Quick Reference Guide for

Statutory Summary Suspension Hearing

Chicago Bar Association

Volunteer Attorney Training Program

December 12, 2011

CONTENTS

Introduction/Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pg. 2

Responsibilities of Program Participants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pg. 3

Judges Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pg. 3

Assistant Public Defenders Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pg. 4

CBA Panel Liaison’s Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pg. 5

Panel Attorney’s Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pg. 5

Common SS Acronyms and Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pg. 6

Case File Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pg. 7

Limited Representation Form . . . . . . . . . . . . . . . . . . . . pg. 7

Sample. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pg. 7

Petition to Rescind. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pg. 8 & 9

Sample. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pg. 8

Limited Representation Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pg. 9

Sample. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pg. 10 & 11

Appearance Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pg. 12

Sample . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pg. 12

Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pg. 13

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Sample . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pg. 14

Shifting the burden to the State at the Rescission Hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pg. 15

Calling your Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pg. 16 & 17

Calling a Passenger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pg. 17 & 18

Calling an Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pg. 18 & 19

Charlie Beach Memorandum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pg. 20 & 21

Additional Questions from Volunteers and Answers from Charlie Beach . . . . . . . . . . . . . . . . . . pg. 22 & 24

Tips from the Trenches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pg. 24-26

How Do You Win A Summary Suspension Without A Hearing? . . . . . . . . . . . . . . . . . . . . . . . . . . pg. 27

Case Law Shared Among Volunteers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pg. 27-28

Chicago Police Department General Orders On-line . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pg. 29

Driving While Under the Influence – Implied Consent (SFSTs) . . . . . . . . . . . . . . pg. 29-32

INTRODUCTION

The work you have volunteered to do is important. People charged with DUI lose their right to drive,

even if they have been wrongly charged; not been given proper warnings; or if there were no reasonable

grounds for the stop and/or arrest. While anyone charged with a DUI can petition the court for a

rescission of Statutory Summary Suspension, having proper representation is very important, not

everyone can afford an attorney and this is where you fit in.

The CBA Pro-Bono Summary Suspension project has been a great success. The success is directly

attributed to the volunteer Attorneys who have taken the time and extended the effort to represent

indigent people charged with DUIs in the civil matter. This document has been drafted with the insight

of one of our program volunteers, Shirley Ramadani, in an effort to provide pro-bono attorneys with

explanations of the documents they will be expected to know and understand for proper representation

at a Hearing for Rescission of Statutory Summary Suspension. Additionally, there are samples of all

forms and documents, which may be printed and used at your hearing. We have also provided answers

to potential questions and issues that may arise during your representation.

Should you have further questions about your case, please contact the program Liaison, Megan

McClung, at 312.371.2489 or mhmcclung@gmail.com . She will provide you with resources or put you

in touch with an experienced summary suspension attorney to help with your question.

Our best advice is to know your facts, trust your gut, and go all out – you have nothing to lose and

everything to gain for your client!

Good Luck!

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PRO-BONO ATTORNEY REFERRAL PROGRAM RESPONSIBILITIES

The roles and responsibilities of the all the program participants, including the Judge, the Assistant

Public Defender, CBA Liaison, and the Pro-Bono Attorney.

Circuit Court of Cook County/Chicago Bar Association

Pro Bono Attorney Referral Program

for Statutory Summary Suspension Hearings for

Public Defender DUI Clients at Traffic Court in the Daley Center

This program serves indigent citizens who need representation in attempting to rescind the Statutory

Summary Suspension of their driver’s license that went into effect upon their arrest for driving under

the influence charges.

If the trial court appoints the Public Defender’s Office to represent the defendant on charges that the

defendant was driving under the influence of alcohol, other drug, intoxicating compound or compounds

or any combination thereof pursuant to 625 ILCS 11-501, the defendant may be eligible for the program.

Judge’s Responsibilities

1. Upon appointment of the Public Defender, the Judge will instruct the defendant that the Court

is appointing the Public Defender to represent the defendant only as to the criminal charges but that the

Public Defender may be able to assist them in obtaining the services of a pro bono attorney to represent

the defendant as a petitioner in the civil case to get back the defendant’s drivers license. The Judge will

explain that the defendant will have to sign an Authorization and Consent form allowing the assistant

public defender to forward the defendant’s case file to the pro bono attorney. The Judge will also

explain that prior to the civil hearing, the pro bono attorney will have the defendant sign a limited

representation waiver which states that the attorney is only representing him/her for this specific civil

case to get back the driver’s license.

2. The Assistant Public Defender will assist the defendant by explaining the program, helping them

file the petition, and contacting the CBA Liaison. The Public Defender does not represent the defendant

in his/her civil case and is only helping the defendant to assist the court.

3. The Assistant Public Defender will help the defendant file a pro se petition and obtain a hearing

date. The Assistant Public Defender will forward the petition and case documents to the CBA Liaison to

place with a Pro Bono Attorney. The CBA Liaison will match the Pro Bono Attorney to represent the

defendant at the hearing. On the hearing date, the Pro Bono Attorney will file his/her appearance and

represent the defendant in the civil summary suspension matter only.

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Assistant Public Defender Responsibilities

1. The Assistant Public Defender will determine whether the defendant has a valid driver’s license,

the arrest is less than 90 days ago, and that there exist grounds to file a motion to quash the stop or arrest.

2. If the case meets all of the above criteria, the Assistant Public Defender will tell the defendant

that the Public Defender will assist him/her in filing a petition to rescind statutory summary suspension and will forward the needed papers to one of the volunteer attorneys who will represent the defendant at the hearing on the petition. The defendant will also be told that the Public Defender will not represent him on the civil case.

3. If the defendant wants to be referred to the pro bono panel, the Assistant Public Defender will

have him sign the waiver, complete the information required on the waiver form, then file the petition to rescind statutory summary suspension while the defendant is still in court. The court will set a hearing date.

4. The Assistant Public Defender will give the defendant the copy of the referral form that indicates

the date and time for the statutory summary suspension rescission hearing. Tell your client we will try to get him a volunteer attorney but that we cannot guarantee that one will be secured for the next court date. Make sure also that the client understands that communication with that attorney and the PD is very important. Failure to communicate can risk the loss of the volunteer attorney and his/her valuable assistance.

5. If the continuance date on the criminal case is different, the Assistant Public Defender will tell

the defendant he/she must show up at both court dates. The defendant will be advised that failure to show up at the criminal case may result in a warrant being issued.

6. To refer the case, e-mail the CBA Liaison and cc your traffic supervisor. E-mail the client's name,

phone number, next court date, time, courtroom, date petition was filed and the suggested grounds for rescission or any other information from the client that is important to the case strategy. The volunteer may not get to speak with the client until the day of the hearing. If the volunteer has this important information ahead of time, it will greatly increase the chances that the volunteer feels ready to proceed instead of continuing it for 30 days.

7. The Assistant Public Defender will provide all the case documents to Ora Brown, or other

designated assistant at the Public Defender’s office, who will scan and e-mail the electronic PDF file to the CBA Liaison, Megan Healy McClung, at mhmcclung@gmail.com. The case documents should contain copies of the (1) Sworn Report, (2) Warnings to Motorist, (3) all discovery tendered by the State’s Attorney, (4) the Petition to Rescind and (5) all traffic tickets. The CBA Liaison will contact the Assistant Public Defender by e-mail with the name and e-mail of the Pro Bono Attorney assigned to the hearing. When the volunteer reaches out to you, communicate how the summary suspension hearing can help/hurt your DUI case in chief. Direct them to contact the CBA Liaison if they have other questions.

