Archive for the ‘illegal arrest’ Category

One of the Law Firm’s Significant Cases of the Summer of 2016, Trial and Appellate Court Victory: DUI Field Sobriety Tests Instructions and Environment, Portable Breath Tests, the Need for Videos.

Friday, September 16th, 2016

It has been a terrific summer for the law firm on the Appellate Court front. First, the decision in People v. Taylor came down from the Second District. This is a DUI case. I represented Mr. Taylor in DeKalb County before the Honorable Robert Pilmer. First we won the petition to rescind based on the lack of probable cause and the unlawful use of the portable breath test. Afterwards, we tried to negotiate a better result on the strength of the that victory. After all, the issues of probable cause to arrest for DUI and the unlawful use of the portable breath test would be the same in the Motion to Quash as were in the Petition to Rescind. Despite four efforts to make appointments with the elected State’s Attorney to talk about this matter, two in person at the front desk with messages left, and two calls to support staff with messages taken, all efforts went unanswered.


Having won the petition, it wasn’t like we would be arguing from a position of weakness. We then won the Motion to Quash. Why the State was surprised with this same-issue, same-result situation, remains unexplained.

The State appealed with a stated desire to get Judge Pilmer reversed. In its appeal, the Appellate prosecutor managed to take the 184 pages of record transcript, comprised of testimony, argument, and trial court ruling, and reduce it to a 3-page statement of facts in their brief. Might things have been left out? Not quite explained? Our brief and the Appellate Court was having none of that.

Important issues included case law from the Third District Appellate Court that attack our own Second District’s decision on portable breath tests, which I had argued was at best unfortunate and misguided. The Appellate Court agreed. Also, the Appellate Court made quite clear what consent meant in a portable breath test “request” situation, and that no such request occurred in our case. In a published opinion released this summer, the Appellate Court upheld Judge Pilmer’s rulings that the there was no probable cause to arrest my client for DUI, and that the portable breath test was given in an involuntary and therefore unlawful manner. Also, the opinion sets forth additional ways attorneys can address how police instruct on field sobriety tests, as well as the impact of flashing lights on all Field Sobriety Tests.

Something of continuing concern regarding a police officer again occurred in this case. That is, once again we had a video / audio that was a stranger to plenty of significant so-called “facts” in a police report. It is a scary thought as to what the officer may have said under oath at the testimonial hearings had there not been the video /audio recording capturing the truth. That, sadly, IS a fact. I want to emphasize that this is not inherent in officers, but it is proof as to why defense attorneys must be on guard at all times, and chase after any and all audio / video information.

Please read the following published opinion of People v. Taylor through this link. (Speedy trial and unlawful home entries are next up in this blog series.)