Gov. Rauner signs bill allowing supervision for first offense aggravated speeding more than 26 mph over limit

Governor Rauner has signed House Bill 1453, which amends the Illinois Motor Vehicle Code to allow court supervision for first-time offenders who are charged with aggravated speeding (over 26 mph over the limit).

Here is the official summary:

Amends the Unified Code of Corrections. Provides that an order of supervision is not available to a defendant charged with speeding 26 miles per hour or more in excess of the applicable maximum speed limit established under the Illinois Vehicle Code or a similar provision of a local ordinance if the defendant has been: (1) previously convicted for that violation or a similar provision of a local ordinance or any similar law of another state; or (2) previously assigned supervision for that violation of the Illinois Vehicle Code or a similar provision of a local ordinance or any similar law of another state (rather than not available for a first-time offender).

Under the new law, supervision will not be permitted if the aggravated speeding occurred in a construction zone or in an “urban district.”  The new law will go into effect January 1, 2016.

So why is this important?

Under the current law, aggravated speeding is either a Class B (26-34 miles over the limit) or Class A misdemeanor (35 or more mph over the limit) and not eligible for supervision.

Illinois law defines “supervision” as “a means of disposition and revocable release without probationary supervision, but under such conditions and reporting requirements as are imposed by the court, at the successful conclusion of which disposition the defendant is discharged and a judgment dismissing the charges is entered.” 730 ILCS 5/5-1-21.

One court has stated that “the status of a case under an order of supervision then becomes in the nature of a continuance until the conclusion of the period of supervision whereupon the court shall discharge the defendant and enter a judgment dismissing the charges if the defendant successfully complied with the conditions of supervision.” The Illinois Supreme Court has held that supervision is not a conviction.

Supervision is a permissible sentence for most Class A misdemeanors, at least for the first offense.  So offenses such as battery, retail theft, DUI or reckless driving have been “supervision eligible” but speeding was not.  The result is that for a “crime” most commonly committed by otherwise law-abiding citizens, (most often young drivers) would result in a harsher sentence than the typical misdemeanor, and they would become a convicted criminal merely for going 81 on the interstate.

This change in the law is only common sense.  My only suggestion is that the law should be even more lenient, and allow for a sentence of supervision for this offense so long as the motorist has not had a similar offense within the past five or ten years.

Update: Why I don’t post arrest videos from my cases on the net

You may recall a blog post that I wrote a year ago entitled “Why I don’t post arrest videos from my cases on the net.”  It was about a downstate attorney who was facing disciplinary action for posting on youtube and facebook police videos that he had obtained in discovery in the course of representing a client. The attorney titled the videos “Cops and Task Force Planting Drugs – Part 1″ and “Cops and Task Force Planting Drugs – Part 2.”

I explained that the postings violated an Illinois Supreme Court Rule which requires that an attorney maintain exclusive control of all discovery obtained in felony matters.  Rule 415(c), as well as a professional conduct rule that requires that attorneys refrain from doing anything that might pose a threat to the fairness of an impending matter. IL Rules of Professional Conduct 3.6(a).

While I don’t like certain aspects of these rules (see my previous post for my reasoning), they are rules of conduct that are pretty clear-cut.

Today’s update is that the Illinois Appellate Court for the Fourth District upheld a trial court sanction against the attorney.  The case is People v. Fulmer and Gilsdorf, 2013 IL App (4th) 120747.  In the opinion, the court rejected the attorney’s claim that he had a First Amendment right to disseminate the information, as well as his claim that the Supreme Court Rule did not apply because the discovery was tendered before felony charges were formally approved.

According the Illinois Attorney Registration and Disciplinary Commission’s website, an ethics complaint against the attorney for his conduct is still pending.

Governor Quinn signs law allowing undocumented persons to get driver’s licenses

Well, to use the Vice President’s expression, this is a BFD.

In my almost 20 years of practice, I have seen some major changes to Illinois traffic laws, such as making it a crime (instead of a traffic offense) to drive without insurance, without a license, or speed more than 25 miles over the limit (coming this summer to a highway near you!); lowering the “legal limit” for DUIs, and eliminating multiple supervisions for DUIs.  But allowing undocumented persons to get a driver’s license is definitely the biggest.

And I had not heard one word about this being discussed until after the days after the November presidential election, when the consensus opinion of the chattering classes became that Republicans lost in large part because they were losing immigrant voters, particularly Hispanics.  Immediately after that, Illinois Republicans joined Democrats to pass this bill, and now it is law.

