People v. Al Burei
Journey for Kentucky Cigarettes Beginning in 2003, Makes Second Stop at Illinois Appellate Court in 2010, After Brief Overnight Stay in Illinois Supreme Court in 2008, with its Final Destination Likely to Again be the Illinois Supreme Court, Possibly by the year 2012, Although Others Have their Doubts as to When the Case Will Finally Reach Conclusion, IF EVER.
Why is the trip of our main character, Omar Al Burei, to illegally smuggle one of Kentucky’s cash crops back to Illinois to avoid tax on his cigarettes important enough for me to write about you might ask? Well, because it has to do with 4th Amendment Rights and the expectation of privacy one has as a traveler (in this instance a passenger) in a motor vehicle. No, it’s not a new debate, but lines are continually being drawn and redistricted, and it’s important for both sides to know what the boundaries actually are at any given time.
While the Fist District’s September 30, 2010, opinion does not disclose where Mr. Al Burei’s journey began or what exactly his route was, the van he was in was stopped by Officer Glen Tienstra of the Hickory Hills, Illinois Police Department for an illegal U-turn and a cracked windshield. It is emphasized more than once in the opinion that the traffic stop was effectuated directly across from the police department. This is likely to discredit the State’s argument that officers needed to remove both passengers of the vehicle for officer safety concerns, as this is what the officer claimed was the reason for him removing both occupants. The time between the stop and the defendant exiting the vehicle was approximately five minutes at the most. After both occupants had exited the vehicle, the testimony of law enforcement and Al Burei differ as to whether or not Officer Tienstra was given permission by Al Burei to search the vehicle. The circuit court found that Officer Tienstra asked for and received consent to search the vehicle, but further found that the officer’s questioning of the defendant “was completely unrelated to the initial purpose of the stop”, and suppressed the cigarettes seized as fruits of the poisonous tree. At issue was the reasonableness of the detention of Al Burei and whether or not it violated fundamental principles of the fourth amendment.
As stated in the first district’s opinion, in order for the detention to conform to fourth amendment principles, (1) the officer’s actions must have been justified at its inception, and (2) the detention must be “reasonably related in scope to the circumstances which justified the interference in the first place.”) With both parties conceding the legality of the initial stop, the court was required only to focus on the second part of the inquiry, which is whether or not the continued detention and questioning by Officer Tienstra exceeded the scope of the initial inquiry and whether his continued inquiries “impermissibly prolonged the detention or changed the fundamental nature of the stop.”
While the first district analyzed the facts of this case in light of prior precedence wherein defendants had unsuccessfully argued to the Illinois Supreme Court that the return of their paperwork followed by subsequent requests by officers to search constituted a second seizure violative of fourth amendment principles, the first district distinguished those cases factually from this case in that the initial seizure of the defendant had not been concluded at the time the officer requested to search the vehicle. Al Burei at p. 13. Therefore, the court concluded that there was never a second detention, and that the officers’ actions violated the duration prong by prolonging the traffic stop beyond its lawful purpose. Id. The court opined that once Mr. Ghaban had given a plausible explanation about his nervousness, the conversation should have ended, and the officer should have then proceeded to issue the appropriate traffic citations. Id. The continued detentions of Ghaban and Al Burei, therefore, transformed an otherwise lawful stop to an unlawful one because the officers unnecessarily prolonged it beyond the time reasonably required to complete its purpose, and furthermore, changed its fundamental nature, “because it infringed upon the defendant’s legitimate interest in privacy”. Id. at p. 15, 18.
The issue of prolonged stops is litigated with surprising regularity in the trial courts of Illinois and likely the other 49 states of this country. The fourth amendment issues raised in Al Burei were especially interesting to this author, because just recently such issues were preserved for a client of the Dodds Law Office who is anxiously waiting for his case to be heard by the justices of the fourth district. Preservation is key, and that is why it is so incredibly important to hire an experienced Illinois Criminal Defense Attorney who can identify such issues, argue them in a motion to suppress, and make certain that they are preserved for appellate review. Will the rationale of the first district carry the day for this client? Will Al Burei be upheld if it again reaches the Supreme Court of Illinois or the United States Supreme Court? Your guess is as good as mine, but I think it is fair to say that travelers of our highways and byways shouldn’t be subjected to lengthy interrogations about where they’re going and what they’re doing for simple traffic violations, whether or not the detainee has contraband or is otherwise up to no good. Why you ask? Simply because we would be subjecting the greater majority to invasions of privacy intended to ensnare the indiscretions of a select few; well, that’s the way I see it anyway.
Filed under: Criminal by Terry Dodds
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Some of my friends and visitors may have noticed that it has been quite some time since I last blogged, and it is something that I have been meaning to do. To be honest though, nothing I’ve seen or read on an issue or topic recently has sparked my desire or interest enough to take the time to do so. Additionally, other things, responsibilities, interests, obligations to current clients, a knee surgery, a much needed vacation, and mood, I think have also hindered my desire to post something to better educate my visitors, existing clients, and potential clients; and, while the desire to provide information seekers the education and information they may be searching for is one reason bloggers blog, search engine optimization gurus and social media experts will tell you that blogging is also a very good self-promotional tool and helps increase web rankings. So, because of this, it took a lot of pondering before I figured out what to blog about, and ultimately decided to write about this particular issue. It is also an issue that my office recently had to deal with in a wrongful death case we spent years prosecuting and was just recently able to bring to finality.
