How to Avoid a Naperville DUI by "Sleeping it Off"

Just because you decide not to drive through Naperville after contributing to its local economy by patronizing its many bars, saloons and taverns doesn't mean you're going to avoid a Naperville DUI charge.  If you decide to sleep it off in the car you can still be arrested and found guilty - particularly if your keys are anywhere near the ignition.  This is because Naperville's DUI ordinance covers driving and being in "actual physical control of a vehicle" while under the influence.

As illustrated in City of Naperville v. Watson, 175 Ill.2d 399, 677 N.E.2d 955, 222 Ill.Dec. 421 (1997), the Illinois Supreme Court upheld that the jury's finding that the defendant was in actual physical control because he was found asleep in his parked vehicle with the engine running.

As a Naperville DUI defense attorney, I would recommend the following if you find yourself over-served in Naperville and want to sleep it off in your car:  Unlock the car, then start walking well away from the car.  I mean at least a block or two away.  Then take your ignition key and hide it under a bush or rock.  Make sure to remember where you've hidden it and then return to the vehicle and sleep away.  When the Naperville Police come knocking on your window, even if you are ultimately arrested as long as you take the 5th when asked the question "Where are your keys?" you will likely win the case and avoid summary suspension.

Best Defenses for Naperville DUI Arrests: Challenging Probable Cause

Most Naperville drunk driving arrests begin with a stop of a vehicle, usually for an innocuous reason.  Sometimes the reason is so innocuous that your lawyer can persuade the court to "quash" the arrest because there was no probable cause. 

Probable Cause

Before anyone can be arrested in Naperville and charged with a Naperville DUI ordinance offense, the arresting officer must have had probable cause to stop the vehicle the individual was driving in.  Moreover the officer must have reasonable grounds to require the individual to perform field sobriety test and administer a chemical test to the individual.  The United States Constitution's Fourth Amendment, which is applicable to the states through the Fourteenth Amendment, protects individuals from unreasonable searches and seizures. Therefore, the police must have probable cause to stop and question the driver of a car for suspicion of drunk driving before such questioning, and searches incident thereto, will be upheld. As with many of the other pre-trial motions, a motion based on lack of probable cause can either be brought as a motion to quash arrest, (when the evidence obtained, if precluded from production into evidence, will warrant a dismissal of the charges), or, in the alternative as a motion to suppress, (when the evidence obtained, if precluded at trial, will merely prohibit the Prosecution from presenting part of its case). The analysis of the cases presented in this section applies either to motions to suppress or to dismiss.

While an arrest requires probable cause, an investigatory "stop" merely requires a reasonable suspicion by the investigating officer. See, for example, People v. Legions, 382 Ill.App. 3d 1129, 890 N.E.2d 700 (4th Dist. 2008).  What is reasonable always will depend on the facts and circumstances of the particular case.  People v. Queen, 369 Ill.App.3d 211, 859 N.E.2d 1077 (2nd Dist. 2006).  In DUI cases, Illinois courts have uniformly held that probable cause exists when the facts and circumstances known to the arresting officer are sufficient to warrant a person of reasonable caution to believe that an offense was committed.  People v. Bulmann, 212 Ill.App.3d 795, 571 N.E.2d 850 (1st Dist. 1991). 

In terms of a dui traffic stop, probable cause can be based for example on speeding.  However, the means that the officer used to determine his or her conclusion of excessive speed can and should always be employed in a motion challenging the stop on that basis. The same is true with the common charge of "improper lane usage." Not all movement outside the lane jusifies the stop of a vehicle.  For example, the Illinois Appellate Court has held that a trial court can properly conclude that a Defendant's non-hazardous, momentary crossing of the center line is not reasonable grounds for a traffic stop.  People v. Decker, 181 Ill.App.3d 427, 537 N.E.2d 386 (3d Dist. 1989).

So if you've been charged with a Naperville DUI, your legal defense with the Law Offices of Brent M. Christensen will always begin by looking closely at the issue of probable cause - not only for the DUI arrest but also for the traffic stop that led to the arrest.

Naperville DUI Stops - What Not To Do - Lesson 1A: Take the 5th

As we discussed in the last post, not incriminating yourself in any way for a Naperville DUI is a very powerful courtroom defense.  When it comes to answering questions other than basic questions like "what's your name" or "what's your address,"  I would argue that you have a constitutional right on virtually every other question the Naperville Police might ask you to answer, "I'd rather not say?"

If you really wanted to get fancy with this type of Naperville DUI defense, you could answer, "Pursant to rights guaranteed under the 5th Amendment to the U.S. Constitution, I respectfully refuse to answer that question."

OK, sure that's a mouthful.  And if you've been drinking, the more you say will increase your chances of slurring your words.  Even if you don't slur them, it would increase the chance that the police will exaggerate and say you slurred your words.

But by specifically invoking the 5th amendment in answer to virtually all police questions, even before you've been formally arrested you are potentially creating a virtual minefield for the prosecution in the criminal aspect of your Naperville DUI case. 

