In Defense of the Accused: Chicago's Violent Crime Legal Landscape

Episode 5 Transcript

Matt Skye:
Hey, everybody, welcome to Defending the Windy City with David Druecke. As founder of DRD Law, David brings a razor focus to criminal defense known for his fierce courtroom presence and expert knowledge of evidentiary procedure, passionately defending his clients' rights. David, thanks for joining. Matt, happy to be here. Let's get into drunk driving arrests in Illinois. What are your thoughts on that subject?


David Drewecke:
Well, thoughts are that there's an awful lot of them. I can say that, which is unfortunate. I chuckle only because it is one of the more common things that I'll get a phone call about. It's one of the most common things that I'll hear about from other attorneys, that they find themselves in trouble with DUIs. It's something about domestic violence and DUIs, just a ton of them out there. It's unfortunate because it's 2024 now when we're recording this. I live in a very forward thinking city. Let's put it that way. It's very progressive. We do have a great deal of public transportation. And between Ubers and taxis, it kind of feels like it should never happen. And yet it happens each and every day in the droves.


Matt Skye:
Yeah, you're right. That is always tragic when you have those public transit options. Also, a progressive city. Let's discuss a little bit about the legalization of marijuana and how that's impacted the number of arrests made in DUI cases.


David Drewecke:
Absolutely. Now, this is this is something that's near and dear to my heart because it does deal with DUIs and because Illinois and Cook County at large has decriminalized the use of cannabis. Great. I think that was the right decision. The fact that they're taxing it and making some money off of it, good for them. The city needs it. But it has now opened the door to really two major things. One is, yes, you can be driving under the influence of cannabis. Don't do that as a general proposition. But number two, as it relates to some of the most common cases that I have, is that the smell of cannabis, either fresh cannabis or burnt cannabis, becomes the basis to search you or your vehicle. It's gotten to the point where I can actually outline and guess the facts of a case. within 30 seconds of having a call or a consultation where a client will say, hey, I was driving my car and I got caught with a gun. And it's like, wait, wait, wait, you know, let me let me guess. You got pulled over. They smelled cannabis. They searched your car and they found the gun. You hear the client on the other side going. Yeah, that's literally what happened. Like, play by play, that's what happened. It's like, exactly. We have legalized the use of cannabis, but not to such an extent that you can just drive around with it, smoke it and drive or be in the presence of it and drive or even have your car smell like it because there's still a great deal of law about how it can be transported, when and where you can smoke it, how much you can have it and so forth. And it's unfortunately just opened the door to, if it's not out and out abuse, it has opened the door to a great deal of Fourth Amendment law and arguments about, is that probable cause? You know, you can smell cannabis. Cannabis is legal. Should that be the basis of searching your person or your vehicle? It's the same idea of, you know, if you smelled cigarettes. That's legal, at least under certain above the age of 18. You can smoke cigarettes, but if you smell cigarettes, that's not a basis to search the car. That's at least one kind of a logical corollary for me, but state courts in the Court of Appeals hasn't quite come around on that yet.


Matt Skye:
Well, what laws are in place in Illinois for, say, driving under the influence of marijuana? I mean, I think we all know drunk driving is pretty much a severe crime everywhere. But what about some of these other substances?


David Drewecke:
They treat it very similarly. Now, it does depend. Is this cannabis as opposed to methamphetamines or benzos and some other drugs that are either A, in your system and you're under the influence of those, or they may believe you're under the influence of them and you're possessing these drugs if you don't have the appropriate prescription for them. First offenses for many of these, classic DUI with alcohol, but now more modern examples of being under the influence of pharmaceutical drugs, both legal or illegal about how you receive them and ingested them, usually aren't the end of the world. There are some very stiff penalties. It's going to cost you some money. It's going to cost you some time. It's going to cost you your license, and it's going to add a lot of headaches and heartache to your day-to-day life, but usually can avoid jail time, especially if there wasn't an accident and nobody was injured. It's when you get into your second, third, and so on, when real, real consequences relating to the Illinois Department of Correction and jail and prison time tag along, that's when it gets very, very serious. But first offenses for many of this usually can avoid jail time, but there's an awful lot of other parallel or costs and issues you're gonna deal with because you got a DUI.


Matt Skye:
Well, what are some of the most important things you should do once you've been arrested and charged with a DUI in Illinois?


David Drewecke:
Well, some of this goes to the kind of the foundational elements of legal advice that I provide is not to testify against yourself. Officers will ask, you know, do you know why I pulled you over? Don't answer that question. They should know why they're pulling you over, or they shouldn't have pulled you over. Have you had anything to drink? There's no upside. You're trying to talk your way out of it. Say, well, yeah, I had one or two. You start to eye roll. Well, you've already opened the door that you've had alcohol, or you smoked a joint earlier, or that you took your pain medications when you left the gym, or what have you. You don't have to admit to any of those things. You're testifying against yourself. Don't answer those questions. Provide your identification, provide your insurance, and then shut up because there isn't anything else that you have to answer.