Over the course of the past several years, our firm represented the Estate of a deceased motorcyclist who was killed when a driver of a motor vehicle pulled out of a bar’s parking lot directly into the path of our decedent. The driver of the vehicle leaving the bar had a BAC quite a bit above the legal limit, and as I just mentioned, had just left the property of the bar he had been drinking at. In any event, our decedent was not wearing a helmet and likely died instantaneously; not to say that the helmet would have saved his life, but it very well may have. After much research and investigation into other potential causes of action against the tavern and property owner, it was decided that our only causes of action lied in negligence against the driver for wrongful death, and a dramshop cause of action against the tavern and property owner. The decedent left two children, both of whom were minors at the time they lost their father, and an ex-wife now responsible for raising these two children without the benefit of any support or assistance from her now deceased ex-husband. So, you might be saying to yourself, the other driver either killed or contributed to the death of the decedent, so that family must be entitled to a rather large sum of money to compensate them for their loss. Due to the state of the law in Illinois, your thoughts are simply that, wishful thinking. Had their father survived, but been left with permanent injuries, your initial thoughts would have been accurate. How can that be you ask? Someone died!! The short answer and reason for this absurdity – an absurdity in my opinion at least – is due primarily to the fact that wrongful death causes of action, created by the Illinois Legislature in 1853 through the Wrongful Death Act , are statutorily created causes of action that did not exist at Common Law and do not allow recovery for punitive damages.
So, if that is the law, how is the family compensated for their loss if the defendant driver does not have or has very little insurance? Very good question! The family can pursue damages for pecuniary losses. Pecuniary losses include deprivation of support, depravation of the companionship, guidance, advice, love and affection, and now mental suffering.) Pecuniary loss can include loss of gifts, benefits, goods and services, and society, taking into consideration the gifts, benefits, goods and services customarily contributed by the decedent in the past and was likely to contribute in the future. The family can also seek compensation for loss of instruction, moral training, superintendence of education the decedent may have reasonably be expected to give his children had he lived, taking into consideration his age, sex and health; his habits of industry and thrift; his occupational abilities; and his relationship with his children. However, If the defendant driver does not have insurance, the defendant is more or less judgment proof, unless he or she has equity in other assets (such as a home, vehicle or liquid assets) that may allow the Estate of the decedent to place a lien on those assets after a judgment is secured. Even if there are assets with equity, unless a jury returns a verdict for punitive damages, the defendant can simply bankrupt the judgment if that option is available to him, and walk away without paying a nickel. Oh, and guess what, as previously indicated, punitive damages are not currently allowed in Wrongful Death and Survival actions. So, where does that leave the family of the decedent who has lost their loved one? Mostly, Out-of-Luck!!
Seems a little unfair doesn’t it? The victim lives, and punitive damages are available, but he dies, sorry. So, as the law currently stands, a defendant driver who either kills or contributes to the death of another, who was driving without state mandated insurance, and who committed an intentional tort can just walk away without any recourse should he be judgment proof and have the ability to discharge the debt in bankruptcy? How can this be? What can be done about it? To answer these questions, one only needs to turn to the Illinois General Assembly. As previously mentioned supra, Wrongful Death and Survival Actions were created by the legislative branch, so they can easily amend the statutes to enable plaintiffs to pursue punitive damages in such cases. With all of the attention that has been given over the years by the Illinois General Assembly to the social implications of those driving while under the influence, the increased enhanced penalties the General Assembly continues to impose on DUI drivers, the atrocities suffered by those who have fallen victim to those who decide to get behind the wheel while impaired, and the attention given to the problem by legislatures, the media, and social interest groups such as MADD., it is amazing to me that this conundrum has not been remedied
Should MADD., other social interest groups or one of our legislatures fail to close this loophole, the only other possible solution is that the Illinois courts create a judicial theory that would allow the Estate of the decedent the ability to pursue punitive damages. One court did just that, although its holding hasn’t seemed to take hold elsewhere in our judiciary. See Penberthy v. Price, 281 Ill.App.3d 16, 666 N.E.2d 352 (Ill. App. Ct. 5th Dist 1996) (relating to punitive damages in survival actions); Ford v. Herman, 316 Ill.App.3d 726, 737 N.E.2d 332 (Ill. App. Ct. 5th Dist. 2000); Hennessy v. Foley, 154 Ill.App.3d 1039, 507 N.E.2d 1258 (Ill. App. Ct. 5th Dist. 1987).
In Penberthy, Defendant Kenly operated a motor vehicle while intoxicated, and while doing so, crossed the centerline and collided with the vehicle being driven by Michael Penberthy. ((Id. at 353)) Penberthy and his passenger, David C. Walpole were injured, and Kenly died as a result of the accident. Plaintiffs sought punitive damages for the willful and wanton behavior of Kenly. Kenly’s Estate filed a motion to dismiss alleging that the Survival Act only allows the recovery of compensatory damages where either the victim or the tortfeasor is deceased.