9. If the Pro Bono Attorney fails to show up at the hearing, the Assistant Public Defender will

obtain a continuance and contact the CBA Panel Liaison.

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Responsibilities of the CBA Liaison 1. The CBA Liaison will receive the referral and relevant materials from the Assistant Public

Defender. 2. The Liaison will contact the Pro Bono Attorneys and attempt to match one with the referral. The

Liaison will email the case documents to the Pro Bono Attorney. 3. The Liaison will also contact the Assistant Public Defender with the name and contact

information of the Pro Bono Attorney assigned to the hearing. 4. The CBA Liaison will maintain the contact data of all participating Pro Bono Attorneys and

contact the volunteers to update the status of the case referrals. The Liaison will be available to assist volunteers with questions.

Responsibilities of the Pro Bono Attorney

1. The Pro Bono Attorney will receive the referral and materials from the CBA Liaison. The

Attorney will check the materials to make sure the following are included: (1) Sworn Report, (2)

Warnings to Motorist, (3) discovery tendered by the State’s Attorney, (4) Petition to Rescind and

(5) all traffic tickets.

2. The Panel Attorney will meet the defendant several minutes before the scheduled hearing to

rescind statutory summary suspension. The Panel Attorney will explain the Limited

Representation Waiver form to the defendant and have him/her sign the form.

3. The Panel Attorney will represent the defendant at the hearing on the Petition to rescind

statutory summary suspension. Check with the assigned Assistant Public Defender for any issues

or concerns that may need to be addressed during your hearing that would aid or harm the

criminal case.

4. The Pro Bono Attorney will e-mail a copy of the signed Waiver form to the CBA Liaison, Megan

Healy McClung, at mhmcclung@gmail.com. The Pro Bono Attorney will also inform the CBA

Liaison of the outcome of the hearing and the Order of court.

5. In the event the Pro Bono Attorney cannot attend the scheduled hearing, she/her must contact

the CBA Liaison and Assistant PD immediately.

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Common SS Acronyms and Terms

Commonly used acronyms and terms by the court, public defenders and police officer reports are

spelled out here.

SS Summary Suspension

DUI Driving Under Influence

A(6) Driving while under influence of a drug. See 625 ILCS 5/11-501

SFST Standardized Field Sobriety Tests

OLS One Leg Stand Test WAT Walk and Turn Test PBT Preliminary Breath Test BAC Blood Alcohol Content

ADIR Alcohol and Drug Influence Report

NHTSA National Highway Traffic Safety Administration Field Sobriety Manual:

http://www.nhtsa.dot.gov/PEOPLE/INJURY/enforce/DESKBK.html#SFST

HGN Horizontal gaze nystagmus test (follow finger with eyes)

PD Public Defender

APD Assistant Public Defender

CDL Commercial Driver License

M/S Motion State M/D Motion Defendant O/C Order of Court PC Probable Cause RAT Reasonable Articulable Suspicion Confirmation Affirmation by the Secretary of State that a suspension exists or will exist 46th day Statutory summary suspension of license shall take effect on the 46th day following the

date the notice of the statutory summary suspension was given

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CASE FILE DOCUMENTS

Each case file will be unique in that it may contain some or all of the following components.

LIMITED REPRESENTATION FORM– This is the document that has been presented to the client by the

Public Defender’s Office explaining the difference between the PD’s representation and the

representation by the Pro-Bono attorney.

SAMPLE

****************************************************************************

STATUTORY SUMMARY SUSPENSION AUTHORIZATION, CONSENT AND REFERRAL FORM

I, , acknowledge that the Public Defender represents me only in the

criminal case (name and court number) and that the Public Defender

does not represent me in any civil proceedings, including proceedings to rescind statutory summary

suspension.

I authorize the Public Defender to release any and all records related to the pending criminal case to the

Chicago Bar Association Pro Bono Statutory Summary Suspension Project liaison. I understand that

these records will be forwarded to an attorney assigned by the CBA to represent me in my petition to

rescind statutory summary suspension.

(Client Signature) (Date)

CASE INFORMATION: Attached are (please check):

Case Number: Sworn Police Report Date of Hearing: Warnings to Motorist Time of Hearing: All traffic tickets Hearing Room: Confirmation of SSS Alcohol/Drug Influence Report Criminal History Report Other Theory of the Case: Authorized by PD Supervisor: (signature) DEFENDANT CONTACT INFORMATION: ASSISTANT PD CONTACT INFORMATION: Name:_________________________________ Name:____________________________ Address:_______________________________ Phone Number:_____________________ Phone:___________________________ _____ E-mail address:_____________________ Cell Phone:_____________________________ Back-up #:______________________________ Name/Relation back-up#:__________________ CBA PANEL PRO BONO ATTORNEY INFORMATION: Name:____________________________________ Phone Number:_____________________________ E-mail address:_____________________________

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PETITION TO RESCIND STATUTORY SUMMARY SUSPENSION This is a copy of the petition that the Public Defender Office files to initiate the hearing process. There are five grounds for the petition listed; generally all of the reasons have been selected. When the case is called by the judge at the hearing, she will ask on what grounds are you proceeding. After careful review of the case file you must be prepared to argue at least one of the grounds listed. Less is more; do not try to argue more than one or two grounds. Inform the court on which ground(s) you plan to argue.

SAMPLE

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PETITION TO RESCIND STATUTORY SUMMARY SUSPENSION (This form replaces CCG-0506)

(Rev. 1/8/01) CCTR 0506

Date Driver's License Number

Case Number

County PETITION TO RESCIND STATUTORY SUMMARY SUSPENSION

I hereby petition the court to rescind the Statutory Summary Suspension issued in this case because (check appropriate item(s)):

I was not properly placed under arrest for an offense as defined in 625 ILCS 5/11-501 of the Illinois Vehicle Code (Driving Under the Influence of Alcohol/Drugs) or a similar provision of a local ordinance, as evidenced by the issuance of a Uniform Traffic Ticket to other form of charge:

The arresting officer did not have reasonable grounds to believe that I was driving or in actual physical control of a motor vehicle while under the influence of alcohol and/or other drugs, or a combination thereof:

I was not properly warned by the arresting officer as provided in 625 ILCS 5/11-501.1(c) of the Illinois Vehicle Code:

I did not refuse to submit to and/or complete the required chemical test or tests, pursuant to 625 ILCS 5/11-501.1 (d) of the Illinois Vehicle Code, upon the request of the arresting officer:

I submitted to the requested test or tests but the test sample of my blood alcohol concentration did not indicate a blood alcohol concentration of 0.08 or more:

Under penalties as provided by law pursuant to 735 ILCS 1/1-109 of the Code of Civil Procedure,

the undersigned certifies that the statements set forth in the "Petition to Rescind Statutory Summary Suspension" attached hereto and made a part hereof, are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he/she verily believes the same to be true. Court Date Petitioner's Signature Room Street Address

Time City/State/Zip

********************************************************************

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Note: Any judicial hearing, request, or process pursuant to this Petition will not stay or delay the Statutory Summary Suspension. The hearing may be conducted upon a review by the court of the law enforcement officer's own official reports; provided however, that you may subpoena the arresting officer if you so desire. THE HEARING WILL BE LIMITED ONLY TO THE ISSUE(S) YOU HAVE MARKED IN THE BOXES NOTED ABOVE. The hearing will be held within 30 days after receipt of the Petition to Rescind Statutory Summary Suspension but subject to the discretion of the court, not sooner than 7 days following receipt of such petition by the Circuit Court having jurisdiction.