Unfortunately, with respect to the statutory summary suspension aspect of the DUI case, taking the 5th probably won't be as much help.  However, depending on the prosecutor's experience and expertise, a DUI resourceful DUI defense lawyer could use the fact that you consistently took the 5th to your advantage.

If you have more questions about taking the 5th when talking to the police, feel free to post a comment or call Naperville DUI Defense Attorney, Brent Christensen at 630-665-5965.

What NOT to Do If You Are Stopped By the Naperville Police for a DUI: Lesson 1 - Don't Incriminate Yourself

As a DUI defense lawyer, I am frequently asked, "What should I do if I'm pulled over and have been drinking?"  As always, if you'd like a personal response to this or any other DUI question call DUI attorney Brent Christensen  at 630-665-5965.  Otherwise, please read on.  Typically folks that ask the question of "what to do if pulled over for a DUI" are only thinking about whether or not they should take a breathalyzer.  But the fact of the matter is, that there are many things that they should be doing - or more accurately - NOT doing before the breathalyzer issue even comes up.  This series of blog posts lays out my best advice of what not to do in the inital stages of police contact.  In this post, we'll talk about not incriminating yourself.

Typically when a police officer pulls you over for a traffic violation, no matter how minor, in Naperville after dark, that officer will be looking for a possible Naperville DUI arrest.  What you answer to very simple initial questions can make a difference to your legal defense if you are ultimately arrested for a DUI in Naperville.  The key point is to understand that if you've been drinking, you are probably not going to "talk your way out" of being arrested.  If you've been drinking, the arresting officer will most likely be able to smell the odor of an alcoholic beverage coming from your breath.  He already has formed a conclusion that you have been drinking.  So telling him you've only had one or two is not going to help you.  Similarly, telling him where you're coming from if it's a bar or restaurant is not going to help you.  You must understand that the more you say in any police stop the worse off you're going to be.  So it is always best to choose your words carefully.

Almost any traffic stop will begin with the officer approaching your vehicle and asking you for your license and proof of insurance.  Sometimes the police may ask for vehicle registration also.  If you've been out having a couple of drinks it's always a good idea to locate your license, insurance card, and registration BEFORE you even begin driving. Take these document out of your wallet or the glove box before you even leave and put them in the center console so you can produce them instantly as the officer approaches your car.  If you have to fumble looking for these documents the cop's report will be written in such a way as to suggest that fumbling for them was a result of your being drunk. 

Sometimes the officer will begin by telling you why he pulled you over.  If he does, just nod politely.  More likely though, he'll start by trying to ask you questions like: "Do you know why I pulled you over?"  "Do you know how fast you were going?"  or "Are you aware that you did this or that?"  Remember he wants to get you talking.  Usually if the question start with "Did you know . . ." your answer should usually be "no" and leave it at that.  Don't attempt to explain yourself.

The officer may ask you where you are coming from.  If you answer this question either truthfully or untruthfully you can be sure of one thing:  That Naperville DUI cop is going to ask you follow up questions.
So if you're asked "where are you coming from?" or "where are you headed?" Your answer should always be the same.  Simply tell the officer that you'd prefer not to say.  He may press you.  "Why?"  Say again, "I'd prefer not to say."  The officer may press you.  Don't panic.  As long as you don't lie you can't get in any more trouble than you're already in.  And if you have indeed been drinking no amount of talking by you will help you avoid arrest.  Continue to be polite but do not deviate from your script.

If the officer asks you what your name is tell him and then shut up.  If he asks you your address, tell him and shut up.  But if he asks you any other question, and I mean ANY other question you will always be best served if you answer simply, "I'd rather not say."

If the Officer asks you to step out of the car, then you say, "Am I under arrest?"  If he says yes then get out of the car and say nothing else.  If he says "no" then say "I'd rather stay in the car"  If the officer says  "just wants you to get out of the car to do some tests," at this point the best plan is to comply and get out of the car without leaning on the door handle.  But again say that you'd rather not do any tests. 

Be prepared.  The officer will do almost anything to get you talking or to do tests.  He might yell, he might try to persuade you.  Be polite and firm. 

If the Naperville DUI officer asks you to look at him and keep your head still and follow his pen or his finger with your eyes say, "I'm not going to do that test."  If he asks why, just say, "lawyer told me." 

If while on the street the cop tells you to blow into a device he has right there, politely refuse.  This is the portable breath test device.  At this point, despite what he says, this officer has already made the decision to arrest you.  He may tell you that if you blow and blow under the limit he will let you go.  DO NOT BELIEVE THIS.  Politely refuse the portable breath test.

Don't let the officer get to you.  He is not your friend.  He is there to do his job.  You have no right to resist his arrest but you have an absolute right not to incriminate yourself.  Finally if you are told to put your hands behind your back do it.  Never physically resist. 

By hanging tough in politely refusing as discussed in this post, you will greatly improve your chance in having a favorable result in your Naperville DUI case.  If you'd like to discuss this or any other DUI issue, feel free to call Brent Christensen, Naperville DUI attorney at 630-665-5965.