Can I be Convicted of a DUI if I Blow Less than .08 ?

CAN I BLOW LESS THAN .08 AND STILL BE CONVICTED OF A DUI?

Getting caught driving under the influence in Illinois has serious ramifications. Getting caught more than once could result in a felony conviction, possible jail or prison time and even permanent revocation of your driver’s license.

The average man weighing about 170 pounds approaches the legal threshold for being intoxicated (0.08 percent) after about four drinks in one hour, according to the Illinois Secretary of State. For women weighing about 140 pounds, the limit is about three drinks. See CyberdriveIllinois.org for more information or click on this link for the DUI handbook; http://www.cyberdriveillinois.com/publications/pdf_publications/dsd_a118.pdf

That said, every person metabolizes or process alcohol differently.  As  such, the optimal plan is to have a sober person drink if you have been drinking at all.

APPELLATE COURT HOLDS DRIVER’S CAN STILL BE DUI IF UNDER .08

In People v. Phillips, 2015 IL App (1st) 131147, the Defendant admitted to drinking wine and smoking a small amount of cannabis, blew a .059 on his breathylizer test. The trial court found him guilty of driving under the influence of alcohol.

The Defendant, Phillips, appealed the trial court’s decision to find him guilty of driving under the influence of alcohol, arguing that the fact his breathylizer result was .059 created an inference of a lack of impairment.

The appellate court upheld the trial court’s decision to find Phillips guilty of driving under the influence of alcohol in spite of his breathylizer result of .059. The appellate court held that “the State presented sufficient evidence from a credible officer that the defendant emitted a strong odor of alcohol, exhibited slightly slurred speech, had bloodshot eyes, and performed poorly on the field sobriety tests.” The court specifically rejected Phillip’s argument that a blood alcohol concentration below the legal limit infers a lack of impairment.

The Illinois Supreme Court in People v. Janik, 127 Ill. 2d 390 (1989) held that a person can be convicted of a DUI based solely on the testimony of the arresting officer so long as that officer is determined by the trial court to be credible.

In cases where the BAC is less than .08 but greater than .05 the key issues at any trial will be what other factors were present that would indicate a Defendant is impaired. Such factors typically are things such as how a defendant drove, their ability to speak and think clearly, the ability to stand and balance, odor of an alcoholic beverage on their breath, and how they performed on field sobriety tests if they agreed to perform them.

Due to the fact that the penalties for DUI escalate dramatically with subsequent violations of the law, it is highly recommended you contact an experienced attorney who can protect you and your rights, explain the court process, explain collateral consequences and try and achieve a result with the least possible punishment, or no punishment at all if you were wrongly accused.  Because of the strong possibility of incarceration and unknown collateral consequences it is highly recommended that you consult with an attorney. Miller Law Offices has a proven track record of success in DUI cases both at trial and in negotiations. When there is so much on the line, do not wait to get the protection you deserve. Call Miller Law Offices today!

 

LEGAL DISCLAIMER:

The use of the internet or this form of communication with the firm or individual member of the firm does not establish an attorney-client relationship. The information provided above is not to be considered legal advice and is intended for educational purposes only.

Miller Law Offices represents clients throughout the entire state of Illinois, including, but not limited to, the cities of Peoria, Pekin, Bartonville, Morton, Washington, Eureka, Pontiac, Cambridge, Dunlap, Bloomington, Normal and cases in Peoria County, Henry County, Livingston County, McLean County, Tazewell County, Knox County and Woodford County.

Article Author: C. Matthew Miller

What is The Difference Between a License Suspension and Revocation

After all my years of practicing DUI defense one of the concepts that clients find the most confusing and is most commonly misunderstood is the difference between a license suspension and a license revocation. Even more specifically, how does a DUI disposition effect a person’s license? The purpose of this article is to help the layperson better understand the difference between a license suspension and a license revocation and how what disposition they receive on a DUI plays into whether their license ends up being suspended or revoked.

When an a person is arrested for a DUI they will receive from the Illinois Secretary of State a suspension of their license under Illinois’ Implied Consent Law. All people driving in Illinois have impliedly agreed by the mere virtue of exercising the privilege to drive a motor vehicle on the public roadways of Illinois, to submit to the chemical testing of their breath, blood or urine to determine whether they are impaired. Illinois’ implied consent law is generally found at 635 ILCS 5/11-501.1 of the Illinois Motor Vehicle Code.  Normally, if the arresting officer turns in his sworn report to the Secretary of State in a timely manner, this suspension will become effective on the 46th day after the person’s arrest for DUI. This suspension is called a summary suspension.

