Archive for the ‘Traffic Law’ category

January Update

January 28, 2009

People v. Alfaro, No. 2-06-1146 (October 2, 2008)

Defendant enter plea to second degree murder, reduced from first degree, in exchange for testimony against other defendants.

Because defendant breached plea agreement, which allowed defendant to plead guilty to second degree murder and obstructing justice, in exchange with defendant’s cooperation with prosecutors in their prosecution of other defendants, by giving inconsistent and untrue statement, he was not prejudiced by ineffective and unprofessional representation by his counsel. However, trial court erred when it refused to suppress video taped statement given to police, after three hour interrogation; because defendant was in custody, and State deliberately engaged in “ask and then warn” tactic. After first hour, defendant was confronted by accusatory interrogation; defendant was interrogated after getting off from midnight shift; and a reasonable person in defendant’s position would not have believed himself free to leave.

People v. Russell, No. 3-06-0264 (October 2, 2008)

Admission of affidavits and records certifying results and accuracy of breathalyzer machine do not violate right of confrontation as described in Crawford.

People v. Poe, No. 3-06-0461 (October 7, 2008)
Although the Supreme Court has held that theft can qualify as lesser included offense of burglary for purposes of jury instruction, defendant is not entitled to vacate conviction for theft under one act one crime analysis where he was convicted of breaking into a lumber yard with intent to commit a theft, and also of committing theft upon entry.

People v. Petrenko, No. 3-06-0508 (October 2, 2008)

Trial court did not err when it summarily dismissed post conviction petition filed by defendant alleging ineffective assistance of trial and appellate counsel for failure to file motion challenging search warrant of defendant’s home after defendant’s fingerprints were found in murder and robbery victim’s home. Further, defendant’s assertion on appeal of first stage dismissal of his post conviction petition that his consecutive sentences of natural life and 10 years, respectively for murder and robbery, is procedurally defaulted.

People v. Paige, No. 3-07-0869 (October 6, 2008)
Trial court erred when it granted motion to rescind a statutory summary suspension based on evidence that defendant was stopped at a roadblock, where officer smelled cannabis odor coming from defendant’s vehicle and defendant admitted that he had been smoking marijuana. In order to rescind summary suspension, defendant was required to present some evidence that roadblock was unreasonable; which he did not.

People v. Lucas, No. 104558 (October 17, 2008)
Trial and Appellate courts erred when they allowed defendant to be convicted of armed violence based on predicate offense of driving while license revoked, subsequent offense. Although driving while license revoked can be elevated to felony at sentencing, Section 111-3(c) of Procedure Code prohibits prior record from being presented to jury. Therefore, driving while license revoked cannot be predicate offense for armed violence.

People v. Bannister, No. 100983 (October 17, 2008)

In defendant’s trial for single murder, resulting in jury sentencing verdict of death, trial court adequately advised defendant of his right to choose bench trial for guilt phase of trial and jury trial for sentencing phase. In addition, trial court did not err when it denied counsel’s motion for bench trial at sentencing phase; because counsel may not overrule defendant’s selection of jury. In addition, although defense nonpattern jury instruction on verdict form under amended death penalty statute is preferable, trial court did not abuse its discretion when it gave instruction tendered by State. Further, prosecutor’s closing argument in sentencing phase highlighting defendant’s lack of remorse did not undermine defendant’s right to remain silent.


9/25/08 Updates

September 25, 2008

People v. Johnson, No. 1-06-0833 (September 8, 2008)

Defendant was convicted of murder and aggravated battery with a firearm to separate individuals  in one drive by shooting, and given consecutive sentences of 45 and 6 years on those charges.

Defendant made many claims of error but the most interesting were:


1.       At the Defendant’s motion to suppress his confession the State presented evidence that defendant waived his Miranda rights by submitting testimony of the lead detective and the assistant State’s Attorney who were present when he did so.  Defendant asserted that prior to the videotaped confession he had asserted his right to counsel under the Edwards rule (In Edwards v. Arizona, 451 U.S. 477 the Supreme Court held that someone who invokes the right to counsel could not be subject to further questioning, unless an attorney was made available or the suspect initiated the conversation.  The Edwards rule is not of the fifth amendment itself but by common law is part of Miranda’s “prophylactic purpose.” Davis, 512 U.S. 458). 


The only witness who testified to this alleged assertion was defendant’s prior attorney who stated he arrived at the police station, walked straight upstairs to the detective division without first stopping in the downstairs lobby and that a detective copied his ARDC card and sheriff’s id.  He further testified that he told a detective that the defendant was invoking his right to counsel.


The police said this never happened and that no Edward assertion was made either by the defendant or anyone else.  The police produced the sign in book from the station which lacked information about the attorney.


2.      The trial attorney never put forth the IPI 3.06-3.07 about the jury determining the weight to be given to a confession.  The court found that while failure to use appropriate instructions can be reversible for ineffectiveness, the use in this case of instruction 3.11 (general instruction regarding the weight to be given to any prior statement) was curative.  It should be noted that there is only one word difference between 3.06 and 3.11.


3.       The prosecutor in this case argued in closing that a certain witness who had given different testimony in court than he did before the grand jury may have come under outside influences was not reversible because it did not specifically state that the defendant was that outside influence.