LIMITED REPRESENTATION WAIVER This is the waiver that the client must read and sign prior to you representing him in court. Ask the

client to read the document and then answer any questions he may have. Once it is clear what your role

is and the limits to which your representation will cover, ask the client to initial each point, (a) through

(e) of section 6, and sign the document. Once the document has been signed, go to the PD’s office on

the South side of the 4th floor last office between the two courtroom halls, and make a copy. Keep one

copy for yourself, give the defendant the other copy and, later on, e-mail a copy to the CBA Pro-Bono

Liaison. The Limited Representation Waiver is provided on the following two pages. Please print these

two pages and take with you to court the day of the hearing.

SAMPLE (on next 2 pages so that you may print and use for your hearing)

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LIMITED REPRESENTATIONWAIVER

This waiver is signed by ___________________________, hereafter referred to as “Client” as part of the CBA Statutory Summary Suspension Project. The CBA Statutory Summary Suspension project will assign an attorney, referred to in this waiver as “Attorney” to represent Client in a Petition to Rescind Statutory Summary Suspension. 1. Nature of Case: The Client is requesting representation from Attorney in the following Petition to Rescind Statutory Summary Suspension (name and case number):

________________________________________________________________________ This representation requires Attorney to appear of record for a limited issue.

2. Services to be performed by Attorney a. The Attorney will only represent the client at the statutory summary suspension recission

hearing. The Attorney’s representation is limited solely to petitioning the court to rescind statutory summary suspension on one or more of the following grounds: i. grounds that the arresting officer did not have reasonable grounds to believe

that Client was driving or in actual physical control of a motor vehicle while under the influence of alcohol and/or other drugs, or a combination thereof.

ii. Client was not properly placed under arrest for an offense as defined in 625 ILCS 5/11-501 of the Illinois Vehicle Code (Driving Under the Influence of Alcohol/Drugs) or a similar provision of a local ordinance, as evidenced by the issuance of a Uniform Traffic Ticket to other form of charge;

iii. Client was not properly warned by the arresting officer as provided in 625 ILCS 5/11-501.1(c) of the Illinois Vehicle Code;

iv. Client did not refuse to submit to and/or complete the required chemical test or tests, pursuant to 625 ILCS 5/11-501.1(d) of the Illinois Vehicle Code, upon the request of the arresting officer;

v. Client submitted to the requested test or tests but the test sample of blood alcohol concentration did not indicate a blood alcohol concentration of 0.08 or more.

b. If the Client decides to retain the Attorney as the Client’s Attorney of record for handling

any other legal matters on the Client’s behalf, the Client and the Attorney will enter into a new written Agreement setting forth that fact, and the Attorney’s additional responsibilities in the Client’s case.

3. Attorney of Record. It is the intention of Attorney and Client that Attorney shall only perform those services specifically requested of Attorney at the Summary Statutory Suspension Hearing. These services may require Attorney to become attorney of record or make a court appearance in Client’s case in order to perform the service requested. Attorney and Client specifically agree that Attorney’s becoming attorney of record for such purposes shall not authorize or require Attorney to expand the scope of representation beyond the specific services designated. In the event that any court requires Attorney, as attorney of record for one or more authorized issues or tasks, to assume the responsibility for other tasks or issues reserved to client or a third party professional, Attorney may, at his/her option, elect to withdraw from representation, and Client agrees to execute any Substitution of Attorney forms reasonably requested by Attorney.

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4. Attorney’s Fees Client will not be charged Attorney’s fees. 5. Resolving Disputes between Client and Attorney a. Notice and Negotiation. If any dispute between Client and Attorney arises under this agreement, both Attorney and Client agree to meet and confer within ten (10) days of written notice by either Client or Attorney that the dispute exists. The purpose of this meeting and conference will be to negotiate a solution short of further dispute resolution proceedings. b. Mediation. If the dispute is not resolved through negotiation, Client and Attorney shall attempt, within fifteen (15) days of failed negotiations, to agree on a neutral mediator whose role will be to facilitate further negotiations within fifteen (15) days. If the Attorney and Client cannot agree on a neutral mediator, they shall request that the Chicago Bar Association select a mediator. The mediation shall occur within fifteen (15) days after the mediator is selected. The Attorney and Client shall share the costs of the mediation, provided that the payment of costs and any attorney’s fees may be mediated. Nothing in this provision shall constitute a waiver of Client’s rights to State Bar fee arbitration or a trial de novo after a State Bar fee arbitration. 6. I have carefully read this Waiver and believe that I understand all of its provisions. I signify my agreement with the following statements by initialing each one:

a. ________ The services that I want Attorney to perform in my case are identified in Paragraph 2. I take responsibility for all other aspects of my case.

b. ________ I understand and accept the limitations on the scope of Attorney’s responsibilities

identified in Paragraph 2 and understand that Attorney will not be responsible for my conduct in handling my own case.

c. ________ I will resolve any disputes I may have with Attorney under this Agreement in the

manner described in Paragraph 5.

d. ________ I acknowledge that I have been advised that I have the right to consult with another independent attorney to review this Agreement and to advise me on my rights as a client before I sign this Agreement.

d. ________ I have been fully advised of my right to full representation, and hereby waive my

right and consent to proceed with limited representation as described above. _________________________________ (Client) _________________________________________ (Date)

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APPEARANCE This is the appearance form you file when you check-in the day of the hearing. This form can be found

at the check-in desk in each courtroom. Note, each courtroom stores them in a different place, but be

assured they are on the check-in desk somewhere. Complete and submit to the clerk when you check-in

for your hearing. Be sure to tell the Public Defender and the Judge that you are only appearing for the

client on the petition to rescind civil matter. The Public Defender will continue to represent the client in

the criminal DUI matter.

SAMPLE

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APPEARANCE CCTR-0208 (Rev. 12/4/00)

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS The People of the State of Illinois Plaintiff No.

v. Charge Defendant(s)

APPEARANCE The undersigned enters the appearance of defendant . Name: Attorney for Address City/Zip Telephone

Cook County Attorney Number

DOROTHY BROWN, CLERK OF THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS ****************************************************************************

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ORDER This is the order that you must write at the conclusion of the case if you win. An order recites the

outcome of the hearing and the basis for the rescission. The order should contain pertinent information

such as the client’s date of birth and drivers license number. A form can be obtained in the court room

and comes in triplicate, so write hard. Once you have completed the Order, have the Judge sign and

stamp it, give the top copy to the clerk, keep one copy for your files, and give the final copy to the client.

Advise the client to take his copy to the cashier, to have the Court Seal affixed to the Order. This

authenticates the Order and there is a $10.00 charge to have this done. Be sure to advise the client

that although they have won the hearing and technically the suspension has been rescinded, it takes 2

weeks for the paperwork to process, and that he is driving at his own peril for those two weeks. If the

client must drive immediately advise them to carry the order in their pocket but to understand that an

officer may disregard the order and rely solely on the information received from the Secretary of State’s

computer, and arrest them. An Order sample follows, if you choose to use this document for your

hearing, be sure to print three copies; one for the court, one for the Client and one for your records. All

copies must be stamped by the Court Clerk.

ORDER SAMPLE (on next page so that you may print and use for your hearing, remember to print three

copies)

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Order (Rev. 9/13/04) CCG 0002

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS PEOPLE OF THE STATE OF ILLINOIS

v. No.

