PARENTS, BEWARE!: THE ILLINOIS LAW ON SOCIAL HOSTING OF TEEN DRINKING PARTIES

Posted on April 25, 2011 by mdkeenan

With high school graduation and prom parties in the offing, you may be tempted to let your senior hold a party in your home. You always enjoy a drink at parties, and you don’t see why your own child can’t have some spiked punch. Unfortunately, the Illinois law on social hosting poses stiff penalties to parents who host under-aged drinkers. Parents who host face possible criminal and municipal charges as well as civil liability.

The Criminal Law: Under Illinois law, it is a Class A Misdemeanor, punishable by up to one year in jail and/or a $1000 fine, if you knowingly provide alcohol to someone under the age of 21 other than your own child. If serious injury or death occurs, you can be charged with a Class 4 felony punishable by up to 3 years in prison and a $25,000 fine. You are considered to have knowingly authorized the use of alcohol if you fail to control access to the liquor cabinet in your residence. Therefore, under Illinois law, you could be at fault simply for leaving your liquor cabinet available while you were away.

To address social hosting even more directly, a new law has passed the Illinois House and is currently before the Illinois Senate. The new law would make it a Class A Misdemeanor punishable by up to one year in jail and a mandatory minimum $500 fine if you permit a gathering of two or more people on premises under your control, where at least one person is underage and you should have reasonably known that they were consuming alcohol. If someone is injured, you can be charged with a Class 4 felony.

The Municipal Law: In addition to state criminal charges, many municipalities have their own penalties. For example, in Skokie, you may not allow an underage person who has drunk alcohol in your home to leave except in the care of their guardian. In Wilmette, you may allow your own child to drink in your home, but you may not allow that child to leave while still under the influence of alcohol. Furthermore, in Wilmette, you cannot allow someone else’s child to remain on your premises while possessing or drinking alcohol. In Evanston, you may not knowingly permit a gathering of two or more minors to possess or drink alcohol. You cannot intentionally, knowingly, recklessly or negligently give or deliver alcohol to a minor or invite someone under age 18 to have alcohol on your premises. If you know there is a substantial probability that your child may drink, you must restrain him or her from driving or from committing other illegal acts, such as theft or vandalism.

The Civil Law: If someone is injured or killed because you willfully provided alcohol, you may be sued in civil court for damages that could total millions of dollars. Furthermore, you can be assessed punitive damages, and you may not claim contributory negligence as a defense. Recent Illinois case law includes a 2009 Lake Forest case, which reached a partial $2.5 million settlement in civil damages after a teen became paralyzed in an alcohol-related crash. The mother in that case did not even know the teens had smuggled beer into her home, but the parents’ homeowner’s insurance forced a settlement. In a 2006 Deerfield case, an 18-year-old was killed after leaving a party at a friend’s home. The host parents were sentenced to probation on the criminal charges and one was sentenced to 14 days in jail. The Illinois Supreme Court held, as of May 19, 2011, that the parents were not civilly liable since they did not voluntarily undertake a duty to prohibit the drinking. This ruling notwithstanding, host parents should be careful. Whether you are deemed to have voluntarily undertaken this duty may be a question of fact for a jury to decide.

What can you do? If you are charged with providing alcohol to minors, seek the advice of an attorney immediately. Do not give any statements to the police or anyone else. What you think is a reasonable explanation might be enough to convict you later. Refrain from discussing this matter in person or electronically via texts, email or any Facebook-type pages.

Because of the possible civil lawsuit, it is critical that you vigorously defend any criminal charges. A guilty verdict in a criminal case can become a foregone conclusion in a civil matter, which has a lower burden of proof. An experienced attorney can help develop a strategy for your defense.

If you have any questions about your situation, please do not hesitate to contact Matt Keenan at 847-568-0160 or matt@mattkeenanlaw.com.

(In addition to Skokie, Matt Keenan serves the communities of Arlington Heights, Deerfield, Des Plaines, Glencoe, Glenview, Highland Park, Mt. Prospect, Morton Grove, Niles, Northbrook, Northfield, Wilmette and Winnetka.)

