» Criminal Defense

First, every case and situation is unique and there is no one right answer — but, almost always the answer is NO. Reality is, you are not going to talk yourself out of being charged or arrested. If the police are going to arrest you, there is nothing you can do to change their mind — they simply won't believe you. The police, however, will tell you differently. The cops will tell you that if you cooperate they will go easier on you — they are LYING! They are trained to make you feel comfortable. To gain your trust. They are even allowed to lie. Just remember to say the magic words, "I want a lawyer." Be polite, courteous. Tell them that you want to cooperate but you were told that you should have a lawyer when you talk to the police. They won't like it — but that's a good sign!

This is a common question. It is directly related to the presumptive legal limit of .08 blood alcohol concentration. Section 625 ILCS 5/11-50(a)(1) of the Illinois traffic code states that any person with an alcohol concentration in their blood or breath above 0.08 is guilty of Driving Under the Influence. Section 625 ILCS 5/11-50(a)(2) simply states that if a person is "under the influence of alcohol" he or she is guilty of Driving Under the Influence. If you are charged under both these sections, we can assume you took the "breathalyzer." The State, however, can try to prove you guilty two ways: (1) that your blood or breath alcohol concentration was at or over .08 — in which case there is a presumption that you are under the influence; or (2) that you were under the influence. For the second proposition the State must offer other evidence to show you were under the influence — such as bad driving, poor field sobriety test, or erratic behavior. The second section is obviously harder for the State to prove, which is why in many cases it is better not to have taken a blood or breath test.

Something most people don't is that you can still be guilty of a DUI in Illinois even if you have blown under a .08. Section Section 625 ILCS 5/11-50(a)(2) only requires that the state prove you were under the influence — it doesn't have to be over .08.

No. You may not pull over to the side of the road and sleep off a DUI. You don't want to be anywhere near your car. It is called "Actual Physical possession" and most people don't realize it. Even if the keys are in the bushes and you are asleep in the back seat — you are guilty of DUI. But ... at The Law Office of J. Patrick Nelson, PC we have found a defense to "Actual Physical Possession" that has been quite successful. Our criminal defense attorneys have employed a necessity of shelter defense, and we have won many jury trials with the necessity defense.

This is a tough question. You have to consider the statutory summary suspension. If you take the breath or blood test your license will be suspended for 6 months. If you don't, the suspension will be a year. That being said, if you blow over a .08, it becomes more difficult to win your case at trial. If there is no blow, the chance increases greatly. If you have had nothing to drink and blow under .08, your license will not be suspended.

In most cases, no. Remember, you are presumed INNOCENT. You are not required to prove anything. You are not going to convince the police not to charge you. They won't believe you even if you pass the lie detector test. Be happy they asked you to take a polygraph — it usually means they don't have enough evidence and they are fishing for a confession. Also, remember that polygraph tests are not admissible at trial — not even if you pass.

It is a common misconception that the police have to read EVERYBODY their Miranda rights or the case against them gets thrown out. Miranda warnings — named after the Supreme Court case Miranda v. Arizona — apply only to custodial interrogation. In simpler terms that means to questions asked, and statements made, while a person is not free to go.

If you plead or are found guilty, you receive a sentence. Usually this results in a conviction — which goes on your "record." If you are applying for a job and they ask if you have ever been convicted of crime, you would have to say yes. Court Supervision keeps your record "clean," so to speak. It literally means that after you plead guilty, the case is continued for a period of time (usually one year) and if you stay out of trouble and pay your fines, the case is dismissed. In reality, it is a form of probation that doesn't result in a conviction. It is the best possible result short of a finding of not guilty.