search the vehicle. If there is no probable cause or other reason they may legally search the vehicle, the police may simply ask the driver for permission to search the vehicle. Police often use indirect language to ask permission and may say something like, "You don’t mind if I take a look around, do you?" They may even imply that you do not have a choice in the matter. However, you always have the option to calmly respond, "I do not consent to a search."

Why You Should Not Consent

Even if you have nothing to hide, you should exercise your constitutional right to be free from unnecessary searches because refusing a search protects you if you end up in court. If you decline a search and the officer searches the vehicle anyway, the officer will have to prove in court that there was a good reason, or probable cause, to do so without a warrant. Sometimes, refusing can prevent the search altogether.

Call Us for Help

If you have been accused of a crime based on evidence found during a warrantless search of your car, speak with an experienced Kane County criminal defense lawyer. Call The The Law Office of Brian J. Mirandola at 847-488-0889 to schedule your confidential consultation today.

Sources:

https://www.huffingtonpost.com/scott-morgan/5-reasons-you-should-neve_b_1292554.html

https://www.law.cornell.edu/constitution/fourth_amendment

Last modified on

reckless driving, Elgin criminal defense attorneyGenerally, traffic violations are considered only civil offenses. Things like driving a few miles above the speed limit, a rolling stop at a stop sign, or failing to use your turn signal can result in a ticket and associated fines but are not considered actual crimes. Motorists should know that some traffic violations are considered much more dangerous and therefore come with a much harsher penalty. If you have been charged with reckless driving, you may be facing a misdemeanor conviction and even jail time.

What is Considered Reckless Driving?

You have probably heard the phrase "reckless driving" before but may be unsure of its exact meaning. According to Illinois law, someone is reckless driving if they

  • Drive a vehicle with deliberate disregard for property and others’ safety; or
  • Intentionally use an incline in the roadway to cause a car to become airborne.

The law dictates that individuals driving in a way that is irresponsible and dangerous can be charged with reckless driving. However, the phrasing is somewhat vague. It can be difficult to know exactly what behavior might be considered reckless driving. Depending on the circumstances, police officers may cite motorists for reckless driving if the drivers:

  • Drive while impaired by drugs or alcohol;
  • Drive 20 mph or more over the speed limit;
  • Ignore a stop sign or red light;
  • Weave through traffic;
  • Tailgate;
  • Intentionally fail to yield the right-of-way;
  • Evade law enforcement;
  • Illegally pass a stopped school bus;
  • Cross a double yellow line;
  • Race another vehicle; and
  • Illegally use a cellphone while driving.

Sometimes, a charge of driving under the influence (DUI) can be decreased to the lesser offense of reckless driving as part of a plea deal.

Consequences for a Reckless Driving Conviction

Generally, reckless driving is considered a Class A misdemeanor. If charged with misdemeanor reckless driving, you can be imprisoned for up to a year and required to pay up to $2,500 in fines. Certain circumstances can make reckless driving a much more serious offense. If the driver’s negligent behavior causes bodily harm to a child or a school crossing guard at a crosswalk, the driver will be charged with a Class 3 felony. This charge carries penalties of up to five years in jail and fines up to $25,000. If the reckless driving results in the significant injury, permanent disability, or disfigurement of another person, the driver can be charged with Class 4 felony aggregated reckless driving. The penalties include imprisonment for up to three years and fines up to $25,000.

If you have been charged with reckless driving, you need an attorney who can help you understand your rights and responsibilities. To speak with an experienced Kane County reckless driving defense lawyer, call The The Law Office of Brian J. Mirandola at 847-488-0889.

Source:

http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=062500050K11-503

Last modified on

Posted on in DUI

checkpoint, Elgin criminal defense attorneyAccording to the National Highway Safety Administration, a person dies in a drunk driving-related accident every 50 minutes in the United States. In order to catch those who drink and drive, Illinois police sometimes use DUI checkpoints. These checkpoints usually involve some sort of roadblock which prevents motorists from passing. Police may stop vehicles and ask drivers to perform field sobriety tests or submit to chemical testing, such as a Breathalyzer test. Many individuals are unsure of what their rights are at a DUI checkpoint. Read on to learn what is expected of both motorists and police at these stops.

Probable Cause for Stopping Vehicles

If you are someone with a basic understanding of the law, you may have wondered how police checkpoints are even legal. After all, the U.S Constitution does have rules which prevent police from unreasonable search and seizure. The Fourth Amendment says that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause..." This right to be free from arbitrary seizure of property includes being pulled over while driving. Technically, a police officer does need probable cause to pull someone over and ask them to perform a sobriety test. However, in the case of DUI checkpoints, an exception has been made. The U.S. Supreme Court has determined that the intrusiveness of DUI checkpoints is outweighed by the benefit of decreasing the number of drunk drivers on the road.

Do I Have to Stop at Sobriety Checkpoints?

Motorists should not attempt to evade or drive through a DUI checkpoint without permission. Officers may wave your car through because they often do not stop every car, but if you are asked to stop, do not continue driving. Police can and will chase motorists who disregard their instructions at a roadblock. Though police are allowed to stop you temporarily, they may not legally search you or your vehicle unless you consent to the search or they have probable cause to believe that you are breaking the law. If the police detain you at a checkpoint and smell alcohol on your breath or you are otherwise displaying intoxicated behavior, they will ask you to submit to a field sobriety test and/or a chemical blood alcohol content test. Those who have been arrested on suspicion of driving under the influence (DUI) do have the right to refuse a blood alcohol test such as a Breathalyzer, however doing so results in their driver’s license being suspended for a minimum of one year – even if they are not found guilty of a DUI.

Have You Been Charged with a DUI?

If you have other questions about your rights and responsibilities during a DUI checkpoint, or for help with building a defense against a criminal charge, contact The The Law Office of Brian J. Mirandola. Call 847-488-0889 to speak with a skilled Elgin DUI defense attorney today.

Sources:

https://www.law.cornell.edu/supct/html/02-1060.ZS.html

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2009/4thDistrict/February/4080422.pdf

Last modified on
Avvo Illinois State Bar Association Kane COunty Bar Association
Waiting for Resize
Back to Top