Deportation for Drug Crimes

The Supreme Court ruled, by an 8-1 vote, that conviction of a drug crime that is a felony under state law but only a misdemeanor under federal law is not kind the kind of offense that triggers potential deporation. Justice David H. Souter wrote the opinion for the Court in Lopez v. Gonzales (05-547). Justice Clarence Thomas dissented.

The ruling cleared up a conflict among federal appeals courts. Four had ruled that a felony under state law that is only a misdemeanor under federal law is not a drug trafficking crime under the Controlled Substances Act. Two others had disagreed. Federal immigration law provides for deportation for anyone convicted of a crime that is a "felony punishable under the Controlled Substances Act." The Court ruled that "a state offense comes within [that phrase] only if it proscribes conduct punishable as a felony under" the Controlled Substances Act.

The decision came in the case of Jose Antonio Lopez, a native of Mexico. He entereed the U.S. illegally in 1985 or 1986, but became a lawful permanent resident in 1990. In 1997, he was charged in state court in South Dakota with one count of possessing cocaine and one count of a conspiracy to distribute the drug. He ultimately pleaded guilty to aiding and abetting possession by another person.

Under state law, his crime was a felony, leading to a potential prison sentence of up to five years. He was sentenced to the maximum, but actually served only 15 months. Federal officials moved to deport him to Mexico, based upon the conviction for what they considered to be an "aggravated felony." Under federal law, however, the crime could only be punished as a misdemeanor.

A conviction for an aggravated felony under immigration law can lead to deportation, or may bar other relief, such as cancellation of a deportation order.

Justice Souter's opinion said that under federal law, mere possession is not a form of "illicit trafficking" in drugs, because that "connotes some sort of commercial dealing."

The Court had granted review of two cases on the issue, and consolidated them. In a one-sentence order, the Court on Monday dismissed the second case, Toledo-Flores v. U.S. (05-7664).

Majority opinion

Dissent

On December 13, 2007, the Board of Immigration Appeals (BIA) issued two precedent decisions that together mean that, in cases arising outside the Second, Fifth and Seventh Circuits, a non-citizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the state prosecutors did not rely on a prior conviction to charge and convict the individual as a recidivist. See Matter of Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007) (hereinafter Carachuri) and Matter of Thomas, 24 I&N Dec. 416 (BIA 2007) (hereinafter Thomas). The BIA left open the question of when a noncitizen who was convicted by the state as a recidivist could be deemed convicted of an aggravated felony.

In cases arising in the Fifth Circuit, as well as the Second and Seventh Circuits, the BIA indicated that it was constrained by circuit precedent to find that a second or subsequent state possession conviction may be deemed an aggravated felony regardless of whether the state prosecuted the individual as a recidivist. See Carachuri, 24 I&N Dec. at 385-88, 392-93. The precedents from these circuits cited by the BIA do not preclude a finding that a second or subsequent state possession offense is not an aggravated felony.

Matter of CARACHURI-ROSENDO, 24 I&N Dec. 382 (BIA 2007) (ID 3592)

(1) Decisional authority from the Supreme Court and the controlling Federal circuit court of appeals is determinative of whether a State drug offense constitutes an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000), by virtue of its correspondence to the Federal felony offense of “recidivist possession,” as defined by 21 U.S.C. § 844(a) (2000). Matter of Yanez, 23 I&N Dec. 390 (BIA 2002), followed.

(2) Controlling precedent of the United States Court of Appeals for the Fifth Circuit dictates that the respondent’s Texas conviction for alprazolam possession qualifies as an “aggravated felony” conviction by virtue of the fact that the underlying alprazolam possession offense was committed after the respondent’s prior State “conviction” for a “drug, narcotic, or chemical offense” became “final” within the meaning of 21 U.S.C. § 844(a).

(3) Absent controlling authority regarding the “recidivist possession” issue, an alien’s State conviction for simple possession of a controlled substance will not be considered an aggravated felony conviction on the basis of recidivism unless the alien’s status as a recidivist drug offender was either admitted by the alien or determined by a judge or jury in connection with a prosecution for that simple possession offense.