Relying on Raisl v. Elwood Industries, Inc., 134 Ill.App.3d 170, 479 N.E.2d 1106 (1985); Grunloh v. Effingham Equity, Inc., 174 Ill.App.3d 508, 528 N.E.2d 1031 (1988); and Howe v. Clark Equipment Co., 104 Ill.App.3d 45, 432 N.E.2d 621 (1982), the fifth district upheld the punitive damages award in Penberthy. Penberthy, 666 N.E.2d at 355-56. Quoting Grunloh, the court stated:
The factors generally considered in determining whether an action for punitive damages survives are: (1) whether under ordinary circumstances the requested punitive damages have a statutory basis or are an integral component of a regulatory scheme and the remedy available thereunder; and (2) whether strong equitable considerations favor survival of an action for punitive damages. Matters which are relevant in considering the second of the above factors include whether the defendant’s alleged conduct offends against a strong and clearly articulated public policy; whether the underlying conduct constituted intentional misconduct which is also a crime, instead of mere willful and wanton conduct which shades into simple negligence; and whether absent an award of punitive damages, a plaintiff who prevailed on the merits of his or her claim would at most be entitled to only a comparatively small recovery.
Penberthy, 666 N.E.2d at 356.
The court concluded that the second factor quoted above was applicable and held that “[Kenly’s] conduct, driving under the influence of alcohol, unquestionably offends against a strong and clearly articulated public policy.” The fact that driving under the influence is also a criminal offense weighed heavily in the court’s decision, as did the strong equitable considerations justifying the survivability of the punitive damages claim against the decedent’s estate.
In our case, after we filed a motion for leave to amend our complaint in an effort to allow us to seek punitive damages against the intoxicated defendant driver that caused or contributed to the death of our decedent, we argued that Penberthy was applicable, and that we should, therefore, be allowed to pursue punitive damages against the defendant. Our request was denied; obviously, a ruling which I did not agree with then, and still do not agree with today. In fact, had the defendant not decided to settle, it was an appeal I was very much looking forward to, and which I would have solicited amicus briefs on.
The only true distinction that I see between Penberthy and our case is this: in Penberthy, surviving plaintiffs sued a decedent driver, whereas in our case, decedent plaintiff was suing surviving defendant driver. A distinction I fail to see, and an injustice I truly do. Personally, I think the fifth district’s opinion is well rationalized, and should be adopted by the rest of the districts of the Illinois Appellate Court. Aren’t the equitable considerations the fifth district relied on to uphold the punitive damages award in Penberthy, applicable in any case in which death is caused by an intoxicated driver? Doesn’t that driver’s conduct still offend against a strong and clearly articulated public policy? Doesn’t the underlying conduct constitute an intentional misconduct which is also a crime, instead of mere willful and wanton conduct which shades into simple negligence? Lastly, isn’t the estate of the decedent still left with a comparatively small recovery if punitive damages aren’t available, and more importantly, left with nothing if the award is dischargeable in bankruptcy? Isn’t the threat of punitive damages yet another deterrent to someone getting behind the wheel after he’s had too much to drink?
It is my belief that all of the concerns expressed by the fifth district are applicable regardless of who is blessed enough to walk away from such a tragedy. However, the behavior of the intoxicated driver should, without question, expose him to punitive damages. Making this remedy available should also serve as yet another weapon in the arsenal of remedies available against those who may be inclined to put their life and possible other lives at risk by getting behind the wheel after they’ve had too much to drink. So, talk to your state legislatures or MADD., and let your voice be heard by those who have the ability to close this loophole in the laws of our State.
Filed under: Personal Injury by Terry Dodds
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Had to say goodbye to one of my mentors today. He was not only a mentor, but a friend, someone who took me under his wing, and someone who was later able to refer to me as colleague in his profession; thanks partially to his guidance. The memorial service for retired DeWitt County Circuit Judge Stephen Peters’ was held today, March 25, 2011, in Clinton, Illinois: http://goo.gl/4IHrr
He was a man that I admired very much, and who really seemed to take a liking to me since before I completed my undergraduate studies at Illinois State University (ISU). Our many conversations began while I was an intern at the DeWitt County Sheriff’s department while studying criminal justice at ISU. They continued into law school and after I entered the profession. His daughter Melissa and I went to high school together, and we even sat near one another in study hall, although she was a year or two behind me in school. I will miss our friendly conversations in his chambers; it was something I always looked forward to when I went back to Clinton. He had a tough job, and some who appeared before him might not have cared for him as much as I did, but they didn’t know the man glaring down at them from the bench like I and many others did; and like him or not, they certainly had to respect him. I was glad I was able to get a glimpse of the kind of person he was without the black robe on, and am grateful he took a liking to me. He was a good man to me, and that’s all that counts in my book.
It wasn’t shortly after he retired that he became ill. When I first heard the news, it saddened me very much, because here was a man that worked hard his entire life to get to get to his “golden years”. The time I know he worked so hard for, looked forward to, and which should have been spent enjoying with his wife, lovely daughters, and grandchildren. A time which was so suddenly shortened.
Ironically, during Melissa’s eulogy, she told everyone her father advised her that she could do whatever she wanted in life, except become an attorney. Humm, when I see him next, I’ll have to ask why I didn’t get that same sound advice, lol.
You will be missed sir.
