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Robert H. Hanaford
373 followers -
McHenry County and Chicago Area Attorney representing clients in personal injury, wrongful death, Insurance claims, Criminal & DUI Defense
McHenry County and Chicago Area Attorney representing clients in personal injury, wrongful death, Insurance claims, Criminal & DUI Defense

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The legal profession ranks among the top in divorce, substance abuse and mental health issues. I have organized and will moderate a one day program for the Illinois Bar Association on November 10, 2017. The seminar will provide 6.5 hours of ethics CLE and discuss the causes and solutions for the stresses of the legal profession.

The legal profession, though not the only profession with stresses, places a premium on negativity and cynicism. Clients often equate aggressive and uncivil attorney behavior as good litigation strategy; though not true. In addition, attorneys are trusted with zealously representing their clients and are often faced with a demanding judge and an opponent who engages in gamesmanship that boarders on unethical.

https://www.isba.org/cle/2017/11/10/pressure

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Police Drug Recognition Experts (DREs) have received significant training in recognizing drivers impaired by prescription or recreational drugs. A person driving on a therapeutic dose of a prescription drug is not impaired. These cases can be difficult to defend without defense DRE training.

https://www.prbuzz.com/business-entrepreneur/416808-robert-hanaford-premier-dui-attorney-advanced-level-training-on-how-to-get-a-drug-recognition-expert-dre-case-dismissed-using-the-dres-rolling-log.html

Police Drug Recognition Experts (DREs) have received significant training in recognizing drivers impaired by prescription or recreational drugs. A person driving on a therapeutic dose of a prescription drug is not impaired. These cases can be difficult to defend without defense DRE training.

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Recent Article in Chicago Fraternal Order of Police Lodge 7 Magazine: A Refresher on the Three Phases of a DUI Investigation."
http://online.flipbuilder.com/prsn/efff/#p=50

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THE THREE PHASES OF A DUI/DWI INVESTIGATION

That favorite amateur’s night, otherwise known as New Year’s Eve, is approaching. If you are drinking alcohol, Uber or Cab it since it does not take much alcohol to hit the national blood alcohol limit for DUI/DWI of .08. There are three phases to a DUI/DWI investigation as taught through the National Transportation Safety Administration (NHTSA) 24 hour police DUI Detection and Standardized Field Sobriety Tests course. They are the following:

Phase 1: Vehicle in Motion
Here the officer is trained to observe clues that could indicate impairment. For example, a vehicle that hits a curb or other object, weaving over the lane or within the lane, failure to obey traffic signals, wide turns into another lane, driving too slowly or any other unusual driving. Ironically, speeding is not a cue that the driver may be impaired.

The officer in this phase must decide whether to stop the vehicle, follow longer or disregard. The officer needs reasonable suspicion of a traffic violation to stop the driver. During this phase the officer is establishing evidence of impairment that may be used to prove the driver was DUI.

Phase 2: Driver Contact
At this point the officer is taught to use all senses. Smell, sight, hearing, He will have observed how the vehicle pulled over. For example, did driver respond immediately and pull over in a safe manner or did the driver fail to initially observe the squad car lights and then ultimately hit the curb or stop in partially in the roadway.
As the officer approaches the vehicle he will be observing unusual movements and evidence of alcohol containers. Upon speaking to the driver he will ask for the driver’s license, registration and proof of insurance. He will observe how the driver’s motor skills are in producing these documents for example, does the driver fumble around or does he produce the wrong documents.

At this point the officer will use a technique known as divided attention. After asking for documentation he will then ask a question such as where are you going and where are you coming from. It is during this phase that the officer will notice the smell of alcoholic beverage, classy eyes and slurred speech. The officer will invariably ask have you been drinking and how much have you been drinking. For some reason the answer is usually “I had two drinks.” The officer of course will not believe this.

The decision is next whether to ask the driver to exit the vehicle on the basis that he believes the driver is impaired and the officer just wants to conduct several tests to see if the driver is okay. This is baloney. Once asked to exit the vehicle the driver is inevitably going to be arrested for DUI.

The officer will now observe how the driver exits the vehicle and his balance. For example, does the driver hang on to the vehicle to exit, does he sway and stumble, etc.

Phase 3: Pre-Arrest Screening

This phase consists of administering the National Highway Safety Administration (NHTSA) Standardized Field Sobriety Tests. Or as us defense attorneys call them, roadside stunts. The tests are really designed for failure in my humble opinion. The tests are as follows:

1. The Horizontal Gaze Nystagmus (HGN) Test. The HGN is and most accurate test if administered properly. In general, the officer holds a stimulus such as a pen, light or even his finger 12 to 14 inches from the driver and slightly above eye level. The NHTSA standards are quite specific in how the test must be conducted and many officers perform the test incorrectly. Nystagmus is simply the involuntary jerking of the eyes as they gaze to the side, which can be indicative of and caused by alcohol. The officer has the driver stand still with arms at side and head still following the stimulus only with the eyes. The officer must first conduct a brief medical assessment by determining whether there is resting Nystagmus. That is, the eyes are jerking at rest which could indicate a neurological condition or that the driver is on a drug such as PCP, which is then an officer safety issue. The officer next checks for equal pupil size and the moves the stimulus from left to right twice to determine if there is equal tracking of the eyes. That is, that both eyes are moving together.

