The Legality of Search and Seizure in DUI Cases

I N S I D E T H E M I N D S
The Legality of
Search and Seizure in
DUI Cases
Leading Lawyers on Leveraging Science and
Process to Develop Winning Defense Strategies
2012 EDITION

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Issues in DUI
Search and Seizure
David B. Franks
Partner
Franks & Rechenberg PC

By David Franks
Introduction
The DUI defense attorney must understand Fourth Amendment issues
regarding the search and seizure of motorists. The topic of Fourth
Amendment search and seizure issues is addressed in numerous cases,
articles, and treatises―an area of law that is too complex to be completely
discussed in this chapter. The purpose of this chapter is to provide a broad
overview of driving under the influence search and seizure issues,
specifically referencing Illinois statutes and case law. A detailed and
exhaustive analysis of all possible search and seizure issues and related cases
is outside the scope of this chapter. This chapter will discuss a few Fourth
Amendment issues and cases, rather than discuss the many relevant cases
and search and seizure issues. This chapter will address, in the opinion of
this author, the most prevalent search and seizure issues the DUI defense
attorney faces. This chapter will address the definition of seizure; the
violation most cited by law enforcement officers for stopping
motorists―improper lane usage; other violations of the vehicle code and
various scenarios for which motorists are stopped; the validity of random
license plate checks; law enforcement’s stop of motorists based upon 911
calls and anonymous tips; Fourth Amendment issues with respect to
roadside safety checks/roadblocks, law enforcement’s entry into a suspect’s
home, and inventory searches and searches incident to arrest; the arresting
officer’s administration and evaluation of standardized field sobriety tests;
recent Illinois case law addressing law enforcement’s failure to provide
video-recording evidence related to DUI investigations; Drug Recognition
Expert (DRE) training and the standardized DRE evaluation process; and
the increasing trend of DUI offenses based upon drug impairment.
Police Officers Must Have Articulable Reasonable Suspicion to Stop
a Motorist
Vehicle stops are subject to Fourth Amendment analysis―reasonableness in
all the circumstances.1 A traffic stop requires reasonable suspicion that the
vehicle or occupant is subject to seizure for a violation of the law.2 An officer
may make a valid investigatory stop provided the officer’s decision is based
upon specific and articulable facts and reasonable inferences therefrom that
1
People v. Jones, 215 Ill.2d 261 (2005).
2
People v. Rush, 319 Ill.App.3d 34 (2d Dist. 2001).

Issues in DUI Search and Seizure
warrant the investigative intrusion.3 A mere suspicion or hunch is
insufficient.4 The officer must have knowledge of specific, articulable facts
which, when combined with the rational inferences from those facts, create a
reasonable suspicion that the person in question has committed or is about to
commit a crime.5 The reasonableness of vehicle stops is analyzed under the
principles set forth in Terry v. Ohio6: a law enforcement officer may briefly
detain a person for questioning, based upon specific and articulable facts and
reasonable inferences therefrom, if the officer reasonably believes that the
person has committed, or is about to commit, a crime. This rule has been
codified in 725 ILCS 5/107-14,7 which states:
A peace officer, after having identified himself as a peace
officer, may stop any person in a public place for a
reasonable period of time when the officer reasonably
infers from the circumstances that the person is
committing, is about to commit or has committed an
offense as defined in Section 102-15 of this Code, and may
demand the name and address of the person and an
explanation of his actions. Such detention and temporary
questioning will be conducted in the vicinity of where the
person was stopped.
A DUI defense attorney must always analyze the propriety of the stop, and
file a Motion to Suppress based upon an improper stop.
Seizure
A person is seized “‘when, by means of physical force or a show of
authority,’ that person’s ‘freedom of movement is restrained.’”8 A seizure
may occur when law enforcement officers block a motorist’s car.9 A police
3
Village of Lincolnshire v. DiSpirito, 195 Ill.App.3d 859 (2d Dist. 1990).
4
Rush, 319 Ill.App. 3d at 39.
5
DiSpirito, 195 Ill.App.3d at 863.
6
Terry v. Ohio, 392 U.S. 1 (1968).
7
725 ILCS 5/107-14.
8
People v. Brownlee, 186 Ill.2d 501, 517 (1999) (quoting United States v. Mendenhall,
446 U.S. 544, (1980).
9
People v. Gherna, 203 Ill.2d 165 (2003); People v. Beverly, 364 Ill.App.3d 361 (2d
Dist 2006).

By David Franks
officer’s activation of his or her emergency overhead oscillating lights as a
show of authority is one factor to consider in determining whether or not a
seizure has occurred.10
Traffic Stops
Improper Lane Usage
In Illinois, 625 ILCS 5/11-709 (a) states: “A vehicle shall be driven as nearly
as practicable entirely within a single lane and shall not be moved from such
lane until the driver has first ascertained that such movement can be made
with safety.”11 Police officers cite the offense of improper lane usage most
often as the reason for vehicle stops that ultimately result in charges of
driving under the influence. In many cases a police officer will stop a vehicle
because the vehicle traveled over the fog line―the solid line separating the
driving lane from the shoulder―or because the left side tires of the vehicle
traveled upon the opposite lane of traffic, or because the left or right side
tires of the vehicle travelled upon another lane of traffic proceeding in the
same direction.
The Appellate District Courts in Illinois are not in agreement as to what
constitutes the offense of improper lane usage. Neither the statute nor case
law has provided guidance as to how far the vehicle must travel into another
lane, or for what duration the vehicle must travel in another lane, in order to
establish the required articulable suspicion to stop the vehicle, or to establish
the level of proof required to sustain a conviction at trial. The author
provides samples of appellate court decisions addressing the violation of
improper lane usage:
In People v. Decker,12 the Third District Appellate Court held that the
motorist’s nonhazardous, momentary crossing of the center line was not a
reasonable ground for the stop. In People v. Leyendecker,13 the Second District
Appellate Court affirmed the suppression of evidence where a motorist was
stopped for crossing the fog line only once, by one foot, as she traveled on a
10
Village of Mundelein v. Minx, 352 Ill. App.3d 216 (2d Dist 2004); City of Highland
Park v. Lee, 291 Ill.App.3d 48 (2d Dist. 1997).
11
625 ILCS 5/11-709.
12
People v. Decker, 181 Ill.App.3d 427 (3d Dist. 1989).
13
People v. Leyendecker, 337 Ill.App.3d 678 (2d Dist. 2003).

hilly road with poor visibility. In People v. Smith14 the Illinois Supreme Court
ruled that the stop of the motorist was proper where the police officer
observed the motorist’s driver side wheels cross over the lane line dividing
the left lane from the center turn lane by six inches and remain over the line
for 100 to 150 yards. The motorist then crossed over the lane line dividing
the left lane from the right lane by six inches for 150 to 200 yards.15 In People
v. Greco,16 the Second District Appellate Court ruled that the police officer’s
stop of the defendant’s vehicle was proper where the vehicle swerved two or
three times from the center of the road toward the curb even though the
vehicle remained within the same lane. In People v. Faletti,17 the Third District
Appellate Court ruled that a single momentary crossing of the center line,
without more, did not necessarily provide a sufficient basis for an
investigatory stop. In People v. Rush, 18 the Second District Appellate Court
ruled that a driver’s single, momentary crossing of the center line, without
more, is a sufficient basis for a stop. In People v. Schaefer,19 the Second District
Appellate Court ruled that driving in the wrong lane, or in the oncoming lane
of travel, does not constitute the offense of improper lane usage. In People v.
Geier,20 the Second District Appellate Court ruled that after a vehicle crossed
the center line and the fog line, the initial probable cause did not dissipate
merely because the arresting officer continued to follow the motorist for two
to four miles, after observing a traffic violation, before stopping the motorist.
In People v. Scott,21 the Fifth District Appellate Court reversed the trial court’s
ruling on defendant’s motion to suppress where the trial court’s ruling, that
evidence of endangerment was essential to the finding of probable cause, was
based upon an erroneous interpretation of the improper lane usage statute.
The author respectfully submits that the issue of whether or not proof of
endangerment is required to substantiate the violation of improper lane usage
has not been completely addressed by the courts.
Perhaps guidance can be found from other jurisdictions that have considered
whether or not the motorist endangered pedestrians or other vehicles, and
14
People v. Smith, 172 Ill.2d 289 (1996).
15
Id.
16
People v. Greco, 336 Ill.App.3d 253, 270 (2d Dist. 2003).
17
People v. Faletti, 215 Ill.App.3d 61 (3d Dist. 1991).
18
People v. Rush, 319 Ill.App.3d 34 (2d Dist. 2001).
19
People v. Schaefer, 398 Ill.App.3d 963 (2d Dist. 2010).
20
People v. Geier, 407 Ill.App.3d 553 (2d Dist. 2011).
21
People v. Scott, 358 Ill.Dec. 39 (App. Ct. 5th Dist. 2012).

