Have Questions About Your Case? Check Out Some of Our Law Firm's FAQs
Dealing with any kind of legal matter inevitably leads to a number of questions. We have created a list of some of the questions we hear the most in our Edwardsville law office, but please give us a call if you have a question that is not answered here.
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What changes are going to be implemented with the new SAFE-T Act?
Quite a few changes regarding bail will take effect on January 1, 2023. Last July the bail standards were changed. That change required a pretrial screening be conducted on every person seeking a bail reduction. Factors the screen looked at were seriousness of the offense, flight risk, and history of the offender. Personal recognizance was presumed in all but the most serious of offenses. However, even those changes resulted in very high bonds established on Class 1 and Class X offenses. Bonds of $100,000 to $2,000,000 are common. 10% of that amount must be posted per statute. Many clients have a difficult time accruing that much money to post as bond and remain in jail for extended periods of time until their family posts. Some clients are unable to post bond and stay in the jail the entirety of their cases. I recently tried a murder case where my client couldn't post $200,000 so he stayed in jail for 671 days before the jury found him not guilty.
Beginning January 1, 2023 the law regarding bail changes substantially. Most every offender will be released on personal recognizance. The state will be required to provide each defendant a hearing within 48 hours to determine if they will be released. The defendants are entitled to have an attorney at that stage of the proceedings. That means that the public defenders office will need to have an attorney attend the weekend settings on bail. Even if the defendant desires to retain private counsel they still have a right to be represented at the initial hearing. Defendants will be entitled to make at least 3 phone calls within 3 hours of being detained.
If a person who is out on bond fails to appear in court a warrant cannot be automatically issued. The court must ask that a petition for rule to show cause be issued. Then the defendant must be personally served with the petition. The petition will be set for hearing and the defendant must attend. If they fail to appear for that hearing the judge may then issue an arrest warrant. Practically this process will create an enormous amount of backlog for fugitive cases. I'm not sure what logic, if any, was used in creating this change to the law. If someone fails to appear in court and a warrant is issued they simply contact their attorney and obtain an order quashing the warrant and reset the case to the next available docket. By adding a contempt requirement all that will occur is adding an unncessary step that requires court resources and time for both the state and defense.
Body cams will be mandated by 2026 depending on the size of each police force's municipality. Currently, we only have a few departments that use body cams. I believe it is helpful in resolving most cases. Dash cams only capture a portion of the events. Body cams capture much more. The body cam footage is easy to review, although time consuming. I welcome this change and believe it will assist both the state and the defense in disposing of cases.
Use of force by officers will change drastically. New standards and reporting requirements take effect January 1, 2023. There will also be an officer decertification process that will be mandated. This new law was added to prevent problem officers from resigning or being terminated for their actions at one department only to move to a neighboring police force. Officers will be required to release misdemeanor and some felony offenders on a notice to appear.
Driver's license suspensions will not be imposed for failure to attend court on traffic matters. No suspensions will occur for red light camera violations.
There is already discussions about repealing the law. Law enforcement is very dissatisfied with the changes and argue that it will increase the number of violent offenders being released pretrial and reoffending while out on bond. They are also not satisifed with the decertification procedures that will result in some officers being removed from their positions.
The law has changed permitting usage of Cannabis.
Beginning January 1, 2020 residents can possess up to 30 grams of plant cannabis. Lower limits are allowed for concentrate and edibles. Out of state residents may possess a lesser amount. Only licensed medical marijuana dispensaries will be permitted to sell initially. However, other businesses will be granted licenses as time progresses. Users must be 21 or older and have restrictions upon usage. Businesses may be designated as authorized usage areas. See my blog for more specifics on the limits and prohibitions.
How Long Can an Officer Detain an Individual Following a Traffic Stop?
Mr. Rodriguez was stopped by a police officer following a traffic violation. The officer then gave a written warning for the stop. The office detained Mr. Rodriguez further awaiting a K9 to arrive on scene to perform a sniff search. The K9 reacted positively and a nonconsensual search of the vehicle revealed illicit drugs.
