Implied Consent

Implied Consent

Illinois law requires you to take a breath, blood, or urine test if you are arrested for a DUI. Illinois’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving under the influence, then you consent to taking a chemical test of your blood, breath, or urine for the purpose of determining your blood alcohol content (BAC).  You do not have the right to speak to an attorney before you are tested, and the test must be given as soon as possible from the time when you were last driving. Although the arresting officer gets to choose which test you take, you have the option to get additional tests afterward taken by a medical professional of your choice.

You could be arrested for a DUI even if you were not driving. If you have actual, physical control of the vehicle while under the influence, then that can be enough for an officer to arrest you. Whether you have actual, physical control of a vehicle depends on where you are sitting, if you have the key, and if you have the ability to start and move the vehicle. In one case, an Illinois court decided that a person had actual, physical control of his car even though he had not driven it to the place where a police officer found him asleep. This person was lying across the front seat of his car with his head on the passenger side. He had the motor running to keep the heater on. Although this person did not intend to move the car, the combination of his position in it, the running motor, and evidence of his intoxication was enough for the court to uphold his DUI conviction. (This case is City of Naperville v. Watson, 677 NE 2d 955(1997).)

Additionally, Illinois law says that you consent to taking a preliminary breath test, even if you have not been arrested. This works like a field sobriety test. The officer will use the results to establish probable cause that you were driving under the influence. You do not have to take this preliminary test. Refusing it, however, probably won’t work in your favor if the officer has some other reason to think you had been drinking. Based on that other reason, the officer could still arrest you and then you will be required to take a test under the law described above.

You can read Illinois’s implied consent law in Illinois Statute 625-5/11-501.1.

Lake County jail inmate dies: sheriff’s office

Lake County jail inmate dies: sheriff’s office

A 36-year-old inmate was found unresponsive in his Lake County jail medical unit cell Friday and was later pronounced dead at a local hospital, the Lake County Sheriff’s Office announced.

Lake County Sheriff Mark Curran and Undersheriff Ray Rose said a recently instituted new protocol regarding any jail deaths requires the Lake County Major Crime Task Force to conduct an independent investigation. The county has had four inmate deaths over the past five years, including one where a woman jailed for missing jury duty went on a hunger strike and died. The latest death brings the number to five.

An autopsy Friday afternoon by the Lake County Coroner’s Office revealed the preliminary cause of death appears to be natural causes, pending final toxicology results, according to a statement. There were no signs of internal or external trauma to the inmate’s body, the release said. The inmate’s name was not released.

The man was brought into custody on Feb. 29 after being arrested on an arrest warrant for failing to appear in court on charges of possession of a controlled substance. While in custody he told jail officials he was feeling ill from drug withdrawal. He was placed under the care of the jail medical unit, the statement said.

On Friday morning he was found unresponsive in his cell inside the medical unit. Staff began administering aid and an ambulance was summoned. He was transported to Vista Medical Center East, Waukegan, where he was pronounced dead.

The protocol of calling in the Major Crime Task Force was designed to initiate an immediate thorough independent investigation of the facts surrounding the death and produce increased transparency, the statement said.

The Lake County jail has been rocked by inmates deaths over the years that also prompted lawsuits.

In 2014 inmate Igor Karlukov, 36, of Palatine and a Ukraine national, was found hanging inside his jail cell after he used shredded pieces of a mesh laundry bag and a piece of copper wire from a set of ear buds to hang himself from a vent, despite the fact he was on special watch.

He had been told by a judge that he could face life in jail for charges related to a home invasion and domestic battery against his girlfriend.

Two of the jail’s inmates died in 2012.

Lyvita Gomes, 52, a native of Mumbai, India, who was living in Vernon Hills, launched a 15-day hunger strike to protest her incarceration for failing to appear for jury duty, then died of malnutrition and dehydration less than a week later.

Eugene Gruber, 51, of Grayslake, suffered paralyzing neck injuries while struggling with officers in the jail, then died months later after being transferred to a Chicago rehabilitation center.

