Last week’s blog posting discusses Rockford Memorial Hospital’s refusal to perform a DUI blood draw without a court order. The hospital’s refusal sparked a debate over a conflict between Illinois’ Motor Vehicle Code and a patient’s rights under the Health Insurance Portability and Accountability Act (HIPAA). The conflict prompted a meeting this week with Winnebago County State’s Attorney, Rockford area hospitals and local police departments. An Illinois Department of Transportation (IDOT) Prosecutor also attended the meeting. The purpose of the meeting was to discuss the conflict in the laws and to work out some form of a compromise between the hospitals and local law enforcement.
The Illinois Prosecutor took the position that under Illinois Motor Vehicle law, a person involved in an accident resulting in a serious injury or death is subject to having their blood drawn for analysis, without the necessity of a court order. However, the hospitals took the position that in order to protect the privacy of their patients (and to absolve themselves of the potential for liability under HIPAA), a court order is required for a DUI blood draw.
The meeting lasted for over two hours. Two possible compromises resulted from the meeting: 1) A consent form acceptable to both sides was discussed. The IDOT Prosecutor indicated that other hospitals in Illinois are using signed releases that release the hospital from liability and confirm that the hospital has a legal basis for obtaining the non-consensual blood draw; 2) Police departments could hire specialists trained to draw blood. The IDOT Prosecutor stated police departments in other states employ phlebotomists to draw blood on the scene of the accident.
The parties did not set a date for a follow-up meeting, but indicated they would be working closely together to reach a compromise. I will keep you updated on any further developments.
In other news impacting Illinois drivers, the Illinois State Police has announced it will be implementing a new enforcement method over the upcoming Labor Day weekend. The program is called “Stay Alive on the I’s” and it involves special patrols over the holiday weekend. There will be a trooper stationed every 10 miles on interstates throughout Illinois, with additional troopers patrolling the Chicago metro area and tollways. The troopers will be on the alert for potential drunk drivers, speeding, seatbelt usage, improper lane changes, following too closely and construction zone violations.
Thanks for reading my blog. If you have a question or comment, feel free to post it here, but keep in mind your response will not be confidential. If you’ve been accused of a violation of Illinois’ driving under the influence or traffic laws, contact me for immediate assistance.
Tuesday, August 26, 2008
Monday, August 18, 2008
Police and Hospital in Conflict Over HIPAA Compliance, Blood Draw
Wesley J. Hanson was charged this month with aggravated driving under the influence, disobeying a traffic signal and driving without a valid driver’s license following a fatal car crash in which a 17 year-old girl was killed. Witnesses stated that Hanson ran a red light. Hanson was transported to Rockford Memorial Hospital for treatment. As part of his medical treatment, Hanson had blood drawn, and according to the police, hospital staff informed the patrol officer of the results of the blood draw.
Sgt. Dave Jacobson of the Loves Park police arrived at the hospital about 45 minutes later and requested hospital staff to make another blood draw, sometimes called a DUI kit, for the purposes of the criminal investigation. According to police, the hospital declined to perform the separate blood draw, stating they already performed a blood draw on Hanson and that a court order must be obtained and faxed to risk management for review.
Police informed the hospital that they have a court order signed by a judge allowing them to take a sample of Hanson’s blood for forensic analysis and evidence. However, out of concern over the amount of time involved in having the hospital’s legal counsel review the order, the police instead decided to reroute the court order to the Winnebago County Jail, and transport Hanson to the jail for booking. During the course of booking, the DUI blood draw is performed; nearly two hours after the police initially requested the second blood draw at the hospital. The results of the DUI blood draw were not made public.
According to Rockford Memorial Hospital, the hospital fully complied with the law in that they took a sample of Hanson’s blood for the purpose of determining any drug or alcohol content. Illinois Motor Vehicle Code (625 ILCS 5/11-501.4-1) requires disclosure of the test results to police upon request. The police say that pursuant to section 11-501.6 of the Motor Vehicle Code, they do not need a court order and do not need to wait for legal review in order to obtain a DUI blood sample from a person who has been in a personal injury or fatal motor vehicle crash. Rockford Memorial Hospital and representatives from other hospitals state they do require a court order for a DUI blood draw.