For Illinois’ implied consent law to apply and for there to be a legal basis for a summary suspension a person must have been driving or in actual physical control of a vehicle on a public roadway. A person can still receive a DUI on private property but cannot legally receive a summary suspension of their driving privileges for driving while under the influence on private property.

A driver is considered a first offender for implied consent purposes if he or she has not had a DUI in the last five years. However, for the purposes of the criminal DUI statute, a person is only considered a first offender if he or she has never had a prior DUI in their lifetime.

If a person is a first offender for the implied consent law’s purposes, i.e. no DUI in last five years, he or she faces a 6 month suspension of their driving privileges if they comply with the officer’s request to take chemical testing of their breath, blood or urine. Should an individual refuse to comply with the officer’s request for chemical testing they will receive a 12 month suspension of their driving privileges. If a person is not a first offender for the implied consent law’s purposes, i.e. they have had a prior DUI within the last five years, their license will be suspended for a minimum of 12 months if they took the test and 36 months if they refused the test.

A summary suspension is considered a civil and not a criminal penalty. The outcome of the criminal case does not automatically entitle the driver to a rescission of his summary suspension. For example, a person can be found not guilty of a DUI at trial and that will not result in the summary suspension being lifted because the issue for the summary suspension is whether an individual complied with testing and if they did comply whether they were over a Breath Alcohol Content (BAC) of .08. Additionally, if the State decides to dismiss the charges, the dismissal does not result in an automatic rescission of the statutory suspension.

In most circumstances, In order for a motorist’s summary suspension to be rescinded they must file a petition to rescind summary suspension with the court and argue statutory, as well as, appellate case grounds for why their summary suspension should be rescinded. (As this subject is complex and merits an article of its own it will be covered in a separate blog).

What is a revocation and how does it differ from a suspension?

A revocation is the permanent loss of a motorist’s privilege to drive. A motorist who has had his driving privileges revoked cannot return to driving normally until he has gone through hearings with the Secretary of State after the date where he is eligible for full reinstatement has occurred. Reinstatement is far from automatic when a person’s privileges have been revoked. If a motorist is CONVICTED of a DUI they will have their driving privileges revoked. The disposition on the criminal case in the DUI does not impact the summary suspension but can make the difference in whether a motorist has his driving privileges revoked and must go through costly and time consuming hearings in Springfield Illinois or Chicago. Avoiding a conviction on a DUI will allow the motorist to return to driving normally and full reinstatement of their driving privileges once the term of their summary suspension is completed and they have paid the reinstatement fee to the Secretary of State.

Summer Camp

Every year, thousands of jam band fans and others descend upon Chillicothe, Ill., for the annual Summer Camp music festival. Since 2001, the three-day music festival over Memorial Day weekend has more than doubled the population of Chillicothe. As many as 30,000 people came last year to hear such greats as Moe, Trey Anastasio Band and Blues Traveler. And with such a big gathering of people, there are always some who manage to run afoul of the law.

Lives can be ruined by a few bad choices and nowhere is that more evident than at Summer Camp where people have been arrested by undercover police officers, stopped for traffic violations or been searched at a check point. Drugs, by far, are the most common charges with marijuana, heroin, cocaine, Ecstasy and LSD among the items seized by police.

And again, for most, criminal charges aren’t an issue. But with police manning check points or looking for traffic infractions on every highway or street leading to the park, just making it to Summer Camp can feel like running the gauntlet.

Charges range simple possession to distribution. Felonies and misdemeanors are doled out. With the vast number of people coming from out of town, this can lead to great headaches. Scholarships can be lost. Fines and court costs can reach into the thousands of dollars. Prison time is a very real possibility with some being charged with felonies that can send them to prison for at least six and possibly up to 30 years.

It doesn’t take much. A single joint of marijuana can be a misdemeanor. A single gram of cocaine can be a felony. Even trace amounts of cocaine can lead to charges which can result in loss of employment, being kicked out of school or worse.

So, above all, go to the festival and have fun. Obey the law, but if you do get into trouble, you’ll need an attorney familiar with the various jurisdictions and how they operate. You’ll need someone who has handled dozens of these types of cases and negotiated fair and reasonable outcomes. And you’ll need someone who understands that no one should suffer needlessly for one bad choice.