Matter of THOMAS, 24 I&N Dec. 416 (BIA 2007) (ID 3593)

The respondent’s 2003 Florida offense involving the simple possession of marijuana does not qualify as an “aggravated felony” by virtue of its correspondence to the Federal felony of “recidivist possession,” even though it was committed after a prior “conviction” for a “drug, narcotic, or chemical offense” became “final” within the meaning of 21 U.S.C. § 844(a) (2000), because the respondent’s conviction for that 2003 offense did not arise from a State proceeding in which his status as a recidivist drug offender was either admitted or determined by a judge or jury. Matter of Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007), followed.

Matter of Yanez, 23 I&N 390 (BIA 2002), ID#3473

The determination whether a state drug offense constitutes a “drug trafficking crime” under 18 U.S.C. § 924(c)(2) (2000), such that it may be considered an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000), shall be made by reference to decisional authority from the federal circuit courts of appeals, and not by reference to any separate legal standard adopted by the Board of Immigration Appeals. Matter of K-V-D-, Interim Decision 3422 (BIA 1999), overruled. Matter of L-G-, 21 I&N Dec. 89 (BIA 1995), and Matter of Davis, 20 I&N Dec. 536 (BIA 1992), modified.


Lopez v. Gonzales, 127 S. Ct. 625, 166 L. Ed. 2d 462 (2006), holds that classification of an offense for the purpose of § 1101(a)(43) depends on how the accused's conduct would be treated under federal law. If the conduct of which the defendant has been convicted would be a felony under federal law, then it comes within § 1101(a)(43) if it meets that statute's requirements concerning the subject-matter of the crimes and the length of the sentence. In deciding whether given conduct would be a drug felony under federal law, it is not possible to limit attention to the elements of the offense under state law; the point of Lopez is that, when state and federal crimes are differently defined, the federal court must determine whether the conduct is a federal felony, not which statute the state cited in the indictment.
______________________________

Gonzales-Gomez v. Achim (March 22, 2006), 390 U.S. Supreme Court Transcript, Lopez v. Gonzalez

The 7th Circuit rejected Yanez(March 22, 2006), 390

Issue: whether a state-law felony that would be punishable only as a misdemeanor by federal law is nevertheless an “aggravated felony” ?

Posner: "The “yes” answer, here urged by the government, is a strained reading of the statutory language, is inconsistent with the government’s general position regarding the definition of “aggravated felony,” is inconsistent with the interest in uniform standards for removal, and is inconsistent with the legislative history. The only consistency that we can see in the government’s treatment of the meaning of “aggravated felony” is that the alien always loses.

Allowing cancellation of removal to depend on how severely a particular state punishes drug crimes would have the paradoxical result of allowing states, in effect, to impose banishment from the United States as a sanction for a violation of state law. For then if a state made the possession of one marijuana cigarette a felony, which it is perfectly entitled to do, it would be in effect annexing banishment from the United States to the criminal sanction. States do not have the power to banish people from the United States."

Posner applied the April 2005 district court ruling, 372 F. Supp. 2d 1062; 2005, that the Hypothetical Federal Felony approach applied; a state drug conviction was an aggravated felony only if the elements of the crime would constitute a felony under federal drug laws. "Aggravated felony," as defined under 8 U.S.C.S. ß 1101(a)(43)(B) of the INA, included a "drug trafficking crime" as defined in 18 U.S.C.S. ß 924(c), which in turn was defined as any felony punishable under the Controlled Substances Act (CSA), 21 U.S.C.S. ß 801 et seq. The CSA generally punished first-time simple possession as a misdemeanor. The legislative history of 18 U.S.C.S. ß 924(c) and the INA did not indicate that Congress intended for minor drug possession convictions to be aggravated felonies. Also, the uniformity requirement under U.S. Const. art. I, ß 8, cl. 4 weighed against reliance on varying state laws.

Repatriation of Vietnam Citizens

From: Koroma, Kadia H [mailto:kadia.koroma@dhs.gov] Sent: Tuesday, January 22, 2008 11:57 AM To: undisclosed-recipients: Subject: ICE Assistant Secretary Myers signs historical MOU with Vietnam Importance: High

January 22, 2008

Contact: Public Affairs

(202) 514-2648

News Release

ICE Assistant Secretary Myers signs historical MOU with Vietnam MOU will allow for the repatriation of Vietnam Citizens who entered the United States on or after July 12, 1995

WASHINGTON, D.C. - A path to diplomatic cooperation and partnership between the U.S. and Vietnam was sealed today after Homeland Security Assistant Secretary for Immigration and Customs Enforcement Julie L. Myers and Deputy Foreign Minister for the Government of Vietnam Mr. Dao Viet Trung signed a memorandum of agreement (MOU). The MOU, signed during a special ceremony at the Vietnamese Ministry of Foreign Affairs Office in Hanoi lays out a framework for the prompt and efficient repatriation of Vietnamese nationals who have been ordered removed by the U.S. Government.

