Common Knowledge

DUI - Chemical Test

"If you drink, don't drive.  Don't even putt"

--Dean Martin--

"The strongest principle of growth lies in human choice."

--George Elliot--

 

During this time of year many police departments throughout the state are increasing their check points and patrols for people driving under the influence of alcohol or drugs ("DUI").   If you are ever stopped by a police officer for a DUI, you may be asked to take different sobriety tests.  However, you will be asked to take a chemical test.

If you are stopped for suspicion of a DUI, you have a choice whether to submit to a chemical test, but there is a catch to that choice.  If you submit to the chemical test and the test results in a blood alcohol level of .08 or above then your driver's license will be summarily suspended for six (6) months or possibly more. However, if you refuse to submit to a chemical test then your driver's license will be summarily suspended for twelve (12) months or possibly more.  

If you are arrested and charged with a DUI, it is best to contact an attorney to discuss your options, which may include contesting your summary suspension of your driver's license.  Ultimately it is your choice.

Convicted: Can it be Expunged?

"Pray you now, forget and forgive."

--William shakespeare--

"I have always found that mercy bears richer fruits than strict justice."

--Abraham Lincoln--

"We can draw lessons from the past, but we can not live in it."

--LBJ--

 

Thousands of people with felony convictions live in Cook, Will, Kane, and Dupage counties, which make up the Chicago Metropolitan area.  Many of these people have convictions from something as low level as a single drug possession or as the result of multiple DUI convictions or something as serious as armed robbery or even murder.  A felony conviction on a person's record can be a huge impediment to employment opportunities.  The good news for felons is that for some of them a new slate is available. The bad news is for most it is a nearly impossible task.

There is a difference between getting a criminal record expunged as opposed to sealed.  Expungement is the destruction or removal of the record from the file, whereas when the criminal record is sealed it stays within the system but most people, including most employers, have no access to it.

People that have been arrested (accused) of a crime but who were found not guilty, regardless of the felony, may petition to have his/her arrest record expunged.  Many misdemeanor convictions can be expunged under certain circumstances, with the notable exception of a DUI and some sexual offenses.  A few felony convictions can also be expunged under the right circumstances.  A class 4 drug possession felony or class 4 prostitution conviction can be expunged under the right circumstances.  

Felons who do not fit within those categories may also petition the Governor's Office for a pardon that explicitly calls for the expungement of that conviction.  if the petition is approved then the conviction can be expunged.  In all of the cases it may be best to explore hiring a lawyer to get help preparing the paperwork, but the process can be done without a lawyer.  As stated by Alexander Pope, "to err is human; to forgive divine." There is a process for a sort of "legal" forgiveness for felons, it just takes time, money, and patience to achieve it.

 

Fairness through retroactive application of the Fair Sentencing Act

"Even when laws are written down, they ought not always to remain unaltered."

--Aristotle--

"The strictest laws often causes the most serious wrong."

--Cicero--

"It is the spirit and not the form of the law that keeps justice alive."

--Earl Warren--

 

A couple of cases that challenged the issue of whether the Fair Sentencing Act ("FSA") applies to defendants in crack cases where their actions occurred prior to the FSA being passed but were not sentenced until after the FSA went into effect were granted cert to the United States Supreme Court last week.  The interesting development in those cases is that the Solicitor General for the United States may agree with the defense in both cases and argue that the FSA applies retroactively to cases where the defendant was not sentenced until after it went into effect.

This issue may not seem like a "big deal" to the average person but it makes a huge difference to many defendants and families of defendants in federal cases involving the sell or possession of crack cocaine. The Federal Sentencing Guidelines punished defendants involved in crack cocaine cases much harsher than defendants involved in powder cocaine cases without any real policy justification.  Due to the unjust and unfair distinction between the cases the current Presidential Administration and Congress passed the FSA in 2010 to address much (but not all) of the unfair disparities.  However, the FSA did not contain an obvious and explicit retroactive clause, hence the reason for the cases around the country and the need for the United States Supreme Court to step in.

As a criminal defense attorney I must admit that I am biased and I am hoping for a ruling from the United States Supreme that the FSA is retroactive.  I guess only time will tell.