That person is Matt Miller of the Miller Law Offices…

Rodriguez v. United State’s

Last April, the U.S. Supreme Court ruled in a 6-3 vote that police could not prolong a traffic stop in order for a drug-sniffing dog to arrive. The case, Rodriguez v. the United States, 13-9972, arose out of a traffic stop in Nebraska where the driver, Dennys Rodriguez, was pulled over and given a written warning for an offense. Seems normal so far, but the Supreme Court justices had issue with the fact that the officer detained Rodriguez for several minutes after he refused to allow a drug dog to walk around his car and until another officer could arrive. Once that other police officer arrived, the dog came out and drugs were found. Rodriguez was later indicted on federal drug counts.

And in a twist that reverses a similar 2005 case of Illinois, the justices held that “absent reasonable suspicion, police extension of a traffic stop in order to conduct a dog sniff violates the Constitution’s shield against unreasonable seizures.”

Back in 2005, the Court held that such searches didn’t violate the Fourth Amendment’s protection against unreasonable searches (See Illinois v. Caballes, 543 U.S. (2005). Then in a 6-2 vote (William Rehnquist abstained), The case was initially upheld in the Illinois Appellate Court but then the state’s Supreme Court reversed, setting the stage for the 2005 showdown in the nation’s highest court. There, the justices held it wasn’t unreasonable to have a drug sniffing dog walk around the car and thus, no Constitutional rights were violated. The issue in that case was privacy. Drugs were, by definition, illegal so a person could expect no amount of privacy and thus protection.

So what changed? In both cases, the driver was issued either a warning or a citation.

In the Rodriguez case, it seems the justices focused on the time having a drug dog walk around a car, not the fact that a person got a ticket as what made the search illegal. Justice Ruth Bader Ginsberg wrote for the majority:

“An officer, in other words, may conduct certain unrelated checks during an otherwise lawful traffic stop . . . but he may not do so in such a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual,” she wrote.

Drug sniffing dogs are not inherent the traffic stops, which largely are done in the name of safety. The decision sends the case back to the lower courts to find out if there was reasonable suspicion to merit the search.

In a dissent, Justice Clarence Thomas and others argued the decision is wrong, saying it depends upon how fast an officer can move through a stop and at what point the process a ticket is issued.

Here in central Illinois, this is a good decision for residents especially those who attend the Summer Camp music festival which often yields many traffic stops and searches. It’s another plate back into the armor of those who are looking to protect the rights of people. Here at the Miller Law Offices, we keep up on the latest in major decisions that could affect you and your loved one. And that provides you with the best possible legal strategy.

Record Expungements

In today’s ever increasingly competitive job market, the stigma of a criminal conviction or arrest very often means the difference between one job candidate being hired and another having to continue their job search. Many employer’s when faced with two equally qualified candidates will choose to hire the candidate who does not have a criminal record. Having your criminal record sealed or expunged has become a must for those who are seeking to better their lives through employment or schooling opportunities.

Records of arrest have far reaching consequences. An arrest records are used by the criminal courts to assist in prosecutors charging decisions and sentencing recommendations; by judges in determining what sentence to impose on a defendant and by defense counsel to better advise a client whether they should take the stand at trial, take a plea deal or take part in a sentencing hearing.

With the advent of the internet and internet databases, arrest records are more readily available than ever before.

Not every arrest or criminal case qualifies for sealing or expungement and not every case that qualifies for sealing qualifies for expungement. The statute governing expungements can be found at 20 ILCS 2630/5.

Expungement of an arrest record is generally available to a defendant if he or she has been acquitted at trial, their case has been dismissed, or after the successful completion of court supervision or 1410 probation. If the petition is granted, no record of arrest should exist and all photographs, fingerprints and other records of identification are returned to the defendant. The law enforcement agencies will destroy their record or remove all mention of your name from the public record.

If a defendant has been convicted of a criminal offense in their past, he or she may not have his arrest record expunged under the expungement statute.

If an individual has no prior convictions and has been placed on court supervision for an offense he will be eligible for expungement of his arrest record after two years have passed since the date of dismissal of the case. DUI’s or similar provisions of local ordinances do not qualify for expungement even upon the successful completion of court supervision.

It is important to retain the services of an experienced attorney to review your record and determine whether you qualify for expungement or sealing under the statute.

If a person’s record is successfully sealed, their file remains intact but under seal. The records can be labeled as “sealed”. Most of the general public will not have access to the contents of the record. However, law enforcement and certain licensing agencies will still have access to your records. As with expungement, DUIs and similar ordinance violations cannot be sealed. Further, any violations that are considered a crime of violence or require sex offender registration cannot be sealed.

If you believe that you may qualify for record expungement or sealing please contact Miller Law Offices to see how we can assist you in moving on and putting your past behind you.