The county agreed to settle a nearly $2 million federal lawsuit filed by Gruber’s family. The Cook County Medical Examiners Office in Chicago ruled Gruber’s death a “homicide,” but an investigation by the Lake County State’s Attorney’s Office found no wrong doing on the guards’ part.

The Gomes family also filed suit.

In 2011, there was a jail death when Thomas Arvie, 50, of Waukegan, apparently suffered a stroke in his cell. He died Sept. 22, 2011.

In 2008, Curran spent a week as an inmate that garnered national attention.

Illinois DUI Case List

Expert Witnesses
 
People v. Jones, 2015 IL App (1st) 121016 (04/22/2015) (“foundational element” used
to strike a state firearms expert witness)
 
People v. Safford, 392 Ill. App. 3d 212, 221 (2009) (court said that the admission of an
expert’s testimony requires an adequate reliability foundation)
 
People v. McKown, 236 Ill.2d 278 (2010) (HGN foundations case but see King below)
 
People v. Floyd, 2014 IL App (2d) 120507 (March 2014) (retrograde extrapolation based
on a single breath test is more speculation than science)
 
Soto v. Gaytan, 313 Ill. App. 3d 137 (2000) (another case that talks about a foundational
element)
 
People v. Negron, 2012 IL App (1st) 101194 (2012) (another case that allows a
fingerprint expert to testify but discusses Safford’s foundations test)
 
Discovery Sanctions
 
People v. Tsiamas, 2015 IL App (2d) 140859 (December 2015) (State can’t ignore
discovery notice)
 
People v. Moravec, 2015 IL App (1st) 133869 (November 2015) (DUI sanctions
UPHELD)
 
People v. Kladis, 2011 IL 110920 (DUI evidence suppressed after video is destroyed)
 
People v. Aronson, 408 Ill.App.3d 946 (2011) (failure to make a copy is a sanctionable)
 
People v. Strobel, 2014 IL App (1st) 130300 (June 2014) (no discovery violation occurred here so it was error to impose a discovery sanction)
 
People v. Olsen, 2015 IL App (2d) 140267 (June 2015) (error for the trial judge to
suppress evidence due to a purported discovery violation)
 
People v. Moises, 2015 IL App (3d) 140577 (August 2015) (trial court’s decision to grant a discovery sanction is reversed because there was no discovery violation when officer did not record the FST)
 
Probable Cause
 
Navarette v. California, 134 S.Ct. 1683 (2014) (anonymous 911 call justifies traffic stop)
 
People v. Anderson, 2013 IL App (2d) 121346 (October 2014)
 
People v. Butorac, 2013 IL App (2d) 110953 (December 2014) (officers may board a
boat to enforce registration requirements)
 
People v. Cummings, 2014 IL 115769 (March 2014)
 
People v. Gonzalez­Carrera, 2014 IL App (2d) 130968 (September 2014)
 
People v. Timmsen, 2014 IL App (3d) 120481 (July 2014) (it’s ok to avoid a traffic roadblock so long as you don’t break any other traffic laws)
 
People v. Santovi, 2014 IL App 2014 IL App (3d) 130075 (May 2014) (no pc to arrest defendant before cop yells at the women and orders her to open the bathroom door or he’ll kick it down)
 
People v. Taiwo, 2015 IL App (3d) 140105 (April 2015) (proper to stop a car for a lane infraction when the cop had a hunch the car was connected to an accident he was
investigating)
 
Rescissions & Suspended DLs
 
People v. Elliott, 2014 IL 115308 (January 2014) (recession only acts prospectively and
has no retroactive effect, thus rescinding a suspension will not undue convictions based
on that suspension)
 
People v. Smith, 2013 IL App (2d) 121164 (November 2013) (DWLS can’t be revoked)
 
People v. Clayton, 2014 IL App (4th) 130340 (March 2014) (even if
notice was tampered with by the cop defendant had actual notice of his pending suspension)
 
People v. Gaede, 2014 IL App (4th) 130346 (November 2014) (defendant withdrew his consent and implied consent statute found constitutional)
 
People v. Morales, 2015 IL App (1st) 131207 (January 2015) (suspension reinstated defendant received proper notice from the police on the day of his arrest and had more than ample opportunity to challenge the suspension in court)
 