According to the Chicago Tribune:

Called temporary visitor driver’s licenses, the permits will vary from traditional licenses several ways. Most noticeably, they will be visually different, with a blue background as opposed to [a] red one.

The cards will be marked “not valid for identification” and cannot be used for things like boarding airplanes, voting or purchasing a gun. The licenses will only be valid for three years instead of four years, like traditional licenses. After three years, the individual would have to go through the process again.

To qualify for a license, an applicant must prove they have lived in Illinois for a least a year and show that they are ineligible for a Social Security card. Documents that will be accepted include a copy of a lease, utility bills and a valid passport or consular identification card.

Drivers must also pass vision, written and road tests and pay a $30 fee. In order for the license to remain valid, a driver also will be required to get insurance. If a person with a temporary visitor’s license is caught driving without insurance, they will be ticketed for both driving without insurance as well as driving without a license.

People who want to apply for the licenses must first make an appointment at one of eight designated facilities across the state. Licenses will not be issued on the spot but only after the state can verify application information and perform a facial recognition search against other databases.

The permits will not be available for 10 months, which was requested by Secretary of State Jesse White in order to have adequate time to prepare for implementation of the new law.

Warrantless blood draw case, continued

Here are some links to good articles about the warrantless blood draw case (Missouri v. McNeely) that was argued before the United States Supreme Court Wednesday:

Here is the transcript of the oral argument.

Slate’s Emily Bazelon wrote an article (before the oral arguments) that considers the pros and cons for each side and suggests a compromise may be in order.

NPR’s Nina Totenberg says that the justices were skeptical of the prosecutor’s arguments to eliminate the need for warrants, but did see that this need might be justified in some cases.

SCOTUSBLOG’s Lyle Denniston has an argument recap suggesting that the Justices’ questioning did in fact seem to suggest a compromise decision.  (Mr. Denniston also wrote an excellent argument preview outlining the issues in the case).

Update:  Here is another good read:  Orin Kerr’s take over at Volokh Consiracy:  He wonders how important the warrant requirement is in light of modern technology.

 

Illinois Appellate Court uses simple logic to reach correct decision — and I am surprised!

Under the Illinois Motor Vehicle Code, there is a “statutory summary suspension” of a motorist’s license if he or she is arrested for a DUI and either “fails” a breath, blood or urine test or refuses testing. 625 ILCS 5/11-501.1.

The motorist can petition the court to “rescind” the suspension.

My copy of Black’s law dictionary defines “rescission” as “to abrogate, annul,  … to declare …void in its inception and to put an end to it as though it was never there.”

So you would think that if a court “rescinds” your statutory summary suspension, it is as if it never happened.  That’s what “rescind” means, right?  Because by definition, its retroactive!

So what happens if a suspended motorist (who may feel that the suspension was illegal and will be thrown out by a judge) chooses to ignore the suspension and drives, only to get caught and charged with driving while suspended — but later is vindicated when the suspension is “rescinded”?

In a 1997 case, People v. Focia, 287 Ill.App. 3d 767, 679 N.E. 2d 121, 223 Ill.Dec. 177 (Ill. App. 3, 1997) , the Third Appellate District of Illinois held that the word “rescission” has a different meaning than its normal meaning in the DUI context.  Basically, the court interpreted the word “rescission” to mean “termination” when applied to DUI cases.  This was because the court felt that the purpose of the summary suspension law was to get accused drunk drivers off the roads.  If the court ruled that a rescission absolved a person of a driving while suspended, it would only encourage people to continue to drive after their suspension began, in anticipation of a rescission.  Therefore, the court said, the driver must wait until a judge “rescinded” the suspension before driving again.

To my way of thinking, this was a classic example of “judicial activism” because the court was making its own policy determinations (that accused drunk drivers should not be driving until a court clears them) instead of simply reading the words of a statute and giving them their ordinary meaning.  After all, the legislature is presumably knew what they were doing when they chose to use the word “rescind” instead of “overturn” or “terminate.”

But this ridiculous court opinion, giving the word “rescind” a special new meaning only when it comes to DUI cases, has been the law in Illinois for the past 15 years.