LEGAL DISCLAIMER:

The use of the internet or this form of communication with the firm or individual member of the firm does not establish an attorney-client relationship. The information provided above is not to be considered legal advice and is intended for educational purposes only.

Miller Law Offices represents clients throughout the entire state of Illinois, including, but not limited to, the cities of Peoria, Pekin, Bartonville, Morton, Washington, Eureka, Pontiac, Cambridge, Dunlap, Bloomington, Normal and cases in Peoria County, Henry County, Livingston County, McLean County, Tazewell County, Knox County and Woodford County.

Article Author: C. Matthew Miller

  1. Matthew Miller is the sole practitioner at Miller Law Offices, P.C. He has been recognized by the National Trial Lawyers as a Top 100 Trial Lawyer and the American Society of Legal Advocates as a Top 40 Criminal Defense lawyer Under 40 in the State of Illinois. Mr. Miller concentrates his practice in Criminal Law, DUI, Criminal Record Expungements, Divorce and Child Custody.

Reasonable Doubt

As most people are aware, a person cannot be found guilty of a criminal offense in the American criminal justice system unless the prosecution proves them guilty beyond a reasonable doubt. This standard of proof is the highest burden of proof in our legal system. But what exactly does reasonable doubt mean? The U.S. Constitution does not provide a definition of what level of certainty beyond a reasonable doubt is.

“What is reasonable doubt?” is a question jurors often face when they go back into the jury room to deliberate on the evidence they have heard and seen during a criminal trial. It has been my experience that in a close trials, jurors will often return just such a question to the judge. They will ask the judge to define “reasonable doubt” so as to guide them as to what level of proof is required. In Illinois, there is no jury instruction which provides a definition of what exactly constitutes reasonable doubt and what level of certainty of guilt must be met for a guilty verdict to be appropriate. Attempts by prosecutors or defense attorneys to give a hard line definition of reasonable doubt are objectionable. The attorneys can argue that certain testimony or lack of evidence have meant the State did or did not prove their case “beyond a reasonable doubt” but are not allowed to try and actually define what level of certainty a juror msut have. Further, if a judge attempts to define reasonable doubt as being anything but a self- defining term, the case may result in a mistrial or be overturned on appeal.

Black’s Law Dictionary defines reasonable doubt as the following:

Reasonable doubt.The doubt that prevents one from being firmly convinced of a defendant’s guilt, or the belief that there is a real possibility that a defendant is not guilty. ● “Beyond a reasonable doubt” is the standard used by a jury to determine whether a criminal defendant is guilty.  In deciding whether guilt has been proved beyond a reasonable doubt, the jury must begin with the presumption that the defendant is innocent.  See BURDEN OF PERSUASION.

“Reasonable doubt …is a term often used, probably pretty well understood, but not easily defined.  It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt.  It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.” Commonwealth v Webster, 59 Mass.  (5 Cush.) 259, 320 (1850) (per Lemuel Shaw, J.).

“The gravamen of Lord Goddard’s objection to the formula of ‘reasonable doubt’ seems to have been the muddle occasionally created by an impromptu effort to explain to a jury the meaning of this phrase.  A simple solution would be to refrain from explaining it, relying on the common sense of the jury.  As Barton J. said in an Australian case, ‘one embarks on a dangerous sea if he attempts to define with precision a term which is in ordinary use with reference to this subject-matter, and which is usually stated to a jury without embellishment as a well understood expression.’  However, some modes of embellishment seem to be unobjectionable.  There is probably no harm in telling the jury, as some judges do, that a reasonable doubt is one for which a sensible reason can be supplied.”  Glanville Williams, Criminal Law 873 (2d ed. 1961).

The State of California provides jurors in criminal trials with the following jury instruction defining reasonable doubt, “Proof beyond a reasonable doubt is proof that leaves you with anabiding conviction that the charge is true. The evidence need noteliminate all possible doubt because everything in life is open tosome possible or imaginary doubt.” CalCrim 220. It is my belief that if Illinois would adopt a similar jury instruction, the instruction would go a long way towards relieving any confusion in juror’s minds regarding exactly what the degree of certainty needs to be for a guilty or not guilty verdict to be appropriate.

Unfortunately, until Illinois adopts an actual jury instruction defining reasonable doubt, what constitutes reasonable doubt will remain a murky and often misunderstood area of the law by the very people tasked with determining the guilt or innocence of a fellow member of the community.

I hope that after reading this you have a better understanding of the importance of what the definition of reasonable doubt is. If you have further questions, please visit my website at www.il-crimlaw.com and complete my online submission form.