Filed under: Uncategorized by Terry Dodds
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I have received some comments under previous unrelated posts regarding the United States Supreme Court’s decision released Monday, June 27, 2010, captioned McDonald, et al. v. Chicago, Illinois, a monumental Supreme Court decision relating to 2nd Amendment Rights, specifically the right to possess handguns. The opinion specifically addresses the prohibition placed on residents of Chicago and Oak Park, Illinois to possess handguns, but has far greater implications with respect to gun rights. A later blog may follow as it relates to McDonald, but for now, a synopsis of the Court’s ruling, as well as, a link to the decision can be found at the Washington Post’s website here.
Filed under: General by Terry Dodds
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So, You Think You Can Say Something Defamatory About Someone On The Internet That You Might Not Otherwise Say Elsewhere, Because You Think You Can Hide Behind The Anonymity of the Internet? Well, You Might Want To Rethink That Strategy Before Deciding To Do So Now
Donald Maxon and Janet Maxon v. Ottawa Publishing Co.
Ever posted something on an online newspaper or other website that allowed you to voice your opinion about a particular article or subject anonymously? If you’re reading this and you are connected to the World Wide Web, chances are greater than not that you have. Well, the Third District of the Illinois Appellate Court and some other jurisdictions are weighing in and warning that your posts might not be so anonymous after all; that is, if they are defamatory in nature. Just ask the people who posted derogatory statements aimed at Donald and Janet Maxon (the Plaintiffs) on the online version of the newspaper, “The Times”, affiliated with Ottawa Publishing, Co. (hereinafter referred to as Ottawa Publishing), which is distributed in and around Ottawa, Illinois.
According to the court’s decision, on March 20, 2008, Ottawa Publishing posted an article on the online version of its newspaper called “MyWebTimes” , titled “Ottawa: Commissioners favor B&B additions, changes.” “The subject of the article, which generally reported on the Ottawa Planning Commission’s consideration of a proposed ordinance to allow bed and breakfast (B&B) establishments to operate in residential areas, precipitated numerous comments by readers. The article did not mention the plaintiffs by name.”
Continuing its coverage of the controversial ordinance proposal, less than a month later, Ottawa Publishing published a letter to the editor on its website titled “Precedent will be set by changing B&B ordinance!”. The letter posted to the internet again did not mention the plaintiffs by name. The post, however, again spawned readers to post numerous comments online about the issue.
Subsequently, the Maxons commenced litigation to discover the identities of the anonymous posters. As part of the lawsuit, the Maxons petitioned the court for an order requiring Ottawa Publishing to disclose “the ‘name, address, phone number, e-mail address or other account information used to establish their blog ‘identity,’ the password used for access to the blog, or other identifying information’ for “FabFive” and “birdie1.”
Pleadings were filed on both sides as to whether or not the Maxons should be allowed to move forward with their lawsuit. The circuit court also allowed each side to argue their respective positions during oral arguments on the pleadings, after which the court dismissed the Maxon’s lawsuit, noting that no precedence in Illinois had previously addressed whether such a lawsuit could proceed, and what burden had to be met in order to do so. The trial court had looked at authority from other jurisdictions, but concluded that the Maxons were not entitled to ascertain the identities of the anonymous posters. According to the opinion of the third district, the trial court adopted the analysis of these other jurisdictions, and ruled that “a petitioner seeking the disclosure of an anonymous Internet poster must show that:
(1) the anonymous poster has been notified of the potential claim so they may have the opportunity to appear; (2) the petitioners have set forth the exact statements that have been purportedly made by the anonymous person; and (3) the allegations meet a prima facie standard and are able to withstand a hypothetical motion for summary judgment as if brought by one of the potential defendants, at least with regard to elements that are within the petitioner’s knowledge. The trial court noted that the goal in applying the [above test is] to balance the rights of a person not to be defamed with the first-amendment, free-speech rights of anonymous posters. (internal citations omitted).
The trial court found that the Maxons had not satisfied the third prong of the test, believing that “the literary and social context of the statements rendered them nonactionable opinions as a matter of law.” In other words, the statements were not defamatory as a matter of law.
The Third District of the Illinois Appellate Court framed the ultimate issue as being: whether “allegedly defamatory speech enjoys any constitutional protections, such as the right to speak anonymously?”
In order for a plaintiff to be able to proceed with such an action for defamation, the third district held that:
the court must insure that the petition: (1) is verified; (2) states with particularity facts that would establish a cause of action for defamation; (3) seeks only the identity of the potential defendant and no other information necessary to establish the cause of action of defamation; and (4) is subjected to a hearing at which the court determines that the petition sufficiently states a cause of action for defamation against the unnamed potential defendant, i.e., the unidentified person is one who is responsible in damages to the petitioner. (internal citations omitted)
The court was of the opinion that any protections afforded by the United States Constitution as to cases of this nature are sufficiently addressed by such an analysis and would be adequately considered when the court makes its determination as to whether or not the plaintiff has plead sufficient facts to meet its burden “as part of [its] prima facie case”.