Posted in underage drinking | Tagged , , , , | Comments Off on PARENTS, BEWARE!: THE ILLINOIS LAW ON SOCIAL HOSTING OF TEEN DRINKING PARTIES

AGGRAVATED DUI IN ILLINOIS: DEFINITION, PUNISHMENT AND DEFENSE

Posted on April 18, 2011 by mdkeenan

You have never been charged with drunk driving. But this time when you left the party, you ran a red light and plowed into another car. You felt really bad that the other person was rushed to the hospital. Then the police started questioning you.

If you caused great bodily harm or permanent disfigurement to someone in an accident while driving under the influence of alcohol or other drugs, you can be charged with aggravated DUI, a Class 4 felony punishable by 1 to 3 years in prison and a $25,000 fine. If the person you injured was under age 16, you can be charged with aggravated DUI even if they were not greatly harmed.

You may also be charged with aggravated DUI if this is your third or higher DUI offense. Even if this is your second DUI, it is aggravated if you had a child with you. A DUI charge can also be enhanced if you have a previous conviction for DUI-related reckless homicide, if you lack liability insurance or a driver’s license, or your license was already suspended for alcohol-related reasons.

Aggravated DUI is not limited to driving automobiles. You can be charged if you were operating a snowmobile, all-terrain vehicle or watercraft that resulted in death. Needless to say, driving a school bus or in a school zone while under the influence is not a good idea and also grounds for the enhanced charge.

If you are charged with Aggravated DUI, you should immediately contact an attorney to help protect your rights and to help with your defense. As in nearly all criminal matters, the State must still prove you guilty beyond a reasonable doubt. Depending on the basis for the charge, an experienced criminal attorney can determine if the state has sufficient evidence against you. Was the injury caused serious enough to qualify as great bodily harm? Did you reasonably believe that you had liability insurance? Can the State prove that you were the one driving or that you were actually under the influence?

Even if the State has more than sufficient evidence to convict you, an experienced attorney may be able to work out a more beneficial plea agreement than you could by yourself.

If you are charged with a Aggravated DUI, you should not speak about your case to the police or anyone else about your case. Any statements that you make can be used against you later. If you are taken into police custody, you must tell them “I wish to remain silent. I wish to have an attorney present,’ In order to protect your Miranda rights.
If you have questions about this or another related criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

Posted in aggravated dui | Tagged , , , , | Comments Off on AGGRAVATED DUI IN ILLINOIS: DEFINITION, PUNISHMENT AND DEFENSE

LEAD-FOOTED DRIVERS, BEWARE!: ILLINOIS’S NEW SPEEDING LAW

Posted on March 21, 2011 by mdkeenan

As of January 1, 2011, Illinois drivers with a heavy foot on the pedal face much stiffer penalties for excessive speeding.

The new Illinois law targets drivers who speed more than 31 mph over the limit. What used to be a virtual slap on the wrist plus possible fines is now a potential jail sentence.

Under the new law, a driver who speeds between 31 and 39 mph over the limit can be charged with a Class B Misdemeanor, punishable by up to 6 months in jail and a $1,500 fine. A driver who speeds 40 mph or more over the limit can face a Class A Misdemeanor, punishable by up to one year in jail and a $2,500 fine.

Before the new law took effect, speeding more than 31 miles per hour was considered a moving violation, punishable by court supervision, possible driver safety classes and a fine. Under supervision, the driver was admonished not to violate any further laws within a set time period.

If you are stopped for excessive speeding, please refrain from making any statements to the officer, which can later be used against you in court. While speeding cases can be difficult to challenge, an experienced criminal law attorney can help determine the best strategy for defending your case.

