Judge Kozinski: Time to Rein in Prosecutors

If you could look beneath the blindfold worn by Lady Justice, would her eyes be closed? One of the nation’s most influential judges suggests she would be giving a wink to prosecutors seated across from the defendant.

In the latest issue of Georgetown Law Journal, Judge Alex Kozinski of the Ninth U.S. Circuit Court of Appeals turns a critical gaze toward America’s criminal justice system. It’s a long piece — part diagnosis of ailments and part treatment — with a broad sweep. But one of its major themes is prosecutorial advantage, both in federal and state courtrooms.

“They say that any prosecutor worth his salt can get a grand jury to indict a ham sandwich. It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape,” writes Judge Kozinski.

Among his specific concerns is what he sees is a reluctance on the part of judges to blow the whistle on prosecutorial abuse:

Defense lawyers who are found to have been ineffective regularly find their names plastered into judicial opinions, yet judges seem strangely reluctant to name names when it comes to misbehaving prosecutors. Indeed, judges seem reluctant to even suspect prosecutors of improper behavior, as if they were somehow beyond suspicion….Naming names and taking prosecutors to task for misbehavior can have magical qualities in assuring compliance with constitutional rights.

If judges have reason to believe that witnesses, especially police officers or government informants, testify falsely, they must refer the matter for prosecution. If they become aware of widespread misconduct in the investigation and prosecution of criminal cases, a referral to the U.S. Department of Justice for a civil rights violation might well be appropriate.

But he says even if judges made the referrals, Judge Kozinski doubts the Justice Department has the appetite to pursue them.

“The U.S. Justice Department seems ready enough to pursue charges of civil rights violations in cases where police have engaged in physical violence, but far more reluctant to pursue misbehaving prosecutors,” he writes.

Law Blog has reached out to a Justice Department spokesman for comment.

Judge Kozinski, appointed by President Reagan in 1985 at the age of 35, touches on other issues: He calls for more “rigorous procedures for eyewitness identification.” He thinks jurors should be allowed to take notes during trial (a few judges, he says, still refuse to do so), and he favors abolishing state judicial elections, among other recommendations.

His concerns about prosecutorial practices resurface again when he talks about discovery rules.

He thinks Congress should pass a bill proposed by Republican Sen. Lisa Murkowski of Alaska in 2012 — called the Fairness in Disclosure of Evidence Act — that would require federal prosecutors to disclose any evidence “that may reasonably appear to be favorable to the defendant in a criminal prosecution.”

That’s a wider net than the constitutional obligation to share with criminal defendants exculpatory evidence material to guilt or punishment.

“The U.S. Justice Department, for example, takes the position that exculpatory evidence must be produced only if it is material,” he writes. “This puts prosecutors in the position of deciding whether tidbits that could be helpful to the defense are significant enough that a reviewing court will find it to be material.”

The Justice Department’s policy manual says it wants to avoid disclosures that deal with “spurious issues or arguments which serve to divert the trial process,” but it says it sets a higher standard in at least two respects: requiring disclosure of information “that is inconsistent with any element of any crime charged” or that collectively with bits of other evidence reaches the exculpatory threshold.

“If the Department of Justice wants to show its commitment to justice, it should drop its opposition to the [legislation] and help get it passed into law,” writes Judge Kozinski.

A spokesman for Ms. Murkowski said her office is considering re-introducing a version of the discovery standards bill this congressional session.

Foreclosure Defense

Louis M. Pissios

Attorneys and Counselors at Law

a professional corporation

9 South County Street

across the street from the courthouse

Waukegan, Illinois 60085

writer’s direct email: [email protected]

_________________

Direct telephone 847.263.0001

Facsimile 847.336.2481

Are you in danger of losing your home? Are you afraid to open the mail or answer the phone because collection agencies are harassing you? You probably feel as if no one can help you. But help is available. I have clients who have been living in their home for 2, 4, and up to 5 years without paying their mortgage or property taxes.

Here are real examples:

09 CH 3810, Lake County, Illinois Client has been living in their house for about 4 years without paying their mortgage payment or property taxes

08 CH 1649, 10 CH 2129, Lake County, Illinois Client has been living in their house over 5 years without paying their 1st and 2nd mortgages combined amount in excess of $1,000,000.

11 CH 0627, Lake County, Illinois Client has been living in their house for about 2 years without paying their mortgage payment or property taxes. Mortgage amount about $800,000.

I understand that banks and mortgage lenders are relentless when pursuing debts. They use threats and intimidation as they attempt to take away everything you have worked for. We understand their tactics and know how to successfully combat them. Collectively our team has over 50 years experience in Litigation, Residential Real Estate, Real Estate Law, Title Insurance and Appraisals.