The long and the short of the court’s opinion appears to be that what one posts anonymously does not necessarily afford more protection than what one would say or write using their true identity. Defamatory statements are defamatory statements, and one should not post such statements relying on the belief that they will be shielded by the superficial protections of the otherwise faceless Internet. Simply put, what you wouldn’t say in public for fear of retribution, you shouldn’t post anonymously online. As the court noted, “it is overly broad to assert that anonymous speech, in and of itself, warrants constitutional protection.”
However, as the court outlines in its analysis above, the same scrutiny will be applied to determine whether the speech is protected by the 1st Amendment. While this post is not intended to explore available defenses to defamation lawsuits, and this author does not profess to have expansive knowledge regarding libel and slander cases, a few examples that come to mind include (1) whether the targeted individual is a public official or other notable public figure, such as a celebrity or professional athlete (2) whether the statement is true or (3) whether the public’s interest in freedom of expression outweighs the plaintiff’s interest in preserving his reputation.
As can be ascertained from the court’s opinion and from merely conducting an online search of the topic, other jurisdictions are having to establish precedence for this type of litigation as well. Dubbed “cyberlibel” by those on the World Wide Web , such cases appear to becoming more and more common. One interesting case that caught my attention was highlighted by the New York Times on their website. The case identified in the article involved a twenty-one year old college student named Just Kurtz who created an entire website devoted to lambasting a towing company for what he claims was an illegal tow. The towing company, T&J Towing retaliated by filing a defamation lawsuit, one which the New York Times cites some lawyers referring to as a “SLAPP” lawsuit, an acronym for “strategic lawsuit against public participation”. One might also refer to them simply as meritless or harassment lawsuits.
Again, the lesson to be learned is don’t post something on the internet anonymously that could possibly be considered defamation for fear of retribution from your target. Internet libel or “cyberlibel” is still libel, whether or not you are asking others to “pay no attention to that man behind the curtain”.
Filed under: General by Terry Dodds
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People of the State of Illinois v. McPeak (DUI_Drugs)
In March 2005, Samuel McPeak was stopped by a Police Officer in Lee County who noticed him not wearing his seat belt. When McPeak exited the vehicle at the Officer’s request so that he could give Mr. McPeak his ticket for the seat belt violation, the Officer noticed an odor of cannabis, which the officer testified he noticed coming from McPeak’s person.
During his encounter with McPeak, the Officer asked McPeak if he had been smoking cannabis, which McPeak replied he had, and that he had taken one or two hits from a “hit pipe” within the last hour or two. Based on McPeak’s response, and the Officer’s observations, the Officer arrested McPeak for “Driving Under the Influence” (DUI) of drugs for having cannabis in his breath, blood, or urine.
Prior to a stipulated bench trial on the evidence, McPeak’s counsel filed a motion to quash the arrest and to suppress the evidence, arguing that there was insufficient evidence to arrest McPeak for DUI, “because there was no evidence of the presence of cannabis in his breath, blood, or urine as required by section 11-501(a)(6).” After a conviction at a stipulated bench trial , McPeak appealed. The facts stipulated to at trial were that: 1) the officer smelled burnt cannabis about Mr. McPeak’s person 2) that McPeak admitted to taking two hits out of a hitter box about an hour before being stopped, and 3) that after he was arrested, the officer located a smoking pipe in McPeak’s vehicle that contained a burnt substance that smelled like cannabis, and which later field-tested positive for cannabis.
On appeal, the State argued that there was sufficient circumstantial evidence to support McPeak’s conviction, in that there was sufficient circumstantial evidence that Mr. McPeak had cannabis in his breath, blood, or urine at the time he was driving as prohibited by Illinois law. McPeak argued that his Motion to Suppress should have been granted, and that there was insufficient evidence to uphold the conviction. The Illinois Appellate Court, Second District reversed noting that while “McPeak admitted to smoking ‘two hits’ of cannabis ‘about an hour ago’ [t]here was no evidence whether consuming that amount of cannabis would result in any cannabis being left in his breath, blood, or urine an hour later.” Furthermore, the court held that there “was no evidence that McPeak was impaired and no evidence of any odor of cannabis on McPeak’s breath, as opposed to his ‘person’.” In other words, what the court was really saying was that while there may have been circumstantial evidence that McPeak smoked cannabis, and that it likely remained in his system, the State had failed to show beyond a reasonable doubt by way of scientific evidence, or by way of other evidence, that the cannabis remained in his system.
Relying on a holding from the Third District, People v. Allen , the court noted that while “the odor of cannabis on the breath of a defendant could provide circumstantial evidence that the defendant has cannabis in his breath”, there was no such evidence in this case because the Officer had testified that he had smelled burnt cannabis about Mr. McPeak’s person, “something that does not address whether McPeak had cannabis in his breath, blood, or urine at that time.” (emphasis added). In its opinion, the court also noted that there was also a lack of additional evidence to show that Mr. McPeak was impaired; evidence such as dilated pupils, that his motor skills were impaired, that he had trouble performing standard field sobriety tests, problems communicating or speaking, etc.
While additional evidence likely would have resulted in Mr. McPeak’s conviction, the court ruled that, “the State provided no evidence that cannabis remained in McPeak’s breath, blood, or urine while he was driving.” (emphasis added).
My interpretation of the court’s ruling is simply that the State failed to connect the dots. They didn’t have urine or blood showing the presence of cannabis. This is akin to a lack of corpus delecti, a Latin term requiring proof that a crime has been committed.
