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New Illinois law mandates car breath test device for first-offense DUIs

Public Act 095-0400, SB0300, 95th General Assembly
This Act takes effect on January 1, 2009.
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Bill Status of SB0300

A new Illinois law requires first-time drunk driving offenders to
install breath test devices in their vehicles and pass the test every
time they try to start their engines.

If the driver's breath exceeds the alcohol limit, the apparatus ensures
the car won't start.

Gov. Rod Blagojevich signed the legislation on August 24, 2007, making
Illinois the fourth state to mandate the gadget.

The other states that require it are New Mexico, Arizona and Louisiana,
according to the National Conference of State Legislatures.

When the law goes into effect in 2009, it will effect approximately
30,000 offenders in Illinois who have had their licenses suspended on
DUI arrests, according to the secretary of state's office.

The alcohol ignition interlock devices must be rented and cost about
$150 to install. There are also monthly fees.

"We will not tolerate drunk drivers on our streets," Blagojevich said in
a statement. "This law ... will help make sure impaired drivers can't
get back on the road. But if they do, they'll face tough penalties."

If offenders attempt to drive someone else's vehicle to avoid the breath
tests, they could face jail time.

About 3,000 people in Illinois currently have the devices in their
vehicles. Most are second-time drunk driving offenders.
__________________________________________

Deletes everything after the enacting clause. Reinserts the provisions
of the engrossed bill, with various changes. In the State Finance Act,
provides for creation of the Indigent BAIID Fund and the Monitoring
Device Driving Permit Administration Fee Fund (rather than the Alcohol
Monitoring Device Fund). Provides that a first offender who receives a
statutory summary suspension shall be issued a monitoring device driving
permit (rather than a monitoring device driver's license), except under
specified circumstances. Provides that a person issued a monitoring
device driving permit may not drive a commercial vehicle. Establishes
other restrictions. Provides that a person who received a judicial
driving permit before the effective date of the bill may continue to
drive on that permit. Provides that a person who fails to comply with
the requirements of a monitoring device driving permit commits the
offense of driving on a revoked or suspended license. Provides that a
person who holds a monitoring device driving permit convicted of the
offense for driving a vehicle not equipped with an ignition interlock
device, or a person eligible for a monitoring device driving permit
convicted of driving with a drug or alcohol-related summary suspension,
is guilty of a Class 4 felony and subject to 30 days of imprisonment.
Amends the Unified Code of Corrections. Provides that a person who
commits one of these offenses is not eligible for court supervision. 625
ILCS 5/1-144.5 new. Changes the effective date from January 1, 2008 to
January 1, 2009.

House Amendment No. 2 Provides that, after a drug- or alcohol-related
statutory summary suspension has been imposed on a first offender, the
circuit court shall, unless the offender has opted in writing not to
have a monitoring device driving permit issued (rather than if requested
by the offender), order the Secretary of State to issue the offender a
monitoring device driving permit.

Judicial admonitions of non-citizens in Illinois criminal courts, Guilty Pleas

Starting January 1, 2004, a plea of guilty in Illinois will now only be
" intelligent and informed" when the judge has admonished the non-citizen
defendant that his plea may have an adverse consequence on his
non-citizen status in the United States (P.A. 93-0373). This may turn
into a right without a remedy because the new Section 113-8 does not
require the judge to vacate the plea for failure to admonish. Illinois
Senate Amendment No.1 deleted the requirement that, after the court
fails to make the advisement to the alien, and the alien shows that
conviction of the offense may have immigration consequences for the
defendant, the court shall, on the defendant's motion, vacate the plea
of guilty.

Clearly, this law is not retroactive. If the defendant is arraigned
before the effective date of this Act, 1/1/2004, a court's failure to
provide this advisement does not require the vacation of judgment and
withdrawal of the plea or constitute grounds for invalidating a prior
conviction; but the court has the discretion to vacate a judgment and
permit a defendant to withdraw a plea.

In Illinois many criminal judges will apply the collateral consequence
doctrine, find the failure to admonish "harmless error", and deny
post-conviction relief. The State's Attorney's office will argue that
this amendment does not supercede common law or otherwise mandate the
vacating of the plea, and that the court must look to the totality of
the circumstances surrounding the plea in determining whether it was
" knowing and voluntary." That the failure to admonish is only one
factor, and if the outcome would be the same with the admonishment, the
judicial error is "harmless"; that the Senate amendment deleted the
automatic ground for granting relief evinces an intent to preserve the
common law approach in post-conviction petitions based on allegations of
" involuntary plea."

