Wednesday, January 19, 2005

Another way to win a DUI case on appeal...

... be a councilman and be illegally stopped!

From The Morning Call -- January 19, 2005
Nesquehoning ex-official's DUI conviction tossedFormer councilman's stop was unlawful, court says.By Bob LayloOf The Morning CallState Superior Court on Tuesday overturned the drunken driving conviction of a former Nesquehoning councilman, ruling a police officer did not have enough evidence to pull him over.But the three-judge panel's ruling on Eugene Rutch was split.Justices Michael T. Joyce and Susan P. Gantman found there wasn't enough evidence for Weatherly Patrolman Robert Christman to stop Rutch on Aug. 17, 2002.They cited a 2001 case in which the state Supreme Court ruled police must show a driver had ''careless disregard'' for people or property to be stopped. They also acknowledged they have struggled to apply that decision.At trial, Christman said he followed Rutch for about a quarter mile and watched him cross the yellow center lines and the white line on the right side of the road twice. He said Rutch completely crossed the white line once and drove on the shoulder.Christman said there were no parked cars or pedestrians along the road. He also said one car passed Rutch in the opposite lane and did not have to swerve.Christman said Rutch failed sobriety tests so he took him to a hospital to have blood drawn. Rutch's blood-alcohol ratio was 0.186 percent, according to the test. At the time he was arrested, state law considered a driver too drunk to drive with a ratio of 0.10 percent; the ratio has since been reduced to 0.08 percent.Carbon County Judge Roger N. Nanovic convicted Rutch.Rutch's lawyer, Robert T. Yurchak, argued the ''minute deviations of tire movement'' did not warrant a stop and anything less than perfect driving would create probable cause.Judge John T. Bender, who dissented with the other two justices, wrote that Rutch's driving had more than ''minute deviations.''''The bottom line in this case is that [Rutch's] vehicle was essentially weaving as he traveled over a quarter-mile stretch of a straight road, at least partially leaving his lane of travel on four separate occasions over that short distance,'' Bender wrote.But under the state Supreme Court ruling, Bender found the facts of the case do not show careless disregard for the safety of people or property.''The irony of the situation is that we would likely find probable cause … if an oncoming car had passed [Rutch's] car while [Rutch's] tires were on the center line,'' he wrote.He also wrote there would have been probable cause if a person or parked car had been along the road when Rutch's tires crossed the white line.He suggested the Supreme Court or state lawmakers revisit the issue of traffic stops to strike a balance between a person's constitutional right against unreasonable search and seizure and the state's safety concerns.He also wrote it would help justices as they ''weigh the myriad of factual scenarios presented to us.''District Attorney Gary F. Dobias, who prosecuted the case, could not be reached Tuesday.As part of Rutch's appeal, Yurchak also argued that the state has a conflict of interest prosecuting DUI cases because it sells liquor. He had argued it should not be allowed to profit from both.Since Yurchak did not cite case law, that part of the appeal was dismissed.Had the conviction been upheld it would have been Rutch's second for DUI and he would have faced a mandatory minimum of 30 days in prison.But he has more legal trouble.He is scheduled for trial next month on disorderly conduct, persistent disorderly conduct and public drunkenness charges stemming from a traffic stop last year in which he was a passenger in a car. Nesquehoning police said Rutch swore at them and threatened their jobs after they stopped a car he was in on Sept. 23.

One way to win a DUI dismissal is..

... to be an elected official!

