Is "erratic driving" alone cause for a DWI investigation?

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A few weeks ago we asked a similar question. In that case, an Illinois driver, the son of the local mayor, ran into stationary cars in a parking lot and then drove off from the scene of the accident. When police tracked him down later that evening, a breathalyzer test was not issued since there were no outward signs of intoxication.

In a remarkably similar case, a DuPage County Judge, Kenneth L. Popejoy, was likewise not required to submit to a breathlyzer test. As reported in a Daily Herald article, on the evening of June 29th, a number of witnesses allegedly called 911 after seeing Judge Popejoy run into a parked vehicle, run a stop sign and nearly hit a jogger.

When police arrived at his home, he refused to answer any questions. According to Glen Ellyn Deputy Police Chief Bill Holmer, because he showed no signs of intoxication, he was not investigated for DUI:

"We can't compel him to take (a breathalyzer test)," Holmer said, adding: "There weren't any of the typical signs of impairment that we look for, such as smell or slurred speech. None of that was apparent."

In the article, Don Ramsell, of our office, agreed with Holmer's assessment of the situation:

Wheaton DUI and criminal defense attorney Donald Ramsell said that while police have a responsibility to investigate why a driver fled without reporting an accident, there's no cause to give a Breathalyzer or field-sobriety test without an odor, impaired speech or some other indication of alcohol.

"It would be improper to administer a breath test if you have no outward sign of alcohol consumption," Ramsell said. "It's illegal to fish for a crime."

Although Judge Popejoy was not charged with any DUI-related offenses, he was charged with charged with reckless driving, failure to give information after striking an unattended motor vehicle and failure to reduce speed to avoid an accident.

The investigating police departments contend that preferential treatment was not a factor in the decision not to pursue a DUI investigation, and it is noted in the article that both towns "have handled recent high-profile DUI arrests of public officials, such as those of a Glendale Heights cop and U.S. Supreme Court Justice Antonin Scalia's daughter."

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