People v. McLeer, 2015 IL App (2d) 140526 (February 2015) (officer amends the report after it was issued, suspension stands because SOS had enough information that the
notice was given)
 
People v. Gutierrez, 2015 IL App (3d) 140194 (July 2015) (A PBT test is not a
statement, thus, the officer’s DL suspension is proper)
 
Blood & BAC
 
People v. Wuckert, 2015 IL App (2d) 150058 (December 2015) (625 ILCS 5/111­501.4
trumps hospital policy that the results should not be used for legal purposes)
 
People v. Armer, 2014 IL App (5th) 130342 (October 2014) (warrantless blood draw
suppressed when not done with consent nor under exigent circumstances)
 
People v. Harris, 2015 IL App (4th) 140696 (May 2015) (consensual blood draws ok)
 
People v. Weidner, 2014 IL App (5th) 130022 (March 2014) (no error to wipe
defendant’s arm with an alcohol wipe before hospital took his blood)
 
People v. Hutchinson, 2013 IL App (1st) 1023332 (November 2013) (no error in
admitting report of lab results as a business record)
 
People v. Harris, 2014 IL App (2d) 120990 (May 2014) (state had problems showing the
breathalyzer was certified)
 
People v. Eagletail, 2014 IL App (1st) 130252 (December 2014) (logbook and printout
admissible even though printout was made years after the breath test)
 
People v. Chiaravalle, 2014 IL App (4th) 140445 (December 2014) (officer made a
continuous observation even though he may have had his back to the defendant from
time to time)
 
People v. Thomas, 2014 IL App (2d) 130660 (May 2014) (speedy trial violated when
police waited to issue BAC citation they already knew what the hospital blood BAC was)
 
People v. Torruella, 2015 IL App (2d) 141001 (August 2015) (no error here when the
trial judge accepted calibration records of the breathalyzer as a business record and no
error when the court disregarded the defense expert’s testimony)
 
People v. Smith, 2015 IL App (1st) 122306 (August 2015) (state failed to establish that
the machine was properly certified within the 62 day window required by the
regulations)
 
Evidence
 
People v. Blakey, 2015 IL App (3d) 130719 (November 2015) (prior inconsistent
statement in this DUI huffing case was admitted in error)
 
People v. Phillips, 2015 IL App (1st) 131147 (October 2015) (defendant blew under .08
and attacked that the officer’s opinion he was intoxicated)
 
People v. Way, 2015 IL App (5th) 130096 (September 2015) (proximate cause defense,
error to deny the defendant a chance to defend her aggravated DUI by arguing that the
cannabis in her system did not contribute to the accident)
 
People v. King, 2014 IL App (2d) 130461 (November 2014) (officer can testify to how
defendant acted during instructions of HGN even though the results themselves not
admitted)
 
People v. O’Donnell, 2015 IL App (4th) 130358 (March 2015) (officer committed error
when she testified it was her belief that Defendant was lying to her at the scene of the
one car accident and that he was showing deception
 
People v. Kathan, 2014 IL App (2d) 121335 (August 2014) (a drug driving case with an
admission, bad driving and impairment leads to guilt)
 
People v. Morris, 2014 IL App (1st) 130512 (July 2014) (actual physical control
established when defendant passed out in front seat of parked car, the ignition off, the
driver’s side door open, and keys in his right hand)
 
Sentence
 
People v. Lake, 2015 IL App (3d) 140031 (April 2015) (9 year sentence for aggravated
DUI Death conviction upheld; it was not excessive; defendant was racing a horse)
 
People v. Rennie, 2014 IL App (3d) 130014 (May 2014) (16 year olds 6 year sentence
for aggravated DUI upheld she had weed in her system when motorcyclist died in an
accident)
 
People v. Stutzman, 2015 IL App (4th) 130889 (August 2015) (defendant inappropriately plead guilty to reckless homicide and aggravated DUI in violation of one
act one crime principles)
 
People v. Mischke, 2014 IL App (2d) 130318 (December 2014) (enhancement to a Class 2 felony occurs whenever a defendant has two prior convictions for any form of DUI, not just aggravated DUIs)
 
