Gonzalez-Balderas v. Holder (7th Circuit March 5, 2010)

On Petition to Review an Order of the BIA, the Seventh Circuit affirmed a denial of a Mexican National's request to reapply for admission retroactive to the date of her second reentry. The petitioner initially entered the U.S. illegally by using someone else's documentation and removed, which made her ineligible to seek readmission for five years. She illegally reentered a second time, which meant that she would be prevented from reapplying for permission to enter for ten years. Thus, in affirming the denial, the court held that application for retroactive relief cannot be granted when the effect would be to lift the ten-year bar.

Gonzalez-Balderas v. Holder, No. 09-1890

The petitioner, a Mexican citizen, entered the United States illegally by the use of someone else’s documentation and was promptly removed. 8 U.S.C. § 1225(b)(1)(A)(i). Her removal made her ineligible to seek readmission to the United States for five years unless she obtained permission to reapply for permission earlier. §§ 1182(a)(9)(A)(i), (iii).

Rather than either wait or ask for permission to reapply, she snuck back into the United States a month later. This meant that she was forbidden to reapply for permission to enter for ten years. § 1182(a)(9)(C)(i)(II)(ii). Still, here she was, undetected, and the following year her husband, a lawful permanent resident of the United States (since then he has become a citizen), whom she had married shortly after her second illegal entry, filed a visa petition on her behalf. The petition was granted, and later she filed an application to adjust her status, on the basis of her husband’s status, to that of a lawful permanent resident. § 1255(i)(1).

Upon discovering that she had reentered the country illegally after being removed, the Department of Home- land Security, though it could have removed her sum- marily, § 1231(a)(5), instead merely denied her applica- tion for adjustment of status and scheduled a new removal hearing. At that hearing which she asked the immigration judge to permit her to reapply for ad- mission retroactive to the date of her reentry. Her authority was 8 C.F.R. § 212.2(i)(2), which states that an adjustment of status can be ordered retroactively.

The immigration judge, seconded by the Board of Immigration Appeals, ruled on the authority of In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006), that an application for retroac- tive relief (which the Board calls “nunc pro tunc”—“now for then”—relief, a term that properly refers, rather, to cor- recting a mistake, Central Laborers’ Pension, Welfare & Annuity Funds v. Griffee, 198 F.3d 642, 644 (7th Cir. 1999); King v. Ionization Int’l, Inc., 825 F.2d 1180, 1188 (7th Cir. 1987)) cannot be granted when the effect would be to lift the ten-year bar.

Retroactive relief is a tool long employed by the immigra- tion authorities, based on what they believe to be implied statutory authority to provide relief from the harsh provi- sions of the immigration laws in sympathetic cases. See, e.g., Patel v. Gonzales, 432 F.3d 685, 693 (6th Cir. 2005); Edwards v. INS, 393 F.3d 299, 308-09 (2d Cir. 2004). This case conceivably is one. The petitioner is 51 years old and has three children, one a U.S. citizen and the others lawful permanent residents, and apart from her illegal entries she has been law-abiding. But the Board ruled that the regulation cannot contravene the statute that bars a removed alien from reapplying for admission for ten years.

Illinois Restricted Driving Permit (RDP) or Reinstatement, Illinois, Secretary of State hearing, Restoration of driver's license

Formal Hearing Request Form

Administrative Hearings Officer Hours

Safety Responsibility Hearing Request Form

How do I get a Restricted Driving Permit (RDP)? An application for a restricted driving permit may be made through an informal hearing or through a written request for a formal hearing.

What are the requirements for receiving a Restricted Driving Permit following a hearing? Requirements depend on the type of restricted driving permit for which you have been approved: Employment, Educational, or Medical. Once approved, you will need to:

1. File proof of Financial Responsibility Insurance

2. Take the driver's license examination at a facility.

3. Have an employer complete an Employment Verification (Educational Verification, medical affidavit, AA/Support Recovery affidavit).