The SCOTUS ruled that any prolonged detention after the time when a motorist should have been issued a citation or warning is impermissble under the Fourth Amendment. The results of the K9 search were properly suppressed. A bright line rule is now in place that applies to all vehicle stop scenarios where a prolonged detention occurs.
This ruling does not affect cases where the K9 arrives prior to the time when the motorist has been issued the paperwork. If the K9 pulls up before the time when he should have been allowed to leave the K9 sniff search will still be permitted.
The reason this case is important is due to the multitude of cases that had allowed what was called "de minimus" detentions. That meant the officers could cause a motorist to wait until a K9 arrived on scene even if it was after the time when the paperwork had been completed for the underlying traffic violation. The cases ranged from 3 to 22 minutes being a proper time frame under which detention of a motorist was proper. The cases were not uniform and it was difficult and confusing to advise clients based upon the precedent that existed.
The actual finding is:
Absent reasonable suspicion, police extension of a traffic stop in order to conduct a dog sniff violates the Constitution's shield against unreasonable seizures.
This case practically affects many cases involving drug trafficking. I see this scenario very often. Many times there are delays caused by the arresting agency in order to produce a K9 on scene. I also see a scenario whereby the arresting officer needlessly delays the issuance of a citation in order to allow for the K9 to arrive and perform the sniff search. The best way to avoid that becoming a valid stop is to subpoena all dispatch and communication between the officer and dispatch as well as other officers. That is a great way to prove when the K9 was summoned by the arresting officer. It can be used to prove he delayed the issuance of a citation for the sole purpose of allowing the K9 to arrive in a "timely" fashion.
Illinois has Enacted a New Body Cam Video Preservation Law 2016
January 1, 2016 Illinois enacted the Law Enforcement Officer - Worn Body Camera Act (50 ILCS 706/10-1, Et. Seq.) The law does not mandate usage of body cams. It does however define what duties departments utilizing cams must follow. The law does not provide a specific penalty for the departments' failure to comply with the Act. However, it does state that such failure may give the defendant the remedy of mentioning same to a finder of fact when determining what amount of consideration may be afforded that period of time and its events.
I believe the law fails in two major respects. First, the Act should have mandated all departments adopt immediate usage of body cams. Secondly, the Act should have included sanctions such as stated in People v. Kladis being applicable specifically in situations where the Act is not complied with.
In Madison County as of 4/22/16 there are only three (3) departments currently using body cameras. The departments are three of the smaller departments. If the intent of the Act is to provide video for police / citizen interactions it does not cause the vast majority of departments to record the events.
How Does the New DUI Suspension Law Effect Me?
Enacted January 1, 2016 was a new provision that now allows for first time DUI offenders to avoid the first 30 day "hard time" suspension period. The manner in which the person accomplishes this is by filing for the MDDP permit prior to the inception of the SSS. In other words, if a person is to begin their SSS on 2/1/16 they should file the permit application sent to them in the mail by the SOS two weeks prior to the first day the SSS begins.
One problem that I have discovered is that it takes the SOS 3-4 weeks to process the request for the driving permit. Therefore, the client must almost immediately upon receipt of the paperwork in the mail fill it out and return it in order for them to realistically be able to drive the first day their suspension goes into effect.
This is a very useful provision that will positively impact many drivers in Illinois. For further information on this new law please contact a qualified DUI attorney.
I've Been Charged with a Retail Theft Charge. How Can I keep it from my Record?
Retail theft is a misdemeanor in Illinois for first offenders (unless the value of the property allegedly taken exceeds $300). It is a common charge among the general public. College students, spouses, retired persons and professionals have all been charged with the offense. Usually the person charged feels very embarassed worries about publicity they may face if their arrest is published in the news be it online or printed. Aside from embarassment many persons worry about the impact it could have on their college career or profession. A retail theft client is normally arrested, issued a citation, ordered to appear in court to answer the charge, and posts a small bond or is given a notice to appear. It is at that time they need to determine which attorney they will retain to fight the charge.