People v. Guillen, 2014 IL App (2d) 131216 (November 2014) (misdemeanor plea dismissed after defendant plead guilty and double jeopardy did not attach during the sentencing hearing)
 
Miscellaneous
 
People v. McGuire, 2015 IL App (2d) 131266 (December 2015) (section 11­501(a) of the Vehicle Code does not govern the operation of a watercraft)
 
People v. Hasselbring, 2014 IL App (4th) 131128 (November 2014) (defendant was a biker riding with friends when a friend hit his tire and died there was an error in an answer to a jury instruction)
 
Village of Bull Valley v. Zeinz, 2014 IL App (2d) 140053 (September 2014) (local
conviction for DUI reversed because the village failed to prove that it happened in their
jurisdiction)

Utah trooper accused of making false DUI arrests The officer, once praised for her knack for finding drunk drivers, is out of a job and facing lawsuits

 

SALT LAKE CITY — During her 10 years as a Utah state trooper, Lisa Steed built a reputation as an officer with a knack for nabbing drunken motorists in a state with a long tradition of teetotaling and some of the nation’s strictest liquor laws.

Steed used the uncanny talent — as one supervisor once described it — to garner hundreds of arrests, setting records, earning praise as a rising star and becoming the first woman to become trooper of the year.

Today, however, Steed is out of work, fired from the Utah Highway Patrol, and she — and her former superiors — are facing a lawsuit in which some of those she arrested allege she filed bogus DUI reports.

“If we don’t stand up to Lisa Steed or law enforcement, they just pull people over for whatever reason they want,” said attorney Michael Studebaker.

Steed declined to comment, but her attorney Greg Skordas said she denies the allegations. She is trying to get her job back.

The people snared by Steed say the arrests disrupted their lives and were costly to resolve.

Michael Choate, a now-retired aircraft logistics specialist at Hill Air Force Base, said he nearly lost his security clearance and job.

Steed stopped him because he was wearing a Halloween costume and booked him even though three breathalyzers tests showed no alcohol in his system. Choate said he spent $3,800 and had to take four days off of work to get his DUI charged dismissed.

The 49-page lawsuit includes two defendants, but Studebaker said dozens of others are lined up and willing to tell their stories. He said they are requesting the lawsuit be broadened into a class action lawsuit.

Every one of her DUI stops back to at least 2006 should be under suspicion, he said, adding that could be as many as 1,500 people.

The lawsuit, filed in December, also accuses the Utah Highway Patrol of ignoring Steed’s patterns of higher-than-normal DUI bookings and waited too long to take her off patrol. The agency declined to comment.

Steed joined the agency in 2002, and during her first five years, she earned a reputation as a hard-worker whose efficiency led to high arrest totals. By the time she ascended to trooper of the year in 2007, she was held up as one of the agency’s top stars.

In 2009, Steed became a member of the DUI squad. Her 400 DUI arrests that year were thought to be a state record, and more than double the number made by any other highway trooper. She earned special recognition at the state Capitol.

“With her training and experience, it’s second nature for her to find these people who are driving under the influence of drugs or alcohol,” her DUI squad boss at the time, Lt. Steve Winward, told the Deseret News.

During a ride-along with the newspaper, Steed said it was simply a “numbers game,” noting that one in every 10 drivers stopped for a violation is driving impaired. “It’s a lot of hard work, but you make a ton of stops, and you’re going to run into them,” she said.

Steed’s career, however, turned. In 2012, while on the stand in a DUI court case, Steed acknowledged purposely leaving her microphone in her patrol car so that superiors wouldn’t know she was violating agency policy.

By April 2012, her credibility had come into question so much that a prosecutor said he would no longer prosecute DUIs if Steed’s testimony was the only evidence.

In October, the Salt Lake Tribune obtained a memo written in May 2010 in which Utah Highway Patrol Sgt. Rob Nixon flagged Steed’s “pattern” of questionable DUI arrests. He wrote that the bulk of Steed’s arrestees had no signs of “impairing drugs” in their systems.