ORDER This matter coming to be heard on the petition of the Defendant for a Judicial Review of the Statutory Summary Suspension, all parties being present, the Court being fully advised in the premises and having jurisdiction of the subject matter the Court finds in favor of the Defendant/Petitioner for the following reason(s): No Warning Given/Improperly Warned No Reasonable Grounds Did not Refuse Testing Not a B.A.C. of .08 or more Defective Notice of Summary Suspension Failure to hold hearing in timely manner under People v. Schaefer,

154 Ill.2d 250, 609 N.E.2d 329 (1993). It is HEREBY ORDERED that the Circuit Court Clerk is to send notice of this action to the Secretary of State and the Secretary of State is to immediately rescind the Statutory Summary Suspension. Atty. No.: Name: Atty. for: Defendant , Address: ENTERED: City/State/Zip: Telephone: Judge Judge's No.

DOROTHY BROWN, CLERK OF THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

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SHIFTING THE BURDEN TO THE STATE AT THE RESCISSION HEARING This is an overview of the fact that the defendant/petitioner has the initial burden of production and

walks you through the steps to shift the burden to the State.

In both motions to suppress evidence seized in violation of the Fourth Amendment and hearings on

petitions to rescind the statutory summary suspension of driver’s licenses, the defendant/petitioner

bears the initial burden of production. Once defendant/petitioner puts on a prima facie case, the

burden of production shifts to the State to show probable cause or reasonable grounds.

Defendant/Petitioner, however, bears the ultimate burden of proof.

“Reasonable grounds” and “probable cause” for purposes of arrest are synonymous and present where

the facts and circumstances known to the arresting officers are sufficient to warrant a man of

reasonable caution to believe an offense has been committed by the person arrested. More than mere

suspicion must be shown, but evidence sufficient to convict is not required. People v. Bafia, 112

Ill.App.3d 710, 445 N.E.2d 878, 882, 68 Ill.Dec. 234 (2d Dist. 1983).

The determination of whether an officer has sufficient information on which to properly act is based

upon all of the facts and circumstances of each case and in a manner which is not unduly technical.

People v. Bafia, 112 Ill.App.3d 710, 445 N.E.2d 878, 882, 68 Ill.Dec. 234 (2d Dist. 1983). Additionally, the

propriety of the underlying stop may always be considered. People v. Glisan, 233 Ill.App.3d 469, 599

N.E.2d 1337, 175 Ill.Dec. 323 (3d Dist. 1992). When considering the propriety of the stop we must

determine whether the officer can point to specific and articulable facts that reasonably warrant the

stop of a vehicle. Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968).

To be victorious the trial court must find that the Petitioner has satisfied his or her burden of proof by a

preponderance of the evidence. People v. Hawkins, 221 Ill.App.3d 460 582 N.E.2d 243, 164 Ill.Dec. 35

(2d Dist. 1991).

HOW TO SHIFT THE BURDEN

Success at a summary suspension hearing requires that you must first shift the burden to the

Respondent (State). In other words, you must present a prima facie case. Prima facie evidence is that

which is sufficient to establish a fact and will remain sufficient if it is unrebutted. People v. Stanton, 269

Ill.App.3d 654, 646 N.E.2d 957, 207 Ill.Dec. 123 (2d Dist. 1995).

What witness or witnesses do I use to present this prima facie case?

Three types of witnesses can be presented to shift the burden: your own client, the Officer, or the

passenger.

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CALLING YOUR CLIENT TO SHIFT THE BURDEN

Benefits

Actually was involved in taking the tests

Testify to injuries and whether officer was informed

Heard the officer give instructions or fail to give instructions

If she presents well, can add credibility to case

Risks

May have to admit to drinking (effects ability to recall)

May be impeached at the DUI trial with her testimony at the rescission hearing

Clearly biased

So who do you call? Calling the Petitioner is usually the fastest and easiest way to shift the burden. You

may want to consult with the assistant public defender that represents petitioner on the DUI on your

case prior to doing so. The assistant public defender, your client, and you can come to a decision

regarding the testimony. Decide with the assistant public defender that represents petitioner on the

DUI and the Client what areas of testimony you may want to avoid. Finally, and most importantly, spend

a few minutes prepping your client to testify and prepare her for cross examination. The burden can be

shifted when calling the client by asking just a few questions.

CALLING PETITIONER TO SHOW LACK OF REASONABLE GROUNDS TO STOP

Introduce yourself to the court, keep your voice up? “John Jones” On July 1, were you pulled over by a police officer? “Yes” Before being pulled over, what where you doing? “I was driving north on Western Avenue in Chicago.” Had you violated any State or local traffic laws? “No.” You may also wish to elicit specific denials of the grounds asserted by the police officer for the stop, for example:

Failure to Stay in Lanes Did you stay in lanes. “Yes.”

Failure to Stop at a Stop Sign Did you stop at the stop sign. “Yes.”

Obstruction of Traffic Were any cars backed up behind your car. “No, there were no cars”

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CALLING PETITIONER TO SHOW LACK OF REASONABLE GROUNDS TO ARREST

Introduce yourself to the court, keep your voice up? “Cyndi Jones.” On August 6, were you arrested by a police officer? “Yes.” Were you under the influence of alcohol? “No.” Were you asked to perform standard field sobriety tests? “Yes.” What was the first test? The finger to nose.” What instructions did the officer give you? “He said, ‘Touch your finger to your nose.’” Did he say anything else? “No.” Did he give you a demonstration? “No.” Did you perform the test? “Yes.” How did you do? “Fine—I touched my nose without any problem.” What did the officer say? “The officer said ‘You missed the tip of your nose and besides that I smelled alcohol on your breath—I’m taking you in.’ ” What happened next? “He slapped the cuffs on me, put me in his squad car, and took me to the station.”

CALLING THE PASSENGER TO SHIFT THE BURDEN

Benefits

Neutral – nothing to gain With Petitioner’s testimony adds credibility to case

Risks Not involved with filed sobriety tests, so cannot testify as clearly Probably did not hear instructions given

You can also call a passenger alone, or in addition to the Petitioner. The questions are only slightly different.

CALLING PASSENGER TO SHOW LACK OF REASONABLE GROUNDS TO STOP

Introduce yourself to the court, keep your voice up? “Lucille Ball” “On July 1, were you a passenger in a care driven by Cyndi Jones? “Yes” “Was Ms. Jones pulled over by a police officer?” “Yes” Before being pulled over, what Ms. Jones doing? “She was driving north on Western Avenue in Chicago.” Had she violated any State or local traffic laws? “No.” During your case in chief or in your rebuttal case, you may also wish to elicit specific denials of the grounds asserted by the police officer for the stop, for example:

Failure to Stay in Lanes

Did Cyndi stay within the marked lanes? “Yes.”

Failure to Stop at a Stop Sign Did Cyndi stop at the stop sign? “Yes.”