The Strickland "ineffective assistance of counsel" (misleading or
incorrect advice) basis should be alleged whenever possible to augment
this new statutory basis to vacate a plea.

The Criminal Code has been amended to state as follows:
* * *
(725 ILCS 5/113-8 new). Advisement concerning status as an alien.
Before the acceptance of a plea of guilty, guilty but mentally ill, or
nolo contendere to a misdemeanor or felony offense, the court shall give
the following advisement to defendant in open court:

" If you are not a citizen of the United States, you are hereby advised
that conviction of the offense for which you have been charged may have
the consequences of deportation, exclusion from admission to the United
States, or denial of naturalization under the laws of the United
States."

Summary:: Short Description: CRIM PRO-ALIENS;CONVICTION

Status: P.A.93-0373 , eff. 1/1/04, Amends the Code of Criminal Procedure of 1963.
Provides that before the acceptance of a plea of guilty, guilty but
mentally ill, or nolo contendere to a misdemeanor or felony offense, the
court shall advise the defendant in open court that if the defendant is
not a citizen of the United States conviction of the offense for which
the defendant has been charged may have the consequences of deportation,
exclusion from admission to the United States, or denial of
naturalization under the laws of the United States. See P v. Huante, 143
Ill.2d 61, 1991 (don't ask; don't tell by attorney). Also see:  People
v. Pequeno No. 2- 01-0747 (March 21, 2003) Kane County; Defendant failed
to establish, in hearing on post conviction petition, that he was denied
effective assistance of counsel which rendered his guilty plea
involuntary when his defense attorney responded to his question about
impact that guilty plea would have on his immigration status, that he
did not know; and that defendant would have to ask an immigration
attorney. Further, despite box on guilty plea form that defendant
acknowledges that it might affect immigration status, there was no
constitutional requirement that court advise defendant that guilty plea
would result in his automatic deportation.

Senate Committee Amendment No. 1 Deletes the requirement that, before
accepting an alien defendant's plea of guilty, mentally ill, or nolo
contendere, to a misdemeanor or felony offense, the court shall allow
the defendant additional time to consider the appropriateness of the
plea in light of the defendant's advisement by the court that conviction
of the charged offense may have immigration consequences for the
defendant; and that, if the defendant is arraigned on or after the
effective date of the Act, and the court fails to make that advisement
to the alien, and the alien shows that conviction of the offense the
defendant pleaded guilty to may have the immigration consequences for
the defendant, the court shall, on the defendant's motion, vacate the
plea of guilty, guilty but mentally ill, or nolo contendere, and enter
the plea of not guilty. Deletes the requirement that, in the absence of
a record of that advisement by the court, the defendant shall be
presumed not to have received the required advisement. Deletes the
language providing that, if the defendant is arraigned before the
effective date of this Act, a court's failure to provide this advisement
does not require the vacation of judgment and withdrawal of the plea or
constitute grounds for invalidating a prior conviction; but the court
has the discretion to vacate a judgment and permit a defendant to
withdraw a plea; and that at the time of the plea no defendant shall be
required to disclose his or her legal status to the court.

Several states already require that a trial court advise an alien
defendant pleading guilty or nolo contendre of possible immigration
consequences of the plea.

States which have enacted such laws include California, Connecticut,
District of Columbia, Florida, Hawaii, Massachusetts, New Mexico, New
York, North Carolina, Ohio, Oregon, Texas, Washington and Wisconsin.
See, e.g., CAL. PENAL CODE § 1016.5; Conn. Gen. Stat. § 54-1j (2001);
D.C. CODE ANN. § 16-713; FLORIDA R. C. P. 3.172(c)(8)(viii). In Re
Amendments to Florida Rules, 536 So. 2d 992 (Fla. 1988); Ga. Code Ann. §
17-7-93 (1997); HAW. REV. STAT. § 802E-2; MD. RULE 4-242 (2001); MASS.
GEN. L. ch. 278, § 29D; Minn. Rule Crim. Pro. 15.01 (2000); Mont. Code
Ann. § 46-12-1210 (1997); New Mexico RA, Rule 5-303(E)(5)and Form 9-406;
N.Y. CRIM. PROC. LAW § 220.50(7); N.C. GEN. STAT. § 15A-1022(7); OHIO
REV. CODE ANN. § 2943.031; ORE.REV. STAT. § 135.385(2)(d); R. I. Gen.
Laws § 12-12-22 (2000); TEX. CODE CRIM. PROC. ANN., art. 26.13(a)(4);
WASH. REV. CODE § 10.40.200 (1990); WIS. STAT. § 971.08(1)(c); Marriott
v. State, 605 So. 2d 985, 987 (Fla. Dist. Ct. App. 1992) (per curiam)
(en banc).The American Bar Association's Standards for Criminal Justice
provide that, if a defendant will face deportation as a result of a
conviction, defense counsel "should fully advise the defendant of these
consequences." ABA Standards for Criminal Justice, 14-3.2 Comment, 75
(2d ed. 1982).