We provide creative, strategic residential and commercial foreclosure defense in Illinois. We are here to help you fight to keep your home, not to judge you. Having debt does not make you a bad person; it just means you need some help to battle your creditors and take control of your finances again. Our fees are fixed and capped at an annual rate. You can stay in your house and KEEP YOUR KIDS IN THE SAME SCHOOLS!

We take cases selectively so we can devote the necessary time and resources to each client. We will review your case to determine if it meets the criteria. Do not give up. For a free consultation with me please call (847) 263-0001 or email me at the email address above.

We are a different type of foreclosure firm. Unlike most firms, we do not advocate bankruptcy as a foreclosure option. Instead, we attack the opposition with substantive pleadings that have real merit. We are not just buying time; we are working to win for you.

We have some of the most innovative legal minds in the field of foreclosure defense and debtors’ law in Illinois, we take on cases that other attorneys cannot resolve. We consider foreclosure defense options and solutions that many attorneys do not understand.

When I take a case, I am are typically able to save a client’s home and do what many consider impossible. While our primary goal is to save your home, we address all possibilities and will also provide an exit plan.

To schedule a free initial consultation, please call 847 263-0001. We accept VISA and Mastercard.

New Illinois Law 2016

 

Here’s a look at some of the new rules for 2016:

New Illinois laws aim to keep teens out of prison system

Law enforcement and crimeA sweeping set of new regulations regarding police body cameras is aimed at addressing recent controversies over use of force and standardizing practices across the state.Police departments would not be required to use the cameras, but now there will be statewide rules for those that do. Chiefly, officers will have to keep their cameras on when conducting law enforcement activities but could turn them off when talking to a confidential informant, or at the request of a victim or witness. Intentionally turning off cameras outside the exceptions could result in a charge of official misconduct.

Recordings generally will not be subject to the state’s open records law, however, unless they contain potential evidence in a use-of-force incident, the discharge of a weapon or a death.

To help pay for the body cameras, the state will charge an extra $5 fee on criminal and traffic offenses that result in a guilty plea or conviction. The money also will bolster an expanded training program that includes topics like use of force. In addition, the law bans the use of choke holds, creates a database of officers who have been fired or resigned because of misconduct and requires an independent investigation of all officer-involved deaths. Also, a special prosecutor can be requested if there is an apparent conflict of interest.

 

“This isn’t going to have a magical overnight impact, though there will be some immediate effect because your behavior changes when you know that you are being watched and recorded,” said sponsoring Sen. Kwame Raoul, D-Chicago. “So I think there will be greater sensitivity to that, and just how you interact with the public in general when being recorded that I think is valuable.”

Additionally, the state agency responsible for developing standards for law enforcement will be tasked with creating a specialized training program to teach police how to interact with those with mental illness to avoid a situation from further escalating.

On another front, it will now be a Class A misdemeanor for pet owners found to have left animals outside in extremely hot or cold weather. Violators could be sentenced to up to a year in jail and fine of up to $2,500. Judges would have discretion to impose lesser sentences.

And man’s best friend may begin to make more frequent appearances in courtrooms under a provision that would allow children and intellectually disabled adults who are victims of sexual abuse to be accompanied on the stand by a service dog for support.

Victims of sexual assault will have longer to pursue charges against their attackers under a measure that would delay the start of the 10-year statute of limitations until after a rape kit is tested. The change is aimed at preventing the accused from running out the clock because of a testing backlog as law enforcement agencies struggle to keep up with fewer resources.

Lawmakers also added powdered caffeine and powdered alcohol to the list of banned substances in Illinois, and they created a new “Silver Alert” system to help law enforcement locate missing adults who have dementia or other cognitive impairments.

Consumer and family laws

Prompted by thousands of complaints alleging neglect or abuse in nursing homes, a new law lets residents of such homes or long-term care facilities to put cameras in their rooms if they pay for them.

Nursing homes would be required to post a sign at main entrances warning that rooms may be under electronic monitoring, and everyone living in a room would have to consent to a camera being installed. If one resident of a shared room wants a camera and the other doesn’t, the resident who wants the camera would be moved to another room.

A “Right to Try” law brought about by through bipartisan negotiations allows terminally ill patients to try experimental drugs and treatments that have gone through the first phase of clinical trials but are not yet approved by the U.S. Food and Drug Administration.

Supporters say the measure affords patients more control over treatment options and prevents them from having to travel to other countries to seek treatment. Drug companies have said the FDA’s expanded access programs should be improved instead.

Meanwhile, another law attempts to modernize rules regarding parentage to reflect the legalization of gay marriage and the prevalence of unmarried parents.