By David Franks
ruled on the issue of improper lane usage. A few cases that have held that the
police officer’s stop of the motorist was illegal include: United States v. Colin,22
where the motorist drifted onto the right fog line for ten seconds, signaled a
lane change and moved into the left lane, and drifted to the left side of the
left lane, where the left wheels traveled along the solid yellow line for ten
seconds; Rowe v. State of Maryland,23 where the motorist crossed, by about eight
inches, the white edge line separating the shoulder from the travel portion of
the highway, returned to the travel portion, and a short time later touched the
white edge line; Crooks v. State of Florida,24 where the vehicle drove over the
right-hand line on the edge of the right lane, and drifted over the right-hand
line two more times; and State of Montana v. Lafferty,25 where the driver crossed
the fog line on the right side of the highway twice and drove on the fog line
once.
Driving Slowly
Where a motorist was driving slowly, in an area with no posted minimum
speed limit, and was not affecting traffic, the police officer’s stop of the
motorist was improper.26 Where a motorist was driving ten miles per hour
under the posted speed limit, and was not impeding traffic, the police
officer’s stop of the motorist was improper.27 Where the motorist drove ten
miles per hour in a twenty-five mile per hour speed zone, and demonstrated
unusual behavior by stopping his vehicle in the middle of the street, the
police officer’s stop of the motorist was improper.28
Random License Plate/Registration Checks
Police officers may conduct a computer check of a license plate without first
observing a traffic violation.29
22
United States v. Colin, 314 F.3d 439 (9th Cir.2002).
23
Rowe v. State of Maryland, 769 A.2d 879 (2001).
24
Crooks v. State of Florida, 710 So.2d 1041 (Fla. 2d DCA 1998).
25
State of Montana v. Lafferty, 967 P.2d 363 (1998).
26
People v. Rotkvich, 256 Ill.App.3d 124 (1st Dist. 1993).
27
People v. Isaac, 335 Ill.App.3d 129 (2d Dist. 2002).
28
People v. Dionesotes, 235 Ill.App.3d 967 (2d Dist. 1992).
29
People v. Blankenship, 353 Ill.App.3d 322 (3d Dist. 2004); Village of Lake in the Hills
v. Lloyd, 227 Ill. App. 3d 351 (2d Dist. 1992); People v. Barnes, 152 Ill.App.3d 1004 (4th
Dist. 1987); People v. Brand, 71 Ill.App.3d 698 (1st Dist. 1979).

Obstructed Windshield
Police officers may stop a motorist for driving with an obstructed
windshield. Section 12-503(c) of the Illinois Vehicle Code states:
No person shall drive a motor vehicle with any objects placed or suspended
between the driver and the front windshield *** which materially obstructs
the driver’s view.30
In People v. Cole,31 the defendant was stopped because the officer observed a
single strand of opaque beads, which were one-fourth of an inch in
diameter, hanging four inches in length from the rearview mirror at eye
level. The arresting officer, however, believed “anything suspended between
the driver and the front windshield violated section 12-503(c).”32 The
officer never testified that the beads constituted a material obstruction but
only that they “hindered [the] defendant’s ability to observe other
drivers.”33 Because the arresting officer did not have a reasonable suspicion
or probable cause to believe the beads constituted a material obstruction
based on his mistake of law, the appellate court reversed the trial court’s
denial of the defendant’s motion to suppress.
In People v. Johnson,34 the arresting officer stopped the defendant’s car after
observing from the rear and side, at night, an air freshener shaped like two
life-sized cherries hanging from the rearview mirror. The officer testified
that the air freshener created a material obstruction of the defendant’s view
of the roadway, but he did not tell that to the defendant during the stop.
When confronted with photographs of the car, with the air freshener
hanging from the rearview mirror, the officer concluded the driver’s view
was not obstructed. Considering at the time of the stop the officer did not
inform the driver that the air freshener was a material obstruction, the
officer’s fleeting view of the air freshener in the dark, and the officer’s lack
of understanding as to what constituted a material obstruction, the appellate
court affirmed the trail court’s granting of defendant’s motion to suppress.
30
625 ILCS 5/12-503(c).
31
People v. Cole, 369 Ill.App.3d 960 (4th Dist. 2007).
32
Id. at 966.
33
Id. at 969.
34
People v. Johnson, 384 Ill.App.3d 409 (4th Dist. 2008).

By David Franks
In People v. Mott,35 the arresting officer pulled over the defendant’s vehicle,
which contained a leaf-shaped air freshener hanging from the rearview
mirror. The officer estimated that the air freshener was 3½ to 4 inches wide
and 4 to 5 inches tall. The officer believed that the air freshener hung about
1 inch below the mirror on a string that swung side to side. The officer had
no formal training as to what constituted a “material obstruction,” and the
trial court found the officer “mistakenly believed any object the size of a
fingernail or larger hanging between the driver and the windshield
constituted a ‘material obstruction’ providing reasonable suspicion for a
traffic stop.”36
In addition to noting the air freshener was smaller than that estimated by
the officer, the court found the officer did not testify to the relationship
between the air freshener and the defendant’s eye level. In affirming the
trial court’s decision to grant the motion to suppress, the appellate court
noted the officer “failed to articulate any specific facts giving rise to an
inference [the] Defendant’s view was obstructed.” The appellate court
noted, however, “size alone does not determine whether an object
materially obstructs the driver’s view,” and maintained that “all of the
objects listed could be material obstructions in the proper situation.”37
However, see People v. Price,38 where the arresting officer’s testimony regarding
the size of the air freshener, how it swayed back and forth, and that it would
have obstructed the defendant’s view based on the defendant’s sitting position,
provided the arresting officer reasonable suspicion, based on a material
obstruction, to justify the arresting officer stopping the defendant’s vehicle.
Anonymous Tips and 911 Calls
Police officers may stop motorists based upon anonymous and 911
telephone calls. The practitioner must review the reliability of the caller,
whether the conduct reported by the caller is conclusory (“erratic driving”)
35
People v. Mott, 389 Ill.App.3d 539 (4th Dist. 2009).
36
Id. at 163.
37
Id. at 166.
38
People v. Price, 2011 IL App (4th) 110,272, 962 N.E.2d 1035, 357 Ill.Dec.
134 (Ill.App. 4 Dist. Dec 12, 2011) (NO. 4-11-0272, 4-11-0273).

or describes specific facts (“the vehicle crossed the center line into
oncoming traffic and then drove onto the shoulder and almost off of the
road”), and whether or not the reporting is contemporaneous with the
observed acts. When citizens make a 911 telephone call to law enforcement,
they are presumed to be reliable since police can ascertain their identity, and
because the citizen would face penalties should he or she provide false or
misleading information to the police.39
“[W]hile reasonable cause to stop an individual may be based on an
anonymous informant’s tip, … some indicia of reliability must be provided
to justify the stop. Such evidence should include independent corroboration
by the police of the information provided by the caller, and evidence that
the information provided was specific enough to show that the caller had
access to reliable information.”40 Informants’ tips regarding possible
incidents of drunk driving require less rigorous corroboration than tips
concerning matters presenting less imminent danger to the public.41 The
Shafer Court relied on a decision from the Supreme Court of New
Hampshire in State v. Sousa,42 to outline the factors for evaluating whether
an anonymous tip gives rise to reasonable suspicion: 1) whether there is a
“sufficient quantity of information” such as the vehicle’s make, model,
license plate number, location and bearing, and “similar innocent details” so
that the officer may be certain that the vehicle stopped is the one the tipster
identified; 2) the time interval between the police receiving the tip and the
police locating the suspect vehicle; 3) whether the tip is based upon
contemporaneous eyewitness observations; and, 4) whether the tip is
sufficiently detailed to permit the reasonable inference that the tipster has
actually witnessed an ongoing motor vehicle offense.
In People v. Ewing,43 the appellate court held that the stop, based upon a 911
telephone call tip, was proper, for several reasons: 1) the caller provided
sufficient details about the car, including the make, model, color, and
license plate, and the fact that the vehicle was traveling eastbound on Route
16 with two male occupants; 2) the time interval between the call and when
39
People v. Rollins, 382 Ill.App.3d 833, (4th Dist. 2008).
40
People v. Messamore, 245 Ill.App.3d 627, 629 (3rd Dist. 1993).
41
People v. Shafer, 372 Ill.App.3d 1044 (4th Dist. 2007).
42
State v. Sousa, 151 N.H. 297 (2004).
43
People v. Ewing, 377 Ill.App.3d 585 (4th Dist. 2007).

By David Franks
the officers located defendant’s vehicle was short; 3) the tip was based on
contemporaneous eyewitness observations; and 4) the caller telephoned
911 as she observed the incident and the tip was sufficiently detailed to
permit a reasonable inference that the tipster actually witnessed what she
described. The caller would have had ample opportunity to observe
defendant as he left, and in a position to observe defendant’s speech,
odor, and gait.44
Law Enforcement Entry into the Residence
In some instances, a citizen will contact law enforcement and report his or
her observations of a motor vehicle driving erratically, causing an accident
that resulted in damage to their vehicle or property, or damage to another
person’s property, and leaving the scene of the accident. The motorist flees
the scene of the accident and returns home, intending to avoid contact with
investigating officers. The citizen often provides the license plate number,
as well as the make, model, and color, of the fleeing vehicle. Armed with
this information, the investigating officer(s) ascertain the registered owner
of the vehicle that fled the scene, as well as the address of the registered
owner. The police officer(s) then proceed to the registered owner’s address,
usually without a warrant for the driver’s arrest. (This author has had the
privilege of defending a DUI case where law enforcement, in addition to
receiving a 911 telephone call reporting a vehicle that had fled the scene of
a property damage accident, was able to follow the trail of debris and fluid
leakage from the scene of the accident to the driveway of the defendant’s
home, a distance of several miles!) Upon arriving at the motorist’s
residence, the officer inquires as to who was driving the damaged vehicle,
and requests to speak with the driver, either asking the driver to step
outside the residence, or gaining access to the residence, and eventually
arresting the driver. The practitioner must be aware of pertinent Fourth
Amendment search and seizure issues when determining whether or not the
officer’s entry into the residence, and subsequent arrest of the defendant,
were lawful.
44
See People v. Smulik, 964 N.E.2d 183 (App. Ct. 2d Dist. 2012) (appellate court
affirmed defendant’s motion to quash where the informant merely reported
contemporaneous noninculpatory observations regarding the description and location of
the defendant’s vehicle, and the informant’s information contained no “predictive
value”).