4. Pay an $8 fee for the RDP.

* Note: If suspended (vs. revoked), items 1 and 2 may not be necessary.

A hearing officer presides at a formal hearing at which both testimony and documentary evidence, is heard. The officer is authorized to rule on all motions, administer oaths, subpoena witnesses or documents at the request of any party, examine witnesses and rule upon the admissibility of evidence.

Offenses such as reckless homicide and multiple DUI offenses are handled through formal hearings. An order reflecting the recommendation of the hearing officer and the decision of the Secretary of State is issued. Decisions from a formal hearing are subject to the Administrative Review Law.

A formal hearing must be requested in writing through the U. S. mail. No facsimiles or internet mail requests will be accepted. Petitioners are eligible for a subsequent hearing 90 days following their most recent hearing.

PLEASE NOTE: Any request for a formal hearing must by law be accompanied by a filing fee of FIFTY DOLLARS ($50.00). The fee may be submitted in the form of a check, money order, or by credit card. Payment shall be made payable to the Secretary of State. CASH WILL NOT BE ACCEPTED. If a request is received without the fee attached, the request will be returned and no hearing with be scheduled. This fee is NON-REFUNDABLE.

This is in accordance with Section 2-118 of the Illinois Vehicle Code and 92 Illinois Administrative Code 1001.70.

Formal hearings are held in four locations: Springfield, Chicago, Joliet, and Mt. Vernon. ________________________________________________________________________

INFORMAL HEARINGS

Conducted by an informal hearing officer, these hearings are held at selected Driver Services Facilities. No appointment is necessary.

Informal hearings may result in the issuance of a Restricted Driving Permit or full reinstatement of driving privileges to someone with one alcohol-related offense or sanctions related to lesser moving violations. The hearing officer submits all documentation to the main office in Springfield, and a decision is mailed to the applicant.

Informal hearings decisions cannot be appealed under the Administrative Review Law. Unfavorable decisions may be pursued further through the formal hearing process or through another informal hearing 30 days after the previous hearing.

INFORMAL HEARING REGIONS AND HEADQUARTERS

1. Region 1, consisting of the counties of Jo Daviess, Stephenson, Winnebago, Boone, DeKalb, Lee, Ogle, Whiteside, and Carroll, with headquarters in Rockford.

2. Region 2, consisting of the counties of Rock Island, Henry, Mercer, Knox, Warren, and Henderson, with headquarters in the City of Silvis.

3. Region 3, consisting of the counties of Kendall, Will, Grundy, Kankakee, and Livingston, with headquarters in Joliet.

4. Region 4, consisting of the counties of Fulton, Hancock, McDonough, Stark, Peoria, Woodford, and Tazewell, with headquarters in the City of Peoria.

5. Region 5, consisting of the counties of Iroquois, Ford, Vermilion, Douglas, Edgar, Moultrie, Coles, Clark, Cumberland, Champaign, and Piatt, with headquarters in the City of Champaign.

6. Region 6, consisting of the counties of Mason, Logan, Cass, Menard, Morgan, Sangamon, Scott, Christian, Greene, Macoupin, Schuyler, Adams, Brown, Pike, Shelby, and Montgomery, with headquarters in the Howlett Building, Springfield.

7. Region 7, consisting of the counties of Fayette, Bond, Marion, Clay, Clinton, Washington, Jefferson, Effingham, Jasper, and Crawford, with headquarters in Mt. Vernon.

8. Region 8, consisting of the counties of Calhoun, Jersey, Madison, Randolph, St. Clair, and Monroe, with headquarters in Belleville.

9. Region 9, consisting of the counties of Perry, Franklin, Jackson, Williamson, Saline, Gallatin, Union, Johnson, Pope, Hardin, Alexander, Pulaski, and Massac, with headquarters in Carbondale.

10. Region 10, consisting of the counties of Kane and DuPage, with headquarters in Naperville.

11. Region 11, consisting of the county of Cook, with headquarters in the building where the Department is located in Cook County.