TOUGHER CYBERCRIME PENALTIES

On May 8, 2002 a U.S. House Panel approved the Cyber Security
Enhancement Act of 2001, H.R.3482.

Computer criminals would face increased penalties, and internet users
would face greater surveillance by access providers. H.R.3482 includes
among exceptions to otherwise criminal conduct emergency disclosures to
a governmental entity by an electronic communication service and
specified disclosures made in good faith, and increases penalties for
violations where the offender knowingly causes or attempts to cause
death or serious bodily injury.

The bill would direct the U.S. Sentencing Commission to take into
account the perpetrator's intent and other factors, such as whether
sensitive government computers were the target. The bill also would make
it easier for Internet service providers to report suspicious activity
on their networks. Current law prohibits service providers from
reporting user activity unless it presents an immediate risk of death or
injury, and allows users to sue for damages if their privacy is
violated. Smith's bill would loosen those requirements to enable service
providers to report threats that are not immediate, and would protect
them from lawsuits when they do so. Providers would face penalties if
they did not store electronic records, such as customer e-mails, for at
least 90 days.

Smith removed a provision that would have reimbursed Internet providers
for compliance costs, saying the Justice Department could not determine
what those costs would be. A congressional research service might
attempt to determine appropriate reimbursement levels, he said.
The Judiciary Committee also changed the bill to require the Justice
Department to report after one year how many times Internet providers
had reported suspicious activity. Another amendment clarified that
police officers do not need to be present while a search warrant is
executed.

The bill next heads to the House floor for a full vote. (5/8/2002)

Detailed, up-to-date bill status information on H.R.3482

FORFEITURE OF VEHICLE/REVOKED OR SUSPENDED LICENSE

Senate Bill 1730 (Parker, R-Northbrook; Coulson, R-Glenview) authorizes
the seizure and forfeiture of the vehicle of a person convicted of
driving on a revoked or suspended license if the suspension or
revocation was the result of (1) a DUI conviction, (2) conviction of
leaving the scene of a personal injury accident, (3) conviction of
reckless homicide, or (4) statutory summary related to use of alcohol,
drugs, or intoxicating compounds.

If the spouse of the owner makes a showing of hardship, and the vehicle
is the family's only source of transportation, the vehicle may be
forfeited to the spouse. Forfeiture to the spouse is allowed only once
per vehicle. The Senate and House have sent Bill 1730 to Gov. Ryan.

Last action on Bill: PASSED BOTH HOUSES
Last action date: APR-30-02

TRUTH-IN-SENTENCING

House Bill 5652 (Durkin, R-Westchester; Roskam, R-Glen Ellyn) allows a defendant convicted of cannabis trafficking or controlled substance trafficking to receive only a maximum of 4.5 days of good conduct credit for each month instead of the day-for-day good-time credit.

NEW DUI, TRAFFIC LAWS STIFFEN PENALTIES, BY LARRY A. DAVIS

Three new public acts increase the penalty for driving while
revoked, modify secretary of state formal hearing procedures,
increase minimum mandatory penalties for some DUI offenses, extend
the use of breath alcohol ignition interlock devices (BAIIDs), and
make other changes. (Illinois Bar Journal – December 2001, pdf.)

VOLUNTARY INTOXICATION DEFENSE

Legislation effective Jan. 1, 2002 makes it more difficult for
defendants to invoke the intoxication defense. Gov. Ryan signed P.A.
92-466 in August removing language allowing the defense for individuals
who were voluntarily intoxicated when committing a crime. Read the text

Intoxicated or drugged condition (720 ILCS 5/6-3):

"A person who is in an intoxicated or drugged condition is criminally
responsible for conduct unless such condition is involuntarily produced
and deprives him of substantial capacity either to appreciate the
criminality of his conduct or to conform his conduct to the requirements
of law."

