We add lots of new pages to our site all the time with information on various areas of Illinois law. Here are five new ones.
Illinois Lawyer Referrals and Legal Guidance
Archive for January, 2011
New areas on our website
Monday, January 31st, 2011How Long is Too Long to be Stopped at a Sobriety Checkpoint?
Friday, January 28th, 2011Illinois is one of a majority of U.S. states that conducts “sobriety checkpoints” where cars are randomly stopped and drivers are briefly checked for signs of intoxication. Even though police are stopping motorists without any cause to believe there has been or will be a crime committed, these checkpoints have been upheld when performed according to certain guidelines. For example, the stopping of the cars needs to be done according to some system that is predetermined. Also, the stop needs to be brief, unless there is reason to detain the driver further.
A case recently decided in Illinois examined the length of time that is appropriate for the initial stop at a sobriety checkpoint. The random initial stop is not based on any suspicion of wrongdoing, and therefore it needs to be neutral in terms of who is stopped. Once stopped, the goal of the checkpoint is the same as in other police stops: the officers, based on a brief and limited investigation, determine if there is a reasonable suspicion, based on specific facts they can point to, that the person has or is about to commit a crime. In the case of the sobriety checkpoint, the crime is that of driving under the influence of alcohol.
In the recent case, the defendant objected to the amount of time it took from when he was stopped at the checkpoint, until he was asked to exit his car because of suspicion of alcohol consumption. He claimed that the amount of time made the stop unlawful.
The officer involved, estimated that the total time was likely less than five minutes. During that time, he observed that the defendant’s eyes appeared glossy, and that he smelled alcohol coming from the car. The defendant disagreed with the officer’s time estimation, and that the stop was brief. He wanted the stop to be invalidated because he believed it was unlawful because of the time it took.
In a case like this, though, the defendant has the burden to show that the sobriety stop was unreasonably long, and he could not do it. There was no evidence that the officer had done anything during the stop that was not related to the purpose of determining whether he was under the influence, and therefore needed a field test.
While a specific measure of time was not given by the court for a lawful sobriety checkpoint stop, it did seem to indicate that where the officer conducts it in a focused and expeditious manner, it is not very easy to overturn the sobriety checkpoint stop as inappropriate in length.
Protecting private citizen participation in public affairs
Thursday, January 27th, 2011The old saying “you can’t fight city hall” has gotten a nudge to the curb by the Illinois Supreme Court in its recent interpretation of a relatively new law in Illinois– the Citizen Participation Act. When you are actively engaged in an effort to change something in government or procure some governmental action or result, you can look to this Act for protection against those who would try to stop you.
Too frequently lawsuits were being used as a tool to try to discourage individuals and organizations from getting involved in the public forum. When exercising their constitutional rights to gather and speak out regarding government and public issues, the lawsuits could curtail those rights by “intimidating, harassing, or punishing” those involved. For this reason they were commonly called “Strategic Lawsuits Against Public Participation” (“SLAPPs”).
The purpose of the Citizen Participation Act was to try to eliminate the SLAPPs and give citizens some measure of security in putting themselves out there to get involved in public affairs. It provided a measure of immunity for citizens, whether from SLAPPs or other curtailing efforts, and also provided for awarding attorney’s fees and costs of the lawsuit if they are successful in a motion under the Act.
Significantly, the Illinois Supreme Court’s recent decision clarified that the Act should be applied much more broadly than many would have originally thought. It can be used to protect citizens from political expressions not just directly to government officials, but also statements made to the media on issues of public concern.
The Court clarified that where the comments were about a public matter, and designed to have an effect on that issue, they were in the spirit of the Act which protected the right to affect government affairs. Further, those comments or other activities did not need to be made to a government official. The Court said that the Act’s protection extends to speaking to the voting public, through statements made to the media.
Since the Citizen Protection Act is now clarified to apply to a more broad range of governmental involvement, citizens should generally be able to exercise their constitutional rights of speech and association more freely without the chilling effect of threatened retribution.
Five Legal Myths, Part 1
Wednesday, January 26th, 2011Don’t take legal advice from the general public. Watch out for these common legal myths.
- “You can beat a breathalyzer.” You can’t. Chewing gum, putting a penny in your mouth, not blowing hard enough – we’ve heard it all. It doesn’t work, and you’ll look guilty for trying.
- “Filing for bankruptcy gives you a fresh start.” Not always. Depending on the type of bankruptcy, you may still be making payments against your debt. And not every type of debt is dis-chargeable. You’ll still owe things like student loans and child support. Bankruptcy isn’t right for everyone.
- “An attorney will take all your money.” Attorneys who work on a contingency basis charge nothing up front and charge around 1/3 of what you win, if you win. That is a big chunk, but remember that having an attorney typically increases the value of your case. In many cases it pays for itself.
- “If you don’t have a will, the state will take everything.” Well, that’s not exactly true. The state has determined who gets what, but they don’t take it. And it’s a fairly reasonable law that says your property and assets go to your closest relatives, starting with your spouse and children. Having a personalized will is still recommended, however.
- “An error on a traffic ticket makes it void.” Most errors on traffic tickets are just typos that can be fixed. If your name is spelled wrong or your license plate was copied incorrectly or your address is one number off, it’s not going to invalidate the ticket. And arguing that it should will only annoy the judge.