A medical blood draw and a DUI kit blood draw involve different procedures. While hospitals have different procedures in conducting a medical blood draw, the procedures for a DUI kit blood draw are standardized. The DUI kit provides a sample that is preserved for trial and provides physical evidence for state crime lab testing or a sample to be used for independent testing by the defense.
Hospitals cite concern over the Health Insurance Portability and Accountability Act (HIPAA) and whether or not releasing the results to police without a court order is a violation of HIPAA. HIPAA is the privacy rule protecting certain individually identifiable health information. HIPAA regulates how certain entities, including hospitals, use and disclose protected health information. Violations of HIPAA can result in civil and criminal penalties.
The dispute between the Rockford Memorial Hospital and the police on whether or not a court order is required for a DUI kit blood draw is ongoing, with various lawmakers, hospital representatives and others voicing their opinions on the issue in the media.
Thanks for reading my blog. If you have a question or comment, feel free to post it here, but keep in mind your response will not be confidential. If you have been accused of a DUI or traffic violation in the Chicago area or the State of Illinois, contact me for immediate assistance.
Sgt. Dave Jacobson of the Loves Park police arrived at the hospital about 45 minutes later and requested hospital staff to make another blood draw, sometimes called a DUI kit, for the purposes of the criminal investigation. According to police, the hospital declined to perform the separate blood draw, stating they already performed a blood draw on Hanson and that a court order must be obtained and faxed to risk management for review.
Police informed the hospital that they have a court order signed by a judge allowing them to take a sample of Hanson’s blood for forensic analysis and evidence. However, out of concern over the amount of time involved in having the hospital’s legal counsel review the order, the police instead decided to reroute the court order to the Winnebago County Jail, and transport Hanson to the jail for booking. During the course of booking, the DUI blood draw is performed; nearly two hours after the police initially requested the second blood draw at the hospital. The results of the DUI blood draw were not made public.
According to Rockford Memorial Hospital, the hospital fully complied with the law in that they took a sample of Hanson’s blood for the purpose of determining any drug or alcohol content. Illinois Motor Vehicle Code (625 ILCS 5/11-501.4-1) requires disclosure of the test results to police upon request. The police say that pursuant to section 11-501.6 of the Motor Vehicle Code, they do not need a court order and do not need to wait for legal review in order to obtain a DUI blood sample from a person who has been in a personal injury or fatal motor vehicle crash. Rockford Memorial Hospital and representatives from other hospitals state they do require a court order for a DUI blood draw.
A medical blood draw and a DUI kit blood draw involve different procedures. While hospitals have different procedures in conducting a medical blood draw, the procedures for a DUI kit blood draw are standardized. The DUI kit provides a sample that is preserved for trial and provides physical evidence for state crime lab testing or a sample to be used for independent testing by the defense.
Hospitals cite concern over the Health Insurance Portability and Accountability Act (HIPAA) and whether or not releasing the results to police without a court order is a violation of HIPAA. HIPAA is the privacy rule protecting certain individually identifiable health information. HIPAA regulates how certain entities, including hospitals, use and disclose protected health information. Violations of HIPAA can result in civil and criminal penalties.
The dispute between the Rockford Memorial Hospital and the police on whether or not a court order is required for a DUI kit blood draw is ongoing, with various lawmakers, hospital representatives and others voicing their opinions on the issue in the media.
Thanks for reading my blog. If you have a question or comment, feel free to post it here, but keep in mind your response will not be confidential. If you have been accused of a DUI or traffic violation in the Chicago area or the State of Illinois, contact me for immediate assistance.
