Kevin A. Chrzanowski

Tuesday, July 23rd, 2013

Prosecution Might Not ‘Blow’ Its Case by Failing to Comply with Breathalyzer Regulations

In June, an Illinois Appellate Court in People v. Olson ruled that the State may raise “substantial compliance” with the Illinois Administrative Code (Code) as an argument for the admission of a breathalyzer test result. The case involved a machine that had not been tested within the required 62 day period required by the regulation. Olson sheds light on how substantial compliance may be viable even when there is apparent non-compliance with the Code’s regulations pertaining to sampling protocol in driving under the influence investigations.

At the heart of the dispute in Olson was the failure of the arresting police department to comply with the requirements of the Code, which mandates that an accuracy check shall be performed at least every 62 days on breathalyzer machines. Prior to Olson, the Appellate Court strictly applied this provision in People v. Clairmont and held that a breathalyzer machine result was not admissible into evidence because 71 days had passed between certification checks. In reaching its holding in Olson, the Court specifically pointed out that, while the results may appear to be inadmissible based upon the Court’s prior holding in Clairmont, the State in Olson preserved its substantial compliance argument by raising it in the trial court, whereas the State in Clairmont had not raised this argument in the trial court. Although the Court declined to address the substance of the State’s substantial compliance argument, the Court specifically cited its holding in Clairmont stating that “courts have held that a lack of strict compliance with certain regulations does not always render test results inadmissible….substantial compliance will be found where the deviation from the regulation neither affects the reliability of the test nor prejudices the defendant.”

The Court’s willingness to allow a substantial compliance argument with respect to the certification of the breathalyzer machine is an extension of the substantial compliance argument that has been recognized by the Court with respect to the regulations governing the collection of blood and urine samples for drugs and alcohol pursuant to a driving under the influence investigation and the 20 minute observation of a subject before submitting to a breathalyzer test. As a practical matter, although Olson only provides that the State can assert a substantial compliance argument in response to the failure of a breathalyzer machine to be certified within the time limits prescribed by the Code, this case has opened the door to the application of the substantial compliance doctrine to the guidelines set forth by the National Highway Traffic Safety Administration (NHTSA) with respect to the administration of the standardized field sobriety tests.  On at least one occasion, a trial court judge has accepted the substantial compliance argument in admitting the results of a horizontal gaze nystagmus test (HGN) where the arresting officer did not hold the stimulus between 12 and 15 inches from the test subject’s face as required by the NHTSA standards.

Is a case like Olson likely to occur in McHenry County? Probably not, because all McHenry County police departments check their breathalyzers more often than the Code requires. One should not, however, discount the importance of the holding in Olson in light of this information. The availability of a substantial compliance argument with respect to the accuracy testing of the breathalyzer might be applied to accuracy checks for other devices, including portable breathalyzer devices, if they do not comply with the Code’s time requirements.


Kevin A. Chrzanowski

Author: Kevin A. Chrzanowski

Thursday, February 28th, 2013

Concerns with Court Ruling on Suspended License Violations

A recent Illinois Appellate decision could cause undesirable consequences for municipal enforcement of motorists driving on suspended licenses. A common reason for suspension of driving privileges is the summary suspension resulting from an arrest for driving under the influence of alcohol (DUI).  Pursuant to the Illinois Vehicle Code, a statutory summary suspension, which could last for six months to three years, goes into effect 46 days after an individual is served with notice of the suspension.

Due to the fact that a driver’s license is considered a protected property interest, an individual must be given due process, which includes a right to a hearing before commencement of the suspension to challenge its validity. If that defendant does not seek to have a hearing within 45 days, the suspension kicks in, and then that person does not have a valid license to drive a vehicle. Logic would dictate that if that person is arrested and charged with driving on a suspended license, that person should be guilty regardless of the outcome of a later summary suspension hearing because the driver’s license is not valid at the time of arrest. Despite this logic, a recent Fifth District Appellate Court case, People v. Elliott, held that a person charged with Driving While License Suspended (DWLS) would have the DWLS dismissed if the person’s summary suspension is rescinded at a later date. This holding marked a substantial departure from prior cases in the First and Third Districts addressing how these types of cases should be treated.

In Elliott, an individual was charged with DUI.  The defendant timely filed his petition to rescind the summary suspension and a hearing was scheduled, and then continued past 45 days—the date of an automatic suspension.  The summary suspension was rescinded by the Court at the later hearing date, but on Oct. 13, 2009, the defendant was arrested and charged with DWLS.  The defendant was then found guilty of DWLS and appealed on the basis that the summary suspension was rescinded and should be treated by the Court as though it was never in effect.  Surprisingly, the Fifth District Appellate Court agreed that a rescission of a statutory summary suspension should be given retroactive effect back to its date of commencement. As a result, any DWLS charges received by the defendant prior to the date of rescission are null and void and should be treated as if the license were retroactively valid. In reaching this holding, the Fifth District deviated from the holdings of two other Districts that held that a driver should bear the responsibility of driving during the period of a summary suspension even if the suspension is later found to be erroneous. The Courts’ reasoning rested largely on the fact that the driver is given sufficient opportunities to challenge the legitimacy of the suspension in the 45 days before it goes into effect.