Since I don’t practice in the Third Appellate District, I have, from time to time, filed “Motion(s) to Dismiss” asking courts to ignore the Focia decision as unwise.  Occasionally, these motions have resulted in a reduced sentence, but never an actual dismissal.

Until today, anyway.  The Fifth Appellate District released a contradictory opinion in People v. David K. Elliott, 2012 IL App (5th) 100584, essentially adopting the common sense proposition (and traditional rule of statutory interpretation) that the words of a statute will be given their ordinary meaning.  Hence, a “rescission” means that the suspension never happened.

Yes, all the court did was apply a commonsense reading of the words of the statute to come to the correct decision.

Am I surprised?  You bet.

This has been a classic example of what DUI defense attorneys often call the “DUI exception to _____” (fill in the blank with constitution, logic, fairness or whatever else may apply).  DUI has become such a hot button issue that courts regularly ignore all legal precedents and common sense to come to an anti-drunk driving ruling.  So I am pleasantly surprised when a court is willing to come to the correct decision even if it means that the justices might be labeled “soft on DUI.”

What does this mean to drivers in the Chicago area?  Cook, Lake or DuPage are in the First and Second Appellate Districts, so in this case, since there are conflicting decisions from other Districts, trial judges are to apply the most recent opinion.

However, the legal fiction that “rescind” has a special meaning in DUI cases will continue to apply in the Third District, at least for now until another Appellate District or the Illinois Supreme Court rules on the issue.

Here is a map of the Illinois Appellate Districts:

Fewer IL drivers were getting stopped, issued tickets in 2011

The Chicago Tribune’s TribLocal sections are reporting that Illinois traffic stops and citations have dropped dramatically in the past year.

The Tribune reports that:

The Tribune analysis found that, statewide, stops dropped 9 percent and the number of ticketed drivers dipped 13 percent. Police across the state are stopping fewer motorists and issuing far fewer tickets as the recession lingers. Compared to 2008, the number of ticketed drivers has dropped by nearly a fourth.

Also dropping statewide, albeit slightly, were the odds of getting a ticket. In 2010, more than 57 percent of all stopped drivers got a ticket. In 2011, that fell below 55 percent.

Here are some more numbers:

Northwest suburbs:  “Municipal police departments in the northwest suburbs stopped 247,736 drivers in 2011 and ticketed 150,149, according to the analysis That compares to those same departments stopping 261,202 drivers in 2010 and ticketing 165,696. In all, stops were down 5 percent while drivers ticketed were down 9 percent.”

North suburbs:  “Across the north suburbs, municipal police departments stopped 5 percent fewer drivers in 2011 than they did in 2010, according to state data. Traffic tickets issued by those departments were down 9 percent in that same time period, state figures show.”

South and Southwest suburbs:  “Municipal police departments in the south and southwest suburbs stopped 256,670 drivers in 2011 and ticketed 149,813. That’s compared to those same departments stopping 259,659 drivers in 2010 and ticketing 154,014, according to the analysis.”

This has been a continuing trend over the past several years.  I wrote about the declining number of DUI arrests here.  The Trib Local pieces seem to argue that the main reason behind the falling numbers are the reduced number of patrol officers due to budget cutbacks and retirements, increasing use of warnings instead of issuing citations, and drivers driving less miles and being more careful.

I think another reason might be the increasing use of red light and automated speed detectors to issue citations, over traffic enforcement.

What do you think?

Your Right to a Speedy Trial and Why You Should Never Miss a Court Date

First of all, if you are criminal defendant, you should never miss court.  Your failure to appear will likely result in a warrant and/or judgment issued against you.  You might also miss an opportunity to have your attorney get something accomplished on your behalf.

But that is not what I am writing about today.

I saw this happen earlier this morning in Chicago’s Traffic Court.

A judge was going through her morning trial call to see which cases would be ready for trial.

A case was called that had been set for trial.  The defendant had not yet appeared. It was 10:00 a.m. and the case had been scheduled for 9:00.  The case was stricken from the trial call and was passed for the “no-show” or “warrant call.”  Had the defendant been there, the state would not have been able to answer ready for trial, because their arresting officer had not shown up either.

It was mentioned by the prosecutor that the case “was at term.”  At this point, all the attorneys in the courtroom groaned.

What did they know that you don’t?

Under the Sixth Amendment to the United States Constitution, defendants are guaranteed a right to a speedy trial.  In Illinois, that right has been codified under 725 ILCS 5/103-5.  Basically, and with certain exceptions, its states that a person is entitled a trial within 120 days if he or she is in custody, or 160 if he or she is on a bond, so long as he demands trial in writing.