In Illinois the statutes allow for dispositions that include conviction and probation. They also allow for what is termed "court supervision". Some counties also have ways to obtain a dismissal of the charge through diversion programs. St. Clair county has what is called Offender Accountability Programs. These diversion programs ultimately result in a dismissal after completion of some classes or other regularly scheduled meetings. Veterans Court and Mental Health Court are two additional options depending on which county the charge is filed. Not all counties have these alternative courts. Other cases can be outright dismissed through negotiations. Each case is of course fact dependent. Many major retailers have exceptionally high quality video that can track an offender from the time they pull onto the parking lot all the way through the premises. They use facial recognition software and can compile a video of the entire events. The videos are routinely used in prosecutions by the State. Lastly, even if there are strong facts against the client, the charge can be negotiated to a lesser offense so it appears more innocuous on background checks.
Aside from the criminal aspect to a charge of retail theft there is a possibility of civil damages as well. Oftentimes a major retailer will contract with law firms to seek out persons charged with the offense and seek civil reparation. Demand letters from law firms in both NY and FL are commonly received a short time after the charges are filed. The amounts sought are typically $250.00 or $500.00. The client should not pay the amounts. There has been zero civil claims filed against any of my firm's clients in over 20 years of practice. Some clients pay the fee prior to retaining us. The reality of the civil claims is that it is too cost prohibitive for the retailers to pursue such claims.
When making your decision for a legal representative you should seek a very experienced candidate for your attorney. Ask quesions such as how many cases similar to yours they have represented persons on. Ask whether alternative dispositions are available. Most of the time the client will not have to appear in court and many times the attorney can appear for all the settings without the necessity of the client. This varies from court to court.
How Can I Beat the Statutory Summary Suspension on My DUI?
The first concen one faces when charged with a DUI is the pending Statutory Summary Suspension ("SSS"). This is an administrative suspension that takes effect 46 days after the Notice of Suspension is issued. The SSS law affords the subject of the suspension a hearing to contest its issuance. The motorist must file a request for heearing within 90 days of the Notice. Failure to file the petition to rescind within that time frame results in the loss of ability to contest the SSS.
At the SSS the court addresses the following issues:
1. Did the arresting officer have "reasonable suspicion" to initially stop the motorist?
2. Did the arresting officer have "probable cause" to arrest the motorist for DUI?
3. After being arrested for DUI was the motorist read the Warning to Motorist?
4. And lastly, after the Warning to Motorist was read did the subject refuse a breath test or submit to a test with results in excess of the legal limit?
The motorist has the burden of proof in these hearings. The burden shifts to the State when the motorist proves at least one of the aforementioned elements. The normal rules of evidence apply with the exception that the State can present the Notice of Suspension as evidence if the officer fails to appear to testify. Subpoenas may be issued if necessary. Normally, the State will organize necessary witnesses and produce them in court if requested ahead of the hearing. The motorist can use Supreme Court Rule 237(b) to cause such witnesses to be produced in open court.
The hearing begins with opening statements which may be waived. The Court generally wants to know what issues are being addressed during the hearing. The motorist does not have to advise any narrowing of issues and can wait until the evidence has concluded before narrowing them.
The hearings usually last about an hour. I like to call the officer first and sometimes ask to treat as an adverse witness if it becomes apparent that the officer has the demeanor that makes such motion appropriate. Most police officers don't act in such a manner. But it seems I run across them from time to time. Judges don't always allow this method. First the police officer's qualifications must be defined. How much training in the field of DUI and field sobriety testing does the officer have? Some police officers haven't received any subsequent training on DUI cases since they passed the academy. These officers generally don't do very well during these hearings. Some other officers like to act like they are very current in DUI processing. But a thorough examination often reveals they have shaky foundation. By that I mean they don't understand the correct manner in which to administer each of the three standardized field sobriety tests. If you can prove to the judge the police officer did not correctly administer the SFSTs you can win the SSS hearing. The issue being attacked in this manner is #2 above (probable cause to arrest). Other issues arise in the hearings. For instance, I won a hearing recently when I proved that the reason claimed for the initial stop was untrue. The officer claimed that he stopped my client for driving with her high beams on. We watched the video during the hearing and it was obvious she never had her high beams on.