The changes would remove gender-specific language to ensure that “a person” is presumed to be the legal parent of a child if that person and the mother are married, in a civil union or a “substantially similar relationship” unless a surrogacy contract is in place. If a child is born before the start of a relationship or soon after it ends, the couple are presumed to be legal parents.

The law lets parents voluntarily declare they are a parent of a child, and it provides more leeway for visitation and parental involvement as custody cases work their way through the court system. It also establishes a new set of standards when it comes to genetic testing to determine paternity.

“It’s trying to be very child-centered and acknowledge that children deserve to be psychologically, emotionally and financially supported by their parents while trying to make that work in what is often difficult and contentious adult relationships,” said sponsoring Rep. Kelly Burke, D-Evergreen Park.

Schools

High school students will have to take at least one semester of civics to graduate. While the law goes into effect Friday, it’s expected that schools won’t incorporate the requirement until the 2016-17 school year begins in the fall.

Schools also will be required to install carbon monoxide detectors following a 2014 leak at a rural Illinois school that sent more than 180 staff members and students to the hospital.

Meanwhile, student teachers will have to undergo background checks before they are allowed in the classroom, and child care facility employees must now get immunized for tetanus, diphtheria and pertussis as well as vaccinated against measles, mumps and rubella.

Those who were convicted of crimes but later found innocent could qualify for special college scholarships, if lawmakers set aside money for the program.

Additionally, college students over 18 who have mental health issues would be allowed to designate someone who could be alerted about any problems or changes in behavior. The idea was brought about after the suicide of a freshman at Illinois State University. The student’s parents pushed for the bill, arguing that they may have been able to step in if alerted about conversations he had with school counselors.

LGBT laws

Gay rights advocates are celebrating a new law that will ban conversion therapy on minors.

Under the law, mental health providers would be barred from engaging in treatment with the purpose of changing the sexual orientation or gender identification of minors. Psychologists, therapists, psychiatrists, social workers and counselors caught doing so could be deemed as engaging in unprofessional conduct by state regulators and face disciplinary action such as fines, probation, or temporary or permanent license revocation. Businesses that advertise or offer conversion therapy services in a manner that represents homosexuality as a mental illness could face legal action under Illinois consumer fraud laws.

Proponents argued that conversion therapy is a practice widely denounced by mental health organizations that say it can cause severe health risks such as depression, suicidal thoughts and other mental health issues. Critics said the bill would restrict youths from seeking help for unwanted same-sex attractions and would interfere with parents’ rights to raise their children as they wish.

“Marriage was a huge, huge social justice achievement for our society, but it’s part of a broader program and that program is a comprehensive inclusion of people of a variety of sexual orientations and identities into the mainstream of life without prejudice, bias or discrimination,” said sponsoring Sen. Biss.

Further, transgender people will now be covered under the state’s hate crimes law to protect them from being targeted because of their gender identification, while lesbian, gay, bisexual and transgender community centers will be added to the list of facilities protected from hate-based institutional vandalism.

’Reasonable Suspicion’ enough for traffic stop

Supreme court: ’reasonable suspicion’ enough for traffic stop

“Reasonable suspicion,” not the more exacting “probable cause,” is threshold requirement for an investigatory traffic stop, the Illinois Supreme Court held in a recent DUI ruling.

In overturning a trial court’s order to suppress evidence in a Will County DUI case, the Illinois Supreme Court determined that a traffic stop was proper when the arresting officer witnessed the driver making slight deviations from his lane of traffic.

The trial court had granted the defendant’s motion to suppress based on arguments that the evidence of his insobriety and suspended license was the “fruit of an unlawful search,” and a divided appellate court affirmed that ruling. According to the high court’s opinion, the defendant argued that the officer lacked “probable cause” and therefore had no proper grounds to make the traffic stop.

In People v. Hackett, 2012 IL 111781, a unanimous supreme court overturned the appellate and trial court decisions and remanded the case for a trial based on evidence stemming from what the court held to be a justified “investigatory stop” of defendant’s vehicle. Reasonable suspicion, not probable cause, is the proper standard for an investigatory traffic stop, the high court held.

Assistant Appellate Defender Kerry Bryson said there was obviously some doubt in the minds of the trial judge and appellate panel about what justified pulling over a driver and investigating him and his vehicle.

“To the extent there might have been any question about that, the [supreme] court has made it clear that there shouldn’t be,” said Bryson, who did not handle this case. “To the extent that this is a concern, what clients ought to know moving forward is if they’re going to challenge the stop, the proper standard is…was there reasonable suspicion.”

‘[M]omentary crossings’ can justify stop

In affirming the motion to suppress, the appellate court relied on People v. Smith, 172 Ill.2d 289 (1986), in which a driver was convicted after driving in and out of multiple lanes of traffic for a “reasonably appreciable distance.” The appellate court distinguished Smith from the case at hand, stating that Hackett made only “momentary crossings” of a highway lane line and therefore the officer lacked reasonable grounds to make a stop.