Matt Skye:
So what should they say when faced with that question, though? Should they just remain silent or just say, I'd prefer not to answer that question? Or what are the specifics?


David Drewecke:
Great follow-up on that, because my advice, again, globally, is be professional and be polite. Just because you know you don't have to answer, it doesn't mean you have to be sarcastic or unprofessional. You can just say, listen, I prefer not to say. And there isn't much more they can do about that at that point. Your answer is your answer. You haven't committed to drinking or not drinking or smoking or not smoking or taking prescription drugs one way or the other, but still be polite. I think goes a long way. We've talked about it in other episodes that these officers sometimes have a great deal of influence on what offer or resolution we can reach. And if you were a pain or difficult or belligerent or violent or whatever it may be, they're going to remember that. They will also remember it's like, hey, he was polite. He was nice. No, he didn't give me everything I wanted. He was actually pretty prepared, but he was polite and pleasant. He did everything that he needed to do without doing anything he didn't need to do. And that's what gave us a defense. That's why we're in a position to get a reducer and so forth, because you were polite and you didn't give up any information and have to.


Matt Skye:
And what about those roadside tests? Should you do them or not or try not to do them?


David Drewecke:
My general advice on that is to avoid them. Now, there are consequences. So if you fail to blow or if you refuse to take the roadside tests, there is what's called, there's an implied consent law, effectively everywhere, but I know it is in Illinois, where if you fail to blow upon reasonably being asked to do so, you're going to automatically lose your license. Now, the tradeoff or the cost benefit analysis in doing that is I'm going to lose my license. That's guaranteed now. But have I also avoided giving them the state, the police, the evidence they need to charge me with the DUI and then convict me of the DUI? The cases I've had the most success with are those people that refuse to do any of that. So all they have, they being the state, have, well, I could smell alcohol. You know, I believe that they were weaving before I pulled them over. So it showed that they were. impaired? Is that enough to go beyond a reasonable doubt and actually get them convicted? In my practice, it's been no, it hasn't been, but they've lost their license, at least for a year. Now, the silver lining in this twofold is yes, you've avoided being convicted of a DUI because you're going to lose your license that way too, is that you can get a restricted license. There are ways around it. And if you're one of my typical clients in Cook County, Uber and buses and the Metra among other things will be your friend and not having a DUI on your record goes a long way. How that impacts your insurance rates and everything else as well. It's worth not taking those tests and dealing with some of those collateral consequences because it's better than having the DUI.


Matt Skye:
But if you're brought to the station and they want you to take a breathalyzer test, I imagine there's a lot of pressure in that circumstance to do so.


David Drewecke:
It is so much of my advice when it comes to not answering questions or not taking these tests. It sounds a lot easier when we're talking right now, you and I, than it is when an officer is there and you're scared and you're alone, among other things. And you have this compulsion to go along, to get along, that if I just do what they want me to do, this is going to help me out. They're going to, you know, they're going to cut me some slack. Maybe they're even, they being the police are even insinuating it, you know, that just do what we need you to do. We're here just to find out if, you know, if you don't blow over a certain number, we're going to let you go or something to that effect. And in reality, even if you don't blow over the legal limit, that still shows that you have something in your system and you can get caught and busted for that. So it may not be the traditional DUI that you're, .08 or above, but you still have it in your system and you're driving. So you haven't helped yourself really in any way, shape or form. The best advice is to take a deep breath. Remember this episode. Remember speaking to other attorneys or hearing other attorneys just say no, they can't make you do it. We're recording this in 2024 in Cook County in Illinois and in most jurisdictions nowadays, there are body cams that are required to be running. there are dash cams, there are recordings, even in the back of the squad car, there are cameras everywhere in the police station, including intake. So if you're worried that you're going to get beaten up and forced into doing something, rest assured that there are cameras everywhere to protect you. So you can say no and do so with a straight face and feel confident, know it's going to make you do it. So just take that deep breath, know that you're doing the right thing, And then in the long run, when I eventually get involved, you call me and I'm here to help you through the situation. You aren't your own worst enemy. You aren't exhibit A and B and C and making statements and blowing and all this is going to come back to haunt you. Deep breath, say no, be polite and we'll get you through to the other side.


Matt Skye:
We brushed on this a little bit, but I wouldn't mind diving a little deeper. So what happens to someone's license after a DUI arrest after they've been convicted? What's that process look like? How can they start driving again, if ever? Sure.


David Drewecke:
Typically, you will lose your license for at least a year if we're talking about a first time offender. Now, there are ways to get restricted licenses. There are what's called a hardship license. If you can demonstrate that I don't have another means of transportation, that public transit isn't really practical for where I live, it's not practical for my job to get there or to do the other basic requirements of life, to go grocery shopping, to get back home. So there are arguments and things that we can do to restore at least some limited driving privileges. But the expectation is that you're going to be hit with a severe fine. You are going to lose your license for about at least a year. And then beyond that, you obviously have this on your background. If it's a misdemeanor level or a felony level DUI, now you have a criminal background. This is something that comes up in criminal background checks. It influences your insurance rates and what you're going to pay there. There are both immediate costs, but you're trying to avoid jail time because that is on the table. But then the issues with your license and then again, what I'll call collateral consequences, other issues you're going to have to deal with if you're convicted.


