Is court supervision always the right move?

Often times criminal defendants and their attorneys think that court supervision is the best solution for a client and should always be taken if offered by the prosecution. In most cases, supervision is a very good disposition of the case. It does not involve any jail time. It is non-reporting, so you don’t have to report to a probation officer. Often times it is expungeable from a criminal defendant’s permanent record, so future employers will not have access to the plea.

However, it is still a guilty plea and can have severe direct and collateral consequences. For instance, in Illinois, if you receive supervision on a DUI, it is your one and only bite at the apple. If you ever get another DUI in the future, even if it is 50 years later, you are subject to a mandatory driver’s license revocation. So it is always preferable to beat the case at trial if possible, even if the State is dangling the carrot of court supervision before you.

Another consequence of court supervision is possible deportation. While the court and the prosecutor may not consider the charged offense a serious offense, federal immigration law may. So a person who is a legal resident or an illegal immigrant may face deportation even if they receive supervision on certain offenses. This can result in terrible situations for people. I have seen legal residents who have been in this country since they were children sent back to their country of origin because of guilty pleas!!

Also, while the state of Illinois may view court supervision as a slap on the wrist, the Federal government does not. When a person pleads guilty or is found guilty of a federal offense, the court uses the Federal Sentencing Guidelines as a guide to sentence the defendant. These guidelines take into account the defendant’s criminal history, and supervision counts! Thus, a defendant could end up with a longer sentence on a Federal drug charge because they decided to plead guilty in state court on what they considered a minor charge, such as simple battery or driving on a suspended license.

Another misconception out there is that all supervision cases are expunged. That is not the case. Certain offenses are ELIGIBLE for expungement, however the criminal defendant must actually petition the court for expungement. And there are many offenses that cannot be expunged, regardless of whether a defendant received supervision. Some examples are DUI, Domestic Battery and Reckless Driving.

chicagoland municipalities charging innocent car owners for other people’s criminal offenses

Municipalities in the Chicagoland area have been hit by this recession hard. Most are finding creative ways to bring in revenue. One of those ways is to pass ordinances allowing police officers to tow cars and charge administrative fees to people arrested for traffic offenses such as DUI, driving on a suspended or revoked license, or driving without a license.

These fees can be as high as $1,200. A lot of times, the person who is arrested for a DUI or driving without a license or a suspended or revoked license is not the actual car owner. In this case the innocent owner, who did not commit any criminal or traffic offense if left paying the bill. Is this fair? See the attached article: http:

Of course you are entitled to a hearing, but your hearing will be before an administrative hearing officer who works for the village, and has an incentive to find against the owner because they are under orders to bring in money for the municipality.

Another egregious way in which these municipalities are making money is by pulling over undocumented immigrants and arresting them for driving without a license. Often times the police will sit outside of places where it is known that undocumented immigrants work and pull them over after they leave work.

Say what you want about our country’s immigration policy, but something seems wrong with the idea of having people do all of the work that no other Americans want to do, selling them cars, allowing them to purchase insurance policies that everyone knows will never actually pay out on any claims because the person has no license, and allowing them to purchase license plates and registration for the car, and then intentionally pulling them over to get a $1,200 administrative fee for the municipality. This is not fair and it is not right.

should strip club be liable for allowing a patron to drive drunk?

The Illinois Supreme Court recently ruled that a strip club could be sued for allowing a patron to drive drunk. The patron then crashed into a car in oncoming traffic, killing that motorist and her unborn child, as well as the passenger in his car. See http://www.suburbanchicagonews.com/beaconnews/news/2110464,Diamonds-strip-club-lawsuit_AU031810.article.

While I feel terrible for the victims and their families for their loss, I believe that only the drunk driver should be held responsible for their deaths. The driver was convicted of aggravated DUI and sentenced to 12 years in prison. The strip club that the driver was at did not even serve alcohol, and it appears that the driver was kicked out of the club.

Shouldn’t owners of private businesses be allowed to kick people out of their establishments for unruly behavior and not have to worry about a lawsuit being filed? Can we really expect business owners to babysit adults and take responsibility for their bad behavior? What should the employees of the strip club have done, called a cab? There is no guarantee that the driver would have gone along with that. He obviously drove to the strip club in the first place, how he was going to get home if he was not kicked out? Obviously he would have driven.

I can understand holding bars and taverns accountable because they serve the drinks. But to blame a private establishment for a driver’s drinking and driving when they were not the ones serving the drinks seems a bit much to me.

double jeopardy on red light camera tickets?

The Chicago Tribune had an interesting article about a driver who was issued a ticket for running through a red light by a Chicago police officer. http://www.chicagotribune.com/business/problemsolver/ct-biz-0316-problem-brown-20100316,0,6061431.column

The driver paid the $75 ticket; however, he then received a red light violation in the mail because a red light camera also caught him. The administrative penalty for the red light camera violation was $100.

A person cannot be punished twice for the same crime. That is called Double Jeopardy and it is not permissible under the US Constitution. Eventually, this driver was able to get the administrative penalty vacated based on double jeopardy principles.

This case presents many interesting issues for DUI clients and their attorneys. If a police officer is using a traffic infraction as the basis for probable cause to stop a motorist for a DUI, and there is a red light camera at that particular intersection, the pictures taken from that camera should be subpoenaed immediately by the motorist’s attorney. Especially if the police officer’s basis for the stop is that the motorist ran the red light, but he is not issued a ticket in the mail for the infraction. This video may provide proof that the traffic infraction was not in fact committed. Thus, there may be a motion to throw out the whole DUI case.

texting while driving

It is hard to debate the merits of the new Illinois law that bans texting while driving. Sure we all have done it, but it is hard to argue that it is not dangerous. Certainly texting distracts drivers to the point of creating a real danger on the road for all of us.

However, does the new Illinois law also give police officers new discretion to justify traffic stops that lead to DUI or drug arrests?

The law states as follows: “A person may not operate a motor vehicle on a roadway while using an electronic communication device to compose, send, or read an electronic message.” 625 ILCS 5/12-610.2(b).

“Reading an electronic message” is pretty broad language. Does that include looking at a phone to see a phone number of a person calling? Does it include looking up a phone number to dial even when using a handsfree device? Could a police officer’s testimony that he saw a driver looking down and that the driver had a hand held device in the car be enough for a traffic stop?

I forsee DUI and drug arrests being made with this new law being used as the reason to conduct the traffic stop. Does this new Illinois law give police officers too much discretion to stop drivers?