The supreme court rejected the notion that the distance or length of time of the lane deviations made any difference in the enforcement of a statute that prohibits any improper lane usage.

“Although this court in Smith…mentioned the measure of defendant’s deviation into an adjacent lane and the distance he travelled therein, nothing in this court’s analysis indicated either was significant to the outcome,” Justice Karmeier wrote for the court in Hackett.

In this opinion, the supreme court’s analysis focused on “the loose terminology the parties and lower courts in this case have used with reference to the standards applicable to the fourth amendment issue presented for our consideration. The question we agreed to address…is ‘whether the appellate court erroneously found there was no reasonable suspicion for a traffic stop where the uncontested testimony showed defendant swerved twice across a lane divider of traffic.'”

The court explained that vehicle stops are subject to the Fourth Amendment’s “reasonableness requirement,” and the decision to stop a vehicle usually requires probable cause for an officer to believe that a traffic violation has occurred.

“However, as this court has observed, though traffic stops are frequently supported by ‘probable cause’…as differentiated from the ‘less exacting’ standard of ‘reasonable, articulable suspicion’ that justifies an ‘investigative stop,’ the latter will suffice for purposes of the fourth amendment irrespective of whether the stop is supported by probable cause,” the court wrote.

An opening for the defense?

Bryson said the Hackett case got interesting after the third district appellate court affirmed the motion to suppress “because it gave some support to challenging a traffic stop when there was just momentary drifting over the line.” But now it is clear that multiple deviations from a lane of traffic, even if slight in distance and time, are sufficient grounds for an investigative stop, she said.

“I think there’s a little more to it if you read [the Hackett decision] in depth,” Bryson added. “There has to be no reasonable explanation for the deviations” in order for an investigatory stop to be justified.

“If there is a reason for the deviation from the lane, then there might not have been reasonable, articulable suspicion to justify the stop,” Bryson said. “In some cases, there’s been no exploration of that aspect of the basis for the stop. I think that leaves this open as for what a defense attorney can be looking for as a way to challenge the stop.”

The supreme court bolstered its decision by pointing out that a police officer “can effect a lawful Terry stop without first ‘considering whether the circumstances he or she observed would satisfy each element of a particular offense.'”

Where, as in Hackett, a police officer observes multiple lane deviations for no apparent reason, an investigatory stop is proper, the court reasoned.

“For probable cause and conviction, there must be something more: affirmative testimony that defendant deviated from his proper lane of travel and that no road conditions necessitated the movement,” said the court. “An investigatory stop in this situation allows the officer to inquire further into the reason for the lane deviation, either by inquiry of the driver or verification of the condition of the roadway where the deviation occurred.”

Thousands of innocent Americans to prison

In 2013, Massachusetts state chemist, Annie Dookhan, pled guilty to falsifying the results of over 40,000 drug tests that ultimately sent thousands of innocent Americans to prison. It has been more than four years since Dookhan’s crimes were uncovered, and yet numerous people are still locked away because of her corruption, many of which have no idea she was the one who brought about their horrid fate.

Imagine being locked in a cell and knowing you’re innocent. Imagine how you’d feel as you watch the prime years of your life taken away from you — all because of a vicious government chemist, along with the low-IQ cops who willingly enforce the corrupt “war on drugs.”

Dookhan had intentionally forged signatures and tampered with evidence to further both her career, as well as many prosecutors who she had close relations with. She would also invent fanciful job titles for herself, such as “special agent of operations” and “on-call terrorism supervisor,” and would then testify in court as an “expert.”

Prosecutors adored Dookham, referring to her as being a part of their “dream team,” and even taking her out for drinks. In one email with a prosecutor, Dookham said she wouldn’t be able to give her “expert testimony,” to which the prosecutor replied, “No no no!!! I need you!!!”

An email provided by the Boston Globe shows the close friendship Dookhan had with one particular prosecutor by the name of George Papachristos:

“Glad we are on the same team,” he once wrote Dookhan — including one day in May 2010 when he told her he needed a marijuana sample to weigh at least 50 pounds so that he could charge the owners with drug trafficking.

“Any help would be greatly appreciated!” he wrote, punctuating each sentence with a long string of exclamation points. “Thank you!”

Two hours later, Dookhan responded: “OK . . . definitely Trafficking, over 80 lbs.” ­Papachristos thanked her profusely.

Dookhan had sent another email to Papachristos in which she told him she needed a man “to love me and make me laugh.” In other words, some of her victims went to prison because she had a crush on their prosecutor, and what an interesting prison story that makes; what are you in for? A hormonal chemist who was hoping to get laid.