The repatriation MOU is the culmination of almost a decade of negotiations between the United States Department of State and the government of Vietnam. Under this agreement, Vietnamese nationals who arrived in the United States on or after July 12, 1995 are subject to return to Vietnam. To date, this will affect approximately 1,500 Vietnamese nationals currently living in the U.S.

"This agreement between our countries reflects the commitment of our respective nations to come together and craft viable partnerships that work for both of us," said Julie L. Myers. "Agreements such as this are the building blocks of diplomacy. This agreement allows us to carry out a judge's order to remove individuals from our country in a safe and humane manner."

As part of the agreement the U.S. government will pay for the cost of repatriating individuals under the agreement. Once the Vietnamese government has issued a travel document, the U.S. Government will provide at least fifteen (15) days notice of the flight and travel arrangements by which the person will be returned to Vietnam.

On par with hundreds of other ICE repatriation missions across the globe, ICE will also manage the repatriation of Vietnamese nationals with equal care and commitment. The missions will be carried out in an orderly and safe way, and with respect for the individual human dignity of the person being repatriated.

The Vietnamese Government will provide a prompt response to the U.S. Government on cases referred for their review. If it is determined that a person whose name and file has been provided to the Vietnamese Government is a national of Vietnam and has been ordered to be removed from the U.S., the Vietnamese Government will issue a travel document authorizing that person's return to Vietnam.

The MOU will enter into force sixty (60) days from the date of signature, January 22, 2008 and will be valid for five years. The MOU will be extended automatically for terms of three years thereafter unless written notice not to extend is given by one government to the other at least six months prior to the expiration date of the Agreement. The MOU may be amended or supplemented by written agreement of the Vietnamese government and the U.S. government through appropriate diplomatic channels.

Efficient and expedient removal procedures are an important part of ICE's strategy to support the Secure Border Initiative (SBI), a comprehensive multi-year plan by the Department of Homeland Security to secure America's borders and reduce illegal migration.

Under SBI, Homeland Security seeks to gain operational control of both the northern and southern borders, while re-engineering the detention and removal system to ensure that illegal aliens are removed from the country quickly and efficiently. SBI also involves strong interior enforcement efforts, including enhanced worksite enforcement investigations and intensified efforts to track down and remove illegal aliens inside this country.


U.S. Immigration and Customs Enforcement was established in March 2003 as the largest investigative arm of the Department of Homeland Security. ICE is comprised of five integrated divisions that form a 21st century law enforcement agency with broad responsibilities for a number of key homeland security priorities.

RULES IN ILLINOIS TRAFFIC, DUI, CRIMINAL CASES CIRCUIT COURT OF COOK COUNTY

PROCEDURES IN ILLINOIS TRAFFIC CASES, QUASI-CRIMINAL CASES AND CERTAIN MISDEMEANORS

11.2 Alcohol and Drug Evaluations in Driving Under the Influence cases (DUI) and Other Serious Traffic Offenses

(a) An alcohol and drug evaluation and recidivist background check shall be made available to the court prior to disposition in the following:

(i) All driving under the influence of alcohol or drug cases.

(ii) Any charge of reckless driving that is a reduced charge of a DUI.

(b) All evaluations shall be filed with the Clerk of the Court. The Clerk shall keep and maintain evaluations separate from general access files and shall release the evaluation as prescribed by law or upon appropriate order of court. The Clerk shall return all evaluations to the evaluation program upon completion of sentence.

[Amended, effective March 26, 1992.]

11.3 Driving While Under the Influence Cases (DUI)

(a) Supervision - Prior to considering a disposition of supervision for a defendant who has been charged with the offense of driving while under the influence of alcohol, other drugs, or a combination thereof, in violation of Section 11-501, of the Illinois Vehicle Code, (Ill. Rev. Stat., 1991, ch. 95 1/2, par. 11-501) [625 ILCS 5/11-501] or a similar provision of a local ordinance, the court shall first review and have made of record each of the following:

(i) The facts and circumstances of the violation with specific attention to the level of alcohol concentration in the defendant's blood and to whether personal injury or property damage occurred in conjunction with the violation.