The advent of videos creates lots of viewing time for the attorney. This takes about one and a half hours for each DUI case. But, watching the videos is a must. I recently watched a video for a DUI (2nd time offender). The officer skipped several portions of the Warning to Motorist when reading it to the client. We raised that issue (#3 above) and won the hearing. This is not dispositive of the DUI but was determinative for the SSS.
It is important to consult a qualified experienced attorney when fighting the SSS.
I've been stopped by the police. Now I'm in serious trouble as they found something after they searched my car.
When a person thinks about their constitutional protections from government intrusion the Fourth Amendment typically is the first they think about. The Fourth Amendment prohibits unreasonable government searches and seizure of persons and property. These protections are triggered most often when a person is travelling in a vehicle which is stopped by police. The initial stop may have been for some claimed violation of traffic laws. Nowadays as many police departments maintain dash cams it is very easy to objectively determine whether the stop was warranted. A police officer cannot stop a motorist unless he has reasonable suspicion to believe the occupant has violated a law. If the officer did not have reasonable suspicion to stop the vehicle the person can successfully claim his Fourth Amendment right against unreasonable stop and seizure occured. If the court agrees any evidence seized against that person from that point forward may be suppressed by the exclusionary rule ("fruit of the poisonous tree"). So, in that case, filing a motion to suppress evidence would be the proper method to attack the allegedly unconstitutional stop. Next, if the officer searches the vehicle without consent or probable cause (or a warrant) the motorist can attack the search as violative of their Fourth Amendment rights. Other means to bar evidence from trial via a motion to suppress arise when the police officer unlawfully detains a motorist after the point in time where he should have released him with a citation. Many times officers will intentionally delay release of the motorist until a K9 can perform a sniff search of the car. Again, this unlawful delay can cause the judge to issue a suppression order for any items discovered in the vehicle.
The best advice a criminal target can comply with is:
Don't talk to the police more than is absolutely necessary.
Request an attorney if you believe you may be in serious criminal trouble.
Don't consent to a search of the vehicle.
Don't act out of the ordinary.
Following those simple steps can aid you in the future should you be charged with a criminal offense.
How is child support calculated in Illinois?
In Illinois, child support is calculated based on the non-custodial parent's net income. Net income is calculated by taking gross income less all applicable deductions: taxes, union dues, uniform dues, health insurance premiums for coverage for the minor children, mandatory pension contributions. Child support for one (1) child is 20% of the non-custodial parent's net income; two (2) children 25%; three (3) children 32%; and four (4) children 40%. The custodial parent's income is not a factor in the calculation. Deviations from the statutory guidelines are based on a case by case basis. Some instances of deviating fom the above percentages are: when the non-custodial parent has shared physical custody, the non-custodial parent has more time with the children than the statutory standard visitation; the non-custodial parent is supporting other children through prior child support order(s).
I'm Facing a Methamphetamine Charge. What Should I do?
Methamphetamine possession charges are common. They typically start with a vehicle stop that turns into a full scale search of the car. Sometimes an officer will knock on one's door with a search warrant. Whatever the manner in which the police first have contact, the fact is, if methamphetamine is discovered, a serious felony charge and high bond will be placed against you.
Your best actions in these cases can be broken down by the stage of proceedings you are in:
INITIAL CONTACT WITH INVESTIGATORS: Your best advice is to NOT speak with the police. Don't say anything to them other than you want your attorney and are not speaking with them. They may try to scare you by telling you that you are looking at prison time and the best thing you can do to help yourself is to tell them everything. They will most likely try to get you to do some controlled buys where you buy or deliver controlled substances to person they wish to arrest. Don't speak to them. The biggest mistake clients often make is talking with them believing that they won't be charged if they do. The police will tell them things like "You won't be arrested today", or "if you work for us you won't be charged." These are two of the most often told lies
IN CUSTODY BOND ISSUES: Bond must be posted when you are in custody on a new felony charge. If it is a relatively low level felony offense and you have no substantial criminal history you can qualify for a recognizance bond. In that case you post no money and are released from custody. Most serious drug charges carry very high bond amounts. Typically $100,000 or greater is ordered against a person charged with a distribution or intent to distribute charge. The bond can be modified. Oftentimes the bond can be dropped substantially in quick order. Have your attorney talk to the State's Attorney that is in charge of your case and get an informal reduction order in place. Turnaround in a day is not uncommon. Bail bondsmen are illegal in Illinois.