How DUI case was dropped By Rob Olmstead Daily Herald Staff WriterPosted Wednesday, January 19, 2005
DuPage County State's Attorney Joseph Birkett is tough on drunken drivers. On that, prosecutors, defense attorneys and advocates against drunken driving all agree.
But when Cook County gang crimes prosecutor Joseph E. Keating, 43, was arrested in July and charged with DUI after knocking over a light pole on an I-55 ramp, he managed to get the charge dropped at his first court appearance.
The reason, prosecutors said, was not that Keating was a prosecutor himself, but that the case was weak. That's because Keating refused all sobriety tests, including a Breathalyzer, and police failed to activate the audio portion of the videotape of the arrest.
Keating won't talk about the arrest. Birkett says the case was not winnable without Breathalyzer results or conclusive evidence from the scene.
Keating notified his bosses in Cook County of the arrest and was put on desk duty while his case was pending, according to Marci Jensen, a spokeswoman for Cook County State's Attorney Richard Devine. He was reinstated to the courtroom when the DUI charge was dropped Aug. 13, she said.
Asked if the fact that a prosecutor refused drunken driving tests bothered the office, Jensen replied that Keating was entitled to the same options as any other driver.
Court records indicate Keating pleaded guilty to failing to reduce speed to avoid an accident and paid about $360 in fees and fines. Keating also paid to replace the light pole. Court records said it the first accusation of DUI against Keating. He did not receive a summary suspension called for under Illinois law for refusing to take the Breathalyzer test.
Keating was placed on court supervision for the charge he pleaded guilty to, meaning that if he makes it to his final court date in February without other traffic problems, the case will not go on his record with the secretary of state.
Birkett acknowledged that dropped DUI charges, while rare in DuPage are not unheard of -- "probably between 6 and 10 percent," he said.
The DuPage County prosecutor's office handles thousands of DUI cases a year. A Daily Herald review of 20 of them brought in DuPage County at the same time as the Keating case found that Keating's DUI charge was the only one the office dropped.
Birkett has made a reputation for himself and earned the admiration of advocates against drunken driving for being tough with DUIs, sometimes even prosecuting cases with weak evidence, defense attorneys say.
At least one veteran defense attorney, whose office handles about 50 DUIs a year, says he's never seen the DuPage office drop a DUI case. Even if a case is weak, Des Plaines attorney Michael R. Epton said he's seen DuPage prosecutors leave it to a judge to throw it out.
By office policy, front-line prosecutors cannot, of their own volition, drop or reduce a DUI charge, Birkett said. They must seek approval from a supervisor first. The same policy operates in Cook County, Jensen said.
Birkett said the Keating case never reached his desk, but it did go up the chain of command through at least three supervisors. He said he supports their decision.
Keating's crash
In Keating's case, state police were called to the northbound I-55 ramp from northbound Lemont Road around 8:45 p.m. on July 16. Keating's green 1998 Oldsmobile had left the roadway, striking a light pole and knocking it over, blocking all ramp traffic.
A Darien police officer was already on the scene when rookie trooper Noel Tarr -- on his first DUI stop -- and his trainer, veteran trooper Darren Love, arrived at 9:04 p.m.
On their video, Keating is seen walking out of the ditch and then taking a call on his cell phone. At 9:05, Love talks to Keating and a minute later, Keating hands his cell phone to an unidentified woman. More people walk into the scene, sometimes blocking the view of Keating, and at 9:08, officers cuff Keating and lead him to the squad car at 9:10.
Nowhere on the tape does Keating stumble or stagger, a fact that Jeff Kendall, deputy chief of the felony division and one of the supervisors who OK'd the dropped charge, cited as a reason. As did Birkett.
"The officer's report was impeached by the video," he said.
The troopers' court filing said Keating had "glassy, bloodshot eyes, slurred speech and an odor of alcohol." But there was no audio portion to the video by which to gauge Keating's speech.
Illinois State Police and Kendall refused to release their police report but read portions of it to the Daily Herald. In it, police say they asked Keating to stand by the squad door. There, out of the camera's view, he stumbled one step to his left, the officers claimed.
The officers also noted that Keating's car left the roadway along a straight portion of the ramp, and when they asked him about alcohol, he admitted he had been drinking earlier in the day at a golf outing.
At the station, the report said, police again asked Keating to take a Breathalyzer, warning him his license could be automatically suspended for six months for refusing. He again refused.