Norfolk County District Attorney, Michael Morrissey, has been set on the task of reviewing thousands of files to determine who was wrongfully prosecuted.

“I don’t think anyone ever perceived that one person was capable of causing this much chaos,” Morrissey stated. “You can see the entire walls full of boxes… in one of these cardboard boxes, there could be hundreds of cases… in each box.”

What does Dookhan have to say for herself?

“I screwed up big time. I messed up. I messed up bad. It’s my fault. I don’t want the lab to get in trouble.”

After sending countless victims to prison, many of which have been behind bars for years, she was only given a three to five year sentence. Anthony Benedetti, chief counsel of the state public defender agency, stated:

“Sadly, the saga continues for the thousands of individuals who have borne the impact of Dookhan’s misdeeds, and the lab’s scandalous management.”

An Unprecedented Threat to Privacy A private company has captured 2.2 billion photos of license plates in cities throughout America. It stores them in a database, tagged with the location where they were taken. And it is selling that data.

Throughout the United States—outside private houses, apartment complexes, shopping centers, and businesses with large employee parking lots—a private corporation, Vigilant Solutions, is taking photos of cars and trucks with its vast network of unobtrusive cameras. It retains location data on each of those pictures, and sells it.

It’s happening right now in nearly every major American city.

The company has taken roughly 2.2 billion license-plate photos to date. Each month, it captures and permanently stores about 80 million additional geotagged images. They may well have photographed your license plate. As a result, your whereabouts at given moments in the past are permanently stored. Vigilant Solutions profits by selling access to this data (and tries to safeguard it against hackers). Your diminished privacy is their product. And the police are their customers.

The company counts 3,000 law-enforcement agencies among its clients. Thirty thousand police officers have access to its database. Do your local cops participate?

If you’re not sure, that’s typical.

To install a GPS tracking device on your car, your local police department must present a judge with a rationale that meets a Fourth Amendment test and obtain a warrant. But if it wants to query a database to see years of data on where your car was photographed at specific times, it doesn’t need a warrant––just a willingness to send some of your tax dollars to Vigilant Solutions, which insists that license plate readers are “unlike GPS devices, RFID, or other technologies that may be used to track.” Its website states that “LPR is not ubiquitous, and only captures point in time information. And the point in time information is on a vehicle not an individual.

But thanks to Vigilant, its competitors, and license-plate readers used by police departments themselves, the technology is becoming increasingly ubiquitous over time. And Supreme Court jurisprudence on GPS tracking suggests that repeatedly collecting data “at a moment in time” until you’ve built a police database of 2.2 billion such moments is akin to building a mosaic of information so complete and intrusive that it may violate the Constitutional rights of those subject to it.

The company dismisses the notion that advancing technology changes the privacy calculus in kind, not just degree. An executivetold The Washington Post that its approach “basically replaces an old analog function—your eyeballs,” adding, “It’s the same thing as a guy holding his head out the window, looking down the block, and writing license-plate numbers down and comparing them against a list. The technology just makes things better and more productive.” By this logic, Big Brother’s network of cameras and listening devices in 1984 was merely replacing the old analog technologies of eyes and ears in a more efficient manner, and was really no different from sending around a team of alert humans.

The vast scale of Vigilant’s operations is detailed in documents obtained through public-records laws by the New York Civil Liberties Union. “Last year, welearned that the NYPD was hoping to enter into a multi-year contract that would give it access to the nationwide database of license plate reader data,” the civil-liberties group announced Monday in a blog post linking to the document. “Now, through a Freedom of Information Law request, the NYCLU has obtained thefinal version of the $442,500 contract and the scope-of-work proposal that gives a peek into the ever-widening world of surveillance made possible by Vigilant.”

The NYPD has its own license plate tracking program. It nevertheless wanted access to the Vigilant Solutions database as well, “which means,” the NYCLU notes, “the NYPD can now monitor your car whether you live in New York or Miami or Chicago or Los Angeles.” The NYPD has a long history of spying on Muslim Americans far outside its jurisdiction. And both license-plate readers and the information derived from them have already been misused in other jurisdictions.

More abuses seem inevitable as additional communities adopt the technology (some with an attitude expressed with admirable frankness by an official in a small Florida city: “We want to make it impossible for you to enter Riviera Beach without being detected.”)

Washington is accelerating the spread of the technology.

“During the past five years, the U.S. Department of Homeland Security has distributed more than $50 million in federal grants to law-enforcement agencies—ranging from sprawling Los Angeles to little Crisp County, Georgia, population 23,000—for automated license-plate recognition systems,” the Wall Street Journal reports. As one critic, California state Senator Joe Simitian, asked: “Should a cop who thinks you’re cute have access to your daily movements for the past 10 years without your knowledge or consent? I think the answer to that question should be ‘no.’”