The chief evil against which the Fourth Amendment to the United States
Constitution is directed is the physical entry of the home.45 Thus, the
Fourth Amendment “has drawn a firm line at the entrance of the house,”46
and warrantless searches and seizures inside a home are presumptively
unreasonable.”47 Accordingly, absent exigent circumstances, police may not
enter a private residence to make a warrantless search or arrest.48 The
Fourth Amendment does not prohibit officers from entering a home
without a warrant if exigent or compelling circumstances justify the entry.49
The burden of demonstrating exigent need for a warrantless search or arrest
is on the state.50
The court in People v. White,51 outlined several factors to be considered in
analyzing exigency in a particular situation: 1) whether the offense under
investigation was recently committed; 2) whether there was any deliberate
or unjustifiable delay by the officers during which time a warrant could have
been obtained; 3) whether a grave offense is involved, particularly one of
violence; 4) whether the suspect was reasonably believed to be armed; 5)
whether the police officers were acting upon a clear showing of probable
cause; 6) where there was a likelihood that the suspect would have escaped
if not swiftly apprehended; 7) whether there was strong reason to believe
that the suspect was on the premises; and 8) whether the police entry,
though non-consensual, was made peaceably.52 In determining whether the
police acted reasonably, the court must look to the totality of the
circumstances confronting the officers at the time the entry was made.53
Illinois Appellate Courts have addressed the issue of exigency with respect
to entries, warrantless searches and seizures, and DUI arrests within a
residence. In People v. Krueger,54 the appellate court reversed the trial court’s
45
Payton v. New York, 445 U.S. 573 (1980).
46
Id. at 590.
47
Id. at 586.
48
Id. at 587-88.
49
People v. Foskey, 136 Ill.2d 66 (1990) (citing People v. Cobb, 97 Ill.2d 465 (1983)).
50
Id. (citing United States v. Aquino, 836 F.2d 1268 (10th Cir. 1988)).
51
People v. White, 117 Ill.2d 194 (1987).
52
People v. Davis, 398 Ill.App.3d 940 (2d. Dist. 2010); State v. Fisk, 192 P.3d 185 (Kan.
Ct. App. 2008).
53
Fiske, 192 P.3d at 185; see also People v. Anthony, 198 Ill. 2d 194 (2001)
(demonstrating that acquiescence to police apparent authority does not constitute
voluntary consent to a search).
54
People v. Krueger, 208 Ill.App.3d 897 (2d Dist. 1991).

By David Franks
order denying the defendant’s petition to rescind the statutory summary
suspension of his driver’s license. On appeal the defendant argued that the
statutory summary suspension of his driver’s license could not be
predicated on an illegal arrest. The appellate court rejected the state’s
argument that the arrest was lawful because the officers’ warrantless entry
into the defendant’s home was validated by (1) their reasonable belief that
the defendant was in need of their immediate assistance and (2) their need
to preserve evidence of the defendant’s offense of driving under the
influence of alcohol. Reversing the trial court’s ruling, the appellate court
noted that the police had no reasonable grounds to believe that the
defendant required their immediate assistance to safeguard his physical well-
being, the state did not meet its burden to show that the entry into the
defendant’s home was not motivated primarily by the intent to investigate
or seize evidence in connection with the possible DUI offense, there was
nothing in the record to indicate that the police sought to provide medical
assistance for the defendant’s possible injuries, and this was not a case
where the officers’ post-entry conduct was limited to achieving the
objective justifying the entry, since the police plainly did more than was
necessary to ascertain whether the defendant needed assistance.55
In People v. Feddor,56 the appellate court affirmed the trial court’s granting of
defendant’s petition to rescind the statutory summary suspension of his
driver’s license and his motion to suppress evidence. In Feddor, the police,
after receiving information regarding a hit and run accident, and without a
warrant or consent, gained forced entry into the defendant’s residence,
claiming that defendant may have been injured. The court rejected the
state’s argument that the entry was proper under an “emergency exception”
because the police were concerned about the defendant’s health. Affirming
the trial court’s rulings, the appellate court noted that at the time the police
entered the defendant’s home, they knew only that the defendant had been
in an auto accident and returned home, the witness following the defendant
did not observe anything physically wrong with the defendant, the defendant
was not answering his door, and one of the officers acknowledged that he did
not know whether or not the defendant was injured. In addition, the appellate
court concluded that the state did not meet its burden of proof in establishing
55
Id.
56
People v. Feddor, 355 Ill.App.3d 325 (2d. Dist. 2005).

that law enforcement’s entry into the residence was not based primarily on an
intent to arrest and seize evidence.57
Roadside Safety Checks/Roadblocks
During holiday periods, many police departments throughout the country
conduct roadside safety checks/roadblocks ostensibly to ensure that
motorists are using safety belts, have secured children in appropriate child
restraint seats, and maintain current insurance for their vehicle. These
holiday periods include Thanksgiving, Christmas and New Year’s, Super
Bowl weekend, St. Patrick’s Day, Cinco de Mayo, Memorial Day,
Independence Day, and Labor Day. In many instances, these are multi-
department operations in which officers from a local police department and
deputies from the local county sheriff’s police department, or officers from
a local police department and troopers from the state police, or even a
combination of officers from all three police agencies, participate in and
operate the roadblock. When the state police are involved in a roadside
safety check, troopers from the Illinois State Police usually lead the roadside
safety check operations.
In actuality, roadside safety checks/roadblocks are established during
holiday periods to determine if motorists are committing the offense of
driving under the influence. The United States Department of
Transportation provides funding to each state, usually to the state’s
Department of Transportation or equivalent department. In Illinois,
after receiving funding from the United States Department of
Transportation, the Illinois Department of Transportation (IDOT)
provides roadside safety check (RSC) grant funding to the Illinois State
Police and local police departments. Upon application from municipal
police departments, the Illinois Department of Transportation (IDOT)
distributes grant money to the municipal police departments to operate
a roadside safety check.
Many practitioners believe that if a driver is stopped and arrested for the
offense of DUI at a roadside safety check, they have no chance of
challenging the stop or beating the charge. Without question, a roadside
57
Id.

By David Franks
safety check DUI arrest can be challenged, especially where there is seldom
any evidence of bad driving. A DUI defense attorney must not presume
that the law enforcement agency properly conducted the roadblock. The
practitioner must be aware of Fourth Amendment search and seizure issues
as they apply to roadside safety checks and must evaluate whether or not
the roadside safety check passes constitutional muster. In order for a
roadside safety check to pass constitutional muster, law enforcement
officials must conduct the roadside safety check operation in accordance
with National Highway Traffic Safety Administration (NHTSA) standards
as described in the NHTSA manual entitled “The Use of Sobriety
Checkpoints for Impaired Driving Enforcement,”58 the local police
department Operational Plan, and pertinent case law.
The United States Supreme Court, in Michigan Department of State Police v.
Sitz,59 has ruled that roadside safety checks are not an impermissible
intrusion on a motorist’s Fourth Amendment rights, and are necessary to
prevent danger on our roads and highways. A Fourth Amendment seizure
occurs when a vehicle is stopped at a roadblock or checkpoint.60 The police
may not employ a roadblock primarily for the ordinary purpose of
investigating crimes.61 The critical factor in determining whether or not a
roadside safety check passes constitutional muster is whether the officers
are acting with unbridled discretion. In order for a roadside safety check
roadblock to be constitutionally valid, it is to be evaluated according to the
factors enumerated by the Unites States Supreme Court in the various cases
dealing with roadblocks and summarized by the Illinois Supreme Court in
People v. Bartley.62 In evaluating whether or not the arbitrary enforcement
and the use of discretion of officers in the field are reduced and the
subjective intrusion minimized, the Bartley court outlined several factors to
be evaluated in determining the constitutionality of roadblocks: 1) the
absence of unfettered discretion on the part of individual officers; 2) the
presence of procedural guidelines; 3) a decision made by supervisory
58
DOT HS 807 656 November 1990, available at
http://stopdruggeddriving.org/pdfs/SobrietyCheckpoints.pdf (copy of which is provided
as Appendix B).
59
Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990).
60
People v. Scott, 277 Ill.App.3d 579 (3d Dist. 1996) (citing Sitz, 496 U.S. 444).
61
City of Indianapolis v. Edmond, 531 U.S. 32 (2000).
62
People v. Bartley, 109 Ill.2d 273 (1985).

