Interviewer: I guess a question in there, what do you think is their percentage of error in this standardized testing? It sounds like it could be all over the board with what you just said.
Robert J. Callahan: There’s so many factors involved. If you have a police officer who has written 1,000 DUIs in their career, they’re going to be a lot better at evaluating what someone’s performance is on these tests and hopefully rooting out someone who has some other factors that are affecting their ability to perform. If you get a newer police officer that hasn’t interviewed as many of them, they are making their own mistakes as they go along and each individualized suspect is different also because everyone gets nervous when they are pulled over by police to start out but some individuals get so nervous that they can barely speak properly where some individuals will just get lightly nervous. So your nerves just effect how you perform on these things. I had a guy who was pulled over for a traffic offense on Lake Shore Drive by a Chicago police officer who specializes in DUI arrests. He had been pulled over in about a 9 foot wide emergency safety lane and asked him to get out of his car to do these field sobriety tests. The officer testified that he could tell, due to his specialized training, that the individual was under the influence of some type of narcotic. He didn’t say that there was a strong odor of alcohol or that he was under the influence of alcohol. But he had undergone the specialized training where he could see that when someone was under the influence of some type of drug like amphetamines or cocaine and he said he could tell by looking at his eyes and his manner of speech, by these different factors that they use to tell if there is intoxication by drugs. This officer was later prosecuted in court for fabricating stories in court, but that is beside the point. This individual was 100% sober, completely sober, a little bit startled and a little bit nervous, doing a one legged stand or a walk and turn test not 5 feet away from traffic that was whizzing by him at 60mph. And he is nervous because these cops are extremely aggressive. They are taught this in the academy, they are taught to be aggressive and direct for safety reasons for them when interacting with a suspect it is safer for them to be very direct, aggressive, and forceful in their communications. They do this with the DUI suspects people become very nervous and appear to them as inappropriately nervous or possibly intoxicated. And I’ve seen this with every type of arrest is that, whether they want to or not and they generally Don’t want to, as human beings, police officers are going to see what they want to see, they are going to believe what they want to believe, and they are biased just like everyone else, and they will at times disregard information that implies that the person is not intoxicated and overemphasize information or evidence they are receiving that someone is intoxicated. So human beings make mistakes and that gives us ammunition for defending the cases later on down the road when it gets to court.
Interviewer: That’s pretty amazing, the difference between an experienced officer versus a younger guy learning the ropes on what’s appropriate and what’s not appropriate. And you kind of touched on that a little bit, with this last case, but what is the difference between driving under the influence of drugs and driving under the influence of alcohol? Does Illinois see those two things as different?
Robert J. Callahan: Yes. There’s a big difference in that driving under the influence of alcohol, there’s going to be some evidence like a Breathalyzer, which will show your blood alcohol level at the time or they will determine, at a hospital using a blood test, the blood alcohol level. But with drugs, the law is written that says that if any trace of drugs, narcotics, cocaine, marijuana, any type of opiate, if a blood test is done and they find any trace of controlled substance in your blood stream, you are guilty of driving under the influence of drugs. And the problem with this is that alcohol metabolizes out of your bloodstream in 24-48 hours and then there’s no longer a trace of it. Drugs will stay in a person’s bloodstream for 2 weeks to a month at times. So if someone smoked marijuana 10 days ago before they were driving a car, and you do a blood test on them, the blood shows even a small presence of cannabis and they are guilty of driving under the influence of drugs. Which is really, to me, unfair and not in the spirit of the law because the person was not impaired at the time. Especially in regards to driving under the influence of drugs, always you should never take any tests, you should respectfully refuse, but especially in regards to drugs, this is a misunderstanding people have. They think, “well I haven’t smoked any marijuana in over a week so I should be ok taking this test,” and they are not. The blood test shows the presence of cannabis and they are then charged with driving under the influence of drugs and this can be difficult to defeat later on now that they have this test result so you should observe and invoke your right to refuse any test whatsoever. Both field sobriety tests and Breathalyzer as well as blood tests.
Interviewer: I know you’ve given the advice to respectfully refuse any field test, what if we are already past that point? After the fact, we’ve already failed the field sobriety test or had a Breathalyzer that really was not in our favor.
Robert J Callahan: Good question. And something that goes along with refusing the test is refusing to make statements. They’ll get you in the police station and say, “How much did you have to eat today? What were you doing? How much did you have to drink? What time did you go to work?” you should also respectfully refuse those questions. I feel like I left that out. You have the absolute right to remain silent and not answer those. Now say you have, most of the people that come with this charge are saying, “I have blown in the Breathalyzer or the field sobriety test,” so what do you do then is get an experience criminal defense lawyer involved as soon as possible. I win these cases all the time where someone has blown into the Breathalyzer or interviews the field sobriety test and failed them and made statements about their consumption of alcohol. There’s a lot of different reasons for that. There are a lot of technicalities that allow us to win these things. Another thing that happens, another reason to get us in early is that your license is going to be suspended. As soon as you blow into a Breathalyzer or refuse to blow into one, your license is suspended. Six months if you do blow into it and one year automatic suspension if you refuse. Now you’re much better off not blowing in the Breathalyzer because we are going to file a petition to have your statutory summary suspension rescinded or thrown out as soon as you hire us. Someone comes in early, they’re facing a license suspension, the law says that 46 days after you are arrested, your statutory summary suspension will take effect and their license will no longer be valid. We like to get in and petition to get that suspension rescinded as soon as possible. We can get someone’s license reinstated before they even begin fighting their DUI cases under a lot of circumstances. So you’ve blown into a Breathalyzer and you want to get a lawyer involved so we can file all the motions we can, then going down the line, we have a detailed checklist after doing these for 20 years, this is a checklist of mistakes and errors that the police department commonly makes in enforcing these types of DUI situations. So someone will say they blew into a Breathalyzer and blew a 0.2 and are over double the legal limit there’s no hope here, and I have people come in and get the actual records. They have to keep records on every Breathalyzer machine and they keep what is called a “breath log” and the records are stored for usually 2 weeks or so. We will get the information on when that machine was last certified and I can’t tell you on how many occasions we have checked the records from the machine and found that it hasn’t been properly certified or the operator wasn’t properly certified to operate the machine, or there were problems with the Breathalyzer. Just from the machine records we have been able to get results barred from evidence due to some type of improper procedure or improper machine or operator. So, getting us involved as early as possible works tremendously to your advantage.