12. Region 12, consisting of the counties of McHenry and Lake, with headquarters in Libertyville.

13. Region 13, consisting of the counties of Bureau, LaSalle, Putnam, and Marshall, with headquarters in the City of LaSalle.

14. Region 14, consisting of the counties of DeWitt, Macon, and McLean, with headquarters in Bloomington.

15. Region 15, consisting of the counties of Wayne, Edwards, Wabash, Lawrence, Richland, Hamilton, and White, with headquarters in Lawrenceville.

________________________________________________________________________ OUT OF STATE HEARINGS

Any out-of-state resident wishing to apply for reinstatement/clearance must make a written request for an Out-Of-State Hearing Application and either fax the request to (217) 524-7982, send e-mail to OOSHearings@ilsos.net, or send a letter through the U.S. mail to:

Office of the Secretary of State Department of Administrative Hearings Howlett Building, Room 208 Springfield, IL 62756

Please provide the following information:

1. Full Name (Include Your Middle Initial) 2. Current Address (Include P. O. Box #, Apt. #, or Lot #) 3. Telephone Number (Day & Evening) 4. Date of Birth 5. Illinois Driver's License Number or Reference Number (If Available) 6. Social Security Number 7. The Year and State of your Last Alcohol/Drug Related Arrest

NOTE: Section 6-208(b)4 of the Illinois Vehicle Code prohibits anyone with a fourth or subsequent arrest, on or after January 1, 1999, in any state, resulting in a fourth or subsequent conviction for driving under the influence of alcohol or other drugs, leaving the scene of an accident involving personal injury or death, reckless homicide, or any combination thereof,,from making application for a license/permit. Both the Illinois driving record and a petitioner's out of state driving records on the Federal National Driver Register "Problem Driver Pointer System" (PDPS) will be considered in determining if there is such a fourth or subsequent arrest and conviction. If there is, no driving relief is available to that petitioner in Illinois.

Any request received for additional or replacement Out-of-State Hearing Applications will require a replacement fee. Examples of requests for additional or replacement applications requiring a fee include, but are not limited to, the following reasons: not following directions when requesting or completing the application; address changes; postal return resulting in not receiving the application; lost or destroyed application; poor handwriting; or, staining or mutilation of the application. After this office has determined that you are requesting an additional or replacement application, you will be notified of the appropriate fee needed to mail your new hearing application. A replacement application fee can only be paid in the form of a money order or check.

PLEASE NOTE: Any Out-Of-State Hearing Application requiring a FORMAL HEARING must by law be accompanied by a filing fee of FIFTY DOLLARS ($50.00). The fee may be submitted in the form of a check, money order or by credit card. Payment shall be made payable to the Secretary of State. CASH WILL NOT BE ACCEPTED.

The Out-Of-State Hearing Application mailed to you will indicate if you are required to have a formal hearing and submit the required filing fee of $50.00. This fee is NON-REFUNDABLE. This is in accordance with Section 2-118 of the Illinois Vehicle Code and 92 Illinois Administrative Code 1001.70.

________________________________________________________________________ SAFETY RESPONSIBILITY HEARINGS

Safety Responsibility Hearing Request Form

The Safety Responsibility Law requires proof of insurance or the ability to pay for damages resulting from an accident within Illinois resulting in bodily injury or death of any person, or damage to the property of any one person in excess of $500.

Hearings are conducted to determine probable fault for motorists involved in crashes. An individual found at fault and not insured faces a license suspension of up to two years.

Safety Responsibility hearings must be requested in writing. Anyone requesting a hearing that is postmarked within 15 days of the mailing date of a suspension notice will be given a full hearing to contest the preliminary finding of the Secretary of State and the suspension will not be imposed pending the results of the hearing. Any request for a hearing postmarked after 15 days of the date of the notice of suspension will be accepted, however, the suspension will be imposed and not delayed pending the outcome of the hearing.

