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
7 Comments »

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 8^th 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 96^th 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
50 Comments »

Supreme Court of Illinois Weighs in on Bars with BYOB Policies and Discusses Common Law Theories of Liability Outside the Scope of Illinois Dramshop Act

Did you know that pursuant to the Illinois Dramshop Act that each bar, liquor store, or liquor establishment who contributed to the intoxication of someone who later causes personal injury to another might be liable to reimburse the injured party or their loved ones for losses they may have incurred? Probably not, and a majority of people do not. This is certainly something you should know if you have been involved in an accident or have been injured by someone who was intoxicated at the time of the accident or injury; it is certainly something your attorney should know and immediately investigate the possibility of if there has been such a travesty, because recovery pursuant to the Act is only allowed for one year; in other words, a one year statute of limitations.

Due to the Illinois Legislature’s enactment of the Dramshop Act, the general rule is that an injured person cannot bring suit under common law theories of liability, including negligence, against individuals or entities who merely furnish alcohol to another person when that person or entity is not engaged in the liquor trade. This is also known as “social host” liability exclusion, which is not allowed. Remedy against those who are engaged in the liquor trade and profit from its sale are generally limited only to the remedies provided in the Dramshop Act, which sets statutory thresholds of recovery.

Why is the bar that served the drunk (Alleged Intoxicated Person or AIP in legal terminology) liable you may ask? According to judicial precedence, the purpose of “the Dram Shop Act is designed to fulfill a need for discipline of traffic in liquor and to provide a remedy for evils and dangers which flow from such traffic”, and “to place the burden of the evils of the liquor traffic on those who profit therefrom”. Wendt v. Richter, 17 Ill.App.3d 230, 307 N.E.2d 756 (Ill. App. Ct. 1^st Dist. 1974); Tresch v. Nielson, 57 Ill.App.2d 469, 207 N.E.2d 109 (Ill. App. Ct. 1^st Dist. 1965).

On March 18, 2010, the Illinois Supreme Court ruled in the case of Ryan Simmons v. John D. Homatas, On Stage Productions Inc., d/b/a “Diamonds Gentlemen’s Club, et al. This was a unique case in which the Court allowed the estates of the decedents to recover under common law theories of negligence, a very uncommon occurrence, which is why I have chosen to blog about it. One unique aspect about the case is that Diamonds is located in Du Page County, Illinois, which apparently prohibits clubs featuring nude dancing from receiving a liquor license. However, according to the Court’s opinion, Diamonds does sell “glasses, ice, soft drinks and other mixers for making alcoholic drinks”.

Due to the fact that Diamonds could not obtain a liquor license the club allowed patrons to bring their own alcohol (BYOB). The plaintiffs, who were the special administrators of the estates of the decedents fatally injured in an automobile collision alleged that the club “encouraged a patron to consume alcoholic beverages until he became intoxicated and then required him to drive off the premises, which resulted in the collision that killed plaintiffs’ decedents”.

According to the Court’s opinion, defendant John Homatas arrived at the club on January 4, 2006, at approximately 9 p.m. and left his vehicle with the club’s valet service, as the club required. Hamatas and his friend John Chiariello brought with them a fifth of rum and a fifth of vodka. They mixed their alcohol with the glasses, ice, and mixers purchased from the club. Homatas apparently drank so much that he was found by one of the Diamonds’ employees vomiting in the restroom at around 11 p.m. As a result, the club ejected Homatas and Chiariello. Employees then instructed the valet service to start Homatas’s car and bring it to the front door so that he and Chiariello would leave. They then opened the driver-side front door and directed Homatas to leave the premises.

Minutes later, Homatas collided with a vehicle driven by April Simmons. Unfortunately several people died, including Ms. Simmons, her unborn daughter, and Mr. Chiariello; Homatas survived, and cases were filed as a result of the deaths of Simmons, her unborn child, and Chiariello.

The legal theories alleged in the Complaints were common law theories of negligence and liability under the Dramshop Act. On Stage (Diamonds) apparently filed a Motion to Dismiss “asserting that both plaintiffs’ complaints fail to state a cause of action upon which relief can be granted. First, On Stage argued that the Dramshop Act is the sole remedy for actions involving liability from alcohol-related injuries, thereby precluding plaintiffs’ common law claims. Second, On Stage argued that because the Dramshop Act applies only to businesses engaged in the sale or gift of alcohol, the Dramshop Act does not extend liability to On Stage as a result of its policy of not selling or serving alcohol to its patrons.”