PRELIMINARY HEARING: Your first court appearance will be a preliminary hearing (unless you didn't post bond then its called a first appearance). You have a right to a prompt preliminary hearing. They are also known as probable cause hearings. Most of the time the preliminary hearing is waived. You retain all your rights to defend yourself against the charge up to an during trial. After the preliminary hearing the case is set on a trial docket.
PRETRIAL MOTIONS: The motion stage is where most cases are either won or lost. Drug cases are more focused on this step than other charges. The reason is that a host of Fourth and Fifth Amendment rights come into play during a drug case investigation. Traffic stops, Terry stops, interrogations, Miranda issues, mandatory videorecording (dash cam and interrogation) and other issues must be presented if they have infringed on the client's rights before trial occurs. Motions to suppress evidence and for sanctions are two of the most used method to curtail evidence from jury trial. If you win a motion to suppress in a drug charge case you probably will be in a much better position than had you not. Many times if you are successful you can completely keep all drug evidence out at trial. When that happens it means the State loses its case.
TRIAL: You have an absolute right to a jury trial for any criminal charge. This stage requires excellent advocacy skills and experience to prevail. There is no substitute for a quality experienced attorney working for you during trial. Trials depend greatly on the jurors selected to hear the case. Again, it takes many years of experience to rise to a level that allows you to pick your best jury.
SENTENCING: If the trial goes the wrong way or you plead guilty there will be a sentencing hearing. Such a hearing requires the judge to order a Presentence Investigation Report to be prepared by the probation department. At the hearing you present evidence in mitigation and the State counters with aggravating factors. All the factors are printed in the corrections portion of the Illinois Criminal Code. Prior criminal history is presented to the court and taken into consideration. Arguments are made and the judge takes presumptions into consideration when meting out the sentence. The sentencing judge has wide discretion as to what the setence will be. She or he is constrained only by what the minimum and maximum sentences are as defined by statute.
POST-CONVICTION AND APPEALS: After sentencing you have an option to file a post-conviction motion and an appeal. The issues are very limited in an appeal. Again, experienced counsel is necessary to succeed at this stage. All issues raised in either process must be preserved through objection and in writing after the trial.
All the steps described above apply to every criminal case in Illinois. Methamphetamine cases are similar to many other charges. However, methamphetamine cases often carry much higher penalties due to the process of "shake and bake" or "red phosphorous" cooking methods that allow the State to weigh all liquids and include the gross weight in their charges. This results in very high gram weights which in turn equates to much high class felony offenses.
I've Just Been Arrested and Released for a Drug Crime. They Said I'm Going to Be Charged. What Can I Do?
Many drug offenses begin with interaction between my clients and the police. Oftentimes my clients are allowed to leave the scene and are advised they will be arrested when charged at a later date. They become fearful of being arrested and especially worry about being arrested at work. If the charge is sealed there is no way for an attorney to discover whether they have been charged and are awaiting arrest and processing. Most charges are not sealed. In those cases we can begin "precharge" representation of the client and typically contact the police requesting a "heads up" when the charge is filed. We also recommend records check with the county of origin on at least a weekly basis. We can assist you if you are in this situation.
Can I Expunge a Criminal Charge?
I am asked this quite a bit. The simple general answer is if the charge has been dismissed you may petition to expunge the arrest and charge. However, if you have been convicted of another criminal offense you are not eligible for an expungement. Most cases wherein you have plead guilty and successfully completed your term of supervision (NOT probation) you may petition after a certain number of years (usually two years after the last day of supervision). The process takes approximately 5 months to complete.