PLEASE NOTE: Any request for a hearing to contest a Safety Responsibility Suspension must by law be accompanied by a filing fee of FIFTY DOLLARS ($50.00). The fee must be submitted in the form of a money order, cashier's or certified check, a check drawn on the account of an attorney of record or an attorney professional corporation of record in the case before the Department, or by credit card. Payment shall be made payable to the Secretary of State. CASH OR PERSONAL CHECKS WILL NOT BE ACCEPTED. This fee is NON-REFUNDABLE. If a request is received without the fee attached, the request will be returned and no hearing will be scheduled.

This is in accordance with Section 2-118 of the Illinois Vehicle Code and 92 Illinois Administrative Code 1001.220.

Decisions from a safety hearing are subject to the Administrative Review Law.

__________________________________________________________

The following is a synopsis of the current rules governing the BAIID Program:

The breath alcohol ignition interlock device is required as a condition of receiving a Restricted Driving Permit (RDP) for persons who have EITHER two or three convictions for Driving Under the Influence (no time limit between offenses) OR either: two Statutory Summary Suspensions (as a result of two DUI arrests), or one conviction for DUI with a Statutory Summary Suspension from a separate DUI arrest-with both of the latter combinations of offenses occurring within ten years. Persons who fall under these categories and apply for an RDP must seek a Formal Hearing with the Secretary of State's Administrative Hearings Department. If as a result of this hearing the person is approved, they must pay to the Office of the Secretary a BAIID fee of $240 and an $8 RDP fee. Upon payment of these fees and fulfilling the other RDP requirements, the person will receive his/her RDP and a map--listing all of the BAIID installation sites within the state of Illinois--in the mail. They then will have fourteen days to choose a BAIID provider and have the device installed. The BAIID RDP holder must then have the device monitored thirty days after its installation, and then every sixty days for as long as the device is required to be installed in the vehicle. In addition to the fees charged by the office of the Secretary of State, persons within the program are also charged various fees by companies which provide the devices. Important Note: RDP holders with two or three DUI convictions are required to install the BAIID on ALL vehicles in which their name appears upon the registration for a period of 12 consecutive months.

Additionally, and mirroring the process to receive the Restricted Driving Permit in the first place, permit holders seeking full restoration of driving privileges must also go through a Formal Hearing. Permit holders with 2 convictions for DUI on their record and who are not yet eligible for full restoration of driving privileges may seek to renew their RDP through an Informal Hearing (available at most Secretary of State Driver Services facilities) for each successive year within their revocation periods. In both Informal and Formal Hearing proceedings, adherence to the BAIID program rules are taken into consideration by the Office of the Secretary of State in deciding whether to grant reinstatement, renewal, or permit cancellation.

Finally, persons who have two or three DUI convictions but have never sought or been granted a Restricted Driving Permit must install the BAIID on ALL vehicles in which their name appears upon the registration for a period of 12 consecutive months. AS A CONDITION OF FULL REINSTATEMENT OF THEIR DRIVER'S LICENSE.

FBAIID Installation Site Map and additional BAIID company information.


____________________________________
HOW TO OBTAIN A RESTRICTED DRIVING PERMIT OR REINSTATEMENT: Under Illinois law, drivers may apply for reinstatement or a Restricted Driving Permit under certain conditions.

Restricted Driving Permit (RDP) — Partial restoration of
driving privileges, which allows a person to drive in certain
areas, hours and days for employment, medical or
educational purposes when no other form of transportation
is available. The driver must prove a hardship exists and
submit proof of employment, support/recovery group
meetings, need for medical care, or an educational
verification form and class schedule. A person under
statutory summary suspension for a second or third DUI
within five years of the previous one is not eligible for relief
during the period of suspension. If convicted and
imprisoned for reckless homicide or aggravated DUI that was
a proximate cause of a death, no relief may be given until 24
months after release from imprisonment. If convicted of DUI
a second or third time, no relief is allowed for one year from
the effective date of the last revocation. Drivers under age 21
convicted for DUI are not eligible for an RDP until one year
from the effective date of revocation.