The case may have been proven through scientific evidence, by way of expert testimony, that cannabis tends to remain in one’s system for a period of time after ingestion. Another possibility is that they may have simply stipulated their way out of the case, meaning that they agreed to some facts, but failed to insist on the presence of additional facts that might have existed which would have helped to prove the case circumstantially.
While it may seem that Mr. McPeak may have dodged a bullet in this case, I have no doubt that the bullet was actually diverted by the help of his lawyer. That is why it is so important to hire a qualified Illinois Criminal Defense Attorney. Sometimes convictions are avoided through an intelligent, cunning lawyer, who knows the law, or who can use it to their advantage.
Filed under: Criminal by Terry Dodds
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Interstate Scaffolding, Inc. v. The Illinois Workers’ Compensation Comm’n, et al., 236 Ill.2d 132, 923 N.E.2d 26 (Ill. 2010).
During oral arguments held at its March 2009 docket, the Illinois Supreme Court was asked to decide whether or not an Illinois employer, with an employee with a workers’ compensation claim, who is entitled to Temporary Total Disability (TTD) benefits pursuant to the Illinois Workers’ Compensation Act, can discontinue its Illinois at-will employee’s right to those TTD benefits when that employee is terminated for cause or for “volitional conduct”. In a very meaningful opinion for Illinois Workers’ Compensation attorneys, the Supreme Court of Illinois held in its January 22, 2010 decision, that:
“Whether an employee has been discharged for a valid cause, or whether the discharge violates some public policy, are matters for and to workers’ compensation cases. An injured employee’s entitlement to TTD benefits is a completely separate issue and may not be conditioned on the propriety of the discharge.
For the reasons stated above, we hold that an employer’s obligation to pay TTD benefits to an injured employee does not cease because the employee had been discharged-whether or not the discharge was for “cause”. [T]he determinative inquiry for deciding entitlement to TTD benefits remains, as always, whether the claimant’s condition has stabilized. If the injured employee is able to show that he continues to be temporarily totally disabled as a result of his work-related injury, the employee is entitled to TTD benefits.”
In more simple terms, Illinois employers cannot terminate an Illinois employee’s right to TTD simply because the worker was fired with or without cause. Those rights continue until the employee’s condition has stabilized, or he or she has reached “maximum medical improvement.
In this particular cause of action, the Petitioner, Jeff Urban (Urban), was employed as an Illinois employee by Interstate Scaffolding, Inc. (Interstate), as a union carpenter when he sustained a work-related injury to his head, neck, and back. He was initially diagnosed with a mild concussion and cervical strain. Following his injury, he continued to experience persistent headaches, cervical pain, and numbness in his arms. After more conservative treatment failed, it was recommended by his employer’s Independent Medical Examiner that he undergo a spinal fusion operation. At first, Urban rejected the spinal fusion and opted to continue with further conservative treatment. As a result of his injuries, and at different times during the course of his treatment, Urban’s doctor instructed him not to work or placed him on “light duty” with restrictions.
During the course of his treatment, and before reaching maximum medical improvement, Urban was terminated for, among other things, writing religious graffiti or slogans in the storage room on Interstate’s premises. As a result of his termination, Interstate discontinued Urban’s TTD, and the issue eventually made its way to the Illinois Supreme Court, which issued the above ruling.
Filed under: Workers Compensation by Terry Dodds
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As many of you may already be aware (hopefully not because you have already been ticketed for violating this new statute), the Illinois Legislature passed a new law that took effect on January 1, 2010, limiting the usage of cellular phones in school and construction zones. The law was introduced in the House as HB 0072, by Representative John D’Amico (D) of the 15th Dist. (Chicago). It was later sponsored in the Senate by Pamela J. Althoff (R) of the 32nd Dist. (Crystal Lake), and later passed both houses of the Illinois General Assembly as Public Act 96-0131.
Many Illinois attorneys, prosecutors and Illinois criminal defense attorneys alike, have interpreted the new law to mean that individuals cannot be utilizing their cell phones at any time while in these protected zones. The rationale behind this belief is found in the statute itself, 625 ILCS 5/12-610.1, which reads in section (e) that “A person, regardless of age, may not use a wireless telephone at any time while operating a motor vehicle on a roadway in a school speed zone established under Section 11 605, or on a highway in a construction or maintenance speed zone established under Section 11 605.1.” When the Peoria Journal Star printed an article regarding new laws to take effect January 1 of this year on December 30, 2009, the author, Doug Finke, wrote that “[H]ouse Bill 72, makes it illegal for drivers to use cell phones in school or construction zones, unless they are the hands-free variety.” To be honest, my interpretation of the new law was consistent with those who had interpreted the statute to mean no cell phones at any time; that was until I reread the statute after another attorney and I were discussing the matter since our office was then representing someone charged with having violated this particular statute. Attorneys should invariably always read the statute itself before moving forward in a criminal matter; that is what we are taught, and this is particularly true with new statutes. Of course, I had done this, but discussion led to further analyzation of the statute and conducting some legislative research to determine whether or not the new statute was to truly be interpreted as to not allow cellular usage at any time in these protected zones.