Procedurally the first step is filing then arguing the petition. During the hearing the judge typically wants to hear some form of remorse (even from those persons fully acquitted), how the charge either effected or could effect their professional status, and sometimes they want to hear the facts of the underlying charge as explained by both the defendant and the prosecutor. You would think that the judge would begin this type of hearing with the notion that a person who was acquitted cannot have the arrest held against them. For the most part that is true. However, there are judges who don't believe that for whatever reason. The legal tenet "innocent unless proven guilty" does not apply across the board.
Federal crimes cannot be expunged. This is due to an expungement being a state remedy, not a federal remedy. Currently there is no federal expungement or sealing statute that would allow the procedure.
There are a great number of exceptions included in the expungement statute that can affect your outcome.
Contact a qualified expungement attorney immediately for expungement assistance.
How Long Does a Child Sex Abuse Victim Have to Sue Her Abuser?
Pursuant to a recent change in Illinois law, a victim of child sex abuse has 20 years after he/she reaches the age of 18 (and sometimes later) to file lawsuit. The change in law took effect on January 1, 2014. It was the result of a combination of issues including sexual abuse by clergy cases. The law changes the old five (5) year statute of limitations that had been controlling. The new law obviously broadens the scope of lawsuit that can be brought in civil court.
How do I Choose the Best Criminal Defense Attorney to Represent Me?
You are arrested for a serious misdemeanor or felony. You are taken to jail, processed, and (hopefully) bond out of jail. You are worried about the impact the charge can have on your future. Will you lose your job, family, freedom, and will you have to pay very large fines or costs? These are all some of the questions most persons charged with a crime worry about. Your next step is to choose a criminal defense attorney to represent you. Questions you have about this process are:
1. How much do I have to spend for an attorney?
2. How do I know if the attorney is one of the best in his field of practice?
3. How do I begin the process of hiring an attorney?
The first question is an important one. You've heard the saying "you get what you pay for". This is usually very true when hiring an attorney. The most experienced attorneys typically cost the most too. This is due to their large case load and time requirements. The best attorneys know how much time need be devoted to a case to accomplish the best result. As an example, I know how much time is required for a typical murder representation. My fees are set accordingly. I know many attorneys that will charge a small fraction of what I do for the mere fact that they won't thoroughly process the facts/evidence nor file the necessary motions. Only those attorneys with the best case success actually understand the steps necessary to win the case. This success only comes through much trial practice and experience. If you want the best opportunity to win your case spend the money on a successful and experienced attorney.
The only way to know if the attorney you want to hire is the best in his field of practice is through his reputation. Unfortunately objective reports regarding the attorney's successes don't exist. I publish some of my successes on my web site. You can access the local court's records (usually online) and do a name search of that attorney. If they carry a heavy case load it is probably a good indicator that they are well respected. If you have access to a family attorney who doesn't practice in the criminal defense area his/her recommendation is probably a good place to begin. This sometimes doesn't lead to a good lead if the family attorney has a "friend" who dabbles in criminal defense. So, you need to be careful when relying upon a family attorney's lead. Ask the attorney questions such as "how many trials have you conducted?", "what is your success ratio at trial?", "have you tried cases similar to the one I'm charged with?", "Have you tried cases such as this in front of the judge and against the prosecutors I have assigned to this case?" Your attorney should be able to point to specific cases and even by case number if need be so you can check with the circuit court to see if in fact he has done as he claims. Run the attorney's name through a google search to see if any media articles return for trial successes. One caveat to this is that oftentimes the media does not include the defense attorney's name when they win a case. I have no idea why this is but such is the case. For the more serious cases or high publicity cases the defense attorney's name is usually included.
Lastly, you can either contact an attorney through his main telephone number, send an email request for information or even inquire with a letter (if incarcerated). Most attorneys will respond in short order to your inquiries. Most attorneys also do not charge for an initial consult regarding criminal defense.
What is the best way to handle an SIUE student's Cannabis or Drug Paraphernalia Misdemeanor Charge?
A cannabis pipe or marijuana grinder are discovered in a car. Everyone in the car denies ownership. All are students at SIUE and all are issued citations for Drug Paraphernalia Possession. The student is now faced with a serious misdemeanor offense that may remain on their background check for the rest of their lives. Will this impact their ability to find employment after graduation?