Saturday, August 9, 2008
New Law Impacts Drivers with Out-of-State DUI Conviction
If you have a prior DUI conviction in a state other than Illinois, take notice of a new law that was just signed on August 4th by Governor Blagojevich. Public Act 95-0778 amends the Illinois Vehicle Code to provide that a person who commits a DUI during a period in which his or her driving privileges are revoked or suspended for DUI under the law of another jurisdiction is guilty of a Class 4 felony. A Class 4 felony is punishable by imprisonment of 1-3 years and fines of up to $25,000. This new law is effective immediately.
This new law is one of many new laws imposing strongest penalties for DUI convictions. Effective June 1, 2008, drivers face tougher penalties for DUI offenses resulting in felony charges, which are now classified as Aggravated DUI. Any mandatory term of imprisonment or community service may not be reduced or suspended. Any person sentenced to probation or conditional discharge must also serve a minimum of 480 hours of community service or 10 days of imprisonment.
The following offenses will result in an Aggravated DUI:
This new law is one of many new laws imposing strongest penalties for DUI convictions. Effective June 1, 2008, drivers face tougher penalties for DUI offenses resulting in felony charges, which are now classified as Aggravated DUI. Any mandatory term of imprisonment or community service may not be reduced or suspended. Any person sentenced to probation or conditional discharge must also serve a minimum of 480 hours of community service or 10 days of imprisonment.
The following offenses will result in an Aggravated DUI:
- DUI committed while license was revoked or suspended for DUI, reckless homicide, or leaving the scene of a personal injury or death
- DUI committed without vehicle liability insurance
- DUI committed without a valid license or permit
- DUI committed in a school zone while the restricted speed limit is in effect and involved in a crash resulting in bodily harm
- DUI while driving a school bus transporting a passenger 18 or younger
- DUI committed while transporting a child under the age of 16 and involved in a crash that results in bodily harm to the child
- DUI resulting in great bodily harm, permanent disability or disfigurement
- DUI resulting in death
- Second DUI committed after a previous conviction for reckless homicide while DUI or Aggravated DUI involving a death
- Second or subsequent DUI committed while transporting a child under the age of 16
Third or subsequent DUI
The penalties for the above Aggravated DUI offenses range from Class 4 felonies (imprisonment of 1-3 years and fines of up to $25,000) to Class 2 felonies, which carries penalties of 3-14 years imprisonment (6-28 years if more than one death is involved), fines of up to $25,000, and revocation of driving privileges for two years.
The laws regarding penalties for DUI convictions are constantly changing and evolving. If you have been accused of a DUI offense, it is important to seek experienced legal counsel with special expertise in the area of DUI defense. If you have been accused of a DUI offense, contact me for immediate assistance.
Friday, August 1, 2008
2008 Illinois DUI Fact Book Now Online
Illinois Secretary of State Jesse White announced this month that the 2008 Illinois DUI Fact Book is now available. The book is frequently used as a resource for media and the general public, and contains statistics, changes in the law and other information. The book describes the penalties for a DUI conviction in Illinois, the average cost of a DUI and new laws, including a discussion of the Breath Alcohol Ignition Interlock Device (BAIID) law which will take effect on January 1, 2009, and which was a previous topic of my blog. To view the book in its entirety, visit www.cyberdriveillinois.com
Cost of a DUI Conviction
According to the fact book, convicted DUI offenders in the State of Illinois face tough penalties and licensing sanctions, with an average cost of a DUI offense a staggering $15,000. This figure reflects the cost of court and legal fees, potential income loss, costs associated with having a driver’s license reinstated, and the added cost of having to maintain high-risk auto insurance.
Here’s a breakdown of the average cost of a DUI conviction in the State of Illinois:
Insurance (3 years of required high-risk insurance at a cost of $1500 per year)=$4500
Legal Fees (uncontested plea and hardship driving permit)=$2000
Court Costs =$500
Fine (average fine)=$2500
Towing and Storage Fees=$250
Trauma Center Fund=$100
Loss of Income (Loss of four weeks income due to court appearances, jail time, community service, evaluations or remedial education classes, based on a $40,000/year salary)=$4,000
Rehabilitation (remedial substance abuse class and counseling)=$250
Driver’s License Reinstatement=$560
Total Cost=$14,660
The cost noted above does not take into consideration any potential damages to persons or property if a collision was involved. The above cost also does not factor in loss of potential future income depending on your occupation or profession. For example, if you are a professional driver such as a bus driver or truck driver, or if you are an airline pilot, a DUI conviction will impact your ability to earn a living.