Restricted Driving Permit (RDP) Eligibility:
Must provide proof of “undue hardship” because of employment, medical, educational, support group or court ordered community service reasons.

Complete Alcohol/Drug Requirements:
If your record reflects an alcohol/drug related offense, you must complete the following requirements after your consultation: Complete an alcohol/drug evaluation by a Division of Alcoholism and Substance Abuse (DASA)-licensed provider within six months prior to your hearing date.

The evaluator will classify you as one of the following:
Minimal risk:

• Must complete an alcohol/drug remedial education class by a DASA-licensed provider.
Moderate or Significant risk:
• Must complete minimal risk requirements, AND
• Provide proof of completion of early intervention (moderate risk) or recommended alcohol/drug treatment (significant risk) and provide continuing care status report.
High risk:
• Provide proof of completion of recommended treatment and provide continuing care status report. If nondependent, a clinical examination of why dependency was ruled out must be provided, as well as proof of either abstinence or non-problematic use.
• Provide three letters from members of your support/recovery program confirming your participation in the program.
• Provide three letters from independent sources confirming your abstinence from alcohol/drugs.

Informal or Formal Hearing:
An informal hearing is for an offense that did not involve a fatality or for a single alcohol/drug-related offense. A formal hearing is for an offense involving a fatality or for multiple DUI dispositions.

RDP Granted: You will receive your RDP by mail. You have another hearing. You cannot operate a motor vehicle until you have the permit in your possession. If a BAIID is required, it must be installed within 14 days of the RDP.
• Provide proof of financial responsibility within 60 days.
• Pay $8 issuance fee.
• Submit verification of employment, support/recovery group meetings, medical, educational or court-ordered community service need for RDP.
• Take driver’s examination if required.
• If BAIID required, pay $240 BAIID RDP fee.

Denial: You have another hearing. You cannot operate a motor vehicle until you have the permit in your possession. If a BAIID is required, it must be installed within 14 days of the RDP.

Reinstatement Granted: Authorization for New License. You will receive authorization by mail. You may be required to take a full or partial driver’s license exam.

The following requirements must be
completed within six months or you will
have to start the process over:
• Provide proof of financial responsibility.
• Pay reinstatement fee.
• Complete BAIID requirements.
_______________________________
TERMS AND DEFINITIONS

Breath Alcohol Ignition Interlock Device (BAIID) —
A device that requires a driver to take a breath test and prevents
the vehicle from starting if a certain level of alcohol is detected.A
person issued an RDP who has received,in separate occurrences,
either: two or more DUI convictions; or, within 10 years, one DUI
conviction and one or more statutory summary suspensions, or
two or more statutory summary suspensions, is only allowed to
drive a vehicle equipped with a BAIID. An exception is allowed
for a vehicle owned by the person’s employer and used for
employment purposes only. Additionally, any person who has two
or more ILLINOIS DUI convictions also is required to install a
BAIID for 12 consecutive months on all vehicles owned by that
person.

DUI disposition — A conviction, an implied consent or a
statutory summary suspension for driving under the influence,
reckless homicide or fatal accident if alcohol/drugs were shown
to be a factor.

Consultation — First step in applying for reinstatement of
driving privileges or an RDP after suspension or revocation.
Consultation takes place with an informal hearing officer, who
reviews the applicant’s driving record and explains the
documents required to apply for reinstatement of driving
privileges or an RDP.

Denial — Refusal of any request for reinstatement or an RDP.
Eligibility date — Date a driver can be considered for
reinstatement following revocation or extension order. If “proj.
elig.” indicates N/A, the driver is ineligible for reinstatement or an
RDP.

Formal hearing — Required for a driver whose privileges
have been suspended or revoked for an offense(s) involving a
fatality or multiple DUI dispositions. A formal hearing must be
requested in writing along with a $50 filing fee.