I am asked this type of question frequently. The best defense for these charges is to push hard for a dismissal. If the facts don't reach the level of beyond a reasonable doubt don't take a plea deal to the charge. If, however, the facts are strongly in the State's favor, you should attempt to resolve the case either through negotiations that result in a dismissal or by amending the charge to a non-drug offense. Both options require counsel who can effectively negotiate those outcomes.
I have used all methods above and been very successful doing so. As an example, I had a recent SIUE student who received not one but two separate cannabis possession charges. He was facing very high fines and a conviction for one of the offenses. I was able to negotiate a full dismissal after he completed drug classes. He did not pay any fines for the citations either.
If you have questions about the best legal manner in which to resolve this type of misdemeanor offense please call my office so we can discuss.
I Have Been Wrongfully Arrested. What Can I do About it?
If you have been arrested for a criminal offense when you did nothing wrong you may have the right to file a lawsuit against the police officers who caused you to be charged. If you were charged with a misdemeanor offense typically the police can be sued directly as they are the persons who caused you to be charged. If you were charged with a felony offense you may still be able to sue the police despite them not being the actual persons who charged you. You can file a lawsuit in either federal or state court depending on the factual issues. A Section 1983 lawsuit addresses excessive force and wrongful arrest as well as other violations of your constitutional rights. A state lawsuit can allege malicious prosecution, Battery and other common law theories. You may include state theories in your federal rights lawsuit if you file the case soon enough. I prefer filing these cases in federal court for the reason that you will get to trial quicker. As an attorney I can also be compensated by the police for my attorney's fees spent in prosecuting the civil rights case for my client.
Damages which you can seek against the police include emotional distress, pain and suffering, medical bills, disfigurement, and attorney's fees you paid to defend you in an underlying criminal case which is the basis for a wrongful arrest lawsuit. Aside from those damages, an attorney can seek his fees for prosecuting the civil suit pursuant to Section 1988 of the Civil Rights Act. The potential risk of paying the attorney fees is oftentimes of foremost concern for insurance companies defending these actions. It is not uncommon for $100,000+ attorney's fees being awarded against the police when a civil rights plaintiff wins their case.
The process is fairly straightforward. Identify what information you need prior to filing the lawsuit. In Illinois State lawsuits your statute of limitations is one year. In Federal courts your civil rights statute of limitations is two years. File the lawsuit. Serve the parties. Complete a case management conference and discovery then defend the motions to dismiss and for summary judgment. If you make it past that point you will present your case to a jury (or judge).
I have sued police for many wrongful arrests and excessive force. I have settled most cases and won the cases that don't settle. As of this date I have not lost a single civil rights case. If you believe you have a civil rights claim please call me to discuss.
Will a person arrested for DUI lose their license?
This is the number one question I receive related to DUIs. The short answer is yes. You will lose your license for a periof of either 6 or 12 months depending on whether the officer writes you the suspension (SSS) for blowing .08 or above, or refusing the test. The SSS begins 46 days after the notice of SSS is completed by the officer. The reason for the 46 day delay is to afford the defendant an opportunity to contest the suspension in court. The first month of the SSS is what we term "hard time." This means there is no ability to drive legally during the first month of SSS if it stays in effect. However, the client may opt in to what is called MDDP. That is a program authorized by statute and monitored by the SOS It allows the person to drive with a BAIID installed in their vehicle. The Breath Alcohol Ignition Interlock Device is paid for by the motorist. Each month / bimonthly period the device is "swapped out" of the vehicle by an approved mechanic. The data contained therein is downloaded and submitted to the SOS who then reviews it. The average cost of the BAIID is $750.00 / $1,500 for either a 6 or 12 month suspension period. At the end of the SSS the motorist pays a reinstatement fee to the SOS in the amount of $250.00.
There is a way to attack the SSS. Its called a Petition to Rescind the SSS. The client can contest four different issues in that hearing. The burden of proof is upon the motorist to win the hearing. The issues that may be raised are:
1.Did the officer have reasonable suspicion to initially stop the motorist?