If you have questions about a traffic-related or other criminal law matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com

Posted in Uncategorized | Tagged , , , , , | Comments Off on LEAD-FOOTED DRIVERS, BEWARE!: ILLINOIS’S NEW SPEEDING LAW

TO BREATHE OR NOT TO BREATHE: TAKING THE BREATHALYZER

Posted on February 26, 2011 by mdkeenan

You had a few drinks after work at the bar. You do not believe you are impaired. On the way home, however, you get pulled over by the police. The officer smells the alcohol and asks you to step out of the car. After fumbling through a couple field sobriety tests, the officer asks you to blow the portable breathalyzer. Should you?

The decision to take a breathalyzer is a personal one that cannot be made lightly. It is important to understand the consequences of taking or refusing this test.

In Illinois, if you are charged with driving under the influence, the Secretary of State issues an automatic suspension of your driving privileges. If this is your first offense, you can lose your license for six months. If this is your second or later offense, the suspension is one year. If you refuse the breathalyzer or field sobriety tests, however, the length of your suspension is much longer. For a first offense, you can lose your license for one year, and for a subsequent offense, you can lose it for three years.

So why not just take the breathalyzer? First, in order to convict you for DUI, the state must prove beyond a reasonable doubt that you were driving under the influence of alcohol. It is more difficult to prove that your driving was impaired if the state does not have a breathalyzer reading to hand the judge or jury. If you refuse the field sobriety tests, the state has even less to go on.

Second, the portable breathalyzer is less reliable than the breathalyzer at the police station. Therefore, you could have a higher reading in the field than is really the case. Factors such as mouth wash, regurgitation, trace quantities of blood in your mouth and improper calibration of the breathalyzer can affect your reading. If you fail the portable breathalyzer, you will inevitably be arrested. If you refuse the breathalyzer and the officer has nothing else to go on (in other words you passed the field sobriety tests or you refused them), the officer may possibly let you go.

If the officer arrests you, you will then be taken to the police station. The officer must read you a “Warning to Motorists” and observe you for 20 minutes before administering the official breathalyzer test. Even at this stage, you can refuse the test although you may be pressured to take it. Again, refusing the test will increase the length of your license suspension but may improve your chances of winning a trial.

Please see related our related posts “Can I drive? Getting Rid of Your Illinois Secretary of State Mandatory Suspension,” and “The ABCs of Defending Your DUI.” (Even if you are slightly over the Illinois legal limit of .08, you may still have a defendable case.)

If you have questions about your DUI or other criminal or traffic matters, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com

Posted in breathalyzer/field sobriety test | Tagged , , , , , , | Comments Off on TO BREATHE OR NOT TO BREATHE: TAKING THE BREATHALYZER

WHEN YOU ARE CHARGED WITH DRIVING ON A SUSPENDED LICENSE

Posted on January 31, 2011 by mdkeenan

You plead guilty to a DUI a couple months ago, and your license is now suspended.  Unfortunately, a problem cropped up at work, and you had to get there somehow, so you jumped in your wife’s car and took off.  After you missed a stop sign, the police pulled you over.  You are now charged with driving on a suspended license.

What can happen to you?  What can you do about it?

If you are convicted of driving on a suspended or revoked license due to an underlying alcohol offense, you may be subject to serving a mandatory minimum of 10 days in jail or 30 days of community service on a first offense.  For a second offense, the penalty is increased to at least 30 days jail or 300 hours of community service,  For a third offense, you no longer have the community service option and you may have to serve a minimum 30 days in jail.  After the third offense, the minimum jail term is 180 days.

While your first offense is a Class A Misdemeanor, a second through ninth offense becomes a Class 4 felony, punishable by one to three years in prison and up to a $25,000 fine.  After the ninth offense, you may be charged with a Class 3 felony, punishable by 2 to 5 years in prison and up to a $25,000 fine.

The news gets worse if you could have received a Monitoring Device Driving Permit (MDDP), which allows you to drive with a breath-activated ignition device, but failed to do so, or if you got the MDDP but didn’t use the car with that device.  Then, your first offense escalates to a Class 4 felony and a minimum jail term of 30 days.

In addition to the criminal punishment, the Secretary of State can substantially increase the length of time that your driver’s license is suspended.