The memo said she based most of her arrests on signs of impairment such as dilated pupils and leg and body tremors.

Steed was taken off road patrol in April 2012 and fired in November. She was accused of violating department policies, falsifying police reports and using questionable practices when making DUI arrests.

The lawsuit is based on two defendants: Thomas Romero and Julie Tapia.

Romero was stopped after Steed said he was swerving, according to the lawsuit. After Romero said he wasn’t drinking, Steed gave him a roadside sobriety test anyway. She booked him for DUI even though his blood alcohol content was 0.00. Charges were dismissed.

Tapia went to pick up her ex-husband, who had been drinking. Steed approached Tapia as she got out of her car at her house, saying Tapia had been speeding, the lawsuit said. Steed said she could smell alcohol, and Tapia told her it was coming from her ex-husband.

Tapia was arrested for a DUI; her ex-husband for public intoxication. Tapia’s blood test showed no alcohol. Charges were dropped.

Choate, who hopes to join the lawsuit, said the entire agency should be held responsible for the damage Steed caused to him and others. “They let her get away with it for a long time,” he said.

Cop Jailed For Falsely Arresting People For DUI

If you’ve had no alcohol to drink, and you get pulled over by a police officer, you have nothing to fear, right? They can only arrest you if your blood alcohol level is above the state-mandated threshold. And they can only test you if they have your consent or if they have probable cause to do so. If only that were the way things were. Sure, there are laws that are supposed to restrain the government, but these days, those laws are irrelevant. Law enforcement has less to do with enforcing law and more to do with raising revenue and meeting monthly arrest and ticket quotas.

So, even if you had nothing to drink, the officer can still claim that you were “failing to maintain lanes” and use that as probable cause to “suspect” you of DUI, falsely claim on the police report he smelled alcohol on your breath and arrest you on DUI charges.

Even if you’re completely innocent, anything you say will be used against you. They will find a way to twist your words to make it sound like you’re a criminal. This is why so many claim that it’s best just not to say a word to the police. The problem is if you don’t say anything to them, they might arrest you for “obstructing a law enforcement officer.” It seems the best thing to do is to just accept that we live in a tyranny and comply whenever possible so as to stay out of jail. If you choose to “exercise your rights,” expect to wind up in jail. That’s just the culture in which we live.

However, every now and then police officers bark up the wrong tree. And in those cases, as in the recent case of Florida Highway Patrol Trooper Scott Kunstmann, they even end up in jail themselves for doing what was described above—falsifying arrest records and lying during deposition. A local Florida news station reported on one such incident involving Kunstmann and a 71-year-old driver named Culbertson:

“Culbertson was allegedly weaving, so Kunstmann asked a series of questions to determine if a field sobriety test was warranted, and asked another trooper for assistance. Culbertson admitted to having one beer three hours prior. In the police report, Kunstmann indicated he smelled alcohol on Culbertson’s breath, but in the dash cam video, the two officers are heard on tape agreeing that they couldn’t smell alcohol. Kunstmann arrested Culbertson anyway, but didn’t realize at the time he was a former criminology professor, who would later contact an attorney.”

Thanks to his background and connections, Culbertson was able to secure an attorney and get the arresting officer arrested and thrown in jail himself. That wasn’t the first time Kunstmann had lied on his police report to justify an arrest. In another case, he had performed a field sobriety test on a woman who he then arrested for DUI. In his police report, he claimed that she was “belligerent and cussing” during the test. But when you watch the dash cam video, you find that not only was the woman perfectly compliant, she was completely sober, but he arrested her anyway.

So how many others have been falsely arrested for DUI who didn’t have the experience and connections that Culbertson had? No judge is going to question the police report. In a courtroom, it’s considered Gospel. Which is why officers feel at liberty to lie and embellish their reports. If you try to make your case that the police officer lied, the judge and the prosecutor will just claim that you’re mad because you got arrested. Even if you have an attorney, your best hope is often just to stay out of jail or pay a lower fine. Don’t bother trying to fight the cop; he’s immune. Kunstmann’s case is a rare glimpse of justice

Secret police? Virginia considers bill to withhold all officers’ names.