(Source: P.A. 85-670.) Passed in the General Assembly May 30, 2001.
Approved August 22, 2001. Effective January 01, 2002.

BLOOD SERUM IN DUI : House Bill 2293 (Hultgren, R-Wheaton) would allow a serum-blood alcohol level to be used, without converting it to a whole-blood result, as evidence in a DUI case where blood has been drawn from the offender.

SENTENCING/APPRENDI: On February 23, Governor Ryan signed into law House Bill 1511, effective immediately, which requires proof beyond a reasonable doubt of factors in a criminal case that could indicate imposition of extended prison sentences. The legislation purports to place the state's enhanced sentencing laws in line with the decision last June by the U.S. Supreme Court in Apprendi v. New Jersey, 530 U.S., 120 S.Ct. 2348 (2000). (Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt)

The bill provides that if a sentence is vacated on appeal because of the Apprendi opinion, the defendant may be either re-sentenced to a term within the range otherwise provided, or granted a new trial if the state files notice of intention to seek an extended sentence again.

The Illinois Appellate Court, 1st District, held in November that
Apprendi applies retroactively to timely filed post-conviction
petitions, so several convicted defendants could receive reduced
sentences. People v. Dionna Beachem, No. 1-99-852.

Full Text | Bill Summary

Representative Tom Dart (D-Chicago) held a press conference in which he announced that he will be re-introducing a bill to make a driver or person who is in actual physical control of a car to consent to a standardized field sobriety test if a law enforcement officer has reasonable suspicion of the driver's intoxication. The officer, prior to an arrest, may request the person to perform the Horizontal Gaze Nystagmus test, walk and turn test, or one-leg stand test. Last year's bill allowed the results of a standardized field sobriety test to be used against the defendant as evidence in any administrative or court proceeding for a violation of driving under the influence of alcohol or drugs. A refusal to perform the tests will cause the driver's license to be suspended for six months, and a second offense would result in a two-year suspension.

Provides for a hearing and procedures for a person who has had his or her license suspended for a failure to submit to a breath screening or field sobriety test. Authorizes the Secretary of State to issue a restricted driving permit to a person who has had his or her license suspended for specified reasons if the person consents to a
breath-alcohol ignition interlock device installed in his or her car.When a person has refused to submit to or failed to complete a chemical test or tests of blood, breath, or urine pursuant to Section 11-501.1 or to a preliminary breath screening test or a field sobriety test or tests pursuant to Section 11-501.9, the person's driving privileges shall be statutorily suspended under the provisions of both Sections, but the periods of statutory suspension shall run concurrently.

CHILD SUPPORT / DRIVER'S LICENSE REVOCATION

HB 653 (O'Brien, D-Coal City) amends the Illinois Vehicle Code to change the 625 ILCS 5/7-702 procedure for suspension of driver's license for child support arrearages. House Bill 653 would make this suspension mandatory (now, it is discretionary with the trial court) if the obligor is 90 days or more delinquent or the arrearages are adjudicated to be equal to 90 or more days of support. House Bill 653 has been referred to the House Child Support Enforcement Committee. To keep tabs on its status click on this link.

EAVESDROPPING / ILLEGAL VIDEOTAPING

Public Act 91-910 makes it a Class A misdemeanor for a person to
knowingly videotape, photograph, or film another person without that person's consent in a locker room, changing room or hotel bedroom. It also makes it a Class A misdemeanor for any person to knowingly and secretly videotape, photograph, or film another person in the other person's residence without that person's consent. This Act makes it a Class 4 felony to knowingly disseminate these images or permit them to be disseminated. Effective Jan. 1, 2001.

Read the full text at http://www.legis.state.il.us/publicacts/pubact91/acts/91-0910.html

House Bill 256 (Cross, R-Yorkville) would create an exception to the
Eavesdropping statute. It would allow a law enforcement officer or any person acting at his or her direction to record or listen with the aid of an eavesdropping device to an "undercover conversation" in the course of an investigation of a felony violation of the Illinois Controlled Substances Act or a Cannabis Control Act. The exception requires prior notification to and verbal approval from the state's attorney or his or her designee of the county in which the conversation is anticipated to occur. The bill has been referred to House Executive Committee.


106th CONGRESS WRAP-UP, January 1999-December 2000. American Bar Association Governmental Affairs Office

 

 

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