Informal hearing — Required for a driver whose driving
privileges have been suspended or revoked for an offense not
involving a fatality or for a single DUI disposition.Held on a walkin
basis.

Proof of financial responsibility — Required before
reinstatement or issuance of an RDP. Must be filed with the
Secretary of State’s office in the form of a certified policy of
insurance, cash deposit or surety bond, and must be
maintained for three years. Coverage must be for at least
$20,000 for one person killed or injured; $40,000 for two or
more killed or injured; and $15,000 for property damages.
Insurance must be submitted on an SR-22 certificate.

Revocation — Loss of driving privileges for an indefinite
period. A driver may apply for an RDP but cannot apply for
reinstatement until eligible. To regain driving privileges, a
driver must meet certain legal and administrative
requirements. After a fourth or subsequent DUI conviction,
no relief for life.

Reinstatement — Full restoration of driving privileges.
Allows driving at any time and anywhere,provided the driver
has obtained a valid driver's license and is not
suspended/revoked or withdrawn in another state.
Statutory Summary Suspension — Administrative
suspension of driving privileges resulting from a DUI arrest.
A BAC of .08 percent or more, any trace of impairing drugs,
or failure to complete or refusal to test for alcohol or other
drugs results in an automatic suspension, effective the 46th
day the notice is given.This is separate from other criminal
charges filed against the driver.

Suspension — Loss of driving privileges for a period of
time, generally not more than a 12-month period. A person
may apply for an RDP to drive during a suspension;however,
certain suspensions may not allow for an RDP.
____________________________
Formal Hearing Officer Locations

17 N. State St., Ste. 1200
Chicago, IL 60602
312-793-3722

275 Howlett Building

Springfield, IL 62756

217-782-7065

218 S. 12th St.
Mount Vernon, IL 62864
618-242-8986

54 N. Ottawa St., 4th Fl.
Joliet, IL 60432
815-740-7171
_______________________
Primary Informal Hearing Officer Locations
(3 or more days a week)

Belleville 400 W.Main 618-236-8778
Bloomington 1510 W.Market St. 309-827-3531
Bradley 1111 Blatt 815-933-1713
Carbondale 2516 W.Murphysboro Rd. 618-457-0488
Champaign 2401 W. Bradley Ave. 217-278-3352
Joliet 54 N. Ottawa St., 4th Fl. 815-740-7166
LaSalle 536 Third St. 815-223-4861
Libertyville 342 Peterson Rd. 847-362-8498
Lombard 837 S.Westmore, Ste.B27 630-629-1069
Midlothian 14434 S. Pulaski 708-388-9647
Mt.Vernon 320 E. Main St. 618-244-1183
Naperville 931 W. 75th St., Ste. 161 630-355-5952
Peoria 3311 N. Sterling Ave. 309-686-8779
Sterling Bazaar Shopping Plaza
Rockford 3720 E. State St. 815-394-0329
Springfield 275 Howlett Building,
Second & Edwards Sts. 217-782-7065
Chicago 17 N. State St., Ste 1200 312-814-9598
Chicago Heights 570 W. 209th St. 708-481-0896
Chicago North 5401 N. Elston Ave. 773-794-5821
Chicago South 9901 S.Martin L. King Dr. 773-995-2615
Chicago West 5301 W. Lexington Ave. 773-854-4808
Schaumburg 1227 E. Golf Rd.,
Woodfield Commons 847-619-3318
Silvis 2001 Fifth St., Ste. 10 309-796-1321
Woodstock 428 S. Eastwood Dr. 815-338-3188
_______________________
Part-time Informal Hearing Officer Locations'
(1-2 days a week)

