Archive for May 2013

THE NATIONAL TRANSPORTATION SAFETY BOARD IRECOMMENDNG TO STATES THAT THE CURRENT BLOOD ALCOHOL LIMIT BE LOWERED TO 0.05 UNDER 625 ILCS 5/11-501(a)

May 29, 2013

This won’t be a long article. I’m posting it to let you know that the National Traffic Safety Board (NTSB) is recommending to the states that the current blood alcohol limit be lowered from 0.08 to 0.05 under 625 ILCS 5/11-501 (a). That’s a 40% drop in breathalizer readings.

The NTSB can only recommend. It has no authority to demand a change. It seems they are trying to get to zero tolerance. With all the political pressure being put on state legislatures by special interest groups, it may pass.

My recommendation is to refuse to take the breatalizer test. Then the prosecution must show that you were impaired while driving. It’s much more difficult to show impairment than to have a breath reading of 0.08 or higher. The fact that you received a moving violation ticket is not proof of impairment. Hundreds of people a day receive moving violation tickets and not get cited for DUI.  So, that speeding ticket doesn’t necessarily mean you’re impaired.

I tell people all the time that if they’re stopped for a  DUI and there was no accident, they did not get out of the car falling down having peed in their pants, they have a shot at winning a DUI charge.

What about my license, you ask? Read my post Busted for DUI? Want to save your license?


THE MEANING OF “REASONABLE DOUBT”

May 25, 2013

We’ve all heard that no one can be convicted of a crime unless they’re proven guilty beyond a reasonable doubt. Unfortunately, no one explains what that means. And in Illinois, even the courts won’t tell you what it means. You, as a juror, have to figure that out for yourself. Illinois is one of a very few states that refuses to give a definition of reasonable doubt because “it tends to confuse the jury.” This arose out of a case over 120 years ago when lawyers composed their own instructions for the jury. One lawyer wrote an instruction so confusing that the Illinois Supreme Court ruled that the instruction in that case only tended to confuse the jury.

Since then we have Pattern Jury Instructions that are published by the Illinois Supreme Court. And they have gone from that ruling of 120 years ago that the reasonable doubt instruction was confusing in that case only to the instruction being confusing in all cases. Only God knows how they came to that conclusion. Because of that, we defense lawyers can only say the prosecution must prove our client guilty beyond a reasonable doubt. We can’t define it, because the judge can’t give an instruction defining reasonable doubt. So jurors are left to themselves trying to figure out what it means. What an advantage to the prosecution.

So, what does “reasonable doubt” mean? Oh, we forgot a word, “beyond.” The prosecution must prove a person guilty “beyond a reasonable doubt.” That means no doubt at all because “beyond” means going further. So, a juror, being a reasonable person, having any doubt whatsoever, must find the accused not guilty. A very well respected judge in Cook County, long since retired, once said that “If at the end of the case I still have questions in my mind, I’ll find the defendant not guilty.” In other words, the prosecution must answer all questions in a juror’s mind for that juror to vote guilty. It’s not a matter of the prosecution being close. As the old saying goes “close is only good in horseshoes and hand grenades.” Speculation and opinions are out. Guessing is also out. If you’re guessing, speculating or opining then you must vote not guilty.

The judge will instruct the jury to deliberate. That’s ok. Sometimes other jurors can clear up a point that’s confusing one or more jurors. BUT, if you have doubts in your mind and the other jurors’ arguments still don’t relieve you of your doubt, don’t give in to pressure.

In the Sermon on the Mount, Jesus said “As ye judge, so shall ye be judged.” The same standards of judgment will be given to you as you give the defendant. Think about that.

 

INVOKING THE 5th AMENDMENT RIGHT TO SILENCE

May 25, 2013

The 5th Amendment right to silence has been in the news lately, with Lois Lerner of the IRS invoking that right before a congressional hearing panel.  Did she or did she not have that right to invoke the 5th? That’s the question now.

I agree with Congressman Trey Dowdy (R, South Carolina) that she did not have the right to invoke the 5th. Congressman Dowdy is a former Assistant US Attorney who apparently has lots of trial experience. His point is that once she made a statement professing her innocence she has waived, or given up, her 5th Amendment right to silence. In no court in the land can anyone testify to their innocence and then invoke the 5th to avoid being cross-examined. It’s the same when testifying in a congressional hearing.