Secret police? Virginia considers bill to withhold all officers’ names.

Virginia debates whether to make names of officers private

Virginia’s House is considering a bill that would make all names of police officers and fire marshals “personnel records,” exempting them from mandatory disclosure under the state’s freedom of information law. (Ashleigh Joplin/The Washington Post)

It started with a reporter’s attempt to learn whether problem police officers were moving from department to department. It resulted in legislation that is again bringing national scrutiny to the Virginia General Assembly: a bill that could keep all Virginia police officers’ names secret.

In a climate where the actions of police nationwide are being watched as never before, supporters say the bill is needed to keep officers safe from people who may harass or harm them. But the effort has drawn the attention of civil rights groups and others who say police should be moving toward more transparency — not less — to ensure that troubled officers are found and removed.

If it is made law, experts say the restriction would be unprecedented nationwide.

The Virginia Senate has already approved Senate Bill 552, which would classify the names of all police officers and fire marshals as “personnel records,” exempting them from mandatory disclosure under the state’s freedom of information law. The Republican-dominated Virginia House will consider the bill in hearings starting Thursday. Gov. Terry McAuliffe (D) has not taken a position on the bill yet, his spokesman said.

State Sen. John A. Cosgrove Jr. (R-Chesapeake) — citing that he knew many police officers and their families — said: “The culture is not one of respect for law enforcement anymore. It’s really, ‘How, how can we get these guys? What can we do?’ . . . Police officers are much more in jeopardy. There’s no nefarious intent behind the bill.”

Pushback has been strong. “To say every officer’s name ought to be confidential,” said Claire Gastañaga, executive director of the American Civil Liberties Union of Virginia, “is just a step too far in government secrecy. We are dangerously close to a police state in some respects.” She said shootings and attacks on police are rarely committed by anyone using public records.

Although other states have made moves to shield the identities of some officers, none would go as far as the proposal in Virginia.

In Oregon, the state House passed a bill last week allowing the name of an officer involved in a police shooting to be withheld for 90 days if a judge finds there is a credible threat to the officer. This followed the killing of a protester from the Malheur National Wildlife Refuge, held by armed occupiers for more than a month this year. And the Pennsylvania House passed a bill in November mandating the withholding the name of an officer involved in a shooting while the investigation is pending — which would be a change from the Philadelphia Police Department’s policy of releasing the name within three days.

Kevin Carroll, president of the Virginia Fraternal Order of Police union, said he knew of one instance when a citizen had taken an officer’s name and committed financial fraud, adding that the potential existed in other cases for danger to an officer’s family. “This is not about trying to keep information from the public, to have secret police,” Carroll said.”But it is about wanting to keep our officers safe.”

Carroll said: “With the current trend across the country, law enforcement officers have been attacked and even assassinated because of issues being driven in the media. . . . With technology now, if you have a name, you could find out where they live. It puts them at risk.”

Completely withholding officers’ names from the public is a new step nationally, according to Dan Bevarly, interim executive director of the National Freedom of Information Council. “Usually legislation is related to a specific incident, but not as a preventive measure,” he said. “To do such a blanket exemption for a high-profile government employee, what are you trying to accomplish?”

John Worrall, a criminology professor at the University of Texas at Dallas specializing in policing in legal issues, said that in his review of state freedom of information laws, “none that I’ve found have gone to this extreme. In fact, the opposite is occurring” in many states, Worrall said, with more governments and police agencies posting information promptly about police-involved shootings.

Although police supporters fear the use of publicly available records against them, “that’s largely based on a total lack of data,” Worrall said. “There’s no data on retaliatory actions against police officers. And even if the problem exists, I’m not convinced that hiding their names is the solution.”

Worrall and others noted that keeping officers’ names secret seems to conflict with the idea of community policing and building trust with citizens. “I don’t know how you have community policing,” Gastañaga said, “when nobody knows your name.”

Should the Virginia bill become law, the practical implications still aren’t clear. Some worry it would allow an officer who pulls over a driver, or stops someone in the street, to refuse to provide his or her name. Officers’ names would still appear on traffic tickets or court documents.