personnel to establish the roadblock; 4) the selection of the site by
supervisory personnel; 5) the systematic stopping of vehicles; 6) sufficient
showing of official authority; and 7) advance publicity.
In order to evaluate the constitutionality of a roadside safety check, the
practitioner must obtain a copy of the following documents:
1. National Highway Safety Administration (NHTSA) manual
entitled: “The Use of Sobriety Checkpoints for Impaired
Driving Enforcement.”63
2. The operational plan prepared by the police department to
establish and conduct the roadside safety check.
3. Any and all documents, memoranda, reports, records,
paperwork and forms whatsoever used to prepare the
operational plan.
4. Any and all attachments to the operational plan to include any
and all documents, memoranda, reports, records, forms,
diagrams, charts, and pictures.
5. Any and all reports, records, forms, memorandum, and
paperwork whatsoever regarding the administration and
operation of the roadside safety check.
6. Any and all documents, memoranda, reports, and records
regarding:
a. The date, time, and location where the roadside safety
check was to be conducted (should be contained in the
operational plan).
b. The selection sequence of the vehicles to be stopped
(should be contained in the operational plan).
c. Any adjustments or changes to the operational plan
d. Details publicized by the public information officer
e. The sign-in sheets for all participants in the roadside safety
check (should be contained in the operational plan).
63
DOT HS 807 656, November 1990, available at
http://stopdruggeddriving.org/pdfs/SobrietyCheckpoints.pdf.

By David Franks
7. After-Action Report. In Illinois, the Illinois State Police refers
to this form as Roadside Safety Check Form, ISP5-267.
8. Any and all video/audiotapes/CD-ROMs/DVDs taken of the
roadside safety check.
9. Final report, any and all after-action report(s), and data
collection form(s) regarding the roadside safety check.
Provided as Appendix C is a sample subpoena duces tecum, to be issued to the
police department, to obtain the materials described in subparagraphs 2
through 9 above. In addition, the practitioner should obtain, from their
respective state Department of Transportation, documentation regarding
National Highway Traffic Safety Administration Basic Traffic Safety Funding
grants and National Highway Traffic Safety Administration Alcohol Impaired
Driving Countermeasures Program grants regarding the roadside safety
check/roadblock operation. This information can be obtained through a
Freedom of Information Act request. Provided as Appendix D is a sample
Freedom of Information Act request for this purpose.
The defense attorney must consider the following factors in order to
evaluate if law enforcement personnel conducted a constitutionally valid
roadside safety check operation:
• Who decided to establish the roadside safety check, and who
selected the site for the roadside safety check? The decision to
use an intrusive roadblock should be made by politically
accountable public officials or higher ranking officers at the
policy-making level.64
• Which law enforcement agency had the operational lead for
the roadside safety check?
• Did law enforcement personnel prepare and implement a written
policy or procedure to conduct the roadside safety check?65
• What was the selection criteria/sequence for stopping vehicles?
Every vehicle? Every third vehicle? Every fifth vehicle?
64
People v. Fullwiley, 304 Ill.App.3d 44 (2d. Dist. 1999); People v. Adams, 293
Ill.App.3d 180 (2d Dist. 1997).
65
Id.

• Did law enforcement personnel deviate from the written policy
or procedure? Did law enforcement deviate from the established
selection sequence? If law enforcement personnel deviated from
the established selection sequence―i.e., from stopping every
third vehicle to stopping every fifth vehicle―did law
enforcement personnel document this deviation, as well as the
time of and the reason for the deviation, in the after-action
report? Did law enforcement personnel consider this possible
deviation as part of a contingency plan? At what time did law
enforcement personnel return to the initial selection sequence?
• Did the written policy include a contingency plan, taking into
consideration traffic flow or weather conditions?
• Did law enforcement personnel provide adequate warning to
approaching motorists regarding the roadside safety check?
Did your client know that he or she was, in fact, approaching a
roadside safety check? Did law enforcement personnel set up
the roadside safety check near the crest of a hill, or around a
curve with poor line-of-sight detection? What kinds of signs
did law enforcement personnel use to warn approaching
motorists? Did the signs comply with municipal and state
regulations? Where did law enforcement personnel set up the
warning signs in relation to where law enforcement personnel
directed motorists into the checkpoint? Where did law
enforcement personnel set up the warning signs in relation to
the location of cones and flares used to direct and channel
approaching traffic?
• What steps did law enforcement personnel take to
demonstrate the official nature of the roadside safety check?
Where were squad cars located within the roadside safety
check? Where were squad cars located in relation to where law
enforcement personnel directed motorists into the roadside
safety check? Were the squad cars visible to approaching
motorists? Did law enforcement personnel activate the squad
car overhead emergency lights for the duration of the roadside
safety check? Did law enforcement personnel use signs that
clearly advised motorists that they were approaching a roadside
safety check?

By David Franks
• Did law enforcement personnel issue a press release before the
establishment and operation of the roadside safety check
advising the community of the impending roadblock?
• Did law enforcement personnel video-record the entire
roadside safety check operation?
• Did law enforcement personnel set up the roadside safety
check in such a manner to ensure the safety of motorists?
• Did law enforcement personnel permit motorists to avoid the
roadside safety check?
In light of all of the various factors, outlined above, to consider when
determining whether or not a roadside safety check/roadblock passes
constitutional muster, a DUI defense attorney must not presume that the
law enforcement agency properly conducted the roadblock. These factors
must be analyzed so that the attorney can prepare and proceed to hearing
on an effective Motion to Quash. For example, testimony by the roadside
safety check operational commander, or testimony by field officers, that
they stopped vehicles “randomly” may establish an issue for your client, if
necessary, upon appeal.
Suspicious Vehicle/Vehicle Leaving Closed Business Parking Lot
In People v. Leggions,66 the Fourth District Appellate Court held that the stop of
the defendant was improper; the observations of the officers were too
minimal to support reasonable suspicion where the officers observed two
people exit one vehicle and enter another vehicle in a high crime area. In
People v. Safiran,67 the Third District Appellate Court held that the officer’s
stop of the defendant’s vehicle was improper where the police officer
testified that he stopped the vehicle because it was “suspicious,” but
provided no information describing why the vehicle was “suspicious.” In
People v. Cordero,68 the Second District Appellate Court held that the stop of
the defendant was not supported by a reasonable and articulable suspicion
where the officer observed a car in the parking lot of a closed restaurant,
the car pulled out of the parking lot when the officer entered the parking
66
People v. Leggions, 382 Ill.App.3d 1129 (4th Dist. 2008).
67
People v. Safiran, 229 Ill.App. 3d 639 (3d Dist. 1992).
68
People v. Cordero, 358 Ill.App.3d 121 (2d Dist. 2005).

lot, the officer did not testify that she observed the car drive off rapidly or
recklessly, the officer did not testify that the area was a high crime area, and
the officer did not testify that the defendant was startled or scared upon
first observing the officer.
Inventory Searches/Searches Incident to Arrest
A search conducted without prior approval of a judge, conducted without a
warrant, is per se unreasonable under the Fourth Amendment. One
exception to the warrant requirement is the inventory search. An inventory
search is a judicially created exception to the warrant requirement of the
Fourth Amendment.69 Three requirements must be satisfied for a valid
warrantless inventory search of a vehicle: (1) the original impoundment of
the vehicle must be lawful; (2) the purpose of the inventory search must be
to protect the owner’s property and to protect the police from claims of
lost, stolen, or vandalized property and to guard the police from danger;
and (3) the inventory search must be conducted in good faith pursuant to
reasonable standardized police procedures and not as a pretext for an
investigatory search.70 For a customary inventory search to be deemed
reasonable, it must further these three objectives.71 In determining whether
an inventory search is proper and reasonable, the threshold question is
whether the prior impoundment was proper since the need and justification
for the inventory arises from the impoundment.72 Police have authority to
seize and remove from the streets vehicles impeding traffic or threatening
public safety and convenience.73 This authority arises from the police
department’s “community caretaking functions.”74 The fact that the
arrestee’s car would be left unattended is not a sufficient reason for
impoundment unless the vehicle would be illegally parked.75 There is no
requirement that a police department’s inventory procedures be in writing.76
69
People v. Hundley, 156 Ill.2d 135 (1993) (citing Illinois v. Lafayette, 462 U.S. 640
(1983)).
70
Id.; see also People v. Clark, 394 Ill.App.3d 344, (1st Dist. 2009).
71
People v. Ursini, 245 Ill.App.3d 480 (2d Dist. 1993).
72
Id.
73
Id.
74
Id.
75
Id.
76
People v. Gipson, 203 Ill.2d 298 (2003).