Notice the reference to 625 ILCS 5/11-605 at the end of the sentence quoted above? That particular statute is what establishes “School Speed Zones”; requiring you to reduce your speed to 20 mph at certain times. In that statute “School Speed Zones” are only in effect “[o]n a school day when school children are present and so close thereto that a potential hazard exists because of the close proximity of the motorized traffic, no person shall drive a motor vehicle at a speed in excess of 20 miles per hour while passing a school zone or while traveling on a roadway on public school property or upon any public thoroughfare where children pass going to and from school.” (emphasis added).
625 ILCS 5/11-605 goes on to say that “School Speed Zones” are only in effect from 7:00 a.m. to 4:00 p.m.
When controversy exists over the interpretation of a law, which may have been poorly drafted, which was passed by the legislative branch of any governmental body, one has to turn to the “legislative history” of the statute, if any exists, to try and determine the legislative intent of the legislative body. That’s exactly what I set out to do, although no definitive answer could be ascertained from reviewing the legislative history available at the Illinois General Assembly’s website with respect to this particular piece of legislation; no debates as to the intent or meaning of the statute could be located.
Finding no help from the house and senate debates regarding this statute, I called Senator Althoff’s office for assistance, since she was the sponsor in the Senate, which was the last house of the Illinois General Assembly to pass the bill. Senator Althoff’s office directed my inquiry to someone with the Illinois State Police. He directed my inquiry to the legal counsel of the Illinois State Police.
Further efforts included contacting the Illinois Legislative Information Bureau, which suggested that I contact the Index Department of the Illinois Secretary of State and the House Committee Clerk. The individual I spoke with at the Index Department told me that he would gladly send me the audio recordings of the transportation committee meetings, where HB0072 was assigned, to further my efforts in ascertaining the correct reading of this statute. During this time, an additional telephone call was received from a Republic Legislative Analyst who advised me of his interpretation of the statute.
As a result of my efforts, I must say that I learned a lot about the Illinois legislative process, discovered the existence of new governmental entities that I previously did not know existed, and got to speak to a lot of wonderful people employed by the Illinois Government, all of whom, with the exception of one, were extremely helpful and seemed to be interested in what I was trying to accomplish.
Bottom line, I think there may be a continued debate as to whether or not Illinois drivers can use their cell phones at any time in a “school zone”. That being said, it is my belief, and the belief of some other Illinois criminal defense attorneys that you are safe to use your cell phone in a “school zone” provided there are “no school children present and so close thereto that a potential hazard exists because of the close proximity of the motorized traffic.” Why else would 625 ILCS 5/12-610.1 reference “school speed zones,” instead of “school zones”, and 625 ILCS 5/11-605. If it were not so, would it mean that I couldn’t use my cell phone in a school zone at 9:00 p.m. throughout the week or on the weekend? If that’s the case, the statute is rather ridiculous. That being said, I think until the statute is redrafted or one of our appellate courts is asked to interpret it that Illinois drivers run the risk of being ticketed and having to hire an Illinois attorney who practices in criminal law to advocate on their behalf as to why it was okay for them to be using their cell phone in a school zone (not very cost effective I don’t think).
Why run the risk? In all fairness, and for the safety of our children, why not hang up the cell phone while in a school zone between the hours of 7:00 a.m. to 4:00 p.m.? Why not reduce your speed to 20 mph whether or not you see children in the area. Personally, I try to never drive above 20 mph in a school zone during those hours, no matter how bad it upsets the other drivers behind me or whether or not school children are present. Why? For one, I don’t want to be ticketed by an officer that wants to have a philosophical debate with me about whether or not there were school children present. For another, I don’t want to run the risk of some child darting out in front of my car and wind up on the front page of the newspaper for being the one who struck him. How bad would I feel? How bad would you feel?
The statute allows for the use of wireless devices, so you are alright in that regard; buy a Bluetooth if you always want to be able to speak to whoever you are talking to or need to speak with.
While not a proponent of the passage of some of the overwhelming number of laws that now fill up eight very large volumes of what is the Illinois Compiled Statutes, I would not be opposed to both statutes reading that you are in violation of them if you are doing either between the hours of 7:00 a.m. and 4:00 p.m. while school is in session. That being said, I still believe that the current and correct interpretation is that those laws are only applicable when there are “school children present and so close thereto that a potential hazard exists because of the close proximity of the motorized traffic.”
Construction zones are a different beast altogether. No speeding or cell phone usage at any time. This is true whether or not workers are present, which used to be the way the law read.
Fines are steep indeed for violating any of the statutes discussed herein, so just be prepared if you are in a hurry or just have to take that call; prosecutors are also very unforgiving when you’re caught, so there’s the warning you absolutely will not get from the officer who pulls you over.
Filed under: Criminal by Terry Dodds
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Joe Mahr, wrote in an interesting article today in the Chicago Tribune (i) that some Cook, Dupage, and Lake County judges are under close scrutiny following an investigation by the newspaper for handing out what it believes are excessive amounts of supervision for Illinois drivers caught speeding in excess of 40 MPH over the speed limit.
I can assure you that this is not a likely outcome here in Bloomington, McLean County, Illinois. However, according to the article, it’s soon not likely to be an outcome available to any Illinois drivers if new legislation that has passed both houses of the Illinois General Assembly is signed by Governor Quinn.