The technology forms part of a larger policing trend toward infringing on the privacy of ordinary citizens. ​“The rise of license-plate tracking is a case study in how storing and studying people’s everyday activities, even the seemingly mundane, has become the default rather than the exception,” The Wall Street Journal explains. “Cellphone-location data, online searches, credit-card purchases, social-network comments and more are gathered, mixed-and-matched, and stored. Data about a typical American is collected in more than 20 different ways during everyday activities, according to a Wall Street Journalanalysis. Fifteen years ago, more than half of these surveillance tools were unavailable or not in widespread use.”

Nor are police the only ones buying this data.

Vigilant Solutions is a subsidiary of a company called Digital Recognition Network.

Its website declares:

All roads lead to revenue with DRN’s license plate recognition technology. Fortune 1000 financial institutions rely on DRN solutions to drive decisions about loan origination, servicing, and collections. Insurance providers turn DRN’s solutions and data into insights to mitigate risk and investigate fraud. And, our vehicle location data transforms automotive recovery processes, substantially increasing portfolio returns.

And its general counsel insists that “everyone has a First Amendment right to take these photographs and disseminate this information.” But as the ACLU points out:

A 2011 report by the International Association of Chiefs of Policenoted that individuals may become “more cautious in the exercise of their protected rights of expression, protest, association, and political participation” due to license plate readers. It continues: “Recording driving habits could implicate First Amendment concerns. Specifically, LPR systems have the ability to record vehicles’ attendance at locations or events that, although lawful and public, may be considered private. For example, mobile LPR units could read and collect the license plate numbers of vehicles parked at addiction counseling meetings, doctors’ offices, health clinics, or even staging areas for political protests.”

Many powerful interests are aligned in wanting to know where the cars of individuals are parked. Unable to legally install tracking devices themselves, they pay for the next best alternative—and it’s gradually becoming a functional equivalent. More laws might be passed to stymie this trend if more Americans knew that private corporations and police agencies conspire to keep records of their whereabouts.

ILLINOIS LICENSE REINSTATEMENT – BAIID REQUIREMENTS

LICENSE REINSTATEMENT – BAIID REQUIREMENTS
Public Act 099-0296 Effective Date January 1, 2016

625 ILCS 5/6-205
625 ILCS 5/6-208 from Ch. 95 1/2, par. 6-208
625 ILCS 5/11-501.01

Amends the Illinois Vehicle Code. Provides that the Secretary of State shall require the use of ignition interlock devices for a period not less than 5 years on all vehicles owned by a person who has been convicted of a second or subsequent offense of driving under the influence of alcohol, other drugs, intoxicating compounds, or any combination. Provides that a person convicted of a second or subsequent violation of driving under the influence of alcohol, other drugs, intoxicating compounds, or any combination, or where the use of alcohol or other drugs is recited as an element of an offense, may not make application for a driver’s license until he or she has first been issued a restricted driving permit by the Secretary, and the expiration of a continuous period of not less than 5 years following the issuance of the restricted driving permit without suspension, cancellation, or revocation of the permit, or violation of a regulation requiring use of an ignition interlock device.