Obstruction of Traffic

Were there any cars backed up behind Cyndi’s car? “No, there were no cars”

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CALLING PASSENGER TO SHOW LACK OF REASONABLE GROUNDS TO ARREST

Introduce yourself to the court, keep your voice up? “Lucille Ball” “On August 6, were you a passenger in a care driven by Cyndi Jones? “Yes” “Was Ms. Jones pulled over by a police officer?” “Yes” On August 6, was Cyndi Jones arrested by a police officer? “Yes.” Have you had occasions to observe people who have been intoxicated? “Yes.” How many times? Hundreds. Was Cyndi intoxicated? “No.” Was Cyndi asked to perform standard field sobriety tests? “Yes.” How many tests? “Two.” Describe the first test. “The officer told her to walk in a straight line.” Did she do it? “Cyndi did that perfectly.” Describe the next test. “The officer told her to touch her finger to her nose.” What did the officer do to demonstrate the test? “Nothing.” What other instructions did he give her? “None.” What happened next? “Cyndi touched her nose, but the officer said ‘You missed the tip of your nose and besides that I smelled alcohol on your breath—I’m taking you in.’ ”

As with the Petitioner, your objective is to demonstrate that there was no reasonable articulable suspicion to stop the Petitioner or no probable cause to arrest the Petitioner

CALLING THE OFFICER TO SHIFT THE BURDEN

Benefits Shift burden without risking client Opportunity to paper the officer for further trial testimony

Risks Will fight you, may not present evidence in favorable light Has done this many times, may sink case if she knows where you are going

Calling the Officer as a witness is a little different. First, prior to calling the Officer the court should be advised that she is being called pursuant to Illinois Supreme Court Rule 238(a), which provides, “The credibility of a witness may be attacked by any party, including the party calling the witness.” This allows the Petitioner to call the officer without vouching for her credibility. Furthermore, the officer can be treated adversely. 735 ILCS 5/2-1102. You may have to remind the Court that this is a civil proceeding; therefore, the Code of Civil Procedure applies. This works particularly well when the Officer’s own reports include statements that support your argument that he lacked reasonable grounds: Officer never ticketed driver for any traffic violations.

Officer Smith, you were on duty July 1. “Yes” You were driving alone in a Squad car. “Yes” You pulled over a car driven by Cyndi Jones?” “Yes” Ms. Jones was driving north on Western Avenue in Chicago. “Yes”

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At the time you pulled her over, she was complying with all State and local laws governing the movement and operation of her car? “Yes.”

Or the officer answers “No” and you impeach him with his failure to issue tickets.

Officer’s own report indicates that the driver passed several field sobriety tests and was coherent and responsive.

Officer Smith, you were on duty July 1. “Yes” You were driving alone in a Squad car. “Yes” You pulled over a car driven by Cyndi Jones?” “Yes” Ms. Jones was driving north on Western Avenue in Chicago. “Yes” She was coherent “Yes” She was responsive. “Yes” You had her submit to a finger-to-nose test. She passed that test. You had her perform the heel-to-toe walk and turn test. “Yes” She passed that test. You arrested her for DUI. “Yes”

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CHARLIE BEACH MEMORANDUM This memo from Charlie Beach provides a great overview and advice on various issues that may arise

during your representation of a client and how to handle them.

FROM: Charles Beach TO: Summary Suspension Program Pro Bono Attorneys DATE: 4/10/2009 (updated 12/1/12) RE: Update on common issues The CBA Pro-bono Summary Suspension project has been a great success and the pro bono attorneys have done an outstanding job. Issues have arisen during the program that I plan to address in this memo, and they are as follows:

1. What to do when your client fails to appear; 2. What to do when there is no confirmation in the court file; 3. Can you get a continuance; and, 4. What to do if you win.

1. What to do when your client fails to appear. Frankly, this problem occurs more than we would like. While you should always call and remind your client of the hearing the day prior to it (and also a week before, if possible), little can be done to prevent a client’s failure to appear in court. A client’s failure to appear should not cause any major problems in regard to the petition to rescind a statutory summary suspension. The court has basically two options when this happens and will often look to the State for guidance. The first option is when the State asks that the petition be struck. If the court grants the request, your task is to be sure that the petition is not struck with prejudice. A petition struck with prejudice precludes a later re-filing and leaves your client without any remedy. A petition struck without prejudice leaves the door open for a re-filing of the petition to rescind. Case law has held that the filing dates relate back, and therefore your client need not worry of running afoul of the 90 day limitation for filing. Accordingly, if the client chooses and the pro-bono program allows, the petition can be re-filed and the hearing process begins anew. The client may have to suffer longer without a remedy for her suspension, but at least she will have an opportunity for rescission nonetheless. The second option involves your requesting a “motion defendant date” to get your client into court. These cases are civil in nature and the client’s presence is not entirely necessary. However, it is understood and expected that the client be present. If you are allowed to take a date the court will probably force you to pick a date following the police officer’s key date schedule. Therefore, you will have a limited choice of dates; choose a date best suited for yourself. The recommended approach to handling a client’s non appearance is to be aggressive and seek a continuance on the defense’s motion. If the court denies your continuance, take the fallback position and try to preserve your client’s right to a hearing by asking that the petition be struck without prejudice. 2. What to do when the Summary Suspension has not been confirmed. Confirmation of the summary suspension means that a summary suspension for the DUI arrest has been placed on the driving record of the petitioner. There are a number of different types of suspensions related to a DUI arrest. Only a standard statutory summary suspension, denoted by a 17 on the driving

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record, has jurisdiction in the circuit court. Suspensions like ZT (Zero Tolerance) or based on 625 ILCS 5/11-501.6 (Traffic Crash Summary Suspension) vest jurisdiction at the Secretary of State and as such are not part of this pro bono program. If you appear in court on the date of hearing and the summary suspension has not been confirmed the case should be continued order of court. By no means should the pro bono attorney continue the case on motion of the defense. The reason is two fold. First, if there is no confirmation an issue of justicibility arises. The court has nothing to make a decision about and therefore should not be making a decision. Second, continuing the case by order of court keeps the clock ticking against the State with the end result hopefully being a violation of Due Process per Trainor and Shaeffer. Please remember, the State must provide a hearing to the Petitioner within 30 days of filing the Petition to Rescind assuming the Petitioner answered ready on the date of filing and the matter is continued order of court or on the state’s motion. 3. Can you get a continuance? Of course you can! The continuance will probably be on the defendant’s motion and you will be delaying your client’s access to a hearing and lengthening the period of suspension without relief. However, if you are not prepared, it is better to continue the case then put on an ill-conceived hearing. 4. What to do if you win. First, congratulations to you and your client. Second, please draft an order reciting the outcome of the hearing and the basis for rescission. The order should also contain pertinent information like your client’s date of birth and driver’s license number. You should get three copies of the order, one for yourself, one for your client and one for the court. The copy for your client should be sealed, which can be done by the clerk in room 401. I advise my clients that although they won the hearing and technically the suspension has been rescinded, it takes 2 weeks for the paperwork to process. Accordingly, the petitioner drives for those two weeks at her own peril. If the client must drive immediately advise them to carry the order in their pocket but be cognizant of the fact that an officer may disregard the order and rely solely on the information received from the Secretary of State’s computer, and arrest them. Your client may be right, but it is of little consequence when being led away in cuffs by an officer who does not believe the legitimacy of the court order.

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Additional Questions from Volunteers and Answers from Charlie Beach

These are questions submitted by volunteers to the CBA Liaison, who submits them to Charlie Beach for

his advice.

Q: How do I get the police video tape from the State?

A: Send a subpoena to the Chicago police department subpoena unit. Also, the state will tender

it as a piece of the discovery packet, but often not till the 2nd court date. Waiting to the second

date to receive the video can sink or make your case. The problem is that your client must then

suffer a longer period without potential driving relief. Additionally, you should discuss this

strategy with your Public Defender as the Petitioner’s testimony without reviewing the video

could cause serious conflicts later in the case.

Q: Having reviewed the documents and the client's recount of the events, I believe the best way to

challenge the suspension is to challenge the stop itself. It seems that this was a safety check/road block

that the police had set up. From the client's account, the police were doing a "seat-belt check" however,

the officers were actually making everyone who went through the road block get out of their car and do

a field sobriety test, regardless of whether they were wearing their seat-belts or not (which client and

her passenger were). I also have witnesses (as this happened right in front of client's work) that can

attest to the police making every single person get out of their car to perform the test.