Getting caught driving on a suspended license can be pretty dire, but not entirely hopeless.   The state has the burden of proving beyond a reasonable doubt that you were driving, and that your license was suspended or revoked for an underlying alcohol-related offense.  This is not a difficult burden for the state to prove, but you may still have a valid defense.  Did the police have probable cause to stop you?  Was there an emergency that forced you to drive?  Is there some mistake concerning the underlying reason for your suspension?  An experienced criminal law attorney can help you evaluate possible defenses.  Even where there is no credible defense, in many cases, a respected attorney can still help negotiate a more favorable plea agreement than you could on your own.

If you have questions about your situation, feel free to contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com  for advice.

Posted in driving on a suspended license, secretary of state, suspensions, violation | Comments Off on WHEN YOU ARE CHARGED WITH DRIVING ON A SUSPENDED LICENSE

“BUT I HAVE A PRESCRIPTION!”: WHEN YOU ARE CHARGED WITH DRIVING UNDER THE INFLUENCE OF MEDICATION

Posted on January 31, 2011 by mdkeenan

You would never drink and drive. You are always very careful about that. But the doctor just gave you a new prescription, and nobody warned you that you could become sleepy behind the wheel of a car. Next thing you know, a police officer noticed your erratic driving, and now you are charged with DUI.

What can happen to you, and what can you do?

It may come as a surprise, but the fact that you were on a prescription is no defense in itself to a DUI. Illinois law prohibits driving under the influence of any drug that renders a person incapable of safely driving even if you are legally entitled to use that drug. (625 ILCS 5/11-501.) If convicted, you may be guilty of a Class A Misdemeanor, punishable by up to a $2,500 fine and one year in jail. In addition, the Secretary of State may suspend your driver’s license.

While not a defense, driving under the influence of medication can be a tricky charge for the state to prove. The state must show beyond a reasonable doubt that you were 1) driving and 2) under the influence of a prescription drug. The state may have trouble proving the first element, the driving, for example, if you were not in your car when the police arrived. Someone must be able to testify in court that you were behind the wheel.

Proving the second element, that you were under the influence, can be much more problematic for the State than with an alcohol-related DUI. If you had been drinking, you might have taken the breathalyzer or the field sobriety tests, and the police are generally more familiar with the signs of drunk driving. But for driving under prescription medication, there are no hard and fast tests. Seemingly erratic behavior may be caused by something other than the medication, such as the reason you needed the medication in the first place.

Many officers are much less familiar with prescription cases and lack the expertise to determine whether the medication actually caused your bad driving. Too many attorneys prematurely plea out these cases when a real issue exists as to the effects of the medication.

An experienced attorney can also investigate other possible defenses. Were you taking the medication in the manner prescribed? Were you given any warnings about the effect of the medication? Furthermore, the police must have probable cause to stop you. Did you disobey a traffic regulation? If you were just randomly pulled over, an attorney may be able to bring a motion to throw out your arrest.

If you have questions about your DUI or other criminal or traffic matters, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

Posted in prescription medication | Tagged , , | Comments Off on “BUT I HAVE A PRESCRIPTION!”: WHEN YOU ARE CHARGED WITH DRIVING UNDER THE INFLUENCE OF MEDICATION

CAN THE POLICE SEARCH MY CAR? YOUR RIGHTS DURING A DUI STOP

Posted on January 11, 2011 by mdkeenan

You partied a little too hard, so you were driving extra slowly on your way home. Unfortunately, a police officer spotted you and pulled you over, citing improper lane usage. After taking your license, the officer asked you to step out of the car. Suddenly, he began questioning you about illegal drugs and searching your car. At this point, he turned up a little cocaine you had stashed in the trunk, and you are now on your way to police lock up.

Can the officer do that? What are your rights?

Generally, police can search your entire car without a warrant as long as they have probable cause to believe your car contains evidence of criminal activity. Police can even open small containers. Be advised that making “furtive”movements may be enough to trigger that probable cause, especially if you look like you’re trying to get rid of that package or simply hide it.