What Should You Do If You Are Arrested for a DUI?
If you are arrested for violating Illinois’ DUI laws, contact an experienced DUI attorney immediately. In order to preserve your rights, you should seek legal counsel without delay. In Chicago, videotapes and audiotapes of arrests are only maintained for 30 days, after which valuable evidence documenting your arrest may be lost. In addition, if you fail to file required documentation within 46 days of your arrest, your license will automatically be suspended.
A lawyer experienced in defending people accused of DUI can challenge the prosecutor’s evidence and could have the charges reduced or dropped without having to accept a conviction. If you have been arrested for DUI, call Chicago DUI defense attorney Ava George Stewart at (312) 944-3973 to schedule a free consultation. Thanks for reading.
Cost of a DUI Conviction
According to the fact book, convicted DUI offenders in the State of Illinois face tough penalties and licensing sanctions, with an average cost of a DUI offense a staggering $15,000. This figure reflects the cost of court and legal fees, potential income loss, costs associated with having a driver’s license reinstated, and the added cost of having to maintain high-risk auto insurance.
Here’s a breakdown of the average cost of a DUI conviction in the State of Illinois:
Insurance (3 years of required high-risk insurance at a cost of $1500 per year)=$4500
Legal Fees (uncontested plea and hardship driving permit)=$2000
Court Costs =$500
Fine (average fine)=$2500
Towing and Storage Fees=$250
Trauma Center Fund=$100
Loss of Income (Loss of four weeks income due to court appearances, jail time, community service, evaluations or remedial education classes, based on a $40,000/year salary)=$4,000
Rehabilitation (remedial substance abuse class and counseling)=$250
Driver’s License Reinstatement=$560
Total Cost=$14,660
The cost noted above does not take into consideration any potential damages to persons or property if a collision was involved. The above cost also does not factor in loss of potential future income depending on your occupation or profession. For example, if you are a professional driver such as a bus driver or truck driver, or if you are an airline pilot, a DUI conviction will impact your ability to earn a living.
What Should You Do If You Are Arrested for a DUI?
If you are arrested for violating Illinois’ DUI laws, contact an experienced DUI attorney immediately. In order to preserve your rights, you should seek legal counsel without delay. In Chicago, videotapes and audiotapes of arrests are only maintained for 30 days, after which valuable evidence documenting your arrest may be lost. In addition, if you fail to file required documentation within 46 days of your arrest, your license will automatically be suspended.
A lawyer experienced in defending people accused of DUI can challenge the prosecutor’s evidence and could have the charges reduced or dropped without having to accept a conviction. If you have been arrested for DUI, call Chicago DUI defense attorney Ava George Stewart at (312) 944-3973 to schedule a free consultation. Thanks for reading.
Tuesday, July 29, 2008
“Use It & Lose It” Zero Tolerance Law for Drivers Under 21
Statistics show that underage drinking is on the rise nationally. In 2006, 2,663 Illinois drivers under the age of 21 had their license suspended for having alcohol in their system or for refusing to submit to chemical testing. Additionally, some 4,796 underage drivers in Illinois were arrested for DUI and received suspensions.
Illinois’ “Use It & Lose It” law is targeted at drivers under the age of 21 who have any trace of alcohol in their system, or who refuse to submit to chemical testing. Under the “Use It & Lose It” law, on a first offense, driving privileges will be suspended for 3 months for a Blood Alcohol Level (BAC) of more than .00, or driving privileges will be suspended for 6 months for failure to submit to or complete chemical testing. If the driver holds a Commercial Driver’s License (CDL), their CDL privileges will be suspended for one year.