2. Did the officer have probable cause to arrest the motorist?
3. Did the officer read the WTM to the motorist?
4. After reading the WTM to the motorist did he/she submit to a test / or refuse and were the results .08 or higher?
Winning the SSS hearings is difficult and usually only 10% of the petitioners win.
Is there a way to keep a DUI off my permanent record?
Many first offender DUI clients don't know whether they can keep the DUI and its arrest off their record. The "records" they are concerned with are both the arrest record and Secretary of State driver's records. If a person pleads guilty to the DUI under court supervision as a disposition the answer is fuzzy. There will always be an arrest record of the event. DUIs are one specific offense that cannot ever be expunged (arrest records erased). However, there will not be a conviction and no record will appear for the DUI on the SOS driver's record (abstract). If a client is able to avoid a plea of guilty to the DUI itself the arrest may be erased after a certain period of time under expungment proceedings. Due to the complexity of the issue contacting experienced and qualified legal counsel is of the utmost importance.
How to Reduce Bond in a Criminal Case
Normally, a judge in Illinois sets bond when a felony charge is issued. When the charge is a misdemeanor a police officer typically set the amount pursuant to Supreme Court Rule. For a DUI the bond amount is either $100.00 plus an Illinois Drivers License or $300.00 cash. A low level felony will typically range from $10,000 to $25,000 however only 10% of that amount need be posted to secure the release of a defendant. If the initial amount is too high there are two options. One is to file a motion to reduce bond. This type of motion is routinely heard by criminal court judges. The issues addressed during the hearing are the nature of the offense, prior criminal history, if the defendant has resided in county for a period of years, educational background, job history, whether the defendant cares for minors or other dependents, and how long the person has resided in jail. Health issues may also play a part of the judge's decision. The judge hears arguments from both the State and defense counsel. The judge decides whether to release a person on a reduced bail amount. Most times the court will at least partially grant the motions. The results are very fact specific and vary greatly depending on the charge.
The second option is to post a realty bond. In Illinois property posted as bond must be unemcumbered (no loans against it) and be valued at twice the full bond amount. So for instance, if bond is $50,000, the property would need to be appraised at $100,000. Property bonds are not commonly used in Illinois.
In the above option, if the defendant were unable to post a property bond they could instead post $5,000 cash.
Bond may be revoked should one out on bail be charged with another subsequent offense. Many times this is discretionary with the individual State's Attorney charging the new case. If bail is revoked the defendant may file to reinstate bond. The judge has full discretion whether to allow the motion. Bond may also be forfeited if a person fails to comply with terms of the bond such as not being charged with a new criminal offense.
If your bond is too high immediately contact a qualified attorney to file and argue the motion.
What types of traffic violations in Illinois require a court appearance?
When some people think of traffic violations they assume they can just pay a ticket and forget it ever happened. Not true! Unfortunately, there are several different types of traffic offenses that require you show your face in a court room.
Some traffic violation convictions can come with heavy fines, a suspended license, jail time, and other penalties, so be sure to have an attorney on your side. Brian Polinske has represented clients convicted of all types of traffic violations and knows what needs to be proved in order to have a case dismissed.
Not sure if your traffic offense requires a court appearance? Here are traffic violations in Illinois that come with a mandatory court date:
- All alleged Class A and Class B misdemeanor violations of the Illinois Vehicle Code
- All alleged violations of the Child Passenger Protection Act
- Any traffic offense which results in an accident causing the death of any person or injury to any person other than the accused
- Any minor traffic offenses where the statutory minimum fine is greater than $95, except in certain specific situations
- Operating Without Insurance
- Operating When Registration Suspended for Noninsurance
- No Valid Driver's License
- Violation of Classification
- Operating in Violation of Restricted License or Permit
- Unlawful Use of License or Permit
- Making a False Report
- Passing a School Bus (Loading or Unloading)
- Refusal to stop and submit vehicle and load to weighing after being directed to do so by an officer, or removal of load prior to weighing
- Violation of Excess Size or Weight Permit
It may feel like there are many random exceptions, so if you are confused, call Polinske & Associates at (888) 379-6582 to take advantage of our free initial consultation. We will help you understand what you've been charged with, and then work hard to clear your name.