Matt Skye:
In your toolkit, what do you use to help prevent a criminal conviction or some kind of record that maybe follows someone beyond that incident?


David Drewecke:
Absolutely. There's a lot. DUI is very technical, that if somebody does perform these tests, were the roadside tests performed correctly? were they administered c follow the book? So to sp equipment, a breathalyzer or they use something si station? Have they been c they last tested? Those a criminal defense attor especially one who has familiarity with DUI law and the procedures, can attack. That even if you blew double the legal limit, was this tool appropriately administered and tested and calibrated correctly? Those are some of the things that we can get in through and test. Did you blow correctly? Again, there are rules for how long and under what circumstances that you're supposed to be blowing, when and under what circumstances was a blood test or draw taken? There could be fourth amendment issues with that. So it's a very, very technical bit of law because of the rules involved with what the police are supposed to do in administrating tests and then the equipment involved in it that isn't always a part of other criminal cases. DUI is still criminal, so there are elements of just negotiation, which is true in every other case, where we can try to resolve a case short of a trial, short of a conviction, amending or reducing charges, where we're trying to get off of a DUI, but now we're talking about maybe a petty ticket, a reckless driving, or something else like that, where, yeah, you're gonna have to pay a fine, but now you don't have a criminal charge any longer, you have a moving violation. And most of the time, you don't have to disclose those on a job application. That's not going to impact your insurance rate the same way. It's not going to impact your long term ability to have a license in the same way. So that just goes goes back to negotiation skills. And that's true of every criminal case that we can negotiate and try to work with the state.


Matt Skye:
In your experience, David, how often do DUI cases go to trial versus other types of criminal cases?


David Drewecke:
One of the unique things about DUIs is that on the front end, we're trying to protect your license. So when you're charged with a DUI, there's a presumption that you're going to lose your license, going to get reported to the secretary of state, and you're going to lose your license, at least temporary while the case is going on. We'll file a petition to protect your license. And now that hearing is supposed to take place relatively quickly. usually within 30 days or so. Now we can hold off on that until we get the body cam to see how these tests were performed, to actually get the test results, to get into these technical issues as it relates to the equipment itself. And that oftentimes is where a lot of these cases end. is at that initial, call it a preliminary hearing of sorts, where the arresting officer is there. Did they follow the procedure? Did they read you your rights before you blew or refused to blow? Was this all done by the book or was it not? Was the equipment appropriately calibrated or was it not? It's not actually a formal trial, but it sounds the exact same way. We're still making arguments. There's still testimony. And the cases I've handled as it relates to DUI, the judge would usually look at both the state and the defense and say, Everybody's here. I've heard all the testimony that I need to hear. Will you just stipulate to the facts from this hearing as being the facts for a trial? From the defense side, that usually means it's going to go the way you want it to go. And I'll be happy to stipulate under those circumstances. If it's not, or if there's things that we didn't go into that were more appropriate for a hearing than trial, maybe you won't stipulate there. At the end of the day, this is true of both civil and criminal law. 80, 90 percent of cases are going to plea out to one degree or another because of the stakes that my client has real, what's the right word here? They're the ones that really have skin in the game. The state loses or this officer has a ticket that gets overturned. You know, they're going to go home. They're going to go do their job. They don't really care. My client has exposure and they're the ones who could potentially go to trial. They're the ones who have, they have exposure is really the word. And that's true in DUIs, and it's true in every other case. So when you have that real exposure, and you can get something significantly less than you might be looking at as charged, that's when people have to seriously consider their offers and options to avoid going to trial and avoid that exposure, what may happen if you lose.


Matt Skye:
So as we wrap up, what is the importance of hiring an attorney early on in a DUI case and what sets you apart?


David Drewecke:
Crucial in a DUI case. Every case, I think, is beneficial to get a private attorney as quickly as possible. But in DUI, there are actual time frames and time limits to some of the petitions that need to be filed within days, weeks or a month on the highest end. So if you wait too long and you don't hire a counsel, That time is gone. You don't get to have that back in order to try to save your license on the front end. So getting an attorney immediately for a DUI is crucial. I think it's always a good idea as a general thought, but a DUI is important to do that as quickly as possible. Why somebody who actually handles these types of cases has experience handling DUIs and has successfully won DUI trials and hearings? We know what we're looking for. We know what buttons to push, what questions to ask and what to look for in both technical procedural things, but also technical technology things when we're talking about breathalyzers and calibrations of instruments and so forth. That is crucial because DUIs are different than other criminal cases. Yes, there's still the elements. Yes, it's still beyond a reasonable doubt, but there's some very technical, very specific things that are tied to DUIs.


Matt Skye:
It's a great point to wrap up on. Everybody, thank you so much for tuning in to Defending the Windy City with David Druecke. For more information or to connect with David, visit drdlaw.com. David, thanks so much for your time today.


David Drewecke:
Thank you very much, Matt.