Forty Ways to Beat a DUI in Illinois

  1. ILLEGAL STOP OF PERSON OR VEHICLE – a driver cannot be stopped unless the officer has a reasonable and articulate basis to believe that a traffic law or other law has been violated. Similarly, a person cannot be seized unless a violation has occurred.
  2. WEAVING INSIDE THE LANES IS NOT ILLEGAL – weaving without crossing any lines is not a violation of the law, and a vehicle cannot be stopped for that reason.
  3. ANONYMOUS REPORT OF DRUNK DRIVING — a car cannot be stopped simply because an anonymous citizen reported that the driver was drunk.
  4. STANDARD FIELD SOBRIETY TESTING IS INACCURATE – in healthy individuals, the one-leg stand test is only 65% accurate, and the walk-and-turn test is only 68% accurate in determining if a person is under the influence. Those persons with injuries, medical conditions, 50 pounds or greater overweight, and 65 years or older cannot be validly judged by these tests.
  5. NON-STANDARDIZED FIELD TESTS ARE INVALID –neither the Federal Government (NHTSA) nor medical science considers touching your finger to your nose, or saying the alphabet, or counting backwards, as valid sobriety tests.
  6. BREATH TESTING IS INACCURATE – virtually all experts concede that one breath test alone is unreliable. The Illinois Supreme Court has remarked that breathalyzers are not foolproof. Finally, breath testing in Illinois is subject to various inaccuracies, including a +/- 12.5% variance, non-specificity for ethanol, etc.
  7. BOOKING ROOM VIDEOS – Many police stations videotape suspects at the police station, where their speech is clear and their balance is perfect, in spite of police testimony to the contrary.
  8. IN-SQUAD VIDEOS – more and more often, the suspect’s driving and performance on field tests is being recorded; often contradicting police testimony.
  9. FAILURE TO PROVIDE SPEEDY TRIAL – If a client is not provided with a trial within 120 to 160 days of demand, through delays of the court or prosecutor, the charges must be dismissed.
  10. POLICE BLOOD TEST INACCURATE – Many times, police blood testing fails to follow prescribed rules of testing, analysis, or preservation recommendations.
  11. HOSPITAL BLOOD TEST INACCURATE – Hospital blood tests overestimate a person’s true level by as much as 25% in healthy, uninjured individuals, and are not statistically reliable in severely injured persons.
  12. BREATH TEST OPERATOR UNLICENSED – An Illinois Breath Test Operator must possess a valid, unexpired operator’s license, or the breath test result is inadmissible.
  13. BREATHALYZER MACHINE MALFUNCTIONS – if there is a malfunction or repair of the breath test instrument within 62 days before or after a suspect’s breath test, the results of the suspect’s test are presumed invalid.
  14. BREATH TEST OPERATOR LICENSE EXPIRED — An Illinois Breath Test Operator must possess an unexpired operator’s license, or the breath test result is inadmissible. Licenses expire automatically every 3 years.
  15. BREATH TEST DEVICE NOT APPROVED – A breath testing instrument must be listed on the Federal List of Approved Breath Evidential Instruments and the ISP approved list of Devices, or the results are inadmissible.
  16. FAILURE TO PROVE DRIVING – a defendant’s admission to driving, without more, does not prove a charge of driving under the influence.
  17. INDEPENDENT WITNESSES – often times, independent witnesses to accidents, bartenders, hospital personnel and others can provide crucial evidence of the defendant’s sobriety.
  18. FAILURE TO MIRANDIZE – prosecutors may not use as evidence the statements of a defendant in custody for a DUI when the police have failed to properly issue Miranda Warnings.
  19. FIELD SOBRIETY TEST IMPROPERLY ADMINISTERED – according to the National Highway and Traffic Safety Administration, improperly administered field tests are not valid evidence of intoxication.
  20. OFFICER’S PRIOR DISCIPLINARY RECORD – a police officer’s previous disciplinary record can be used to attack the officer’s credibility.
  21. PORTABLE BREATH TEST INADMISSIBLE – Illinois law prohibits the use of portable breath testing results as evidence at trial in a DUI case.
  22. PORTABLE BREATH TEST IMPROPERLY ADMINISTERED – The manufacturers of portable breath testing devices require a minimum of two tests to consider the results evidential in nature.
  23. FAILURE TO CONDUCT OBSERVATION PERIOD –Illinois requires that a driver be observed continuously for a minimum twenty minutes prior to a breath test in order for the results to be considered admissible and valid.
  24. EXPERT WITNESSES – Expert witnesses are available to review the validity of breath tests, blood tests and field sobriety tests.
  25. MEDICAL AND HEALTH PROBLEMS — Medical problems with legs, arms, neck, back and eyes can affect the results of field sobriety tests. Further, other medical conditions can also affect the validity of breath test results.
  26. BAD WEATHER – Weather reports establishing high winds, low visibility, and other conditions are available to explain poor driving or poor balance.
  27. LACK OF PROBABLE CAUSE TO ARREST — A police officer must have specific and articulable facts to support any arrest for DUI, or the suspension will be reversed and the evidence suppressed at trial.
  28. ILLEGAL SEARCH – the police are prohibited from searching a person or the automobile for a minor traffic offense, and may not search a car without a driver’s consent or probable cause. Any evidence illegally obtained is not admissible in court.
  29. PRIOR INCONSISTENT STATEMENTS BY POLICE OFFICERS – any statement made by a police officer, verbally, in police reports, or at previous court proceedings may be used to attack that officer’s credibility.
  30. POST-DRIVING ABSORPTION OF ALCOHOL – the prosecutor must prove the blood or breath alcohol at the time of driving. Recent consumption of alcohol just prior to driving will cause the test results to be higher than what the true level was when the person was operating the automobile.
  31. INTERFERING SUBSTANCES – many items contain forms of alcohol which may cause false results, such as asthma spray, cough drops, paints, fingernail polish. These items can cause the breath results to be invalid.
  32. BREATH MACHINE NOT PROPERLY OPERATED – the manufacturers of breath testing devices have specified protocols which must be followed for a breath result to be valid. Failure to follow these requirements will result in improper readings.
  33. FAILURES TO PRODUCE DISPATCH TAPES – most stops of vehicles are recorded on dispatch tapes, as well as recording police communications regarding an arrest of an individual. Failure to preserve such tapes upon request can cause all evidence which could have been recorded to be suppressed.
  34. MISLEADING STATEMENTS BY POLICE OFFICERS –Any misleading statement by the police regarding the consequences of taking (or refusing) a blood, breath, or urine test will cause the suspension to be reversed and removed from the driver’s record.
  35. STATUTES OF LIMITATIONS – A misdemeanor charge of DUI must be filed within 18 months of the date of offense, or the charges will be dismissed outright.
  36. PRIVATE PROPERTY – a person who has not driven the car on a public highway cannot be suspended for drunk driving.
  37. FAILURE TO DISCLOSE EXPERTS – the failure of the prosecutor to disclose the state’s expert(s) will cause those witnesses to be barred from testifying against the defendant.
  38. LACTATE RINGERS – when hospital staff use lactate ringers during the treatment of a patient, the hospital blood serum results will report falsely elevated, and therefore invalid, readings.
  39. FAILURE TO RECORD CERTIFICATION TESTS – the failure to include the value of the simulator solution used to test breath machines will cause the breath test results to be inadmissible in court against the driver.
  40. BOOKING ROOM VIDEOS – Many police stations videotape the testing process. These tapes may establish that the testing procedure resulted in inaccurate or inadmissible tests due to burping, radio transmitters, and other improprieties.