So when the prosecutor stated to the court that the case had been “set to term” that meant that the case had been scheduled for for trial multiple times over the past 160 days and that each time the State had not been ready.  And since they were not ready on this day, it meant that in all likelihood, the case would have been dismissed, had the defendant shown up for court on time.

But the defendant did not show up, so his attorney could not answer “ready for trial” and therefore his demand for a speedy trial was waived.  Yes, waived.  The “Speedy Trial” statute states that “[t]he defendant’s failure to appear for any court date set by the court operates to waive the defendant’s demand for trial made under this subsection.”  725 ILCS 5/103-5(b).

This means that the 160 day time period will now start over again, when the defendant appears and demands trial.  So that if the defendant were to arrive in court several hours late, but has a great excuse such as that he was a passenger on a train that derailed, he will have to answer ready for another 160 days before he gets another chance to have his case dismissed without a trial.  In the meantime, the State gets a reprieve and another 160 days to get their officer in court.

So why did the attorneys groan?  Because they know that the defendant just blew a rare opportunity to have his case dismissed without the risk of trial, and because they know that their fellow attorney must have prepared and answered ready three, four or five times to get to this point, all for naught.

So defendants, please keep track of your court dates!

Before posting someone’s bond, be aware of the consequences!

How would you like to have the government take $50,000 of your money because of something someone else did?

A new appellate court opinion was issued last week that might be of interest to the general public. It concerns what can happens to the money put up by a third party to bail someone out.

The case was People v. Pamela Williams, 2012 IL App (2) 111157. According to the opinion, Ms. Williams was charged with multiple counts of theft. She needed $50,000 to bond out of jail. Her brother-in-law, Arwood K. Edwards, was willing to do so, because he believed in Ms. Williams’ innocence.

Before Mr. Edwards could post the bond, a special hearing was held, to ensure that the money being used to post the bond were not obtained as a result of the allegedly fraudulent conduct. During this hearing, it was stated in court that Mr. Edward had been advised that the money that he posted for Ms. Williams’ bond could be used to pay fines, court costs and/or restitution. The Court found that the money was not obtained from the fraud, and Mr. Edwards was allowed to post the bond. When he did so, he signed a form which again stated that the funds could be used for fines, fees, court costs, attorneys fees and/or restitution, or forfeited if the defendant failed to appear in court.

Subsequently, Ms. Williams plead guilty to ten counts of theft, and she was ordered to pay $1,800,000.00 in restitution. Her attorneys filed a motion seeking to have the bond money returned to Mr. Edwards. The State objected, and a hearing was held before a DuPage County judge.

According to the opinion, at the hearing:

The defendant’s attorney read a statement on behalf of Edwards that said that when he posted the
bond the defendant had pleaded not guilty, and Edwards believed that the defendant was innocent.
The statement went on to say that, if Edwards had known that the defendant was guilty, he would
not have provided the bail money. The defendant’s attorney argued that it would be a travesty to take
money from a third party who was not involved in the crimes. He additionally argued that, because
Edwards had recently injured himself and had a severely disabled son, the trial court should consider
these personal circumstances in determining whether equity required exoneration of the bond.
Finally, the defendant’s attorney argued that using the bail money for restitution was not mandatory
and that, under the circumstances, using it would be unfair

Unfortunately for Mr. Edwards, the trial court ruled against him. The court ruled that when Mr. Edwards knowingly posted the bond, he accepted the risks inherent in posting a bond for another person. The court held that it was not obligated to consider the essential fairness of taking Mr. Edwards’ money to pay for Ms. Williams’ crimes.

Mr. Edwards also raised a technical defense, that the Notice to Surety on the bond form did not comport with the requirements under the bond statute, 725 ILCS 5/110-7. The Court agreed that the bond form did not meet the statutory requirements, but that compliance with the statute was not be strictly enforced.

I should also point out that it is becoming commonplace in many jurisdictions for bond money to be used, not only for court costs, fines and restitution on the pending case, but also to pay any outstanding balances on any other cases that the defendant might have in that jurisdiction.

So be warned: if you have a relative or friend who is charged with a crime, and begs you to post his or her bond, you should be prepared to kiss that money goodbye.