Centralia 418 S.Poplar 618-532-1551
Danville 5 E. Southgate Dr.,Tilton 217-442-1564
Decatur 3149 N.Woodford St. 217-875-1650
Edwardsville 1502A Troy Rd. 618-656-8956
Elgin 595 S. State 847-697-2105
Galesburg 1066 E. Losey 309-342-1154
Lawrenceville 406 N. 15th St. 618-943-7515
Princeton R.R. 2,Backbone Rd. East 815-875-2617
Sterling 1224 W. Fourth St. 815-626-2825
Waukegan 617 S. Green Bay Rd. 847-662-8514
(1-2 days a week)

DUI Defense Illinois Legal challenges to evidence

1. ILLEGAL STOP OF PERSON OR VEHICLE – a driver cannot be stopped unless the officer has a reasonable and articulate basis to believe that a traffic law or other law has been violated. Similarly, a person cannot be seized unless a violation has occurred.

2. WEAVING INSIDE THE LANES IS NOT ILLEGAL – weaving without crossing any lines is not a violation of the law, and a vehicle cannot be stopped for that reason.

3. ANONYMOUS REPORT OF DRUNK DRIVING -- a car cannot be stopped simply because an anonymous citizen reported that the driver was drunk.

4. STANDARD FIELD SOBRIETY TESTING IS INACCURATE – in healthy individuals, the one-leg stand test is only 65% accurate, and the walk-and-turn test is only 68% accurate in determining if a person is under the influence. Those persons with injuries, medical conditions, 50 pounds or greater overweight, and 65 years or older cannot be validly judged by these tests.

5. NON-STANDARDIZED FIELD TESTS ARE INVALID – neither the Federal Government (NHTSA) nor medical science considers touching your finger to your nose, or saying the alphabet, or counting backwards, as valid sobriety tests.

6. BREATH TESTING IS INACCURATE – virtually all experts concede that one breath test alone is unreliable. The Illinois Supreme Court has remarked that breathalyzers are not foolproof. Finally, breath testing in Illinois is subject to various inaccuracies, including a +/- 12.5% variance, non-specificity for ethanol, etc.

7. BOOKING ROOM VIDEOS – Many police stations videotape suspects at the police station, where their speech is clear and their balance is perfect, in spite of police testimony to the contrary.

8. IN-SQUAD VIDEOS – more and more often, the suspect’s driving and performance on field tests is being recorded; often contradicting police testimony.

9. FAILURE TO PROVIDE SPEEDY TRIAL – If a client is not provided with a trial within 120 to 160 days of demand, through delays of the court or prosecutor, the charges must be dismissed.

10. POLICE BLOOD TEST INACCURATE – Many times, police blood testing fails to follow prescribed rules of testing, analysis, or preservation recommendations.

11. HOSPITAL BLOOD TEST INACCURATE – Hospital blood tests overestimate a person’s true level by as much as 25% in healthy, uninjured individuals, and are not statistically reliable in severely injured persons.

12. BREATH TEST OPERATOR UNLICENSED – An Illinois Breath Test Operator must possess a valid, unexpired operator’s license, or the breath test result is inadmissible.

13. BREATHALYZER MACHINE MALFUNCTIONS – if there is a malfunction or repair of the breath test instrument within 62 days before or after a suspect’s breath test, the results of the suspect’s test are presumed invalid.

14. BREATH TEST OPERATOR LICENSE EXPIRED -- An Illinois Breath Test Operator must possess an unexpired operator’s license, or the breath test result is inadmissible. Licenses expire automatically every 3 years.

15. BREATH TEST DEVICE NOT APPROVED – A breath testing instrument must be listed on the Federal List of Approved Breath Evidential Instruments and the ISP approved list of Devices, or the results are inadmissible.


16. FAILURE TO PROVE DRIVING – a defendant’s admission to driving, without more, does not prove a charge of driving under the influence.

17. INDEPENDENT WITNESSES – often times, independent witnesses to accidents, bartenders, hospital personnel and others can provide crucial evidence of the defendant’s sobriety.

18. FAILURE TO MIRANDIZE – prosecutors may not use as evidence the statements of a defendant in custody for a DUI when the police have failed to properly issue Miranda Warnings.