Keating, reached by phone at his office at the Cook County Criminal Courts at 26th and California in Chicago, wasn't talking.
"I don't have a comment," he said.
The court case
Besides dropping the DUI charge, DuPage prosecutors did not pursue summary suspension of Keating's driver's license, either. Under Illinois law, drivers who refuse sobriety tests are supposed to lose their license for six months on a first offense, whereas a first-time DUI conviction nets just three months suspension.
However, dropping the summary suspension is not unusual. In many of the cases the Daily Herald examined, once a DUI plea was reached, the summary suspension was dropped.
In the 20 cases surveyed by the Daily Herald, seven were still pending, two were thrown out by judges, nine guilty pleas were obtained and two were bargained down from DUI.
Of those two, one was Keating's case. The other was a case prosecuted by a municipality, not DuPage County.
And in one of the two cases thrown out by a judge, prosecutors still had pressed the case even though police officers failed to respond to a defense subpoena, diminishing the evidence against the defendants.
Defense attorney Epton said those circumstances sound familiar.
"I haven't been successful with getting them to plea bargain at all," said Epton when asked how often he's seen DuPage prosecutors plea bargain a DUI charge or drop it outright. "I haven't seen the state amend a case yet."
Another defense attorney and former prosecutor, Chuck Rohde, of Addison, agreed that in his experience cases that would be dropped routinely in other jurisdictions are regularly prosecuted in DuPage County.
For example, he said, he recently defended a case in Cook County at the Rolling Meadows courthouse in which the complaining police officer showed up to testify but the defendant refused sobriety tests. The Cook prosecutor dropped the case before it went to trial.
"I think the odds of that happening in DuPage County are one in a million," Rohde said.
Instead, DuPage prosecutors normally make the defendant go to trial and at least rack up attorney's fees, he said.
"At the end of the day, you'd get the same result, but you would have to go through the trial," Rohde said.
Not all defense attorneys find it so odd for DuPage to drop such a case, though. George Kallas, of Wheaton, -- himself a former prosecutor -- said he's seen DuPage prosecutors drop cases under certain circumstances.
"Could be the guy passes all the field sobriety tests or he blows under the legal limit," Kallas said.
Charlene Chapman of Alliance Against Intoxicated Motorists said her organization has been impressed with Birkett's doggedness at pursuing DUI cases. She praised him as a man of integrity and said AAIM had yet to discover a case dropped under suspicious circumstances in DuPage.
Tarr, one of the troopers involved in the arrest, declined to speculate on how the case was prosecuted. He is no longer a trooper and he declined to explain why. Love, the other trooper, could not be reached for comment despite repeated attempts.
Kendall said it would have been irresponsible to proceed on the Keating case.
"We have a responsibility to justice, and we can't go forward on a case if we can't reasonably expect to succeed," he said.
When asked for examples of other dropped cases, Kendall recalled a DuPage police officer who prosecutors discovered was putting false statements in his reports.
"We probably had to dismiss tens if not 100 (DUI) cases," Kendall said.
The officer, whom Kendall declined to identify by name or department, was eventually fired, Kendall said.
Birkett is adamant that the Keating case was prosecuted like any other.
"My policy is you treat elected or appointed officials the same as anyone else," Birkett said.
As for Cook County's assertion that Keating's standing as a prosecutor required no more of him than would be expected of any other citizen, AAIM's Chapman disagreed.
"I think they should be held to a higher standard," she said, "because they're the ones prosecuting other drunk drivers."
• In short: The DuPage County prosecutor's office is as tough as they get on drunken drivers. But when an assistant Cook County state's attorney was arrested in DuPage on suspected DUI after he knocked over a light pole, he refused sobriety tests and got his case dropped at his first hearing.
DUI: Prosecutor says pursuit of case would be irresponsible

Happy Birthday!

To my dear friend Carrie:

Happiest of birthdays! This is your 34th time around the sun, and look at how far you've come in the 10 years (can you believe it!) since we first met.

Hope you enjoy your new year, and it's been a pleasure to know you. I hope we'll always be friends, and I'm glad you're doing so well in your new roles.

Celebrate!

Robert

Tuesday, January 04, 2005

Links

Well, I see some of my readers have linked to not only my blog, but a few of my websites (most notably http://www.expertlawfirm.com. Thank you, whoever you are! I collect legal links, which you can view at www.expertlawfirm.com/links, also.

Hope everyone had a happy new year, and have a great 2005!