People v. Ortiz
Defendant filed his third successive post conviction petition attacking his conviction for murder.  This one was based on actual innocence.  He satisfied the cause and prejudice test by:

          Filing an affidavit of a “newly” discovered eyewitness who stated he saw two  other men shooting the victim; and,

          Explained late discovery of the witness through testimony of that witness stating he was afraid to come forward earlier because of fear of gang recrimination; and,

          Testimony (offer of proof for the record) showed that the witness’ testimony would not be cumulative.


Trial court erred in dismissing the post-conviction petition at this stage without proper hearing on the merits.

People v. Santiago

Trial court suppressed statement of the defendant made directly to State after abuse/neglect petition was filed but before any criminal charges were filed based on no contact rule in SCRPR 4.2.

Appellate Court declared this ruling an error because although the Defendant had the PD in juvenile court, any criminal case of child endangerment (even though the alleged facts were the same ) was a different matter for no contact rule.

People v. Leggions, 4th Dist. No. 4-07-0187

The court found that getting out of one vehicle and in another close to it in a “high crime” area is not sufficient for reasonable suspicion justifying a “Terry” stop 

Giles v. California, US Supreme Court June 08

Supreme Court recognized two exceptions to Crawford V Washington based on tradition of common law:

1.      Dying declaration, and

2.      Statements by declarant unavailable due to actions by the defendant if the defendant intended to prevent the witness from testifying (“forfeiture by wrongdoing”).  Unless action is specifically for the purpose of preventing witness testimony this does not apply.


In a murder case the “forfeiture by wrongdoing” doctrine does not apply under the theory that by murdering the witness the defendant prevented his testimony.


People v. Givens, Illinois 1st District

Where an overnight guest sleeps in a bedroom the guest maintains a 4th Amendment right (expectation of privacy) when he: was using the bedroom at the lessee’s invitation; (2) had even a temporary possessory interest in it, (3) “had the ability to control or exclude others from the use of the bedroom while she was using it (because the lessee allowed defendant to close the bedroom door while sleeping and to lock the apartment door after the lessee left the premises)”, and (4) had a subjective expectation of privacy because she was allowed to use the bedroom, close the bedroom door, and lock the apartment door.

The leaseholder constented to a search by the police who appeared after receiving an anonymous tip about drug sales.  The court held that the extent of the consent was only to the locations in the apartment where the defendant wasn’t sleeping.


Illinois Legislature Defines “Serious Traffic Offenses”

April 13, 2008

DuPage County to Profit

This years traffic code contains a provision which defines cetain offenses as serious.  The question remains open as to what it means.  The statute itself provides a list of traffic offenses:

§ 1-187.001. Serious traffic violation.

(a) A conviction when operating a motor vehicle for:

(1) a violation of subsection (a) of Section 11-402, relating to a motor vehicle accident involving damage to a vehicle;

(2) a violation of Section 11-403, relating to failure to stop and exchange information after a motor vehicle collision, property damage only;

(3) a violation of subsection (a) of Section 11-502, relating to illegal transportation, possession, or carrying of alcoholic liquor within the passenger area of any vehicle;

(4) a violation of Section 6-101 relating to operating a motor vehicle without a valid license or permit;

(5) a violation of Section 11-403, relating to failure to stop and exchange information or give aid after a motor vehicle collision involving personal injury or death;

(6) a violation relating to excessive speeding, involving a single speeding charge of 30 miles per hour or more above the legal speed limit;

(7) a violation relating to reckless driving;

(8) a violation of subsection (d) of Section 11-707, relating to passing in a no-passing zone;

(9) a violation of subsection (b) of Section 11-1402, relating to limitations on backing upon a controlled access highway;

(10) a violation of subsection (b) of Section 11-707, relating to driving on the left side of a roadway in a no-passing zone;

(11) a violation of subsection (e) of Section 11-1002, relating to failure to yield the right-of-way to a pedestrian at an intersection;

(12) a violation of Section 11-1008, relating to failure to yield to a pedestrian on a sidewalk; or

(13) a violation of Section 11-1201, relating to failure to stop for an approaching railroad train or signals

The statute means little in and of itself, as no enhanced penalties are included in the new law.  In fact, part c of the statute says specifically the opposite:

c) A violation of any of these defined serious traffic offenses shall not preclude the defendant from being eligible to receive an order of court supervision under Section 5-6-1 of the Unified Code of Corrections.

So why the law.

Well, for years the vehicle code has used the term serious traffic offense without defining it.  It occurs mostly in situations of disqualifications bases on a certain number of these tickets.  This occurs for holders of CDL’s, and new teenage drivers.  The practical upshot is against younger drivers, who are now required to do traffic school in order to get court supervision, which is a disposition you must go to court to get.

The problem is that the fines and fees required under local rule in DuPage County set the minimum fines and fees on any case at about $280 when you go to court, but they can be as little as $75 if you are able to use the mail in program.

Indeed, DuPage County State’s Attorney Joe Birkett and the Clerk of the Circuit Court Chris Kachiroubas have been expanding the number of cases that are required to appear in court, thus increasing the income to the county generated by their offices.  They do so under the guise of public safety.

The truth is that no other county does this.  In Cook County there is no penalty for going to court the way there is in DuPage County, ditto that for Will, Lake and Kane.