19. FIELD SOBRIETY TEST IMPROPERLY ADMINISTERED – according to the National Highway and Traffic Safety Administration, improperly administered field tests are not valid evidence of intoxication.

20. OFFICER’S PRIOR DISCIPLINARY RECORD – a police officer’s previous disciplinary record can be used to attack the officer’s credibility.

21. PORTABLE BREATH TEST INADMISSIBLE – Illinois law prohibits the use of portable breath testing results as evidence at trial in a DUI case.

22. PORTABLE BREATH TEST IMPROPERLY ADMINISTERED – The manufacturers of portable breath testing devices require a minimum of two tests to consider the results evidential in nature.

23. FAILURE TO CONDUCT OBSERVATION PERIOD – Illinois requires that a driver be observed continuously for a minimum twenty minutes prior to a breath test in order for the results to be considered admissible and valid.

24. EXPERT WITNESSES – Expert witnesses are available to review the validity of breath tests, blood tests and field sobriety tests.

25. MEDICAL AND HEALTH PROBLEMS -- Medical problems with legs, arms, neck, back and eyes can affect the results of field sobriety tests. Further, other medical conditions can also affect the validity of breath test results.

26. BAD WEATHER – Weather reports establishing high winds, low visibility, and other conditions are available to explain poor driving or poor balance.

27. LACK OF PROBABLE CAUSE TO ARREST -- A police officer must have specific and articulable facts to support any arrest for DUI, or the suspension will be reversed and the evidence suppressed at trial.

28. ILLEGAL SEARCH – the police are prohibited from searching a person or the automobile for a minor traffic offense, and may not search a car without a driver’s consent or probable cause. Any evidence illegally obtained is not admissible in court.

29. PRIOR INCONSISTENT STATEMENTS BY POLICE OFFICERS – any statement made by a police officer, verbally, in police reports, or at previous court proceedings may be used to attack that officer’s credibility.

30. POST-DRIVING ABSORPTION OF ALCOHOL – the prosecutor must prove the blood or breath alcohol at the time of driving. Recent consumption of alcohol just prior to driving will cause the test results to be higher than what the true level was when the person was operating the automobile.

31. INTERFERING SUBSTANCES – many items contain forms of alcohol which may cause false results, such as asthma spray, cough drops, paints, fingernail polish. These items can cause the breath results to be invalid.

32. BREATH MACHINE NOT PROPERLY OPERATED – the manufacturers of breath testing devices have specified protocols which must be followed for a breath result to be valid. Failure to follow these requirements will result in improper readings.

33. FAILURES TO PRODUCE DISPATCH TAPES – most stops of vehicles are recorded on dispatch tapes, as well as recording police communications regarding an arrest of an individual. Failure to preserve such tapes upon request can cause all evidence which could have been recorded to be suppressed.

34. MISLEADING STATEMENTS BY POLICE OFFICERS – Any misleading statement by the police regarding the consequences of taking (or refusing) a blood, breath, or urine test will cause the suspension to be reversed and removed from the driver’s record.

35. STATUTES OF LIMITATIONS – A misdemeanor charge of DUI must be filed within 18 months of the date of offense, or the charges will be dismissed outright.

36. PRIVATE PROPERTY – a person who has not driven the car on a public highway cannot be suspended for drunk driving.

37. FAILURE TO DISCLOSE EXPERTS – the failure of the prosecutor to disclose the state’s expert(s) will cause those witnesses to be barred from testifying against the defendant.

38. LACTATE RINGERS – when hospital staff use lactate ringers during the treatment of a patient, the hospital blood serum results will report falsely elevated, and therefore invalid, readings.

39. FAILURE TO RECORD CERTIFICATION TESTS – the failure to include the value of the simulator solution used to test breath machines will cause the breath test results to be inadmissible in court against the driver.

40. FORCED BLOOD DRAWS – the police may not take a blood test against the driver’s consent where there has not been an injury involved, or the result is inadmissible.