LEGAL DISCLAIMER:

The use of the internet or this form of communication with the firm or individual member of the firm does not establish an attorney-client relationship. The information provided above is not to be considered legal advice and is intended for educational purposes only.

Miller Law Offices represents clients throughout the entire state of Illinois, including, but not limited to, the cities of Peoria, Pekin, Bartonville, Morton, Washington, Eureka, Pontiac, Cambridge, Dunlap, Bloomington, Normal and cases in Peoria County, Henry County, Livingston County, McLean County, Tazewell County, Knox County and Woodford County.

Article Author: C. Matthew Miller

  1. Matthew Miller is the sole practitioner at Miller Law Offices, P.C. He has been recognized by the National Trial Lawyers as a Top 100 Trial Lawyer and the American Society of Legal Advocates as a Top 40 Criminal Defense lawyer Under 40 in the State of Illinois. Mr. Miller concentrates his practice in Criminal Law, DUI, Criminal Record Expungements, Divorce and Child Custody.

Police Body Cameras

This summer, the state of Illinois approved a measure that would provide more money for the state’s police agencies to undertake training on how to use them.  The law, known as Senatebill, 1304 or the Police and Community Improvement Act, also sets standards on how those cameras should be used, who can obtain the footage and also creates a database of officers who have been in trouble due to misconduct. (the actual act can be found here http://www.ilga.gov/legislation/publicacts/99/PDF/099-0352.pdf)

So what does this mean for you, the average person?

Well, for starters, it means that a $5 fine will be imposed on criminal or traffic offense that result in a conviction. That will not take effect until Jan. 1. So there is a small financial consideration. It also bars the use of choke holds by police officers unless deadly force is required. And there are standard for when such force is used. So that’s a plus for the average person in that checks on how police can subdue a person are in now in place.  The law creates standards for officers to become more aware and understanding of bias and cultural differences.

And that database will be accessible for people to see who has been fired or disciplined. And it puts into place requirements for how body cameras are used by police. It doesn’t mandate a department use them but if they do, there are regulations such as:

  • The camera must be turned on at least 30 seconds before an encounter with the public.
  • It must on the entire time an officer is conducting an interview or investigation with the public.
  • It must be able to record for at least 10 hours.
  • And the officer must tell the person or people that he is recording the incident.

It also calls for independent reviews of all police-involved deaths, a key point in the wake of officer-involved fatal shooting that led to riots in Baltimore and Ferguson, Mo. According to the Associated Press, there is also the creation of a commission that will review training requirements and other issues and report to legislators and the governor by the end of January.

So we’ll ask the question again,. What does this mean for the average person. It means that there are more things out there to possibly assist a defense attorney in handling your case. There are more ways that you, the citizen, can monitor your own police department and there are, in theory, safeguards there to prevent police misconduct.

But there are safeguards for personal privacy. An officer can turn off the camera if they are talking to a confidential source and in general, the recordings are not subject to the state’s Freedom of Information Act unless they are involved in a so-called “use of force” incident or a fatal shooting.

Recordings aren’t new. Interrogations are often recorded and dashboard cameras in squad cars are fairly common. But idea of the body camera with all that it can AND can’t show is a relatively new idea. And that’s why you need an attorney who is up on the latest trends and laws. There will be new precedents set regarding the use of these cameras. At times, the cameras will be a boon for the defense while other times, they could hurt a person’s case.

Here at the Miller Law Offices we are following the latest trends in criminal law so we can be at the forefront of the defense bar. We want to use the latest technology as well as legal rulings to make sure your rights are protected and that you are given a fair shake at every stage of your case. Feel free to give us a call if you have a need.

NEW SPOUSAL MAINTENANCE LAW EFFECTIVE JANUARY 1, 2015

NEW SPOUSAL MAINTENANCE LAW EFFECTIVE JANUARY 1, 2015

A new public act dramatically changes how spousal maintenance (alimony) is determined for divorcing couples whose combined gross income is less than $250,000.

Presently, judges have discretion to calculate maintenance without using a statutory formula similar to the one that applies to child support awards, instead relying on the following list of factors:

  • the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance;
  • the needs of each party;
  • the present and future earning capacity of each party;
  • any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone education, training , employment, or career opportunities due to the marriage;
  • the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment or is the custodian of the child making it appropriate that the custodian not seek employment;
  • the standard of living established during the marriage;
  • the duration of the marriage;
  • the age and the physical and emotional condition of both parties;
  • the tax consequences of the property division upon the respective economic circumstances of the parties;
  • contribution and services by the party seeking maintenance to the education, training , career and career potential, or license of the other spouse;
  • any valid agreement of the parties; and
  • any other factor that the court expressly finds to be just and equitable.