The Second District Appellate Court has not addressed this issue so there is no way to say for certain which holding the Court would adopt. Significantly, the Elliott Court’s holding seemingly allows an individual to continue to drive during a period of a summary suspension as long as there is some indication that a rescission of the summary suspension is likely. This holding goes against the goal of the statutory summary suspension law which is to encourage drivers to submit to chemical testing by reducing the period of summary suspension for those that cooperate with testing.


Kevin A. Chrzanowski

Author: Kevin A. Chrzanowski

Wednesday, February 13th, 2013

High Court May Review Parking Ticket Privacy Issues

Last year we reported that the Seventh Circuit Court of Appeals handed down its opinion in a case, Senne v. Village of Palatine, that is of great concern for municipalities across the state.  In Senne, a class of plaintiffs brought a complaint against the Village of Palatine alleging that information disclosed on the Village’s parking citation placed on vehicles constituted a disclosure of personal information in violation of the Drivers Privacy Protection Act (DPPA).  The parking citation disclosed the registered owner’s full name, address, driver’s license number, date of birth, sex, height, and weight.

Palatine’s potential exposure is $80 million.  Palatine and several interested parties, such as the International Municipal Lawyers Association and the Illinois Association of Chiefs of Police, are in the process of requesting the U.S. Supreme Court to review the holding, but as of right now all local governments that issue parking citations are highly advised to limit the information written or printed on tickets left on the vehicles.

In the trial court, Palatine moved to dismiss the complaint citing several exemptions to the disclosure limitations under the Act.   One of Palatine’s primary arguments was the exception that allows a municipality to disclose personal information when it is necessary for the service of process in an administrative or court proceeding.  The trial court granted the Village’s motion and the Plaintiffs appealed to the Seventh Circuit Court of Appeals.  On appeal, the Seventh Circuit Court of Appeals held that the Plaintiffs’ complaint stated a cause of action under the DPPA because the parking citation constituted a “disclosure” of personal information.   The Court ordered that the case be sent to the trial court for a determination as to what information could be permissibly disclosed under the exemption relied upon by the Village.

The concern raised by this case is that the Seventh Circuit Court of Appeals holding contains language that suggests that the majority of the Court would not agree that all of the information disclosed by the Village is permissible under the service of process exemption in the Act.  This language is particularly troubling given the plain language of the Act that provides that information that would otherwise constitute “personal information” is not considered personal information when a disclosure is made pursuant to an exemption in the Act.

In reaction to this case, municipal practitioners are advising their clients to refrain from including any of the information contained in the citation in the Senne case on their parking citations.  The reason for taking such a conservative approach in response to the Seventh Circuit Court of Appeals opinion is the potential liability for violating the Act which can include a penalty of $2,500 per violation as well as punitive damages and reasonable attorney’s fees and court costs.

Until a final resolution is reached in this case, it is advisable that municipalities address the concerns raised by the holding of the Seventh Circuit Court of Appeals by placing a blank citation under the windshield wiper that does not contain any personal information of the owner.   The citation can contain information regarding the location of the parking violation and the offending vehicle.  Subsequent to placing the blank ticket on the windshield, the issuing officer should prepare a copy of the citation with the owner’s personal information and file it with the clerk of the circuit court or the municipality’s administrative hearing division.

Please contact our office should you have any questions about how to proceed with issuing parking tickets until the Village of Palatine’s issue is resolved.


Kevin A. Chrzanowski

Author: Kevin A. Chrzanowski

Thursday, January 3rd, 2013

Driver’s License Bill for “Temporary Visitors”

Illinois has moved one step closer to issuing driver’s licenses to undocumented, non-United States citizens. Senate Bill 957, which the Senate passed in early December, expands temporary visitor’s driver’s licenses to include non-citizens who cannot produce documentation authorizing their presence in the country. If the act becomes law, Illinois will join New Mexico and Washington as the only states to issue such driver’s licenses.

To qualify for the issuance of a temporary visitor’s driver’s license under the proposed legislation, undocumented applicants would be required to demonstrate residency in Illinois for more than one year, that they are ineligible to obtain a Social Security number, and that they are unable to present documentation issued by the United States Citizenship and Immigration Services authorizing their presence in the country. Applicants must also submit a valid unexpired passport from their country of citizenship or a valid unexpired consular identification document. Additionally, applicants would be required to undergo the same examination process as applicants who apply for a standard driver’s license, such as an eye examination, on-the-road examination, and written test. The temporary visitor’s driver’s license is valid for a shorter period of three years for undocumented applicants.

Applicants under the age of 18 who obtain a temporary visitor’s driver’s license would be subject to the graduated driver’s license provisions of the Vehicle Code. Additionally, temporary visitor’s driver’s license holders would also be required to carry liability insurance. If a temporary visitor’s driver’s license holder is unable to provide proof of mandatory insurance coverage upon request of a police officer, the driver’s license would be considered invalid and the person could be charged with a violation of 625 ILCS 5/6-101. Lastly, Senate Bill 957 provides that a temporary visitor’s driver’s license cannot serve as proof of the holder’s identity.

The Transportation: Vehicles & Safety Committee of the Illinois House is scheduled to hear the bill on January 7, 2013.


Kevin A. Chrzanowski

Author: Kevin A. Chrzanowski