What I would like is to subpoena or FOIA the police records for that night - I would like to know how

many people they stopped, how many people performed the field sobriety test, and how many people

they arrested. I would have to use a civil subpoena to get the records and FOIA could take quite a while.

What are your thoughts?

A: You should use a civil subpoena or a 214 request to produce. You are correct in believing that the stop and test of everyone is a violation of the 4th amendment, and are proceeding down the right path.

Seatbelt checks have not been subject to the requirements that roadside checks have been...the reason being was that the officers in seatbelt checks do not stop the vehicles, they just peer inside as the car passes by. As such, there is not an intrusion or delay....and ultimately the court held that the 4th was not violated. In DUI roadsides...there must be a procedure because vehicles are stopped and questions are asked, so the fourth amendment is in play.

Q: My client was pulled over by one officer, then another officer came, administered the sobriety test

and made the arrest. Have you ever heard of anyone successfully arguing that since the arresting officer

did not witness the defendant driving and, cannot, therefore, testify as to whether the defendant

violated any traffic laws, swerved in his lane, etc., the State has not offered any testimony to show that

the officer who stopped the defendant had adequate, reasonable suspicion to justify the stop? There

are other similar arguments here because one officer made the stop, another made the arrest, and yet

another officer conducted the breath test.

A: Unfortunately...the answer is no. In cases where reasonable articulable suspicion for the

stop or probable cause for the arrest are the subject of litigation hearsay is admissible...and that

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is what we have here. The officer that testifies can use and relate any information that he

gathered to establish those two standards. Hearsay is 100 percent admissible. An officer can go

so far as to say....I only arrested him because officer X told me......

Now, the ultimate question then becomes whether the information amounts to reasonable

articulable suspicion or probable cause. You can argue, that the evidence that is hearsay should

be given lesser credence because it is hearsay. However, you cannot ask a judge to disallow it

entirely. I belive the best tactic in a case like this would be to argue that the Petitioner was

placed into custody by officer #1 and officer #1 did not have probably cause. Why would officer

#1 wait for a second officer to arrive, give SFST and arrest if he had probable cause on his own.

Q: I imagine that the State will do everything to make the tests "stick" and uphold the suspension.

A: Yes, they will as they will formulate most of the reasons the officer had probable cause to

arrest the defendant. The real question is whether these tests where given prior to placing the

defendant in custody.

Q: Does the Warning statute mean that the warning must be give Prior to the FST as well as the Breath

Test? 501.1(c) discusses a warning for chemical, blood and urine but not the FST. 501.1(a) discusses

consent as being deemed given when the ticket is issued. Does that mean that the client consented to

the FST when he received a ticket?

A: The statute requires the Warning to be read prior to the breath test. There is no

requirement to read them prior to the SFST.

Q: Will I be able to see this video before it is presented in court (tomorrow)? If the State's Attorney

does not turn over the video prior to the court date, do I have reason to object to showing the video at

the hearing? Can I or the State request a continuance?

A: The State will tender the video if they have it prior to the hearing. You have no real basis to

object. You can request a continuance if there is no video but they will put up a fight and ask

you to waive your right to a speedy hearing on the suspension. You may have to do so.

Q: I have 3 reports which contain differing accounts:(a) Alcohol/Drug Influence Report,(b) Law

Enforcement Sworn Report and (c) Arrest Report. Are these separate reports and what can I do with the

different descriptions?

A: These are all considered separate reports, however, you can, depending on the story the cop

tells while testifying impeach him or her with the report that does not match his/her testimony.

Q: What if Officer does not show-up? The manual refers to "going on paper" What does that entail?

A: If the officer does not show, your client should take the stand and hopefully be able to testify

that the office never informed the defendant what would happen if he or she refused or failed

the breath test. This is the cleanest way of winning. The state will then introduce the

paperwork and the judge should find your client more credible than the states paperwork.

Q: Is it true that someone cannot be arrested for DUI in a private parking lot?

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A: A DUI charge can be sustained no private and public property. However, the State cannot

suspend someone who was driving only on private property. In other words, the DUI will

survive but the suspension will not. It is imperative though that you be clear that your client

was never on public property. If he was observed driving on a public street and pulling into a

private lot....you lose.

Q: It does not look like we have the entire discovery. There are no "fields" or print out from the blow or

indication of a video. What to do?

A: You are correct. You should have the officer’s sworn report, the Alcohol drug influence report, Arrest report, any tickets issued and Breath ticket. The PD should have these as a matter of discovery. They will not be or should not be in the court file. If the PD was not tendered these on initial date then it should be received on the second date or date of hearing. A failure to produce these documents has no detrimental effect on the State’s ability to proceed with the SS hearing. (The criminal case is a different matter.)

Tips from the Trenches

The feedback from our Pro Bono Attorney’s experiences is gathered by the CBA Liaison and shared with the volunteer group. The following is a collection of tips and advice shared over the years. 1. The defendant wasn't completely clear on the chronology of events, due to the passage of time,

so we decided to not put him on the stand. Instead, I called the arresting officer. I tried to call the

officer as an adverse witness. The state objected, saying that the witness is not technically an adverse

witness under 735 ILCS 5/2-1102. The judge agreed, though was very permissive in allowing me to ask

cross-like questions. The officer's reports were a bit ambiguous. She recorded that Mr. Cook denied a

urine/blood test at both 9:21p and 9:36, though she provided him with a warning at 9:27pm--after at

least the first time he refused the test. The officer admitted to as much. The judge found that it

appeared as though the officer crossed out the 9:36p time and the 9:21p refusal wasn't proper. The

client was thrilled and very appreciative.

2. The officer did not show, so they went on paper. We won on warnings and reasonable grounds.

The public defender and I decided to simplify the direct, given that the case appeared to be a winner,

and in an effort to limit the testimony for the DUI case. It was a tad difficult for me to change my

strategy at the last moment.

3. I know that it's hard for people working pro bono to invest a great deal of time on these cases,

but I really benefited from the time spent preparing with my client. I discussed the case with him on the

phone the night before the hearing date. We then again had a chance to prepare before and after the

status leading up to the hearing. His credibility on the stand, in my opinion, was the most important

factor. He was never impeached, and it was clear from the Judge's ruling that she believed his

testimony.

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4. I argued People v. Ullrich during my closing, given the fact that we could not cross-examine the

officer. The Judge found this persuasive but not binding. Attorneys should be prepared for an argument

by the State's Attorney stating that Ullrich gives you the right to "subpoena" the officer, and that wasn't

done.

5. I had the NHTSA DWI training manual ready to impeach the officer on the fact that HGN/VGN,

walk and turn and one leg stand are not used to detect cannabis usage. However, the officer said he

used the “City of Chicago training manual” and he didn’t know if it was the same as the NHTSA – so the

judge wouldn’t let it in.

6. These cases are hard to win when your client admits to being intoxicated. One must prepare

and look at all the minor details to obtain some sort of defense (raining, dark, distance of vehicles).

Most importantly, this allows you to paint a picture for the judge to understand the surroundings and

circumstances of a traffic stop. Unfortunately, doing everything you can doesn’t always mean that you

will win. Nevertheless, always be overly prepared.

7. The conventional wisdom in these hearings seems to be to waive an opening statement, but I

found that by giving one I was able to frame the hearing in my client's behalf. The state was not

prepared to give an opening statement, and waived his. This gave me a free shot. The state never

recovered.