(ii) The written alcohol/drug evaluation of the defendant prepared by the Central States Institute of Addiction, with specific attention to the determination of the risk to public safety that the defendant presents if he/she continues to drive a motor vehicle. Risk means the specific level (minimal, moderate, significant, or high) assigned to a DUI defendant which describes the defendant's probability of continuing to operate a motor vehicle in an unsafe manner. This level assignment is based upon the following factors: The nature and extent of the defendant's alcohol and/or drug use; the BAC level at the time of arrest; prior dispositions for DUI; and other factors which may include any physical, emotional and/or social dysfunction arising from the use of alcohol and/or other drugs.

(iii) Any alcohol or drug related driving offenses contained in the defendant's driving abstract, as recorded by the Secretary of State's Office, for the preceding five years.

(iv) A DUI recidivist check (a record of any prior order(s) of supervision entered by the Circuit Court of Cook County, and a statement whether the defendant has participated in an alcohol/drug intervention program for a DUI offense) shall be conducted by the Central States Institute of Addiction as part of its evaluation process.

(v) Whether, in connection with the circumstances of the violation, the driving privileges of the defendant have been suspended as a result of a refusal to submit to a chemical test.

(vi) Evidence of all other elements required by law.

(vii) When the defendant requests the sentence of supervision, he/she shall establish:

1. That an order of supervision is in the best interests of the public.

2. That an order of supervision is in the best interests of the defendant and his/her family; and,

3. That there are other matters in mitigation for consideration.

(viii) Any other factors deemed relevant by the court or brought to the attention of the court by either the defendant, the prosecutor or the victim.

(b) Evaluation Program - The Central States Institute of Addiction (C.S.I.), hereinafter referred to as "the evaluation program," shall perform all alcohol/drug evaluations for the court pursuant to the statutory requirements of Section 6-206.1 or Section 11-501, of the Illinois Vehicle Code, (Ill. Rev. Stat., 1991, ch. 95 1/2, par. 6-206.1 and 11-501) [625 ILCS 5/6-206.1, 625 ILCS 5/11-501], similar provisions of a local ordinance or by court order for other misdemeanors wherein the nature of the charge, the conduct of the defendant, or a factor to be considered in sentencing is alcohol/drug related.

(c) Evaluation Program Requirements - The Evaluation Agency shall comply with the following requisites:

(i) The evaluation program shall demonstrate competency in the substance abuse field.

(ii) A representative of the evaluation program shall be present and available to testify on all scheduled court dates.

(iii) The evaluation program shall, on a regular basis, monitor each Level I - Minimal Risk defendant, while that person is assigned to an intervention program and until the termination of the sentence. Required reports shall be made to the court's designated monitoring agency as to the defendant's progress.

(iv) The evaluation program shall charge a fair and reasonable fee. The evaluation program shall have a written policy, acceptable to the court, concerning the acceptance of and the servicing of indigent defendants. The criteria used in the determination of indigency shall be as prescribed by the Department of Alcoholism and Substance Abuse Regulations (D.A.S.A.).

(v) The evaluation program shall establish a network of D.A.S.A. funded agencies for the purpose of providing intervention services, which include inpatient or outpatient treatment and aftercare services to indigent defendants.

(vi) The evaluation program shall provide reports, for both fee paying and indigent clients, within statutory guidelines and on scheduled court dates.

(vii) Reports by the evaluation program shall contain a statement concerning the defendant's recidivism, which shall include a record of any prior orders of supervision not contained in the Secretary of State's driving abstract and a statement whether the defendant has participated in an alcohol/drug intervention program for a prior DUI offense.

(viii) The evaluation program shall not refer or accept a DUI defendant, classified as Risk Level I, into a remedial education program provided within the same program or service. The evaluation program shall not refer or accept a DUI defendant, classified as Risk Level II or III, into a treatment program provided within the same program or service.

(ix) The evaluation program shall have referral agreements with service agencies that provide comprehensive treatment services and adhere to the, to Illinois Department of Alcoholism and Substance Abuse Regulations, and have established procedures that protect the confidentiality of program participants and their records.