SB3796 (ii) would eliminate Supervision as a possible sentence for Illinois motorists driving in excess of 40 MPH over the posted speed limit. The same legislation would also make speeding 30-40 MPH over the posted speed limit a Class B Misdemeanor.
(i) http://www.chicagotribune.com/classified/automotive/ct-met-100-mph-judges-main-20100502,0,7866510.story
(ii) http://www.ilga.gov/legislation/BillStatus.asp?DocNum=3796&GAID=10&DocTypeID=SB&LegID=51998&SessionID=76&GA=96&SpecSess=0
Filed under: Criminal by Terry Dodds
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The Illinois Legislature is considering making “SEXTING” a crime. What is it “SEXTING” you ask?
“Sexting” as the act has been termed is teens sending other teens pornographic or lewd pictures of themselves to one another.
According to another blog written by Kevin McDermott I found on stltoday.com[i] after having done a Google search, the law “would outlaw the practice [of “sexting”] (it isn’t clearly illegal right now, if there aren’t any adults involved). It would effectively declare the kid who does this to be both the perpetrator and the victim.
Under the bill, a minor caught using a computer or cell phone “to transmit an indecent visual depiction of himself or herself to another person . . . shall be adjudicated a delinquent minor” — the same thing that happens to teens who steal or vandalize.”
The synopsis of the originally proposed bill, SB 2513, found on the Illinois Legislature’s website[ii] and sponsored by Senator Ira I. Silverstein[iii] of the 8th Dist in Chicago reads as follows:
Amends the Juvenile Court Act of 1987 and the Criminal Code of 1961. Provides that a minor shall not knowingly and voluntarily and without threat or coercion use a computer or electronic communication device to transmit an indecent visual depiction of himself or herself to another person. Provides that a person shall not possess a visual depiction transmitted to the person in violation of this provision. Provides that it is not a violation if the person who receives the depiction took reasonable steps, whether successful or not, to destroy or eliminate the visual depiction within a reasonable time after discovering the depiction. Provides that a person 18 years of age or older who violates the provision is guilty of a Class B misdemeanor. Provides that a minor who transmits the indecent visual depiction shall be adjudicated a delinquent minor under the Juvenile Court Act of 1987. Provides that a minor who transmits the indecent visual depiction who has previously been adjudicated for such violation may be either adjudicated a delinquent minor under the Juvenile Court Act of 1987 or subject to discretionary transfer for prosecution under the criminal laws of the State in accordance with the Juvenile Court Act of 1987. Provides for the automatic expungement of the juvenile law enforcement and court records of a minor charged with or adjudicated delinquent for the violation.
After some amendments made by the Criminal Law committee, the proposed bill appears to have passed the Senate after its third reading on March 18, 2010, and arrived at the house on the same day. The house sponsor is Representative Darlene J. Senger (R)[iv] of the 96th District in Napperville. The bill as amended appears to now be in the Rules Committee of the House.
According to an article online at the Chicago Sun-Times[v], the bill as amended by the house would not require the minor to register as a sex-offender, which concerned a large portion of the Illinois lawyers following the bill who practice criminal law. According to the article at the Sun-Times’ website Senger was quoted as saying that “The goal of this legislation is creating awareness. . . .parents are very concerned with what’s going on with cell phone cameras. Kids are being bullied. Girls are committing suicide because of what’s going on.”
Is the proposed bill too harsh on our youth? A second time and you could be tried as an adult?
Is it something needed or is just another act made criminal by our government in its position as in loco parentis (Latin for “in the place of a parent” or “instead of a parent,”); or Is it something that should simply be left to the parents of the minors? I am not sure I have a position on whether or not it should be made criminal, but instead will let you be the judge. You’re free to voice your opinion here, but your voice would be better heard by writing your representative – and quickly I suspect. While many of us express our likes and dislikes of our government in different forums (at work, at school, in the coffee house, over breakfast, or in our favorite watering hole), how many of us actually take the time to let our opinions be known to those who actually make the laws affecting us? I know I’m guilty of not expressing my opinions on what really matter. In fact, I have been more inclined to take the time to write a corporation that sparked an emotional response over a far less trivial matter than actually take the time to write my congressman about a tax or other act of Congress that would have far more reaching affects on my life.
I am glad to see though that this will likely not be a registerable offense; at least not for now. On another, yet similar note, I was glad to see the Illinois Legislature make misdemeanors punishable under the Juvenile Court Act for our youth who are 17 years of age.
Anyway, what say you? Say it quickly though, because I am quite confident this will be a law in the Illinois Compiled Statutes soon enough.
[i] http://interact.stltoday.com/blogzone/political-fix/political-fix/2010/02/illinois-legislature-taking-on-teen-sexting-controversy/
[ii] http://www.ilga.gov/legislation/BillStatus.asp?DocNum=2513&GAID=10&DocTypeID=SB&LegId=49124&SessionID=76&GA=96#actions
[iii] http://www.ilga.gov/senate/senator.asp?GA=96&MemberID=1438
[iv] http://www.ilga.gov/house/rep.asp?GA=96&MemberID=1544
[v] http://www.suntimes.com/news/politics/2098412,CST-NWS-sexting12web.article
Filed under: Criminal by Terry Dodds
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