(b-5) Any maintenance obligation including any unallocated maintenance and child support obligation, or any portion of any support obligation, that becomes due and remains unpaid shall accrue simple interest as set forth in Section 505 of this Act.

(b-7) Any new or existing maintenance order including any unallocated maintenance and child support order entered by the court under this Section shall be deemed to be a series of judgments against the person obligated to pay support thereunder. Each such judgment to be in the amount of each payment or installment of support and each such judgment to be deemed entered as of the date the corresponding payment or installment becomes due under the terms of the support order, except no judgment shall arise as to any installment coming due after the termination of maintenance as provided by Section 510 of the Illinois Marriage and Dissolution of Marriage Act or the provisions of any order for maintenance. Each such judgment shall have the full force, effect and attributes of any other judgment of this State, including the ability to be enforced. A lien arises by operation of law against the real and personal property of the obligor for each installment of overdue support owed by the obligor.

(c) The court may grant and enforce the payment of maintenance during the pendency of an appeal as the court shall deem reasonable and proper.

(d) No maintenance shall accrue during the period in which a party is imprisoned for failure to comply with the court’s order for the payment of such maintenance.

(e) When maintenance is to be paid through the clerk of the court in a county of 1,000,000 inhabitant or less, the order shall direct the obligor to pay to the clerk, in addition to the maintenance payments, all fees imposed by the county board under paragraph (3) of subsection (u) of Section 27.1 of the Clerks of Courts Act. Unless paid in cash or pursuant to an order for withholding, the payment of the fee shall be by a separate instrument from the support payment and shall be made to the order of the Clerk.

THE NEW LAW

Effective January 1, 2015, there will be a mathematical formula for calculating maintenance based on the gross income of the parties and the length of the marriage. This formula will eliminate a lot of the guess work in calculating maintenance and limit the judges’ wide discretion which they presently possess. Presently, maintenance decisions vary widely from case to case, judge to judge, and county to county.

Under the new formula maintenance should equal 30% of the payor’s gross income minus 20% of the payee’s gross income but is not to exceed 40% of the parties’ combined gross income when added to the payee’s gross income.

For example: The soon to be ex-husband grosses $60,000 a year and his wife makes $30,000. 30% of $60,000 is $18,000 and 20% of $30,000 is $6,000. Subtract $6,000 from $18,000 and you get $12,000. The Husband would owe the wife $12,000 a year in maintenance. However, the maintenance award plus the payee’s gross income cannot exceed 40% of the couple’s combined gross. Together, the couple grossed $90,000 a year. 40% of the couple’s gross income is $36,000. So the wife would only receive $6,000 a year in maintenance and not $12,000.

Additionally, a separate formula will be implemented to determine the duration of the maintenance award.  For a marriage that lasted under 20 years, the length of the award would be 20% of the time the couple was married. For example, 2 years of maintenance for a 10 year marriage. However, for marriages exceeding 20 years the award could be for the duration of the marriage or permanent.

LEGAL DISCLAIMER:

The use of the internet or this form of communication with the firm or individual member of the firm does not establish an attorney-client relationship. The information provided above is not to be considered legal advice and is intended for educational purposes only.

Miller Law Offices represents clients throughout the entire state of Illinois, including, but not limited to, the cities of Peoria, Pekin, Bartonville, Morton, Washington, Eureka, Pontiac, Cambridge, Dunlap, Bloomington, Normal and cases in Peoria County, Henry County, Livingston County, McLean County, Tazewell County, Knox County and Woodford County.

Article Author: C. Matthew Miller

  1. Matthew Miller is the sole practitioner at Miller Law Offices, P.C. He has been recognized by the National Trial Lawyers as a Top 100 Trial Lawyer and the American Society of Legal Advocates as a Top 40 Criminal Defense lawyer Under 40 in the State of Illinois. Mr. Miller concentrates his practice in Criminal Law, DUI, Criminal Record Expungements, Divorce and Child Custody.

NEW LIMITS ON CRIMINAL HISTORY CHECKS FOR JOB APPLICANTS

The ”Job Opportunities For Qualified Applicants Act” Limits Criminal History Checks On Job Applicants

Being arrested and having to go to court can be a very intimidating experience. One that can seem very overwhelming. A person often faces the prospect of large fines, incarceration, the loss of a job and income. Additionally, even if a large fine or incarceration are avoided, many a defendant who finds himself or herself convicted of a crime will find that their future prospects for advancement via schooling or future job prospects are limited in ways they could not have imagined.