The issue the Illinois Supreme Court was asked to rule on was whether or not the affirmative acts of Diamonds, by way of its employees, could be found liable under common law theories of negligence, despite the Dramshop Act’s preemption of alcohol-related liability. According to the Court’s opinion, these acts included:

• Diamonds’ valet service taking control of Homatas’ vehicle upon his entering defendant’s place of business;
• Having a business plan that encouraged its invitee Homatas to bring and consume alcoholic beverages to and beyond the point of intoxication upon its premises;
• removing its invitee Homatas from its premises due to his intoxication;
• ordering and assisting its invitee Homatas into the driver’s seat of his vehicle;
• ordering its invitee Chiariello off the premises and into the intoxicated Homatas’ vehicle;
• allowing its intoxicated invitee Homatas to drive the vehicle away from the premises and onto the public highway;
• knowledge that its business invitee Chiariello was a passenger in said vehicle and the driver invitee Homatas had a level of intoxication which was obvious enough that a reasonable person would have determined that he was unable to operate a motor vehicle.

In its ruling, the Supreme Court of Illinois distinguished this case from other cases cited by On Stage, including Charles v. Seigfried, 165 Ill.2d 482 (1995), and Cruse v. Aden, 127 Ill. 231, 249 (1889), cases involving issues of “social hosts”, in that those cases primarily focused on the liability of those persons providing alcohol to a patron or guest who ultimately caused injuries to a third party. This case was different in the eyes of the court in that liability arose not as a result of the provision of alcohol, but as a result of the encouragement of, or assistance in, tortious conduct, including the aforementioned activities. Prior decisions by the Court, and other cases cited by defendants did not address whether actions of the defendants, aside from the provision of alcohol, led to third party injuries. The Court cited Wakulich v. Mraz, 203 Ill.2d 223 (2003) and Lessner v. Hurtt, 55 Ill.App.3d 195, 197, and Harris v. Gower, Inc., 153 Ill.App.3d 1035, 1037 (1987) in support of this distinction. The Court also distinguished its ruling from prior precedence in Wienke v. Champaign County Grain Ass’n, 113 Ill.App.3d 1005 (1983), and Gustafson v. Mathews, 109 Ill.App.3d 884 (1982), cases which held that a defendant should not bear the burden of having to ascertain the level of intoxication of an individual, in that in this case, it believed On Stage knew that Homatas was dangerously intoxicated when club employees discovered him vomiting in the restroom. The affirmative act of Diamonds’ employees in assisting Homatas leave the establishment in the manner it did appeared to seal the deal in the mind of the Court, because the Court wrote in its opinion that, “Indeed, had Homatas left on his own, and On Stage was alleged to have merely failed to prevent him from leaving the club and driving away intoxicated, sections 314 and 314A of the Restatement may have applied.” In light of the affirmative acts of On Stage, Section 876 became applicable and imposes liability.

The careful words chosen by the Illinois Supreme Court in this case and the facts accompanying it appear to limit its applicability for such future causes of actions. It appeared the case was very fact specific. In fact, at the conclusion of the Court’s opinion, the Court wrote: “this case presents a set of special circumstances. We do not hold today that restaurants, parking lot attendants or social hosts are required to monitor their patrons and guests to determine whether they are intoxicated.”

While the court in this case found the Illinois Dramshop Act inapplicable in this case, it does discuss liability relating to the consumption of alcohol, and the history and public policy concerns implicated by the Dramshop Act.

At the Dodds Law Office, we have successfully prosecuted cases involving dramshop liability, as well as, cases involving a defendant’s duty to protect someone from criminal acts of a third party causing injury. A lawyer should be consulted in such cases that has experience in handling such matters, because the legal theories are complex, very litigious, and must be prosecuted by someone willing to invest the time required to bring the case to resolution.

Filed under: Personal Injury by Terry Dodds
125 Comments »

In the recent Third District Appellate Court of Illinois decision of People v. Roa, the third district again addressed an issue that seems to surface more regularly than one would think in criminal cases: that issue being how long of a detention is too long by officers when making a routine traffic stop. Obviously, the only reason these cases become controversial and of any constitutional significance is because the search leads to the detection of contraband, ordinarily drugs or weapons. The reason I have chosen this case for the subject of one of my blogs is because of a recent case handled by my office wherein we filed a Motion to Suppress believing that a detention of one of our clients lasting for more than 20 minutes was an unreasonable search and seizure in violation of both the U.S. and Illinois Constitutions.

The facts in Roa do not appear to be as supportive of a motion to suppress as some other cases recently argued before reviewing courts asked to decide such issues, nor the case recently handled by my office, but it does touch upon issues in controversy in such cases.