Police would still have the discretion to release any officer’s name if they wanted, and police officials said they would not withhold names without specific reasons. Fairfax County Police Chief Edwin C. Roessler Jr. said he and the Fairfax County Board of Supervisors remains “committed to increasing our transparency.” He said that officers would never be removing their names from their uniforms, as some have suggested the bill would allow, and that he would withhold a name only to protect a particular officer’s safety or the sanctity of an ongoing investigation. Fairfax police waited 16 months to release the name of the officer who shot an unarmed Springfield man, John Geer, in 2013. The release came only after a judge ordered it.

Dana Schrad, executive director of the Virginia Association of Chiefs of Police, said police in the commonwealth already have the option to withhold names, and Cosgrove’s bill merely codifies that discretion. She and Carroll, the police union president, both noted that 1,500 Virginia state employees had fraudulent tax returns filed last year, which officials think originated with an online database of employee names and salaries.

“We do not expect this to be abused,” said Schrad, who sent an email to state police chiefs saying: “We caution all of our agencies to use discretion in exercising this exemption. In order to build a trust relationship with communities, agencies should make sure that the communities know who their officers are. This exemption should only be exercised when trying to protect the identity of an undercover officer or when protecting the integrity” of an internal affiars investigation.

Schrad and Carroll helped launch the bill after the Virginian-Pilot newspaper and the state Department of Criminal Justice Services reached an agreement last summer for the state to release the names, agencies and dates of employment of every law enforcement officer in Virginia. Schrad opposed the release because she said the database was old and inaccurate, saying that providing the mass data was her chief reason for pursuing the bill.

Virginian-Pilot reporter Gary Harki said he wanted to check tips he had received that officers who were fired from one department were simply rejoining a police force elsewhere, similar to the reporting done by the Boston Globe on reassignment of pedophilic Catholic priests in Massachusetts. The newspaper negotiated an agreement with the state to obtain the names of only current officers, not to publish the entire database or share it with anyone, and to indemnify the state from any legal claims.

After the agreement was signed, Schrad and Carroll objected, and the state changed its mind. No deal. But the state failed to cite a legal exemption for its refusal in the required time under the state Freedom of Information Act, and a Norfolk judge ruled that the data had to be given to Harki. The judge also ruled that police names are personnel records that can be exempt under FOIA, but he said the state had already agreed to release them. The ruling at the circuit-court level does not have the weight of legal precedent and so Schrad and Carroll sought to put it into law.

“The public has a right to know who their police officers are,” Harki said. “To me, it’s just a fundamental principle of democracy [to know] who our public officials are.” He said that the database he got was “just a piece of a larger puzzle to a problem that may or may not exist” and that he hasn’t published anything about it since the Virginian-Pilot won the court ruling in November.

When Harki worked as a reporter in West Virginia, a similar investigation of troubled officers moving between departments resulted in legislation adding oversight to the movement of officers.

Megan Rhyne of the Virginia Coalition for Open Government noted that many public servants take actions that could anger citizens — prosecutors, social service workers, judges — but their names remain public. She also said that withholding names would result in a lack of accountability for a variety of unsavory acts, such as profligate spending or hiring friends and family, actions that often are caught only when names are linked to illegal deeds.

The bill is scheduled for a hearing Thursday afternoon before a subcommittee of the House General Laws Committee, chaired by Del. James M. LeMunyon (R-Fairfax). He declined to offer his views on the bill, but he said if it passed, it would be heard again next Thursday before the entire committee, then possibly sent to the full House.

’Reasonable Suspicion’ enough for traffic stop

Supreme court: ’reasonable suspicion’ enough for traffic stop

“Reasonable suspicion,” not the more exacting “probable cause,” is threshold requirement for an investigatory traffic stop, the Illinois Supreme Court held in a recent DUI ruling.

In overturning a trial court’s order to suppress evidence in a Will County DUI case, the Illinois Supreme Court determined that a traffic stop was proper when the arresting officer witnessed the driver making slight deviations from his lane of traffic.