(x) The evaluation program shall refer defendants classified as Level I - Minimal Risk, to a remedial education program that maintains that population separate from defendants classified as Level II - Moderate or Significant Risk, or Level III - High Risk. Risk means the specific level (minimal, moderate, significant or high) assigned to a DUI defendant which describes the defendant's probability of continuing to operate a motor vehicle in an unsafe manner. This level assignment is based upon the following factors: The nature and extent of the defendant's alcohol and/or drug use; the BAC level at the time of arrest; prior dispositions for DUI and other factors which include any physical, emotional, and/or social dysfunction arising from the use of alcohol or other drugs.

(xi) C.S.I. shall continue as sole provider of alcohol/drug evaluations for the court as long as it remains a not-for-profit organization and conforms with all requirements contained herein, retains all necessary licenses required by state statute or regulations, and is in compliance with any agreement executed with the Circuit Court of Cook County.

(xii) The evaluation program shall file a statement of compliance with this Rule. This statement must express the program's intention to comply with all of the provisions of Rule 11.3. The statement shall be filed in the Office of the Chief Judge, Circuit Court of Cook County, Richard J. Daley Center, Chicago, Illinois 60602. Failure to file a statement of compliance will result in the non-acceptance of the evaluator's reports for any Circuit Court of Cook County purpose.

(d) Remedial Service Providers - Any licensed program providing a driver remedial education course of study for a defendant charged with the offense of driving while under the influence of alcohol, other drugs, or a combination thereof, in violation of Section 11-501, of the Illinois Vehicle Code, (Ill. Rev. Stat.,1991, ch.95 1/2, par. 11-501) [625 ILCS 5/11-501] or a similar provision of a local ordinance, shall comply with the following:

(i) The remedial education course shall be conducted as prescribed by the Department of Alcoholism and Substance Abuse Regulations.

(ii) The remedial education program shall charge a fair and reasonable fee.

(iii) The remedial education program shall have a written policy, acceptable to the court, concerning the acceptance and servicing of indigent defendants. The criteria used in the determination of indigency shall be as prescribed by the Department of Alcoholism and Substance Abuse Regulations.

(iv) The remedial education program shall maintain classes for defendants classified as Level I - Minimal Risk, separate from defendants classified as Level II - Moderate or Significant Risk, or Level III - High Risk.

(v) The remedial education program shall encourage family members to attend classes with the clients at no additional cost.

(vi) The remedial education program shall report to the court or to the court designated monitoring agency as to the client's progress. Written progress reports, as required by the court, shall be made in a timely manner for both fee paying and indigent defendants.

(vii) The remedial education program shall notify the appropriate prosecuting authority and the designated monitoring agency of a defendant/client's failure to attend and/or complete court ordered remedial education classes. The program shall communicate this information, in writing, to the court within thirty (30) days after said noncompliance.

(viii) The remedial education program that services DUI defendants in the Circuit Court of Cook County must file a statement of compliance with this Rule. This statement must express the program or agency's intention to comply with all of the provisions of Rule 11.3. The statement shall be filed in the Office of the Chief Judge, Circuit Court of Cook County, Richard J. Daley Center, Chicago, Illinois 60602. Failure to file a statement of compliance will result in the non-acceptance of the driver remedial education program report for any Circuit Court of Cook County purpose.

[Amended, effective March 26, 1992.]

11.4 Community Service

(a) All defendants sentenced to community service shall be processed as follows:

(i) The defendant shall be directed to contact the Social Service Department. The Social Service Department will direct the defendant to the appropriate community service program pursuant to the court order. All defendants who are subject by statute to mandatory community service sentences shall be directed to the Sheriff's Community Service Program.

(ii) If a defendant is evaluated as inappropriate for either community service program, the Social Service Department will immediately notify the prosecuting authority. The case will be recalled for reconsideration of the sentence.

(iii) A progress report shall be made to the court regarding the defendant's placement and progress in the community service program as required by the court.

(iv) On the termination date of sentence, the defendant shall appear in court with evidence of the successful completion of all aspects of the court's order.

(b) The defendant shall pay the reasonable costs associated with community service activities ordered by the court whether the agency providing the community service activity is the Sheriff of Cook County or the Social Service Department of the Circuit Court of Cook County. Each community service agency shall establish a schedule of fees and shall uniformly assess fees based upon the defendant's ability to pay.

(c) Defendants who have not satisfactorily completed community service may be resentenced to community service at the discretion of the court and with such modifications as the court deems appropriate.

[Amended, effective March 26, 1992.]


11.5 Termination of Supervision

(a) Whenever a defendant is charged with a crime that has the potential of a jail sentence, he shall be required to return to court on the date set for the termination of supervision.