By David Franks
The only requirement is that, in conducting inventory searches, the police
act in accordance with standardized department procedures.77
When evaluating the constitutionality of the impoundment and
inventory search of a vehicle, the defense attorney should consider the
following factors: whether or not the police department took the vehicle
into custody, whether or not the vehicle was threatening public safety or
impeding/obstructing traffic, whether or not another licensed driver
could have driven the vehicle from the scene, and whether or not the
arresting officer(s) was acting pursuant to standard police procedures. In
cases where police officers claim that they impounded and conducted an
inventory search of a vehicle pursuant to a written department inventory
policy, the defense attorney should obtain a copy of that written
inventory policy. This author provides a sample subpoena duces tecum, as
Appendix E, requesting the production of a police department’s written
inventory policy.
Another exception to the warrant requirement of the Fourth Amendment
is the search-incident-to-arrest. In Arizona v. Gant,78 the United States
Supreme Court clarified the search-incident-to-arrest exception that
applies to vehicles. The Gant Court stated that there are two
circumstances under which a search-incident-to-arrest is permissible: law
enforcement may search a vehicle incident to a recent occupant’s arrest
only when the arrestee is unsecured and within reaching distance of the
passenger compartment at the time of the search, and when it is
reasonable to believe evidence relevant to the crime of arrest might be
found in the vehicle.79
Countering the Arresting Officer’s Impairment Assessments
Police officers throughout the country are trained in DWI detection
according to United States Department of Transportation National
Highway Traffic Safety Administration (NHTSA) guidelines and standards.
The NHTSA student manual entitled “DWI Detection and Standardized
Field Sobriety Testing” (February 2006) teaches police officers, in part, that
77
Id.
78
Arizona v. Gant, 556 U.S. 332 (2009).
79
Id.

the DUI detection process occurs in three phases: 1) vehicle in motion; 2)
personal contact; and 3) pre-arrest screening. Police officers are instructed
at their respective police academies to administer, score, and evaluate
Standardized Field Sobriety Tests (SFSTs) in a standardized manner.
These phases constitute the systematic and evolving process by which the
police officer investigates and gathers evidence to establish probable cause
to arrest and charge a driver with the offense of driving under the
influence. The author will briefly discuss each of these phases.
Phase One: Vehicle in Motion
During Phase One, the officer observes the driver operating the vehicle.
The officer observes the vehicle to determine whether or not the vehicle
is being driven in such a manner that would suggest that the motorist may
be impaired. The officer can stop a vehicle for any violation of the Illinois
Vehicle Code. In addition, the NHTSA guidelines instruct the officers to
observe, for example, the following cues that could indicate that a driver
is impaired: weaving, weaving across lanes, straddling a lane line, drifting,
almost striking another object or vehicle, stopping too short or beyond a
line at an intersection or stopping in a jerking manner, accelerating or
decelerating rapidly, varying speed, driving in an opposing lane of traffic,
slow response to traffic signals, slow or failure to respond to the officer’s
signals to stop, stopping for no reason, driving without headlights, failure
to signal or signals inconsistent with maneuvers, improper lane change, or
an illegal turn. The NHTSA guidelines also instruct the officer, after
signaling the driver to stop, to observe the stopping sequence. Cues of
impairment regarding the stopping sequence may include an attempt to
flee, no response, slow response, an abrupt swerve, a sudden stop, or
striking the curb.80
In Illinois, the police officer needs reasonable and articulable suspicion,
and not probable cause, that a motorist has committed an offense in order
to stop the vehicle. The most common vehicle code violation cited by
police officers for stopping a vehicle is improper lane usage, discussed in
depth above. The DUI defense attorney must analyze the alleged traffic
80
National Highway Traffic Safety Administration, VEHICLE IN MOTION, STUDENT
MANUAL: DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING VIII-1 (2006).

By David Franks
violation to determine whether or not the driver actually committed a
violation, to determine whether or not the arresting officer had reasonable
and articulable suspicion to stop the driver. Where the arresting officer’s
stop of a vehicle is improper, or questionable, the attorney must file a
Motion to Suppress challenging the lawfulness of the stop. If the court
denies the motion, and the attorney and client proceed to trial in order to
try to beat the DUI charge, then the attorney must elicit testimony
stressing the client’s good driving and smooth stop.
Phase Two: Personal Contact
If the police officer has reasonable and articulable suspicion that the
driver has committed an offense, the officer will stop the vehicle. The
officer then makes contact with the driver. The officer observes and
“interviews” the driver. Based upon these observations and the
“interview,” the officer then decides whether or not to direct the driver to
exit the vehicle for additional investigation―i.e., the administration of the
Standardized Field Sobriety Tests. The NHTSA guidelines instruct the
officers to observe, for example, the following cues which could indicate
that a driver is impaired: bloodshot eyes, soiled clothing, fumbling fingers,
alcohol containers in the vehicle, drugs or drug paraphernalia, slurred
speech, admission of drinking, inconsistent responses, abusive language,
the odor of alcohol, and “cover up” odors such as breath mints or sprays.
During this phase, the police officer may conduct the following divided
attention tests: 1) asking the driver for two things simultaneously, or
asking distracting questions; 2) an alphabet test, requesting the driver to
recite certain letters of the alphabet; and 3) a counting test, directing the
driver to count backwards from a particular number to a particular
number. The NHTSA guidelines also instruct the officers, after directing
the driver to exit the vehicle, to observe how the driver exits the vehicle.
Cues of impairment regarding how a driver exits the vehicle may include:
cannot follow instructions; cannot open the door; leaves the vehicle in
gear; and once outside the vehicle, leans against the vehicle for balance,
and keeps hands on the vehicle for balance.81
81
National Highway Traffic Safety Administration, PERSONAL CONTACT, STUDENT
MANUAL: DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING IV-2 (2006).

The DUI defense attorney must stress what tasks the driver performed well,
and how the driver demonstrated good motor skills. At hearing on a
Motion to Suppress, or at trial, the defense attorney, for example, should
elicit testimony describing that the driver pulled over and stopped
appropriately, answered the officer’s questions without hesitation and in an
appropriate manner, retrieved and produced his or her driver’s license and
proof of insurance with no difficulty, provided the driver’s license to the
officer using his or her fingertips, recited the alphabet correctly, exited the
vehicle smoothly and in a coordinated manner, and once outside the
vehicle, did not lean on the vehicle at any time for balance or support.
Phase Three: Pre-Arrest Screening
Phase Three entails the police officer administering the structured
Standardized Field Sobriety Tests: the horizontal gaze nystagmus (HGN)
test, walk-and-turn/heel-to-toe test, and one-leg-stand test.
With respect to the HGN test, the NHTSA guidelines instruct the officers
to observe the following cues which could indicate that a driver is
impaired: lack of smooth pursuit, distinct and sustained nystagmus at
maximum deviation, and onset of nystagmus prior to 45 degrees.82 In the
landmark case of People v. McKown,83 the Illinois Supreme Court, adopting
the trial court’s conclusion of law, ruled on the admission of HGN
evidence and its use at trial. The Supreme Court adopted and affirmed the
trail court’s five conclusions of law:
1. HGN testing satisfies the Frye standard in Illinois.
2. HGN testing is but one facet of field sobriety testing and is
admissible as a factor to be considered by the trier-of-fact
on the issue of alcohol or drug impairment.
3. A proper foundation must include that the officer has been
adequately trained, has conducted testing and assessment in
accordance with the training, and that the officer
administered the particular test in accordance with his
training and proper procedures.
82
National Highway Traffic Safety Administration, CONCEPTS AND PRINCIPLES OF THE
STANDARDIZED FIELD SOBRIETY TESTS, STUDENT MANUAL: DWI DETECTION AND
STANDARDIZED FIELD SOBRIETY TESTING VIII-5 (2006).
83
People v. McKown, 236 Ill. 2d 278 (2010).

By David Franks
4. HGN testing results should be limited to the conclusion
that a “failed” test suggests that the subject may have
consumed alcohol and may have been under the influence;
there should be no attempt to correlate the test results with
any particular blood-alcohol level or range or level of
intoxication.
5. In conjunction with other evidence, HGN may be used as a
part of the police officer’s opinion that the subject was
under the influence and impaired.84
With respect to the walk-and-turn/heel-to-toe test, a divided attention test,
the NHTSA guidelines instruct the officers to observe the following cues
which could indicate that a driver is impaired: Cannot keep balance while
listening to instructions, starts before instructions are finished, stops while
walking, does not touch heel-to-toe, steps off the line, uses arms to balance,
improper turn, and incorrect number of steps. Two or more clues may
indicate that the motorist is impaired.85
Regarding the one-leg-stand test, another divided attention test, the
NHTSA guidelines instruct the officers to observe the following cues which
could indicate that a driver is impaired: sways while balancing, uses arms for
balance, hopping, and puts foot down. Two or more clues may indicate that
the motorist is impaired.
The NHTSA SFST training manual instructs officers that validation of
these tests applies only when the tests are administered in the prescribed,
standardized manner; the standardized clues are used to assess the driver’s
performance; and the standardized criteria are used to interpret that
performance. According to the NHTSA SFST student training manual, if
any one of these standardized field sobriety test elements is changed, the
validity of the test is compromised.86
84
Id.
85
86