Legal marijuana is illegal, for a moment
Tuesday, January 25th, 2011K2. It’s also known as spice, or legal pot. It’s an herb, sprayed with chemicals, that mimics the effects of marijuana when smoked. Apparently, it’s more potent, and it doesn’t show up in a urinalysis drug test. So you can imagine the popularity. But it’s more expensive, it lands people in the ER, and the negative effects are unknown. It’s often labeled as incense and sold in packets that say it’s not for human consumption.
K2 was banned in Illinois, effective at the beginning of this month. But apparently you can still get the stuff at smoke shops or online. The reason? The way the law is written, it only targets specific chemicals. Manufacturers can just reformulate it to comply with the law, taking out any banned substances.
One of the banned chemicals was developed in the 90s in a lab as a possible medical treatment. A bunch of states have recently made it a controlled substance. In Illinois, it is now illegal to possess, sell or distribute K2. If caught, you could be looking at a felony.
Banning one substance or chemical isn’t going to make the problem go away. People will just move on to another. The next legal chemical may be even more dangerous, or more unknown, than the last.
Obviously, if this law keeps a 10-year-old from being able to buy the stuff at a gas station after school, it’s a good thing. But if the demand is there, manufacturers are just going to experiment with something else. Is the law just making things worse?
Illinois eavesdropping law
Monday, January 24th, 2011Having a conversation without being recorded is a right that is highly valued in Illinois law. While many other states allow a conversation between two people to be recorded by one of the participants, Illinois does not. In Illinois, all participants of a conversation must consent in most cases in order to record a conversation.
It might seem like it would make sense to be able to record what you could otherwise hear, especially when the person you are recording knows that you are there and can hear the conversation. And in many states, that is the case. But Illinois places heavy protection on the right to privacy in conversations. Even where you were not the one recording the conversation, you could still find yourself in legal trouble if you disclose to someone else the contents of a conversation that you know was recorded illegally.
Violating these eavesdropping laws can subject you to a criminal penalty. Even a first offense can mean a felony conviction, although subsequent offenses bring higher classes of felony. Civil liability for actual and punitive damages is available as a punishment as well.
Some examples from Illinois law show just how important this privacy right is here. In one case, a school board wanted to place recording devices in special education classrooms, with the teachers’ knowledge, in order to prevent further abuse of disabled students that had occurred. The students were not able to effectively communicate on their own behalf when such abuses occurred, and the school board wanted to place the equipment in the rooms—essentially giving a voice to the students.
The Illinois court found that the eavesdropping laws did not allow for the recording in the classrooms. The court said that, though it was important public policy to protect the students and teachers, the privacy rights of Illinois citizens was also a very important public policy to protect in accordance with the Illinois eavesdropping laws.
Another example in Illinois law is the stringent criminal penalties for recording a law enforcement officer or other officials while they are performing their official duties. Even where you are sitting in your own car, out on the public streets, if you record the conversation between you and a police officer when you are stopped for a traffic violation, you can be subject to a Class 1 felony.
With all the recording capabilities that most people carry with them on cell phones and other electronic devices, it is important to remember that just because there may be an “app” that can record a phone call or a conversation, we need to remember that we have be sure our use of those are lawful. And in exchange, we can enjoy the security of knowing that our conversations with others are protected from their “apps” and other recording technology.
Emergency Order of Protection in Chicago and Illinois
Friday, January 21st, 2011Whether or not you are going through the process of divorce, Illinois law provides for a way to protect yourself quickly and more safely from domestic violence. Orders of protection are available to stop or prevent abuse from happening. Emergency orders of protection may be issued when warranted, very quickly and without alerting the abuser.
Domestic violence involves harm or threatened harm from someone in your family or household. The list of people included in the Illinois domestic violence laws is broad to encompass not only typical family members and people living with you, but also co-parents, former spouses, engaged partners, and caregivers of disabled people.
An order of protection is a court order which restricts these domestic abusers in ways that are tailored to the type of conduct you are trying to stop. They are not to be taken lightly by the abuser, because violating an order of protection is a class A misdemeanor, and can subject the person who violates it to jail time.
The remedies that you can ask for in the order of protection include:
- prohibiting the abuser from threatening or committing either physical harm or emotional harm. Emotional harm can be intimidation, harassment, or interfering with your personal liberty.
- requiring the abuser to stay away from you, when you are at specified locations including home and work.
- barring the abuser from the marital home.
- setting out appropriate arrangements for care or visitation of your minor children.
- requiring turning in firearms or weapons to law enforcement.
- barring the abuser from access to certain personal property, or requiring him or her to turn the property over to prevent destroying or disposing of it.
- other specific actions which would protect you or a family member from abuse.
Where any of these harms or abuses that you need to prevent could happen or be made worse by giving notice to your abuser prior to a hearing on the order of protection, you may be able to get the order issued on an emergency basis. Illinois allows for petitioning the court for an emergency order of protection, without notice and appearance by the abuser. You present evidence of the abuse and the harm that will occur if notice was given. If the emergency order is issued, it will be in effect for 14-21 days, but can be extended for the same reasons it was issued initially. The court will set a date then for a hearing on a longer-term order of protection, where both sides will have notice and be able to present their cases.
This emergency procedure can be an essential tool to safeguard your well-being, or that of someone you love, instead of worrying that if you initiate such proceedings you could make things worse. It may be “safer” to have a skilled attorney help you to secure your personal space through the emergency order of protection, than to live with the fear or threat of what’s to come.