(b) The court, on the record, shall inquire of the prosecuting authority whether or not there is any objection to the termination.

[Amended, effective March 26, 1992.]

11.6 Monitoring

(a) In all cases where a defendant is placed on Supervision or Conditional Discharge for an alcohol/drug-related misdemeanor driving offense, the Sentencing Order shall indicate that the defendant is to be monitored on a reporting basis by the Social Service Department or their designee. The defendant placed on Supervision or Conditional Discharge shall pay all reasonable costs assessed by the monitoring agency for such monitoring, in addition to fines, costs, surcharges and/or restitution as ordered by the sentencing court.

(b) The monitoring agency shall provide written reports to the sentencing court pursuant to the sentencing order. A final report shall be filed with the court on the scheduled date for termination.

(c) The monitoring agency shall promptly report in writing to the prosecuting authority any violation of the sentencing order or the requirements of the monitoring agency. All violations shall be reported as soon as discovered or no later than thirty (30) days prior to the date of termination of sentence. Nothing herein shall prevent the filing of a violation at any time prior to the termination of the sentence. Upon filing of a Petition for Violation, said petition shall be set for hearing within the period prescribed by law.

[Amended, effective March 26, 1992.]

DUI Defense Illinois Legal challenges to evidence

1. ILLEGAL STOP OF PERSON OR VEHICLE – a driver cannot be stopped unless the officer has a reasonable and articulate basis to believe that a traffic law or other law has been violated. Similarly, a person cannot be seized unless a violation has occurred.

2. WEAVING INSIDE THE LANES IS NOT ILLEGAL – weaving without crossing any lines is not a violation of the law, and a vehicle cannot be stopped for that reason.

3. ANONYMOUS REPORT OF DRUNK DRIVING -- a car cannot be stopped simply because an anonymous citizen reported that the driver was drunk.

4. STANDARD FIELD SOBRIETY TESTING IS INACCURATE – in healthy individuals, the one-leg stand test is only 65% accurate, and the walk-and-turn test is only 68% accurate in determining if a person is under the influence. Those persons with injuries, medical conditions, 50 pounds or greater overweight, and 65 years or older cannot be validly judged by these tests.

5. NON-STANDARDIZED FIELD TESTS ARE INVALID – neither the Federal Government (NHTSA) nor medical science considers touching your finger to your nose, or saying the alphabet, or counting backwards, as valid sobriety tests.

6. BREATH TESTING IS INACCURATE – virtually all experts concede that one breath test alone is unreliable. The Illinois Supreme Court has remarked that breathalyzers are not foolproof. Finally, breath testing in Illinois is subject to various inaccuracies, including a +/- 12.5% variance, non-specificity for ethanol, etc.

7. BOOKING ROOM VIDEOS – Many police stations videotape suspects at the police station, where their speech is clear and their balance is perfect, in spite of police testimony to the contrary.

8. IN-SQUAD VIDEOS – more and more often, the suspect’s driving and performance on field tests is being recorded; often contradicting police testimony.

9. FAILURE TO PROVIDE SPEEDY TRIAL – If a client is not provided with a trial within 120 to 160 days of demand, through delays of the court or prosecutor, the charges must be dismissed.

10. POLICE BLOOD TEST INACCURATE – Many times, police blood testing fails to follow prescribed rules of testing, analysis, or preservation recommendations.

11. HOSPITAL BLOOD TEST INACCURATE – Hospital blood tests overestimate a person’s true level by as much as 25% in healthy, uninjured individuals, and are not statistically reliable in severely injured persons.

12. BREATH TEST OPERATOR UNLICENSED – An Illinois Breath Test Operator must possess a valid, unexpired operator’s license, or the breath test result is inadmissible.

13. BREATHALYZER MACHINE MALFUNCTIONS – if there is a malfunction or repair of the breath test instrument within 62 days before or after a suspect’s breath test, the results of the suspect’s test are presumed invalid.

14. BREATH TEST OPERATOR LICENSE EXPIRED -- An Illinois Breath Test Operator must possess an unexpired operator’s license, or the breath test result is inadmissible. Licenses expire automatically every 3 years.

15. BREATH TEST DEVICE NOT APPROVED – A breath testing instrument must be listed on the Federal List of Approved Breath Evidential Instruments and the ISP approved list of Devices, or the results are inadmissible.