The trial court had granted the defendant’s motion to suppress based on arguments that the evidence of his insobriety and suspended license was the “fruit of an unlawful search,” and a divided appellate court affirmed that ruling. According to the high court’s opinion, the defendant argued that the officer lacked “probable cause” and therefore had no proper grounds to make the traffic stop.

In People v. Hackett, 2012 IL 111781, a unanimous supreme court overturned the appellate and trial court decisions and remanded the case for a trial based on evidence stemming from what the court held to be a justified “investigatory stop” of defendant’s vehicle. Reasonable suspicion, not probable cause, is the proper standard for an investigatory traffic stop, the high court held.

Assistant Appellate Defender Kerry Bryson said there was obviously some doubt in the minds of the trial judge and appellate panel about what justified pulling over a driver and investigating him and his vehicle.

“To the extent there might have been any question about that, the [supreme] court has made it clear that there shouldn’t be,” said Bryson, who did not handle this case. “To the extent that this is a concern, what clients ought to know moving forward is if they’re going to challenge the stop, the proper standard is…was there reasonable suspicion.”

‘[M]omentary crossings’ can justify stop

In affirming the motion to suppress, the appellate court relied on People v. Smith, 172 Ill.2d 289 (1986), in which a driver was convicted after driving in and out of multiple lanes of traffic for a “reasonably appreciable distance.” The appellate court distinguished Smith from the case at hand, stating that Hackett made only “momentary crossings” of a highway lane line and therefore the officer lacked reasonable grounds to make a stop.

The supreme court rejected the notion that the distance or length of time of the lane deviations made any difference in the enforcement of a statute that prohibits any improper lane usage.

“Although this court in Smith…mentioned the measure of defendant’s deviation into an adjacent lane and the distance he travelled therein, nothing in this court’s analysis indicated either was significant to the outcome,” Justice Karmeier wrote for the court in Hackett.

In this opinion, the supreme court’s analysis focused on “the loose terminology the parties and lower courts in this case have used with reference to the standards applicable to the fourth amendment issue presented for our consideration. The question we agreed to address…is ‘whether the appellate court erroneously found there was no reasonable suspicion for a traffic stop where the uncontested testimony showed defendant swerved twice across a lane divider of traffic.'”

The court explained that vehicle stops are subject to the Fourth Amendment’s “reasonableness requirement,” and the decision to stop a vehicle usually requires probable cause for an officer to believe that a traffic violation has occurred.

“However, as this court has observed, though traffic stops are frequently supported by ‘probable cause’…as differentiated from the ‘less exacting’ standard of ‘reasonable, articulable suspicion’ that justifies an ‘investigative stop,’ the latter will suffice for purposes of the fourth amendment irrespective of whether the stop is supported by probable cause,” the court wrote.

An opening for the defense?

Bryson said the Hackett case got interesting after the third district appellate court affirmed the motion to suppress “because it gave some support to challenging a traffic stop when there was just momentary drifting over the line.” But now it is clear that multiple deviations from a lane of traffic, even if slight in distance and time, are sufficient grounds for an investigative stop, she said.

“I think there’s a little more to it if you read [the Hackett decision] in depth,” Bryson added. “There has to be no reasonable explanation for the deviations” in order for an investigatory stop to be justified.

“If there is a reason for the deviation from the lane, then there might not have been reasonable, articulable suspicion to justify the stop,” Bryson said. “In some cases, there’s been no exploration of that aspect of the basis for the stop. I think that leaves this open as for what a defense attorney can be looking for as a way to challenge the stop.”

The supreme court bolstered its decision by pointing out that a police officer “can effect a lawful Terry stop without first ‘considering whether the circumstances he or she observed would satisfy each element of a particular offense.'”

Where, as in Hackett, a police officer observes multiple lane deviations for no apparent reason, an investigatory stop is proper, the court reasoned.

“For probable cause and conviction, there must be something more: affirmative testimony that defendant deviated from his proper lane of travel and that no road conditions necessitated the movement,” said the court. “An investigatory stop in this situation allows the officer to inquire further into the reason for the lane deviation, either by inquiry of the driver or verification of the condition of the roadway where the deviation occurred.”

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