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posted on 12/24/17

Almost two years to the day after his arrest, a prominent local restaurant owner was cleared of DUI charges.

Officers insisted that the 61-year-old man failed field sobriety tests at the scene, but the judge in the case never saw this evidence because the squadcar video evidence was unavailable. Prosecutors claimed that the evidence disappeared because of a technical glitch, and indeed, the arresting officer had reported problems with the onboard system. Nevertheless, defense attorneys implied that the Bolingbrook Police Department intentionally deleted the critical evidence. The defense attorney also pointed out that the arresting officer did not record that the defendant had slurred speech or any other symptoms of intoxication. Finally, the defense showed surveillance video to the judge. The video clearly showed that the defendant was not swaying and did not have an unsteady balance.

Officers ordered the defendant to perform field sobriety tests because he made an unsignaled turn, could not explain minor front-end damage to the officer’s satisfaction, and admitted that he had one beer that evening.

Procedure in Illinois DUI Cases

Two years is a long time to wait for a verdict, but this delay is not unusual in Chicago, and it may also be beneficial to the defendant.

Typically, it takes the prosecutor several months to file formal charges in the case, and until that happens, defense attorneys cannot fully calculate a defense because they do not know what evidence the prosecutor will use. By the time the defense formulates a strategy and the scheduled trial date rolls around, at least a year has gone by, and it has probably been much more time than that.

Delay nearly always works in favor of criminal defendants in Illinois, since the state has the burden of proof. Sometimes, officers admit that they have little or no recollection of the arrest other than what is in their final police reports. For some reason, officers usually discard the “field notes” that they take at the scene. Their faded memories, along with an over-reliance on the written report, is often enough to turn off some jurors.

Furthermore, physical evidence also gets lost or becomes otherwise unavailable if there is a long delay. This absence of evidence also works in the defendant’s favor.

Evidence in DuPage County DUI Prosecutions

In the above case, it matters little whether police intentionally destroyed the video or not because the bottom line is that prosecutors could not use such evidence in court. As a result, the inherently weak circumstantial evidence case was even weaker.

Typically, circumstantial evidence comes from the approved Field Sobriety Tests, which are the:

  • One-Leg Stand,
  • Walk-and-Turn (walking a straight line), and
  • Horizontal Gaze Nystagmus.

If the factfinder cannot view the evidence, prosecutors can only introduce the officer’s conclusory statements about the results. Not surprisingly, officers sometimes testify that the defendant “failed” the test, regardless of his or her actual performance.

If the defendant agrees to a breath or blood test, prosecutors can use the Illinois DUI law’s per se provision, and guilt is much easier to establish.

Count on Experienced Lawyers

Many criminal prosecutions fail due to lack of evidence. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.

(image courtesy of Carlos Alberto Gomez Iniguez)