16. FAILURE TO PROVE DRIVING – a defendant’s admission to driving, without more, does not prove a charge of driving under the influence.

17. INDEPENDENT WITNESSES – often times, independent witnesses to accidents, bartenders, hospital personnel and others can provide crucial evidence of the defendant’s sobriety.

18. FAILURE TO MIRANDIZE – prosecutors may not use as evidence the statements of a defendant in custody for a DUI when the police have failed to properly issue Miranda Warnings.

19. FIELD SOBRIETY TEST IMPROPERLY ADMINISTERED – according to the National Highway and Traffic Safety Administration, improperly administered field tests are not valid evidence of intoxication.

20. OFFICER’S PRIOR DISCIPLINARY RECORD – a police officer’s previous disciplinary record can be used to attack the officer’s credibility.

21. PORTABLE BREATH TEST INADMISSIBLE – Illinois law prohibits the use of portable breath testing results as evidence at trial in a DUI case.

22. PORTABLE BREATH TEST IMPROPERLY ADMINISTERED – The manufacturers of portable breath testing devices require a minimum of two tests to consider the results evidential in nature.

23. FAILURE TO CONDUCT OBSERVATION PERIOD – Illinois requires that a driver be observed continuously for a minimum twenty minutes prior to a breath test in order for the results to be considered admissible and valid.

24. EXPERT WITNESSES – Expert witnesses are available to review the validity of breath tests, blood tests and field sobriety tests.

25. MEDICAL AND HEALTH PROBLEMS -- Medical problems with legs, arms, neck, back and eyes can affect the results of field sobriety tests. Further, other medical conditions can also affect the validity of breath test results.

26. BAD WEATHER – Weather reports establishing high winds, low visibility, and other conditions are available to explain poor driving or poor balance.

27. LACK OF PROBABLE CAUSE TO ARREST -- A police officer must have specific and articulable facts to support any arrest for DUI, or the suspension will be reversed and the evidence suppressed at trial.

28. ILLEGAL SEARCH – the police are prohibited from searching a person or the automobile for a minor traffic offense, and may not search a car without a driver’s consent or probable cause. Any evidence illegally obtained is not admissible in court.

29. PRIOR INCONSISTENT STATEMENTS BY POLICE OFFICERS – any statement made by a police officer, verbally, in police reports, or at previous court proceedings may be used to attack that officer’s credibility.

30. POST-DRIVING ABSORPTION OF ALCOHOL – the prosecutor must prove the blood or breath alcohol at the time of driving. Recent consumption of alcohol just prior to driving will cause the test results to be higher than what the true level was when the person was operating the automobile.

31. INTERFERING SUBSTANCES – many items contain forms of alcohol which may cause false results, such as asthma spray, cough drops, paints, fingernail polish. These items can cause the breath results to be invalid.

32. BREATH MACHINE NOT PROPERLY OPERATED – the manufacturers of breath testing devices have specified protocols which must be followed for a breath result to be valid. Failure to follow these requirements will result in improper readings.

33. FAILURES TO PRODUCE DISPATCH TAPES – most stops of vehicles are recorded on dispatch tapes, as well as recording police communications regarding an arrest of an individual. Failure to preserve such tapes upon request can cause all evidence which could have been recorded to be suppressed.

34. MISLEADING STATEMENTS BY POLICE OFFICERS – Any misleading statement by the police regarding the consequences of taking (or refusing) a blood, breath, or urine test will cause the suspension to be reversed and removed from the driver’s record.

35. STATUTES OF LIMITATIONS – A misdemeanor charge of DUI must be filed within 18 months of the date of offense, or the charges will be dismissed outright.

36. PRIVATE PROPERTY – a person who has not driven the car on a public highway cannot be suspended for drunk driving.

37. FAILURE TO DISCLOSE EXPERTS – the failure of the prosecutor to disclose the state’s expert(s) will cause those witnesses to be barred from testifying against the defendant.

38. LACTATE RINGERS – when hospital staff use lactate ringers during the treatment of a patient, the hospital blood serum results will report falsely elevated, and therefore invalid, readings.

39. FAILURE TO RECORD CERTIFICATION TESTS – the failure to include the value of the simulator solution used to test breath machines will cause the breath test results to be inadmissible in court against the driver.

40. FORCED BLOOD DRAWS – the police may not take a blood test against the driver’s consent where there has not been an injury involved, or the result is inadmissible.