LAWSUIT ALLEGING RACISM, HARASSMENT BY GLINIEWICZ TO BE HEARD IN COURT

FOX LAKE, Ill.
A lawsuit against the Fox Lake police lieutenant who took his own life will be heard in court for the first time Tuesday. A 26-year-old man claims he was targeted and harassed by Lt. Joe Gliniewicz because he’s black.

Vernon Randolph lives in North Chicago. But he would visit Fox Lake often to see his daughter, who lives there with her mother.

He said the harassment began about a year before Gliniewicz’s death on Sept. 1, 2015. The lieutenant pulled Randolph over in a Fox Lake subdivision, ordered him out of the car and searched it, demanding to know where Randolph was hiding drugs.

As Randolph recalled in an earlier interview with ABC7 Eyewitness News, Gliniewicz was in plain clothes and he was verbally abusive.

“I let him know I’m not affiliated with drugs or anything of that sort. So he tells me, his exact words were, ‘Make something happen before I make something happen to you,'” Randolph said.

Randolph said the harassment continued. Lawyers said Gliniewicz followed Randolph around, pointing to his eyes as if to say, “I’m watching you.” They said Gliniewicz would stop their client at gas stations in Fox Lake and at the bus stop where Randolph waited for the school bus with his daughter. Randolph would often be seen with two white men, also waiting with their children.

Then on Sept. 1, Gliniewicz radioed in to the department, claiming he was following three suspicious men: one black and two white. When Gliniewicz was found shot to death, the feds came knocking.

Lawyers said authorities obtained a DNA swab from Randolph, who was cleared of any wrongdoing when the medical examiner ruled the officer’s death was a suicide.

Randolph said in a town where black men make up less than one percent of residents, he felt he had a target on his back.

Randolph’s attorneys said he is hospitalized for anxiety, after the harassment and intimidation he suffered at the hands of Fox Lake police officers. The lawsuit names Gliniewicz and the village of Fox Lake.

Civil Litigation

Civil Litigation

Sometimes no matter how much preparation or execution is invested in into a contractual matter, someone falls short of their obligations. Whether due to negligence, shortage of funds, misunderstandings, or any other reason, litigation is often the proper mechanism to protect and enforce your rights. When considering litigation, you must take into account not only the cost of litigation, but also the probability of success on the merits as well as the likelihood of recovering your judgment.

Due to the complexity of litigation, and the changing laws and procedures, to provide our clients with the best legal representation possible, we focus our litigation to the subspecialties of law listed on our website.  These matters traditionally pertain to business and real estate issues, including, but not limited to:

  • Mortgage Enforcement and Defense
  • Mechanic Lien Enforcement and Defense
  • Short Sales, Modifications, REO Sales Representation
  • Eviction Enforcement and Defense
  • Lease Disputes and Agreements
  • Residential and Commercial Closings
  • Association Enforcements and Disputes
  • Condominium Matters Including Collection
  • Title Insurance Issues, Lien Removal
  • Loan Package Preparations and Compliance
  • New Construction and Conversion Issues

While we are fully prepared to litigate your legal matters, we always encourage you to evaluate the practical and economical considerations when deciding whether to initiate a lawsuit, settle your case, or walk away.

 For more information, please call up to schedule a free consultation.