Unfortunately, recent U.S. Supreme Court decisions have chipped away at the rights of drivers to guard against police searches. The Supreme Court under Chief Justice Roberts recently held that you do not have a legitimate expectation of privacy in contraband. For example, police are now allowed to have a trained dog sniff your car for narcotics without your consent because you have no privacy right in possessing illegal substances.

Furthermore, under new Supreme Court law, police do not need a reasonable suspicion of criminal activity in order to question you about topics unrelated to your DUI as long as this questioning does not unduly prolong the time you are stopped. Before this decision, police could not change the fundamental nature of a traffic stop by questioning you on unrelated matters without this reasonable suspicion, but this protection was overturned. In other words, if you were stopped for drunk driving, the officer could not question you about burglary tools or weapons unless he or she had a reasonable suspicion that you might be involved in some other criminal activity.

If you are stopped by police, an officer should, but may not always, ask if he or she can search your car. If asked, you should always refuse any request to search. The officer may continue the search even without your consent. Your refusal, however, may later help your attorney suppress the evidence turned up by the search.

You should also refrain from speaking to the police or answering any questions except about your name and address. It is generally advisable to refuse any breath tests or field sobriety tests, although the Secretary of State will penalize you for this refusal by suspending your driver’s license for an extended time. The absence of the tests, however, may make it harder for the state to prove beyond a reasonable doubt that you were driving under the influence.  (See related post “CAN I DRIVE?”: GETTING RID OF YOUR ILLINOIS SECRETARY OF STATE MANDATORY SUSPENSION.)

If you have questions about this or another criminal law matter, please do not hesitate to contact Matt Keenan at 847-568-0160 or matt@mattkeenanlaw.com

Posted in search of vehicle | Tagged , , , | Comments Off on CAN THE POLICE SEARCH MY CAR? YOUR RIGHTS DURING A DUI STOP

“I WAS PULLED OVER IN A ROADBLOCK!”: WHEN YOU ARE ARRESTED FOR DUI AT A POLICE CHECKPOINT

Posted on December 28, 2010 by mdkeenan

You were driving home from a party. As you approached the intersection near your home, you noticed what appeared to be a police roadblock with flashing lights. Officers were stopping cars and checking IDs. When it was your turn, you flashed your license and tried to act sober. Unfortunately, the odor of alcohol on your breath alerted police and next thing you knew, you were charged with DUI.

What are your rights? What can you do?

In Illinois prior to 1985, police roadblocks to search for drunk drivers were considered a violation of your Fourth Amendment rights. After 1985, the Illinois Supreme Court held that roadblocks or sobriety checkpoints were legal as long as they met certain criteria for reasonableness. First, the intrusion to the driver should be relatively minor. Second, the officers performing the roadblock must follow a set of guidelines established by their police department. Third, the roadblock should give some indication of its official nature, for example a large number of flashing police cars on the scene.

If you are stopped at a roadblock, you may have to show your identification, but you do not have to answer questions or consent to the searching of your vehicle. You may also refuse to take field sobriety tests and the breathalyzer as you would with an ordinary stop for a DUI. Of course, if you refuse these tests, you are subject to an increased suspension of your driving privileges. However, refusing the tests may improve your chances of winning your case.

Once you have been arrested, your attorney can investigate whether a roadblock had been properly conducted. Did the police agency have established guidelines? Were these guidelines followed? Did the officers have too much leeway in the field? Was the stop unduly intrusive for the driver or even for the neighborhood? If so, an attorney may be able to bring a motion to have your arrest suppressed.

If you have questions about DUI or another criminal or traffic offense, feel free to contact Matt Keenan at matt@mattkeenanlaw.com or 847-568-0160.

Posted in road blocks | Tagged , , , , , | Comments Off on “I WAS PULLED OVER IN A ROADBLOCK!”: WHEN YOU ARE ARRESTED FOR DUI AT A POLICE CHECKPOINT

“CAN I DRIVE?”: GETTING RID OF YOUR ILLINOIS SECRETARY OF STATE MANDATORY SUSPENSION

Posted on November 29, 2010 by mdkeenan

You left the party a little late. You thought you had waited long enough after drinking those cocktails, but a police officer thought differently. After you got pulled over for blowing a stop sign, you were charged with DUI. Now besides being up on criminal charges, your license has been suspended by the Illinois Secretary of State.