As part of Phase Three, the officer may also administer a preliminary
breathalyzer test (PBT), a portable hand-held breathalyzer device which
can be used to establish probable cause to arrest a motorist suspected of
driving under the influence. In Illinois, the PBT result is inadmissible
evidence at trial.87
Again, the DUI defense attorney must stress what elements of the
Standardized Field Sobriety Tests the driver performed well, and how the
driver demonstrated good motor skills. At hearing on a Motion to
Suppress, or at trial, the defense attorney, for example, should elicit
testimony describing that the driver: walked normally while outside the
vehicle; did not sway or lose balance during the HGN test; touched heel-to-
toe, took the required nine steps each way, did not use his or her arms for
balance during the walk-and-turn/heel-to-toe test; and did not hop or use
his or her arms for balance, and actually achieved the count of thirty, during
the one-leg-stand test.
The defense attorney should also elicit testimony regarding any
environmental factors that may have adversely affected the driver’s
performance on the SFST’s. Poor lighting, extreme cold, strong winds, an
uneven surface, the driver facing the squad car with activated overhead
oscillating lights, and closely passing traffic could adversely affect a driver’s
ability to successfully complete these tests. For example, if the officer
administers the horizontal gaze nystagmus test while the driver is facing the
squad car with activated overhead oscillating lights, the results of this “test”
are meaningless since the arresting officer will be unable to distinguish
between nystagmus caused by the ingestion of alcohol, and optokinetic
nystagmus, caused by flashing lights. The defense attorney should elicit
testimony regarding the driver’s physical condition, which may have
adversely affected the driver’s performance on the SFST’s. Fatigue, age,
weight, and leg, back or foot injuries are factors that could adversely affect a
driver’s ability to successfully complete these tests.
The defense attorney should also review the video (if available) depicting
the arresting officer’s contact with the driver at the scene to analyze the
manner in which the arresting officer administered the SFST’s. The DUI
87
People v. Rose, 268 Ill.App.3d 174 (4th Dist. 1994).

By David Franks
defense attorney should obtain a copy of and become very familiar with the
NHTSA manual to determine whether or not the arresting officer provided
the correct instructions to the driver; administered the SFST’s in the
prescribed, standardized manner; used standardized clues to assess the
driver’s performance; and used the standardized criteria to evaluate the
driver’s performance. For example, the author has handled more than one
case where the arresting officer has failed to document that the driver
reached the count of thirty during the one-leg stand test, or provided
incorrect instructions to the driver regarding the SFST’s, and then
documented a clue of impairment after the driver followed the incorrect
instruction. The DUI defense attorney must note discrepancies between the
information provided in the arresting officer’s police report, and what is
contained in the video depicting the arresting officer administering the
SFST’s to the driver.
The defense attorney should issue a subpoena duces tecum requesting a copy of
the arresting officer’s training records, specifically requesting a copy of the
officer’s basic and advanced training in DUI detection and standardized
field sobriety testing. The author provides, as Appendix F, a sample subpoena
duces tecum to obtain these materials. The defense attorney can also issue a
subpoena duces tecum to the police academy the officer attended, requesting a
copy of the NHTSA DWI Detection and Standardized Field Sobriety
Testing Student Manual used to train the officer. At hearing on a Motion to
Suppress, or at trial, the defense attorney should establish through the
officer’s testimony that the NHTSA is the authority for providing training
in DWI detection and standardized field sobriety testing. Ideally, the
defense attorney should obtain testimony from the arresting officer that the
NHTSA manual presented in court to the officer is a copy of the manual
from which he was trained. Depending on a client’s resources, the defense
attorney may wish to consider retaining the services of an expert, such as a
former police officer or police academy SFST instructor, who can review
the police report and video, and testify regarding how the arresting officer
incorrectly administered and scored the SFST’s.
Recent Discovery Issues/Destruction or Loss of Video Recordings
Many police departments video record DUI arrests. The video recordings
often depict the arresting officer following and stopping the defendant’s

vehicle, and administering Standardized Field Sobriety Tests to the defendant.
The loss or destruction of these video recordings, important and relevant
evidence with potential exculpatory value, has become a significant issue in
defending drivers arrested for the offense of driving under the influence.
In People v. Aronson,88 the appellate court affirmed the trial court’s ruling to
rescind the statutory summary suspension of the defendant’s driver’s license
where the content of the video would have been relevant to the issue of
reasonable grounds, whether or not the arresting officer had reasonable
grounds to believe that the defendant was driving or in actual physical
control of a motor vehicle upon a public highway of the state of Illinois
while under the influence of alcohol, drugs, or a combination thereof. In
Aronson, the arresting officer video recorded the defendant’s arrest, but the
department could not download the video recording. The trial court relied
upon a principle of civil law which states that if there is evidence in
possession of one party that is destroyed, whether inadvertently or not,
there is an inference that such evidence was detrimental to the party in
control of the evidence. The appellate court noted that the trial court
determined that the defendant’s testimony, when bolstered by the
presumption that the video would have been detrimental to the state,
outweighed the officer’s testimony.
In People v. Kladis,89 a landmark Illinois decision, the arresting officer
videotaped the defendant’s arrest for driving under the influence. Five days
later, the defendant filed a notice to produce pursuant to Illinois Supreme
Court Rule 237 that commanded the state to produce the videotape
depicting defendant’s arrest and detention. The defendant did not issue a
subpoena duces tecum for the videotape. The police department, however,
destroyed the videotape pursuant to its thirty-day automatic purge policy.
The Illinois Supreme Court held that the destruction of the videotape, after
a written request for its production, was a discovery violation. The Supreme
Court held that the trial court did not abuse its discretion in barring the
arresting officer’s testimony regarding anything that would have been
depicted in the video as a discovery sanction, characterizing the sanction as
“narrowly tailored.”90
88
People v. Aronson, 408 Ill.App.3d 946 (2d Dist. 2011),
89
People v. Kladis, 960 N.E.2d 1104 (Ill. 2011).
90
Id.

By David Franks
Kladis “clarified” and expanded the scope of People v. Schmidt,91 which
defined the scope of discoverable materials. In Schmidt, the Illinois Supreme
Court held that the state is required to furnish defendants in misdemeanor
cases with a list of witnesses, any confession of a defendant, any evidence
negating a defendant’s guilt, and, in a case for driving while intoxicated, the
results of a breathalyzer test. The Kladis court concluded that “the routine
video recording of traffic stops has now become an integral part of those
encounters, objectively documenting what takes place by capturing the
conduct and the words of both parties.”92 The Kladis court held that under
Schmidt, video recordings of traffic stops are discoverable in misdemeanor
DUI cases.93
Writing for the court, Justice Freeman stated:
The video recording is relevant and admissible evidence
because it reveals what transpired during the traffic stop
which serves to further the truth-seeking function of a trial.
This evidence may be helpful to both the defendant and the
State. Indeed, the flow of cases actually going to trial may be
eased upon allowing defendants and their counsel to review
these recordings: those which reflect events favorable to the
State may result in defendants willing to enter pleas which
they otherwise may not have contemplated. This also
advances the purpose of our DUI statutes to ensure that our
roads remain safe from impaired drivers.94
The DUI defense attorney must issue a subpoena duces tecum to the police
department in order to obtain all video recordings with respect to a driver’s
arrest for the offense of driving under the influence. If the police
department does not produce an in-squad video recording, then the defense
attorney should determine whether or not the squad car operated by the
arresting officer was equipped with an in-squad video system.95 The defense
attorney should also consider preparing and filing a Motion for the
91
People v. Schmidt, 56 Ill.2d 572 (1974).
92
Kladis, 960 N.E.2d at 1110.
93
Id.
94
Id. at 1112.
95
The author provides a sample subpoena duces tecum as Appendix I.

Sequestration, Preservation, and Production of police radio transmission
recordings, and video-taped and video-recorded communications. See
Appendix H. The defense attorney should also obtain a copy of the
operator’s manual for the in-squad video system, a copy of the police
department’s operational orders for video recording traffic and DUI stops,
and copies of documents reflecting the arresting officer’s training in the use
of the in-squad video system.
If the arresting officer video recorded the driver’s arrest for DUI, and the
police department loses or destroys the video recording, and thereby fails to
produce the video recording pursuant to a subpoena duces tecum or court
order, then the DUI defense attorney must file a Motion for Sanctions. The
defense attorney must bear in mind that bad faith is not necessarily an issue
in a Motion for Sanctions. The defense attorney should argue that the
destruction/loss of the video recording, or gap in the video recording, is a
discovery violation, and even when said discovery violation is inadvertent,
the court should impose a sanction against the prosecutor and law
enforcement agency. The defense attorney should not demand the dismissal
of the case, unless the police conduct was especially egregious. Rather, the
defense attorney should argue for a sanction proportionate to the discovery
violation―i.e., barring the arresting officer(s) from testifying about the
events that would have been depicted in the video.96
The Expansion of Kladis to the Police Station
The DUI defense attorney should consider requesting the sanctions upheld
in Kladis to address the destruction of video recordings depicting the
driver’s processing at the police station and the administration of the
evidentiary breathalyzer test. Specifically, defense attorneys should argue for
proportionate sanctions when the police department loses or destroys video
recordings that would have depicted the officer’s or breathalyzer operator’s
compliance with the twenty-minute observation period preceding the
administration of the evidentiary breathalyzer test.
96
People v. Aronson, 408 Ill.App.3d 946 (2d Dist. 2011). See also People v. Camp, 352
Ill.App.3d 257 (2d Dist. 2004); People v. Johns, 336 Ill.App.3d 682 (1st Dist. 2002);
People v. Petty, 311 Ill.App.3d 301 (2d Dist. 2000); People v. Schambow, 305 Ill.App.3d
763 (2d Dist. 1999); People v. Koutsakis, 255 Ill.App.3d 306 (3d Dist. 1993); People v.
Kladis, 960 N.E.2d 1104 (Ill. 2011) for discussions of proportionate sanctions for a
discovery violation.