Lerner was partially right when she said the 5th Amendment was created to protect the innocent. The 5th Amendment right to silence was mostly created to protect Americans from being forced by the police/government from testifying against themselves whether they are guilty or innocent. Our forefathers had a major problem with that while under English rule. Forced confessions have a habit of being unreliable. Unfortunately, we still have a problem with that today. But that is another post for another time.

Many times when I get a new client where a confession has been given I ask them if they were given their Miranda warnings and they say yes. I then ask why they confessed. The common answer has been If I don’t say something they’ll think I’m guilty. Well, news flash, now they’re certain you’re guilty.  I always tell them that it’s better that the police actually have to prove they’re guilty without their help. It also makes my job of defending them easier.

There’s one more reason I hear from new clients almost as often as the reason stated above. The client tells me that the police told them to just tell them what happened and they can go home. Well that didn’t work out, either. They’ve been arrested and charged largely based upon the confession.

My advice to everyone: Don’t talk to the police. Don’t even tell them you’re innocent. Just give them your name, address, birth date and social security number.  Everything else can, and will, be used against you in court.

 

BUSTED FOR DUI? WANT TO SAVE YOUR LICENSE? 625 ILCS /11-501 (a) (b)

May 24, 2013

I have represented hundreds of people in Cook County arrested for DUI, under chapter 625 ILCS 5/11-501 (a) (b). And I’m always amazed that most are more concerned about losing their license than that actual DUI charge.

A DUI charge is broken down into two parts: 1) the license hearing (which is civil law); and, 2) the DUI (which is criminal law). It’s hard to explain this to people who really don’t understand how this works. You can win the DUI, get a not guilty, and still lose your license. How can that happen? You won the case, why is your license still suspended?

Einstein once said that if you can’t explain something simply, you don’t understand the problem. I’ll do my best to keep it simple, no legal mumbo jumbo.

The hearing to save your license takes place within 90 days of arrest. Even though the judge is hearing the evidence, he is sitting in substitution for the Secretary of State. The judge makes a decision and issues an order accordingly. This hearing has nothing to do with you being guilty or not guilty of the DUI. The hearing just decides whether your license is suspended or not. The trial for the DUI comes later.

What is offered at the hearing for your license? The main thing is whether the police had probable cause to stop you. Other reasons that you may raise are whether you blew lower than a .08 on the breathalizer. Whether the police followed proper procedure in offering you the chance to blow into the breathalizer. Whether or not you refused to blow into the breathalizer. Whether the police properly warned you of the consequences  of not blowing into the breathalizer. These hearings are limited to those issues only. Most people lose these hearings and have a choice. They can either give up driving while their license is suspended. Or they can have an interlock device installed into their car. Actually every car their name appears on. So if your name appears on your wife’s car, or your child’s car, an interlock device has to be installed in those cars, too. Try explaining to your wife why she has to blow into the device to start the car when she did nothing wrong.

There’s good news, though. I have been successful at defeating the state at the license suspension hearing. Since the license hearing is civil in nature, I use the civil practice act. Very few Assistant States Attorneys know how to properly counter the filings I make. The catch is that I have to file and serve upon the state these filings 30 days prior to the hearing. Otherwise, I have to continue the case so I can comply with the time limit. This means you can’t put off  making an appointment to hire me! If you want me to save your license, call me immediately at 1(708) 263-8212!  CALL TODAY.

Hello Chicago/Cook County

May 24, 2013

This is a new blog about criminal defense in Chicago, Cook County, Illinois. I will post news from time to time, but mostly this blog is to educate people about the criminal justice system from the defense point of view.

I will try to educate those seeking advice about what happens when they, or someone they know, gets involved in the criminal justice system in Cook County. Chicago is only one district out of six in the Circuit Court of Cook County.

Many of the articles I will post will deal with attorneys. I will not name any, but I will give points on what to look for when hiring a lawyer to defend you.

I will also try to explain the various procedures and strategies used in court (mostly mine and my partner’s). I can’t really speak for other lawyers, so I will not attempt to second guess them. This is not a blog for people to try to check up on their lawyer. I don’t know what that lawyer is thinking, nor do I know the facts of the case.

My name is George Zuganelis, and I have been a lawyer for 35 years practicing almost exclusively criminal defense. My partner, and brother, Charles Zuganelis, has been practicing almost exclusively criminal defense for 31 years. Both of us have tried cases all over Illinois and in a few other states, as well. Our practice is in the state and federal courts here in Illinois. We can try cases in federal courts anywhere in the country. We practice almost exclusively in Cook County, but have tried cases in Du page, Will, Lake, Kane, Kankakee, and various other counties in Illinois.