Saturday, June 3, 2017

Defending Against Breathalyzer Results in a DUI

A DUI may be charged in two ways.  The first is that a person has drunk any amount of alcohol so that it impairs his or her ability to operate a motor vehicle safely.  The second is that the person is driving a vehicle with a blood alcohol concentration over .08.  Proving either of these propositions is sufficient to convict a person for DUI.  If both propositions are proven then the charges are merged into one crime of DUI.

Of the two charges the breathalyzer reading of .08 or higher is the most difficult to overcome.  Difficult but not impossible.  A breathalyzer reading of .08 or higher may be overcome by one of three methods.  The first is by a showing that the prosecutor has failed to prove that the breathalyzer machine was maintained and calibrated properly.  The law enforcement agency administering the breathalyzer must keep an accurate log of the required accuracy checks of the machine in conformity with the Illinois Administrative Code governing the use and maintenance of breathalyzer machines.
The second method would only apply if the results of the breathalyzer fell within the acceptable margin of error for the machine used.  In that case an argument can be made that the person was, in fact, driving with a BAC of under a .08 given the margin of error.  Of course the prosecution can make the argument that the BAC was actually higher on the other end of the error margin.  A counter to this argument is that since the burden remains on the State then the doubt should go to the defendant. 

Once a person is stopped for suspicion of DUI it takes about an hour for the police to conduct their field sobriety tests, make an arrest, transport the person to the station where the BAC will be conducted and then wait the required 20 minute period.  Depending on when the person had his or her last drink(s) a final argument can be made that during that hour more alcohol was seeping into the blood stream.  Therefore, at the time the person was driving and pulled over by the police his or her BAC was lower than when the person actually took the breathalyzer test. 

All three of the defenses mentioned above are fact specific and it is important to have an experienced DUI attorney review the facts to make a determination which defense is most likely to be successful in your case.  For additional information please visit

While every caution has been taken to provide my readers with the most accurate information and honest analysis, the information on this site is for general information purposes only.

Sunday, May 7, 2017

Divorce Laws in Illinois

Image result for divorce papers

Prior to the court granting a divorce in Illinois, the court will need three issues settled.  It is in your best interest to hire an experienced family law attorney to help you get the best possible outcome in these situations.  Children are of course the court’s priority concern.  Although it is still true that the mother has usually taken on the role of “primary care giver” and will likely continue in that role, it is a myth that the father cannot obtain custody.  Many households today are two income families.  This means that in at least some situations the father’s and mother’s time are equally taken by their jobs.  The question then is who spends the time with the children during the off hours, who makes dinner, who tucks them in, who takes them to school, attends parent/teacher conferences, etc.  If the father has assumed that role then he has a fair chance of seeking and winning custody.  Whichever parent wins custody, unless it can be proven that he or she is a danger through neglect or otherwise to the children, then the other parent has a right to visitation.  A visitation schedule should give the non-custodial parent as much time with the children that minimizes any disruption in their normal activities.  Finally, it is a myth that the father cannot obtain child support.  Whoever the non-custodial parent ends up being will be obligated to pay child support based on the formulas set by Illinois law. 

The second issue to be decided is property settlement.  Illinois law states that all items obtained during the marriage are “marital property” and belong to both spouses equally.  Exceptions to this rule are gifts given by inheritance and any property purchased with funds brought to the marriage.  Many clients assert that houses, vehicles and even retirement plans and life insurance policies purchased or titled in his or her own name are his or her property because the spouse did not contribute to purchasing the property.  Many are disappointed when they are informed that it is not relevant which spouse purchased the property – if it was purchased during the marriage, absent the exceptions listed above, it is presumed to be marital property.  As such the property is subject to a “fair and equitable” split.  Another myth is that since the property is owned equally by the spouses, fair and equitable means a 50/50 split.  Although it can be divided 50/50 oftentimes the court will look to the needs of one of the parties and the ability of the other party to provide that need.  

Maintenance, as the third issue to be determined, is also based on the needs of one party against the ability to pay by the other.  Although maintenance is usually reserved for marriages with longer term duration and is generally subsumed by the property division, courts have found that if a marriage of short-term has special circumstances or there is not enough property to adequately support a dependent spouse either short term or long term maintenance is appropriate.  The amount, type and duration of any maintenance award will vary from case to case depending again, on the specific needs of one individual and the ability of the other individual to meet this need.  

On a final note child custody, support and visitation are issues that can be revisited after a period of time and a substantial change in circumstances.  Property issues and maintenance, once decided or waived, are final judgments and will not be revisited by the courts even if a substantial change in circumstances occurs.  For additional information please visit

While every caution has been taken to provide my readers with the most accurate information and honest analysis, the information on this site is for general information purposes only.