If you are charged with DUI, it is essential that you seek the advice of an experienced attorney IMMEDIATELY. Quick action on your part may be critical in getting the secretary of state’s suspension overturned.

Upon being charged with DUI, the Secretary of State automatically issues a suspension of your driving privileges for a period of 6 months if you took the field sobriety tests and/or the breathalyzer. If you did not take the tests, the suspension period is increased to 1 year. If this is not your first offense, the suspension increases to 12 months if you took the tests and 3 years if you did not.

The good news is that you are entitled to a hearing on the suspension. An experienced attorney may be able to get your suspension set aside on certain legal grounds. Did the police officer issue the appropriate warnings before you took the breathalyzer or field sobriety tests? Were you properly served a copy of your suspension? If not, you may be able to drive while your DUI is being prosecuted.

And here is where acting quickly may be key. Under Illinois case law, the prosecuting attorney must be ready within 30 days of your request for a hearing on your petition to rescind a summary suspension. If you make the request early enough, you increase the chances that the State will not be ready on the hearing date, greatly increasing the odds that your suspension will be overturned.

Please note, however, that winning the hearing does not make your DUI disappear. The Secretary of State and the Judicial Court are two separate entities, and you must deal with both of them. Likewise, even if you win your DUI, your driving privileges may continue to be suspended by the Secretary of State.

Even if you cannot win your petition to rescind your suspension, you may still qualify for a Monitoring Device Driving Permit. (See our related blog “Illinois Driving Permits for DUI Offenders.”)

If you have questions about a DUI or other criminal or traffic matter, please do not hesitate to contact Matt Keenan at 847-568-0160 or matt@mattkeenanlaw.com.

Posted in secretary of state | Tagged , , , , | Comments Off on “CAN I DRIVE?”: GETTING RID OF YOUR ILLINOIS SECRETARY OF STATE MANDATORY SUSPENSION

THE ILLINOIS ZERO TOLERANCE LAW: ALCOHOL AND THE UNDERAGE DRIVER

Posted on November 12, 2010 by mdkeenan

Underage drivers beware! If you are below the age of 21 and are caught with even trace amounts of alcohol on your breath or with open containers in your car, you may face enhanced penalties involving the suspension of your driver’s license.

Under the Zero Tolerance policy, the Illinois Secretary of State will automatically suspend the license of any driver under age 21, who has been caught drinking or even carrying open alcohol in the passenger compartment of their car. Maybe you just had a couple beers at a party, and you know you’re not anywhere close to impaired. Any trace of alcohol in your system, however, even a breathalyzer reading as low as a .01, is enough to suspend your license.

If you are caught with your own bottle of open alcohol in your car, you can be charged with illegal possession. But what if it’s your buddy who opened a bottle in your back seat just before you got pulled over? You can still be charged with illegal transportation, causing the loss of your license for 12 months on a first offense.

If you are under the age of 21 and have been charged with an alcohol-related crime, you should immediately seek the advice of an attorney. Do not speak with anyone else, either in person or through electronic means such as texting or Facebook, about the charges against you. Statements made to a third party could end up hurting your defense.
An experienced attorney may be able to contest the charges both in Court and before the Secretary of State. For instance, did the officer have probable cause to stop you? At worst, an attorney may help you negotiate a more favorable plea agreement.

Even if you are convicted of an alcohol-related offense, all is not lost. You may be able to obtain a restricted driving permit. The Secretary of State allows you to request a hearing to determine if you have a sufficient hardship to grant the permit. Primarily, permits are granted to allow you to go to work or to obtain medical care.

If you have questions about your situation, feel free to contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com for advice.

Posted in zero tolerance | Tagged , , , , | Comments Off on THE ILLINOIS ZERO TOLERANCE LAW: ALCOHOL AND THE UNDERAGE DRIVER