During times of economic hardship, competition intensifies for those jobs that are available. In this age of the internet, more companies than ever before are requiring job applicants to disclose their criminal history and refusing to hire those applicants with a prior criminal history or those who fail to disclose a previous criminal conviction. Unfortunately, many people find themselves being denied work for a minor mistake they made 10, even 15 years ago. A mistake they may have made as a young person; a person whom they presently no longer are.

Effective January 1, 2015, the “Job Opportunities For Qualified Applicants Act,” becomes law in the state of Illinois. The new law prohibits most employers from inquiring into, considering or requiring the disclosure of the criminal background or history of a person who is applying for a job.

The Act’s purpose is to try and level the playing field at the initial application stage for those individuals with a prior criminal history. The fact that presently, most if not all employers inquire as to an applicant’s criminal background often has the affect of keeping people who are employable and willing to work from even applying for jobs. The Act seeks to end this “chilling” effect that being required to disclose a previous conviction has on job applicants who have a conviction in their past.

The new law applies to companies that have 15 or more employees and also covers employment agencies .There are three types of employers that will be excluded from the new law. Section 15 of the Act excludes those companies that employ people licensed under Illinois’ Emergency Medical Services Act, those employers that are required by federal or state law to exclude applicants with specific types of convictions. It also exempts employers that require a fidelity bond where specific criminal convictions would disqualify the applicant.

Under the new law, employers are allowed to list specific disqualifying offenses. The employer is allowed to notify job applicants in writing of any offenses that would disqualify the applicant for employment in a particular position due to the employer’s policy or federal or state law.

The employer may look into an applicant’s prior criminal history once they have been deemed to be qualified for a specific position and is in the interview process or after the employer has made a conditional employment offer.

The Illinois Department of Labor has been given the authority to enforce the new law once it becomes effective in January 2015. Employers who do not comply with the law will be subject to civil fines for repeated violations of the Act and failure to become compliant. The stated goal of the Act is to help those qualified applicants who happen to have a conviction in their past have a level playing field with other applicants at the initial application stage.

LEGAL DISCLAIMER:

The use of the internet or this form of communication with the firm or individual member of the firm does not establish an attorney-client relationship. The information provided above is not to be considered legal advice and is intended for educational purposes only.

Miller Law Offices represents clients throughout the entire state of Illinois, including, but not limited to, the cities of Peoria, Pekin, Bartonville, Morton, Washington, Eureka, Pontiac, Cambridge, Dunlap, Bloomington, Normal and cases in Peoria County, Henry County, Livingston County, McLean County, Tazewell County, Knox County and Woodford County.

Article Author: C. Matthew Miller

  1. Matthew Miller is the sole practitioner at Miller Law Offices, P.C. He has been recognized by the National Trial Lawyers as a Top 100 Trial Lawyer and the American Society of Legal Advocates as a Top 40 Criminal Defense lawyer Under 40 in the State of Illinois. Mr. Miller concentrates his practice in Criminal Law, DUI, Criminal Record Expungements, Divorce and Child Custody.

Motion To Suppress Evidence From Terry Stops

Being arrested and having to go to court can be a very intimidating experience. One that can seem very overwhelming. While hiring a good criminal defense lawyer can go a long way towards alleviating most, if not all of the stress associated with having to go to court on pending criminal charges.

The purpose of this article is to provide a basic explanation of Motions to Suppress Evidence seized as a consequence of an illegal search and seizure by government authorities during investigatory stops. Search and Seizure law can be very technical and is very fact specific. One single difference in a factual situation can mean a very different result as to whether the appellate courts have deemed the actions of law enforcement to be an illegal search and seizure. It is strongly advised that you consult with and retain an experienced criminal attorney when facing criminal charges.

The fourth amendment to the United States Constitution (U.S. Const., amend. IV) and article I, section 6, of the Illinois Constitution (Ill. Const. 1970, art. I, § 6) protect individuals from unreasonable searches and seizures. The U. S. Supreme Court has recognized that not every encounter between the police and a private citizen results in a seizure, and has identified three tiers of police-citizen encounters. People v. Luedemann, 222 Ill. 2d 530, 544 (2006). These are: (1) arrests, which must be supported by probable cause; (2) brief investigative detentions, or Terry stops, which must be supported by reasonable, articulable suspicion of criminal activity; and (3) consensual encounters, which involve no coercion or detention and thus do not implicate fourth amendment interests and are deemed not to be seizures. Leudemann, 222 Ill. 2d at 544.