In Roa, Andres Roa was stopped by an Illinois State Trooper for speeding 71 miles per hour in a 65 mph speed zone; obviously making it a valid stop. The State Trooper making the stop in this particular case was also a certified drug interdiction instructor and the drug interdiction coordinator for his district.
After the trooper stopped Roa’s vehicle and approached, he advised Roa that he was merely going to issue him a written warning and asked Roa for his license and registration. After advising Roa that he was going to issue the warning, the trooper, Sergeant Floyd Blanks, struck up a conversation with Roa, including asking him where he was traveling from and to. Sergeant Blanks testified that Roa exhibited more physical stress than most people, appeared unusually nervous, and “out of sorts”, avoiding eye contact when being questioned by the trooper.

As is ordinarily the case, at some point, Sergeant Blanks asked for consent to search Roa’s vehicle, which Roa agreed to.

One of the things that raised the level of suspicion of Sergeant Blanks and Trooper Thulen, who later arrived on the scene to assist, was that after Roa had consented to the search, Roa had claimed that he was an antiques dealer and was transporting antiques in the trunk. Despite this, no antiques were discovered by the troopers in the trunk. It also appeared to the officers that the air bag area had been tampered with or modified in some way.

The search by Sergeant Blanks and Trooper Thulen lasted 20 minutes, which included a fiberoptic scope. Surprise, surprise, during the course of their search, they located a total of 24.2 pounds of cocaine, packaged in 11 separate packages.

Roa’s defense counsel filed a motion to suppress the cocaine, alleging that the police had expanded the scope of the traffic stop into a drug investigation without enough probable cause to do so. Obviously the problem with such an argument in this particular case is that Roa appears to have consented to the search ultimately leading to the discovery of the drugs within a relatively short period of time after having been stopped.

Relying on the Supreme Court of the United State’s recent decision of Muehler v. Mena, 544 U.S. 93, 161 L. Ed. 2d 299, which the Illinois Supreme Court held overruled portions of People v. Gonzalez, 204 Ill.2d 220 (2003), and the Illinois Supreme Court case of People v. Cosby, 231 Ill.2d 262 (2008), the third district ruled the alteration of the nature of the stop argument no longer valid when determining whether or not a lawful stop has converted to a constitutionally impermissible one. According to the Roa court, the duration of the stop prong previously employed by the courts in their previous decisions is now the only basis for challenging the constitutionality of such stops. The third district also held that based on its readings of Mendenhall and Cosby that the holding in People v. Brownlee, 186 Ill.2d 501 (1999), that an officer is always free to request permission to search, is still good law.

To determine when someone has been impermissibly detained, the Roa court held that the reviewing court should look to the Mendenhall factors including (1) whether there was a threatening presence by several officers; (2) whether the officer displayed a weapon; (3) whether there was some physical touching by the officer; and (4) whether the language or tone of voice used by the officer indicated that compliance with the officer’s request was compelled. Roa (citing Mendenhall, 446 U.S. at 544, 64 L. Ed. 2d at 509.

But hold on just a moment? Surely the third district wasn’t saying that these four factors alone from the Mendenhall decision are the sole exclusive factors the trial courts should look at when determining whether or not the detention of a motorist has become an unreasonable seizure for constitutional purposes. As Justice McDade, dissenting in the case, suggested, Cosby itself states that “It is true that the Mendenhall factors are not exhaustive.”  Cosby, 231 Ill.2d at 281, 898 N.E.2d at 615. (emphasis added).

Obviously dissents don’t carry the day, but nevertheless, this is merely one district’s analysis of prolonged detentions, and I believe a poor one at that. Can we really pigeonhole each detention to decide whether a prolonged stop becomes an unlawful detention for constitutional purposes merely by looking at the Mendenhall factors? Is it even possible?

As previously stated, our office filed a Motion to Suppress based on a stop that lasted more than 20 minutes in duration, after the officer advised our client that she was merely giving him a warning. It is a case we likely will appeal, and which I believe, has far better facts than those in Roa. However, with the courts routinely chipping more and more of our constitutional rights away, do we really have a shot at winning? We’ll see.

As an Illinois Criminal Defense Attorney, handling misdemeanors, felonies, DUI’s, and traffic cases in Mclean and surrounding counties, I cannot stress enough the importance of hiring an attorney knowledgeable of such issues if you are looking to hire someone to represent you or a loved one. Obviously, there is so much at stake, including each of our constitutional rights.

Filed under: Criminal by Terry Dodds
35 Comments »