By David Franks
20 Illinois Administrative Code 1286.310 states, in part: “The following
procedures shall be used to obtain a breath sample to determine a subject’s
BrAC with an approved evidentiary instrument: a) Prior to obtaining a
breath analysis reading from a subject, the BAO or another agency
employee shall continuously observe the subject for at least 20 minutes.”
When a police department video-records the administration of the
evidentiary breathalyzer test, and then loses or destroys the video recording,
and thereby fails to produce the video recording pursuant to a subpoena duces
tecum or court order, then the DUI defense attorney should file a Motion
for Sanctions. The defense attorney should argue that as a result of the
police department’s failure to record, or to preserve, copy, and store the
requested video recording, the defendant/petitioner is unable to review and
study the only piece of evidence―the video recording that would have
depicted the officer’s compliance with the mandatory twenty-minute
observation period―to ensure that the arresting officer(s) in fact complied
with the required twenty-minute observation period before administering
defendant/petitioner’s evidentiary breathalyzer test. See Appendix K.
Future Trends
Blood Draws
Law enforcement agencies may begin to demand that drivers suspected of
driving under the influence submit to a blood draw and analysis to
determine either the blood-alcohol concentration of, or the presence of
drugs or the combined presence of alcohol and drugs in, a driver’s blood.
Law enforcement agencies obtaining Department of Transportation grants
for a Sustained Traffic Enforcement Program (STEP), such as a roadside
safety check/roadblock operation, may decide that the blood test results are
the “gold standard” to ensure a plea of “Guilty” or a conviction at trial. At
least one county in Illinois has required motorists to submit to a blood draw
by on-scene civilian phlebotomists when stopped at a roadside safety check
and suspected of driving under the influence. With an available on-call
judge to sign search warrants, the officers conducting the roadblock could
obtain a blood draw if a motorist refused to consent to the draw. Law
enforcement personnel, however, are not permitted to use force to obtain a

sample of bodily fluids. In People v. Farris,97 the appellate court held that law
enforcement has no statutory authority to use force to obtain a blood
sample if the defendant refuses to cooperate. The court held that taking a
blood sample by force serves no legitimate law enforcement purpose. Id.
Check Cite Number The court noted that a defendant’s refusal to comply
with the request for a blood sample is sufficient to justify a statutory
summary suspension of the defendant’s driver’s license.
In Arizona, some police officers have been trained in phlebotomy. Referred
to as “phlebocops,” these officers are trained to draw blood from a driver,
and do so, even on scene for routine DUI arrests.
Drug DUIs
Although most driving under the influence offenses are the result of
alcohol-induced impairment, DUI offenses caused by the ingestion of drugs
is a growing trend. Drug-induced DUIs are not limited to illegal drugs, and
may also include impairment caused by prescription medications. In
response to this growing trend, law enforcement agencies have allocated
funding for some police officers to complete training to become Drug
Recognition Experts (DRE). In order to qualify as a DRE, a police officer
must attend and complete a two-day, sixteen-hour DRE pre-school (Phase
I); attend and complete a seven-day, fifty-six-hour DRE school (Phase II);
obtain field certification, which requires, in part, the student to participate
in and document the results of at least twelve drug evaluations, often
requiring several months to complete (Phase III); and pass an eight-hour
final knowledge exam. Every two years the DRE must “recertify” in order
to maintain his or her certification. Recertification requires four DRE
evaluations over the two-year period; eight hours of recertification training;
and submitting an updated rolling log to the DRE state coordinator (or
designee).98
DREs receive instruction in identifying and classifying the seven categories
of drugs:
97
People v. Farris , 2012 IL App (3d) 100,199, 968 N.E.2d 191, 360 Ill.Dec.
112 (Ill.App. 3 Dist. Apr 10, 2012).
98
International Association of Chiefs of Police, THE INTERNATIONAL STANDARDS OF THE
DRUG EVALUATION AND CLASSIFICATION PROGRAM (2007), available at
http://www.chp.ca.gov/dre/docs/dre_standards.pdf.

By David Franks
1. Central Nervous System (CNS) depressants (alcohol, barbiturates,
and antidepressants)
2. CNS stimulants (cocaine, amphetamines, and methamphetamine)
3. Hallucinogens (LSD, Ecstasy)
4. Dissociative anesthetics (PCP)
5. Narcotic analgesics (opium, heroin, Vicodin)
6. Inhalants (paint, gasoline, paint thinners)
7. Cannabis (THC and synthetic cannibinoids)99
DREs are taught to conduct a standardized twelve-step drug evaluation
process. This standardized twelve-step drug evaluation process, used to
assess those suspected of drug-induced impairment, entails the following:
1. Breath Alcohol Test. The DRE can determine, in part, whether or
not the concentration of alcohol is sufficient to be the only cause
of impairment.
2. Interview the Arresting Officer. The DRE speaks with the arresting
officer to determine what he or she saw or heard during contact
with the suspect.
3. Preliminary Examination. The DRE asks the suspect a series of
questions and observes the suspect to determine if the subject
could be injured, or demonstrates signs of drug influence.
4. Examination of the Eyes. The DRE conducts the HGN test,
vertical gaze nystagmus test, and checks the suspect’s eyes for lack
of convergence toward the bridge of the nose.
5. Divided Attention Psychophysical tests. The DRE conducts the
Romberg balance test, walk-and-turn test, one-leg-stand test, and
the finger-to-nose test.
6. Vital Signs Examination. The DRE conducts a systematic check of
the suspect’s blood pressure, pulse rate, and temperature.
7. Dark Room Examination. The DRE conducts systematic checks of
the size of the suspect’s eyes, the reaction of the pupils to light, and
looks for signs of ingestion of drugs by nose or mouth.
99
See NHTSA, DRUG EVALUATION AND CLASSIFICATION TRAINING: THE DRUG
RECOGNITION EXPERT TRAINING SCHOOL (2010); Preliminary Training for Drug
Evaluation and Classification, HS172A R01/10, available at http://www.wsp.wa.gov/
breathtest/docs/webdms/DRE_Forms/Manuals/drepre/Instructor%20Manual%20%20Jan
uary%202010.pdf.

8. Examination of Muscle Tone. Certain drugs will cause a suspect’s
muscles to be rigid, while others may cause a suspect’s muscles to
be flaccid.
9. Examination for Injection Sites. The DRE officer looks for signs
of scars or needle tracks.
10. Subject’s Statements and Other Observations. The DRE should
have articulable suspicion regarding the category or categories of
drugs the suspect may have ingested.
11. Opinion of the Evaluator. The DRE should be able to determine
whether or not the suspect is under the influence of drugs, and the
category of drugs that is the probable cause of the suspect’s
impairment.
12. Toxicological Examination. A chemical test or tests to provide
evidence to substantiate the DRE’s conclusions.100
Unlike rendering an opinion regarding impairment induced by alcohol
consumption, the arresting officer’s skills, experience, and training are
critical in determining whether or not the officer can provide testimony,
and his or her opinion, that a defendant was under the influence of drugs. A
layman is competent to testify regarding intoxication from alcohol, since
such observations are within the competence of all adults of normal
experience.101 With respect to drugs, the testimony of a police officer that a
defendant was under the influence of drugs would be sufficient, provided
that the officers had relevant skills, experience, or training to render such an
opinion.102 The opinion of an officer regarding whether a person is under
the influence of drugs is circumstantial evidence that may be considered
sufficient provided that the officer has the relevant skills, experience, or
training to render such an opinion. In other words, the officer would have
to be qualified by the court as an expert in order to reach such a
conclusion.103 In Workman, the appellate court reversed the trial court’s
judgment because, in part, the arresting officer did not demonstrate the
level of expertise to sustain the charge―the arresting officer had no
100
See id.
101
People v. Jacquith, 129 Ill.App.3d 107 (1st Dist. 1984).
102
People v. Bitterman, 142 Ill.App.3d 1062 (1st Dist. 1986); People v. Vanzandt, 287
Ill.App.3d 836 (5th Dist. 1997) (ruling that the officer was not qualified to provide expert
testimony on the complex physiological effects that alcohol produces in diabetics);
People v. Foltz, 403 Ill.App.3d 419 (5th Dist. 2010).
103
People v. Workman, 312 Ill.App.3d 305 (2d Dist. 2000).