US to issue renewable work visas to some undocumented aliens

Major news today on the immigration front.  The United States Department of Homeland Security has announced that it will allow certain undocumented aliens to apply for renewable 2 year work visas.  These visas will allow a person, who was brought into this county illegally when they were younger than the age of 16 and have been living here for at least 5 years, have not committed any felonies or “significant” misdemeanor or multiple misdemeanors and is a student or a veteran or has a high school degree or GED.

These visas will allow the individual to obtain a social security number and therefore, a driver’s license.

Here is Secretary Napolitano’s press release:

For Immediate Release
Office of the Press Secretary
Contact: 202-282-8010

WASHINGTON— Secretary of Homeland Security Janet Napolitano today announced that effective immediately, certain young people who were brought to the United States as young children, do not present a risk to national security or public safety, and meet several key criteria will be considered for relief from removal from the country or from entering into removal proceedings. Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization.

“Our nation’s immigration laws must be enforced in a firm and sensible manner,” said Secretary Napolitano. “But they are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Discretion, which is used in so many other areas, is especially justified here.”

DHS continues to focus its enforcement resources on the removal of individuals who pose a national security or public safety risk, including immigrants convicted of crimes, violent criminals, felons, and repeat immigration law offenders. Today’s action further enhances the Department’s ability to focus on these priority removals.

Under this directive, individuals who demonstrate that they meet the following criteria will be eligible for an exercise of discretion, specifically deferred action, on a case by case basis:

  1. Came to the United States under the age of sixteen;
  2. Have continuously resided in the United States for a least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum;
  3. Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
  4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
  5. Are not above the age of thirty.

Only those individuals who can prove through verifiable documentation that they meet these criteria will be eligible for deferred action. Individuals will not be eligible if they are not currently in the United States and cannot prove that they have been physically present in the United States for a period of not less than 5 years immediately preceding today’s date. Deferred action requests are decided on a case-by-case basis. DHS cannot provide any assurance that all such requests will be granted. The use of prosecutorial discretion confers no substantive right, immigration status, or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.

While this guidance takes effect immediately, USCIS and ICE expect to begin implementation of the application processes within sixty days. In the meantime, individuals seeking more information on the new policy should visit USCIS’s website (at www.uscis.gov), ICE’s website (at www.ice.gov), or DHS’s website (at www.dhs.gov). Beginning Monday, individuals can also call USCIS’ hotline at 1-800-375-5283 or ICE’s hotline at 1-888-351-4024 during business hours with questions or to request more information on the forthcoming process.

For individuals who are in removal proceedings and have already been identified as meeting the eligibility criteria and have been offered an exercise of discretion as part of ICE’s ongoing case-by-case review, ICE will immediately begin to offer them deferred action for a period of two years, subject to renewal.

For more information on the Administration policy reforms to date, please see this fact sheet.

DWI charge against Ex-FAA chief Babbitt thrown out

This is an update to a previous post.

Previously, I had reported that ex-FAA chief Randy Babbitt had been arrested for DWI in Virginia.

Yesterday, a judge in Virginia dismissed the case for lack of reasonable suspicion for the officer to stop his vehicle, in violation of our Constitutional right to be free of unreasonable stops and seizures.

According to the local Fox affiliate:

 A judge on Thursday tossed out drunken driving charges against the former head of the Federal Aviation Administration after seeing video of the traffic stop and ruling that the officer had no legitimate reason to stop the driver.

Randy Babbitt, 65, resigned his post in December after news of his arrest became public.

At a trial Thursday, General District Judge Ian O’Flaherty dismissed the case after seeing video that showed Babbitt making what appeared to be a normal left turn into a parking lot, even though the officer had said that Babbitt had been driving on the wrong side of the road.

O’Flaherty called the traffic stop a “hunch” and dismissed the case before prosecutors could even present evidence of Babbitt’s alleged intoxication.

Babbitt’s lawyer, Peter Greenspun, disputed the fact that Babbitt was intoxicated in the trial’s opening statement. He said the first breath test administered gave a result of .07, under the .08 legal limit. It was only subsequent breath tests that showed an intoxication level above .08, and Greenspun said police are not allowed to give multiple tests until they get a result they like.

Babbitt, after the case was dismissed, told reporters he was glad to have the matter behind him and spoke graciously about the officer who arrested him.

Too bad for Mr. Babbitt that this vindication came after he was forced to resign his job following the police officer’s improper arrest.