8. During my case, my client testified he had little to drink and nothing else. He was pulled over in

a roadside safety stop and, after admitting to drinking a little, submitted to the SFST’s. The officer failed

him on 3 of the 4 SFST’s and then he took a PBT that read 0.00. The officer then determined he was “on

something” and (according to my client) essentially talked him out of taking alternative testing.

Needless to say, the officer’s testimony was pretty much a complete contradiction from my clients

testimony. The officer testified that my client admitted to smoking marijuana, he smelled like cannabis,

and he had red, glassy eyes. She said that he refused alternative testing and actually got him to sign the

ADIR stating that “he refused alternative testing.” The Judge rescinded the SS on the grounds that the

Petitioner submitted to a test that revealed a BAC of less than 0.08 and commented in her ruling that

she was persuaded by the fact that I argued t the officer failed my client on 3 standardized tests that are

ONLY designed to test for alcohol….only to find out he wasn’t drunk. This must have hurt her credibility.

TIPS: The SFST’s are so specific and detailed so you really need to know them inside out. I took that

seminar offered by the PD’s office on ‘Crossing the police officer: throw the book at them’. The seminar

gave me some good ideas on what type of cross-examination questions to ask and outlined favorable

defense statistics published by the NHSTA. NTHSA Field Sobriety Manual:

http://www.nhtsa.dot.gov/PEOPLE/INJURY/enforce/DESKBK.html#SFST

9. We went forward on the third ground only, because the state decided to go on paper, even though the officers were there to testify. My client testified she did not receive a warning and the state’s cross about a conversation she had with a woman officer was irrelevant because the warning was signed by a male officer. In closing, I argued that my client testified credibly that she did not receive a warning and since the officer was not there to answer questions, and the papers were inconsistent at best, the petition should be granted. The judge granted our

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petition because my client testified more credibly than the paper report presented by the state. It was a really great experience, I got better about my objections and the judge gave me a word of advice afterwards about preparing my client too. 10. With the A6 case, I mostly focused on FSTs. The police officer did 2 FSTs that are in the NHSA

manual and 2 that are not. I attacked them all in a Motion in Limine, which the judge reserved ruling on

until after the hearing. The 2 that are not in the manual are not standardized tests. I wanted to prevent

all testimony of them as "tests" because they are not. For example, one is basically asking the person to

go cross eyed and if they cannot, then that is an indication of drug use. The 2 that were in the manual

are, per the manual, indicative of blood alcohol level (which is irrelevant to an A6 or so I argued).

Ultimately the Judge gave little to no weight to the FSTs for the above reasons.

The Judge also noted that even though the client supposedly stated he has smoked, the State could

provide no evidence as to an amount in his system and therefore couldn't prove that he was impaired or

under the influence in any way. As with much of the case law, drinking a beer or smoking isn't conclusive

proof that the person is impaired/under the influence, which is really what is at issue. Without the FSTs,

there isn't much evidence of any impairment/influence. I also made a point of highlighting all the things

my client had done correctly (getting license, registration, getting out of car, not slurring, etc.)

11. We hammered the Field Sobriety Tests conducted by the police officer. We researched the proper way to conduct tests, the only accepted purpose of the tests (neurological, not DUI) and concentrated on the many discrepancies in the paperwork. Our client shot himself in the foot by his multiple admissions to smoking, "weed," in the traffic stop and arrest. One of the reasons the cops arrested him was because he smelled of marijuana. We were able to get the arresting officer to admit that there is no test for marijuana breath. The judge said he would have found in his favor but he found his testimony unbelievable and the officer's testimony credible. The kicker to this story: our client came reeking of marijuana, with blood shot eyes, red and watery and a bit mellow, in our opinion. He smelled so bad, I could hardly sit next to him during the hearing. It was a great experience for us to see another side of practice. Our advice is to work with what you are given. The paperwork was sloppy and the data about the Field Sobriety Tests was sorely lacking. Hit the field tests hard and that was where we struck paydirt. Too bad we had a less than helpful client.

12. I really had to reign my client in because he prefaced everything with, "well I don't really

remember if he warned me or not, but…". I just told him that if I asked a question that could be

answered with "Yes" or "No", then he should answer it that way, and if I needed additional information,

I would ask him for that information. I told him to do the same when the State cross-examined him.

The State entered in the Warning to Motorist as an exhibit and got the client to admit he signed it, but

then, on redirect, I asked him if he read that piece of paper, did he know what was on it, and whether

the officer had ever read to him from that piece of paper. The client answered "no" to all those

questions, and the PTR was granted.

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How Do You Win A Summary Suspension Without A Hearing?

Volunteers share their experience of winning without a hearing.

1. I was ready to proceed, but the State's Attorney also realized the arresting officer had made a mistake in the Sworn Report, so the petition was granted.

2. The Warning to Motorist sheet issued to Mr. Rogers was old - it read six months for refusal and

three months for blowing over a .08; therefore, the State agreed to the rescission. I think all volunteers should be aware of how often that actually happens. Personally, I've had multiple cases where the Petitioner's Warning sheet was incorrect and the State agrees to the rescission - no hearing necessary. The case law for rescission based on an improper Warning to Motorist form is: People v. Johnson, 197 Ill.2d 478 (2001).

Case Law Shared Among Volunteers New updates in the law or a volunteer’s experience with existing case law are welcomed and circulated among the volunteers. People v. McKown Illinois Supreme Court issued an opinion No. 102372, People v. McKown that impacts summary suspension hearings: the HGN test is acceptable under the Frye standard. The full text can be found by following the link http://www.state.il.us/court/Opinions/SupremeCourt/2010/February/102372.pdf People vs. Moreland, 2011 IL App (2d) 100699. There is an important new case that you should read, save and bring with you to court at your next hearing. Moreland says it does not matter whether there is a confirmation on file from the Secretary of State or not -- defendant gets a hearing 30 days from filing the petition to rescind. This has always been the case, however, the State’s Attorneys (and judges) mistakenly drag on these SS cases under the idea that if there is no confirmation on file, then "you can't rescind something that doesn't exist.” I’ve highlighted two parts of the opinion below: “Although we determine that defendant is entitled to the rescission of the suspension because he was not given a hearing within 30 days after filing his petition, we agree with the trial court that, without a confirmation of the suspension, there is not a suspension for the trial court to rescind. See People v. Madden, 273 Ill. App. 3d 114, 116 (1995) (“A suspension may not be rescinded until it has been confirmed.”). However, nowhere in section 2—118.1(b) of the Code does it indicate that the 30-day period begins with the Secretary’s confirmation.” “That is, it is not incumbent upon a trial court to dismiss or strike a petition if a confirmation from the Secretary is not on file. Indeed, because a defendant need not wait for the confirmation before filing his petition, the court would have no basis to dismiss or strike it. If a defendant files a petition before the Secretary confirms the suspension, the trial court should simply continue the hearing to a date 30 days after the petition is filed. On that hearing date, if the Secretary has not confirmed the suspension, the suspension will be rescinded per Madden. However, if the Secretary has confirmed the suspension, the defendant will receive the prompt hearing to which he is entitled under section 2—118.1(b).” People vs. Moreland, 2011 IL App (2d) 100699.