By David Franks
knowledge of Lorazepam, its nature, or its effects on a driver. In People v.
Shelton,104 the appellate court reversed the judgment of the trial court, ruling
that the trial court erred in allowing the arresting officer to state his opinion
concerning whether the defendant was under the influence of drugs since
the arresting officer had no extensive experience with drug users and where
there was no evidence of the effects of any drugs.
Whether or not a certified DRE officer arrested the defendant, the
defense attorney should issue a subpoena duces tecum to the police
department or the arresting officer requesting the production of all
records regarding the officer’s basic and advanced training, if any, in DUI
drug detection. With respect to a DRE officer’s training, the defense
attorney should obtain the following records: any and all records
regarding the officer’s training in drug recognition, copies of the officer’s
DRE certifications, a copy of the officer’s rolling logs prior to and after
certification, a copy of the officer’s DRE student manual, a copy of the
officer’s SFST certificate of training, a copy of any manuals, books or
treatises upon which the officer relies for continued proficiency, and a
copy of the drug recognition forms the officer used to evaluate your
client. The officer’s skills, experience, and training could be critical factors
for a defense attorney in determining whether or not to prepare and
proceed to hearing on a Motion to Suppress, and would be crucial to an
effective cross-examination of the arresting officer at trial.
This author respectfully submits that in light of the complexities and
nuances associated with pharmacology, pharmacokinetics, toxicology, and
physiology, police officers completing a DRE curriculum should be referred
to as “drug recognition estimators.”
Conclusion
The DUI defense attorney must be knowledgeable about the requirement
of reasonable and articulable suspicion, rather than probable cause, in order
for an officer to stop a vehicle; Fourth Amendment issues as they pertain to
a police officer’s entry into a suspect’s home, roadside safety
checks/roadblocks, and inventory searches and searches incident to arrest;
104
People v. Shelton, 303 Ill.App.3d 915 (5th Dist. 1999).

the NHTSA standards and procedures police officers must follow when
administering, evaluating, and scoring standardized field sobriety tests;
discovery issues and sanctions with respect to law enforcement losing or
destroying video recordings; the increase in DUI offenses based upon drug
impairment and the state’s burden in proving the essential elements of these
offenses; and Drug Recognition Expert (DRE) training and certification.
As more officers are trained in the DRE protocol, and since drugs are so
prevalent, this author respectful submits that there will be an increase in
DUI offenses based upon the ingestion of drugs. In order to stay current
with this trend and to acquire the necessary, particularized skills and
knowledge to defend these cases, this author recommends that defense
attorneys attend legal education seminars that specifically address DUI drug
defense, and acquire and become familiar with the training manuals used by
law enforcement to train officers to become Drug Recognition Experts.
The development and use of synthetic drugs will present further challenges
in this area of DUI defense.
If one decides to commit to, pursue, and become knowledgeable in this
area of criminal defense―specifically, DUI defense―counsel will be
constantly challenged since this area of the law continues to evolve.
Key Takeaways
• With respect to improper lane usage violations, which often form
the basis for stops leading to DUI arrests, each case must be
evaluated on its own specific and particular facts. The attorney
must consider all of the specific facts related to the alleged
improper lane usage violation, and analyze the facts and
circumstances known by the officer at the time. The attorney must
ascertain the specific details of the officer’s observations in order to
determine if the statute has been violated. For example, the DUI
defense attorney must determine the following: the number of
times the defendant’s tires crossed the fog line or lane divider line,
the distance the defendant’s tires crossed the fog line or lane
divider line, the traffic conditions at the time of the alleged
violation, and whether or not other vehicles took evasive action to
avoid colliding with defendant’s vehicle.

By David Franks
• The DUI defense attorney should always review and evaluate the
officer’s reasonable and articulable suspicion for stopping a vehicle.
In other words, challenge the stop! In those cases where a stop is
improper or questionable, the defense attorney should file a
Motion to Suppress arguing that the arresting officer had no reason
to stop the client’s vehicle.
• The DUI defense attorney must become familiar with Fourth
Amendment issues as they relate to roadside safety checks/roadblocks,
a police officer’s entry into a suspect’s home, and searches incident to
arrest and inventory searches of motor vehicles.
• The DUI defense attorney must become familiar with the NHTSA
student manual entitled “DWI Detection and Standardized Field
Sobriety Testing” in order to learn the standardized procedures for
administering, evaluating, and scoring the tests so that the attorney
can counter the arresting officer’s assessments of impairment.
Similarly, the attorney must review the video depicting the arresting
officer administering the Standardized Field Sobriety Tests to the
client. The DUI defense attorney should subpoena the arresting
officer’s training records reflecting the officer’s basic and advanced
SFST training, as well as a copy of the NHTSA manual used to
train the officer.
• The DUI defense attorney should be familiar with case law
addressing discovery violations where the police department fails,
pursuant to a subpoena or court order, to provide necessary and
critical evidence: the video recording depicting the arresting
officer’s contact with defendant and containing
information/evidence that established the probable cause to arrest
the defendant. In the event of this discovery violation, the DUI
defense attorney should file a Motion for Sanctions, asking the
court to impose a sanction against the prosecutor and the police
department proportionate to the discovery violation―barring the
officer(s) from testifying to information that would have been
depicted in the video.
• The DUI defense attorney should become familiar with the case
law addressing the prosecutor’s burden of proof with respect to
DUI drug cases.
• The DUI defense attorney must also learn the arresting officer’s

skills, training, and experience to determine whether or not the
arresting officer can provide his or her opinion that the defendant
was impaired as a result of ingesting drugs. The DUI defense
attorney should become familiar with Drug Recognition Expert
(DRE) training, and the standardized twelve-step drug evaluation
process. The defense attorney should acquire copies of the DRE
training manuals.
David B. Franks, a partner at Franks & Rechenberg PC, is a criminal, DUI, and
traffic defense attorney who has practiced criminal law since 1990. He has more than
nineteen years of criminal prosecution and criminal defense experience, and now focuses
his practice on DUI defense. Mr. Franks is a past chair of the Illinois State Bar
Association (ISBA) Traffic Laws and Courts Section Council, and is currently a
member of that Section Council and the ISBA Criminal Justice Section Council, where
he also served from 1990 through 1999. Mr. Franks will again chair the Illinois State
Bar Association Traffic Laws and Courts Section Council in 2014.
Mr. Franks served as an assistant state’s attorney in both Cook County and McHenry
County. In McHenry County he served four years as a prosecutor in the Misdemeanor
and Felony Divisions, and also served as the Misdemeanor and Traffic Division
Supervisor. Mr. Franks is a member of the National College for DUI Defense and the
National Association of Criminal Defense Lawyers. Mr. Franks has completed training
in administering and evaluating Standardized Field Sobriety Tests (SFSTs), as well as
the Standardized Field Sobriety Testing Instructor Course, according to National
Highway Traffic Safety Administration standards.
Mr. Franks has attended several Illinois Institute for Continuing Legal Education-
sponsored DUI defense seminars. Since 2004, he has contributed as an annual speaker
during ISBA Traffic Laws and Courts-sponsored Continuing Legal Education (CLE)
programs. In January 2007, Mr. Franks appeared on Chicago Cable Access Channel
21 Television as a panelist on Illinois Law, DUI Issues: General and Specific.
Mr. Franks earned his Bachelor’s degree from Carleton College, Northfield, Minnesota,
and his JD from the American University Washington College of Law in Washington,
D.C. Mr. Franks is a member of the Illinois State Bar Association and McHenry
County Bar Association. He is admitted to practice in the state of Illinois, before the
Federal District Court for the Northern District of Illinois and the United States
Supreme Court. He is a Navy veteran, having served for twenty-seven years as an

By David Franks
Intelligence Officer on active and reserve duty. He completed national security courses at
the U.S. Naval War College in Newport, Rhode Island and National War College in
Washington, D.C. He retired in 2007, achieving the rank of commander.
In 2012, Martindale-Hubbell recognized Mr. Franks with an “AV” Preeminent peer
review rating.
Acknowledgment: This chapter would not have been possible without the mentorship
and guidance of Attorney Donald J. Ramsell of Ramsell and Associates, LLC and
Attorney J. Brick Van Der Snick of the Van Der Snick Law firm, and the support of
my law partner, David N. Rechenberg, and our receptionist, Marlo Kreczmer, who has
been rock solid in our front office. I would also like to acknowledge the National College for
DUI Defense for the information and support this organization provides. I also thank the
judges of McHenry County, including the Hon. Charles Weech, Hon. Robert Wilbrandt,
Hon. Robert Beaderstadt, Hon. Gordon Graham, Hon. Michael Feetterer, Hon. Joel
Berg, Hon. Sharon Prather, Hon. Joseph Condon, and Hon. John Young in Boone
County, who have demanded the best from me and other attorneys appearing before them. I
also thank my parents, Herbert Hoover and Eileen Pepper Franks, who decided, probably
at the moment of my birth, that I would be a lawyer, whether I wanted to or not.
Dedication: I dedicate this chapter to my family, the descendants of a Polish-Jewish
farmer who immigrated to the United States at the turn of the last century with the clothes
on his back, a third-grade education, and a gritty determination to ensure that his family
would succeed in America. We became farmers, lawyers, business people, and visionaries.
Thank you Grandpa Karol and Grandma Lottie; may you both rest in peace. To my wife,
Andrea, whose support for me has always remained strong. To my beautiful and bright
daughter, Miriam, and my entrepreneurial son, Kevin, I hope this chapter serves as an
example of what you can accomplish with hard work and determination. Finally, I dedicate
this chapter to my fellow DUI and criminal defense attorneys, who diligently fight to protect
the rights of the citizen accused, and to the prosecutors, who continually challenge us and
make our work rewarding.

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