Next the test starts. The stimulus again is moved from left to right twice to observe whether there is smooth pursuit of the eyes. Lack of smooth pursuit has been validated by some studies as indicating a blood alcohol level concentration of .04 if there is a lack of smooth pursuit. Next the officer will move the stimulus left to right twice to maximum deviation (that is where the eye can move no further). The officer must maintain the stimulus at maximum deviation for four seconds. There must be distinct and sustained Nystagmus.

Next, the officer will again move the stimulus left and right to determine whether there is the onset of Nystagmus prior to 45 degrees. If so, there are studies that indicate a 77% validation for 0.10 BAC or greater. Each test is cumulative. In other words, if the officer found no Nystagmus at maximum deviation, then it is impossible to have noted the onset of Nystagmus prior to 45 degrees.

2. The Walk and Turn (WAT) Test.

In general, there are two stages, the instruction phase and the walking stage. The driver is instructed to place arms at side and stand heal to toe while listening to the instructions and the officer’s demonstration. The driver is asked to either walk an actual line or imagine a straight line. Then the driver is instructed to take nine heal to toe steps, counting the steps, maintain arms at side and not to stop once the test starts. After nine steps, the driver is to pivot on the lead foot turning 180 degrees and walk heal to toe back. Clues of impairment include walking off line, raising arms for balance, not walking heal to toe, improper number of steps, walking off line and not completing the test.

3. The One Leg Stand (OLS) Test.

Here the driver is instructed to stand with feet together and pick one foot up about six inches from the ground and parallel to the ground and the look at the foot and count 1001, 1002 to 1003. This test is to be done without putting the foot down, using the arms to balance, no hopping or swaying.

Your Rights

You may refuse all field sobriety tests. However, the refusal can be admitted at trial as evidence of a presumption of impairment. You may even refuse to talk to the officer, roll your window down two inches and slip your driver’s license and other documents through the window.

Conclusion

After phase three the officer must make the decision to arrest for DUI. The arrest must be made upon probable cause that the driver is DUI. As mentioned, once asked to exit you are no doubt getting arrested, hand cuffed and going to the police station where you will be asked to take a breathalyzer. Refusal to take the breathalyzer will result in suspension of your license for one year. Taking the breathalyzer and registering a 0.08 will result in suspension of your license for six months.

During the three phases of the DUI investigation, all the officer is doing is accumulating enough evidence to establish at trial that the driver was DUI beyond a reasonable doubt. The tests are invalid for many reasons that go beyond the scope of this already too long article. But, by example, there are many medical conditions that may cause Nystagmus. There are many orthopedic conditions (Bad back, knees, ankles, etc.) that may prevent someone from performing the roadside balancing tricks. The tests have not been validated for persons 65 and older or for those more than 50 pounds overweight.
This is one instance where being fat may be an advantage.

Best wishes for a safe and stress free New Year!
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12/23/16
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Chicago Police Department Proposes Revised Use of Force Policy

Police involved shootings have dominated the news for several years. Having represented law enforcement officers and municipalities in police misconduct cases and having instructed law enforcement on state and federal liability and control tactics during my 34 year legal career, the news reports do not always accurately portray the use of deadly force by police. By and large, the majority of police involved shootings are justified. The United States supreme Court has recognized that a police officer's use of deadly force is to be determined based on the "totality of the circumstances" in which the officer was confronted. The question is whether the officer's conduct was objectively reasonable under the circumstances. What this means in practice is that no reasonably trained officer would have responded in like fashion. The officer's conduct is not to be judged in retrospect in the comfort of a judge's chamber.

The decision to use deadly force often must be made in seconds. It takes a well trained police officer six tenths of a second to evaluate and respond to a deadly force situation and use his firearm. Then a qualified police officer is able to fire about 4 shots per second. Consider that an offender who has already decided to shoot the officer is already ahead by six tenth of a second.

The Chicago Police Department proposed changes to the use of force policy is open for public comment until November 21, 2016. The policy has as an overall stated purpose "the sanctity of human life." There can be no argument on this point. However, some criticism is that the policy goes beyond Federal law and there are no clear guidelines for when an officer has to use force. Thomas McDonagh, writing in the FOP Lodge 7 November Magazine noted that: "Advocates of the new proposal state that the new policy will include important guidance on avoiding situations in which tactics or strategies limit response options ... and the new policies were drafted to clarify response options that can be used while making split second decisions. [Thereby providing] a checklist that needs to be fulfilled in a split second."

The policy stresses alternative actions such as verbally diffusing the situation. This is not new; but, diffusing an impending deadly force situation is not always feasible. The policy also addresses confronting individuals with mental heath issues. This is of course a growing concern, particularly with an aging population. Whatever the outcome, officers not be inhibited by a policy that causes over thinking when seconds count.

http://231i2m1nrwct1j85f41g4qfr.wpengine.netdna-cdn.com/wp-content/uploads/2016/10/policy_G03-02_Use-of-Force-Guidelines.pdf

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Not all persons arrested for DUI/DWI are guilty of driving while impaired. The police should minimally have attended the 24 hour National Highway Safety Administration (NHTSA) DUI Detection and Standardized Field Sobriety Testing course. Many police officers fail to follow the national guidelines as validated by NHTSA and consequently innocent people are routinely charged with DUI>

In addition to being certified in the 24 course, I was recently Certified through the NHTSA Advanced Roadside Impairment Roadside course (ARIDE) and am a candidate for instructor certification.
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