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Bottom-line, be sure to know the date when the petition was filed. The PD’s office should provide the petition date or send the petition with the referrals . All first dates should be treated as hearing dates. Volunteers should be prepared to answer “ready” at the first court date. This ensures that the case will be continued no later than 30 days after the date of filing the petition. People v. Reynolds 132 Ill.App.3d 559, 478 N.E.2d 33 Regarding refusal to submit to chemical testing, my client stated to the officer she couldn't do the breathalyzer because she was out of breath and needed her inhaler. The Judge cited People v. Reynolds for constructive refusal to take chemical testing. In Reynolds, the defendant maintained he was unable to take the sobriety test because of his asthma and therefore did not refuse testing. The defendant maintained that it took a day or two for his breathing to return to normal. The Appellate Court in Reynolds stated there was no evidence presented by defendant to demonstrate that one who suffers from asthma cannot perform a breathalyzer until a day or two after the attack. In my case, the judge asked a question, that if my client couldn't take the breath test, then shouldn't she have taken other chemical tests? The only answer my client had was she was never offered to be sent to a hospital to do alternate testing. The officer stated otherwise. People v. Wegielnik 152 Ill.2d 418, 605 N.E.2d 487 Regarding not being properly warned, my client stated she was never warned either generally or specifically. She stated the first time she saw the warning to motorist was after she was released from lock up. The officer stated otherwise. The arrest report stated “driver read warning to motorist.” I argued my client was never warned and even if we take the statement in the arrest report as true (which we didn't), if warnings are to have any meaning they need to be explained. Both the State and Judge cited People v. Wegielnik. In Wegielnik, the defendant who was Polish did not read or write English and only understood English a little. The defendant studied for and took his driver’s test in Polish. The Supreme Court stated the defendant had no statutory right to have warnings read to him in any language other than English even though this may have prevented him from understanding the consequences of refusal. The Court focused on keeping roads safe of intoxicated drivers. Bottom line, there is no requirement to explain the warnings.

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Chicago Police Department General Orders On-line

You can find helpful background information for your cross-examination of the police officer and how they administered SFSTs and breathalyzer tests by searching: http://directives.chicagopolice.org/directives/ . Below is the general order about administering SFSTs.

Chicago Police Department General Order G04-08

DRIVING WHILE UNDER THE INFLUENCE - IMPLIED CONSENT

ISSUE DATE: 12 September 2011 EFFECTIVE DATE: 12 September 2011

RESCINDS: 07 April 2001 version; G01-03

INDEX CATEGORY: Preliminary Investigations

I. Purpose

This directive outlines:

A. the components of Standard Field Sobriety Testing (SFST).

B. procedures for processing arrests which involve driving while under the influence of alcohol, other drugs, intoxicating compounds, or a combination thereof.

C. procedures for securing tests of an individual who has been charged with DUI.

Department members will refer to the Special Order titled "Driving While Under the Influence - Implied Consent" for an outline of processing procedures, securing chemical testing, and other responsibilities.

II. Relevant Statutes

625 ILCS 5/11-501 - Driving while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds or any combination thereof.

III. Standard Field Sobriety Testing

A. General Information

1. Standard Field Sobriety Testing (SFST) is a method of testing suspect vehicle operators to determine whether they are impaired and to establish probable cause to arrest under

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DUI statutes.

2. SFST is a program developed by the National Highway Safety Transportation Administration and has been clinically tested for accuracy. SFST has also been upheld in numerous circuit, appellate, and Supreme Court decisions across the country.

3. Although SFST cannot determine blood alcohol concentration (BAC) exactly, it can be used to determine if the vehicle operator is under the influence of alcohol, thus establishing probable cause to arrest the driver for a violation of 625 ILCS 5/11-501(a).

B. Components of SFST

The field sobriety tests defined below were selected from those used by police officers throughout the country and were refined by research scientists to make them as reliable as possible in determining alcohol intoxication. The testing and scoring procedures were standardized and the tests were evaluated in the laboratory and in the field.

1. The Horizontal Gaze Nystagmus test checks the ability of the eye to track smoothly and hold a position without visible side to side movement or jerkiness. During this test the eyes are observed following a stimulus. As the stimulus is moved horizontally across the subject’s field of vision, the practitioner looks for three clues in each eye, for a possible total of six clues.

NOTE: Only arresting officers who have completed a sixteen-hour training course in SFST in accordance with the National Highway Transportation Safety Administration standard and have passed a written examination and a proficiency examination qualifying them as SFST practitioners will conduct the Horizontal Gaze Nystagmus test. Under no circumstances will the arresting officer request another officer to conduct the HGN test. Officers who have not received SFST training may conduct the Walk and Turn, One Leg Stand, and Finger to Nose tests.

2. The Walk and Turn test is a divided-attention test that requires the subject to perform more than one task at a time. The subject must balance and listen to instructions prior to beginning the test. Once the test has begun, the subject must walk a straight line, heel to toe, hands at sides, keep watching feet, count the number of steps out loud, turn properly, and take the correct number of steps while retaining balance.

3. The One Leg Stand test is also a divided-attention test. The subject must listen to instructions while balancing in a standing position. Once the test begins, the subject must stand on one leg, keep the raised leg approximately six inches off the ground, keep arms at sides, and count out loud for thirty seconds.

4. Department members will NOT use the “Finger To Nose” test as a method of testing to determine if a subject is impaired.

5. Based on conditions at the scene, officers will conduct SFST prior to arrest whenever possible.

C. Field Sobriety Booklet

1. This booklet is provided as an additional tool to record field notes during the observation of the DUI suspect.

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2. This booklet is designed to be used from the center out by completing the forms one at a time for each DUI arrest.

3. The blank pages are provided to record observations other than SFST.

4. When administering a test, follow the instructions printed on the cover of the booklet.

5. The inside back cover includes a checklist to assist in completing the DUI arrest.

6.

When completed, remove the page and attach it to the Alcohol/Drug Influence Report.

IV. Field Procedures

A. When an officer has reasonable suspicion to believe that an individual is operating or is in actual physical control of a motor vehicle while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds, or any combination thereof, the officer will:

1. safely stop the vehicle, if moving.

2. instruct the driver to shut off the motor, if running.

3. inform the driver of the requirement to produce his/her driver's license or permit and proof of insurance upon demand.

4. interview the driver to determine the degree of impairment.

5. determine whether probable cause exists to charge the driver with DUI based upon any or all of the following:

a. observations of the person's driving;

b. observations of the driver's condition;

c. an interview of the driver; and/or

d. results of Standardized Field Sobriety Tests (SFST).

B. Upon determining that probable cause exists for a DUI charge, the officer will:

1. place the driver under arrest for Driving While Under the Influence.

2. notify the Office of Emergency Management and Communications dispatcher:

a. that an arrest has been made for a violation of 625 ILCS 5/11-501 and, if necessary, request a squadrol to transport the arrestee.

b. of the location to which the arrestee is being transported.

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3. secure and impound the arrestee's vehicle in accordance with MCC 7-24-226 and the Department directive entitled "Impoundment of Vehicles for Municipal Code Violations."

a. Officers preparing the Notice of Vehicle Impoundment form (RV100) will check the box for impoundment for MCC 7-24-226 or,

b. if using a version of the Vehicle Impoundment form which does not have a check box for MCC 7-24-226, the officer will print in large letters in the space below the last offense the phrase "DRIVING WHILE INTOXICATED - MCC 7-24-226."

4. If an arrestee is involved in a DUI motor vehicle traffic crash resulting in a fatality, follow the procedures in the Department directive "Digital Recording of Homicide Interrogations."

5. Request a chemical test or tests pursuant to 625 ILCS 5/11-501.1(a).

(Item IV-B-5 added, 12 September 2011) Garry F. McCarthy Superintendent of Police 11-140 TRH *********************************************************************************************

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