What will often be at issue in any motion to suppress is what the nature of the encounter between law enforcement and the defendant was. If the encounter is deemed to be “consensual” then no seizure occurred and an individual’s fourth amendment rights do not come into play. However, if the encounter between law enforcement and a defendant is deemed to have been a seizure, then the individual’s fourth amendment protections against unreasonable search and seizure become effective. For an officer’s conduct to be deemed a seizure he must convey a show of authority such that the defendant’s freedom of movement was restrained.

What Constitutes a Show of Authority?

In the Mendenhall  case, the U.S. Supreme Court listed four circumstances in which a nonconsensual seizure might occur: (1) the threatening presence of several officers; (2) an officer’s display of a weapon; (3) the physical touching of the individual’s person; or (4) “the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” People v. Cosby, 231 Ill.2d 262, 274 (2008).  A seizure does not occur simply because an officer approaches an individual and puts questions to that person if the person is willing to listen. Leudemann, 222 Ill. 2d at 551.

What is Reasonable Suspicion?

            In order for an investigatory or Terry Stop, to be lawful it must be based on a reasonable, articulable suspicion that the individual subjected to the seizure was involved in criminal activity or armed and dangerous. Terry v. Ohio, 392 U.S. 1 (1968); and People v. Tate, 367 Ill. App. 3d 109, 115 (2006).  The determination as to whether an officer had sufficient reasonable, articulable suspicion that a crime had been or was about to be committed is fact specific and there is no bright line rule. Mere hunches and unparticular suspicions are not enough. People v. Smith, 331 Ill. App. 3d 1049, 1054 (2002).

Merely walking away when the police become present has not been deemed to be sufficient reasonable suspicion to justify a stop and frisk, nor has simply being present in a high crime area. However, running upon seeing police has been deemed to create sufficient suspicion to justify a seizure and subsequent search of a person.Michigan v. Chesternut,486 U.S. 567 (1988).

Stops on Vehicles

A Terry stop may be made on a vehicle. What often occurs on a Terry stop of a car is that it often progresses into a full blown arrest that is supported by probable cause once an officer has a chance to check the defendant’s license or make other observations that leads the officer to believe a crime has been committed such as Driving While License Suspended or Driving Under the Influence.

There are several situations that have been held by the courts to be proper reasons for an investigatory stop (Terry Stop) on a vehicle, some of them are as follows:

  1. Speeding;
  2. Inoperable tail light;
  3. Cracked windshield;
  4. Swerving within the same lane;
  5. Obstructed windshield;
  6. Disobeying a traffic control device;
  7. Failure to signal;
  8. Following too closely;
  9. No rear license plate;
  10. Failure to dim headlight;
  11. Computer check shows vehicle owned by a driver with a suspended license;

However, courts have found that officers made unlawful stops of motor vehicles in the following situations:

  1. Weaving within one lane;
  2. Driving under the speed limit;
  3. Momentary crossing of the fog line;
  4. Bulging rear tires on a truck;

The courts have held that stopping a vehicle for a minor traffic violation does not in and of itself justify a search of the defendant’s person or of their vehicle. Knowles v. Iowa, 525 U.S. 113 (1998).However, if during the course of the officer’s stop for a minor traffic violation, the officer observes criminal activity his observations may lead to the officer having enough probable cause to arrest a defendant and then search the defendant or his vehicle incident to arrest.

I hope that after reading this you have a better understanding of Motions to Suppress evidence illegally seized during investigatory stops. If you have further questions, please visit my website at www.il-crimlaw.com and complete my online submission form.

LEGAL DISCLAIMER:

The use of the internet or this form of communication with the firm or individual member of the firm does not establish an attorney-client relationship. The information provided above is not to be considered legal advice and is intended for educational purposes only.

Miller Law Offices represents clients throughout the entire state of Illinois, including, but not limited to, the cities of Peoria, Pekin, Bartonville, Morton, Washington, Eureka, Pontiac, Cambridge, Dunlap, Bloomington, Normal and cases in Peoria County, Henry County, Livingston County, McLean County, Tazewell County, Knox County and Woodford County.

Article Author: C. Matthew Miller

  1. Matthew Miller is the sole practitioner at Miller Law Offices, P.C. He has been recognized by the National Trial Lawyers as a Top 100 Trial Lawyer and the American Society of Legal Advocates as a Top 40 Criminal Defense lawyer Under 40 in the State of Illinois. Mr. Miller concentrates his practice in Criminal Law, DUI, Criminal Record Expungements, Divorce and Child Custody.