On a second offense under “Use It & Lose It” law, driving privileges for a BAC of over .00 will be suspended for one year, and refusal to submit to or complete chemical testing will result in a suspension of driving privileges for 2 years. A second offense for a driver holding a CDL will result in a lifetime disqualification on CDL privileges.
What Happens if You are Under 21 and Convicted of DUI?
If you are under the age of 21 and are convicted of first-time DUI offense, your driving privileges will be revoked for a minimum of 2 years. You will not be eligible for a Restricted Driving Permit until the second year of your license revocation. Additionally, if you are under the age of 18, remedial education and/or retesting may be required before your driving privileges will be reinstated.
If you are under age 21, the judge may require you to attend a Youthful Intoxicated Driver’s Visitation Program as a condition of your probation or discharge. You will be required to attend a comprehensive counseling session to determine whether or not this program is appropriate for you. This program may send you on a supervised visit to a location where the impact of a DUI crash or alcoholism may be studied or observed.
Accidents Causing Injury or Death
If you are under the age of 18 and are charged with an offense as a result of an accident in which a passenger was seriously injured or killed, you may be denied a driver’s license or driver’s license renewal by the Illinois Secretary of State’s office.
Parental Responsibility
Parents face fines and possible imprisonment for allowing persons under the age of 21 to consume alcohol. It is important to note that the parents face repercussions for failing to supervise minors or knowingly allowing minors to consume alcohol; parents do not have to supply the alcohol. A parent or legal guardian who knowingly allows persons under the age of 21 to consume alcoholic beverages at a private residence is guilty of a Class A misdemeanor, and faces possible imprisonment of 12 months and a $500-2,500 fine.
If a parent or legal guardian knowingly allows persons under 21 to consume alcohol by failing to control access to a private residence or access to alcoholic beverages in the residence, and bodily harm results to someone as a result of this access, the parent/guardian is guilty of a Class 4 felony. If great bodily harm or death results, the parent/guardian faces possible imprisonment of 1-3 years and possible fines of up to $25,000.
Thanks for reading my blog-I hope you have found this information to be interesting and informative. If you have a question or comment, feel free to post it here, but keep in mind your response will not be confidential. If you are under 21 and have been accused of a DUI offense in the State of Illinois, contact me for immediate assistance.
Illinois’ “Use It & Lose It” law is targeted at drivers under the age of 21 who have any trace of alcohol in their system, or who refuse to submit to chemical testing. Under the “Use It & Lose It” law, on a first offense, driving privileges will be suspended for 3 months for a Blood Alcohol Level (BAC) of more than .00, or driving privileges will be suspended for 6 months for failure to submit to or complete chemical testing. If the driver holds a Commercial Driver’s License (CDL), their CDL privileges will be suspended for one year.
On a second offense under “Use It & Lose It” law, driving privileges for a BAC of over .00 will be suspended for one year, and refusal to submit to or complete chemical testing will result in a suspension of driving privileges for 2 years. A second offense for a driver holding a CDL will result in a lifetime disqualification on CDL privileges.
What Happens if You are Under 21 and Convicted of DUI?
If you are under the age of 21 and are convicted of first-time DUI offense, your driving privileges will be revoked for a minimum of 2 years. You will not be eligible for a Restricted Driving Permit until the second year of your license revocation. Additionally, if you are under the age of 18, remedial education and/or retesting may be required before your driving privileges will be reinstated.
If you are under age 21, the judge may require you to attend a Youthful Intoxicated Driver’s Visitation Program as a condition of your probation or discharge. You will be required to attend a comprehensive counseling session to determine whether or not this program is appropriate for you. This program may send you on a supervised visit to a location where the impact of a DUI crash or alcoholism may be studied or observed.
Accidents Causing Injury or Death
If you are under the age of 18 and are charged with an offense as a result of an accident in which a passenger was seriously injured or killed, you may be denied a driver’s license or driver’s license renewal by the Illinois Secretary of State’s office.
Parental Responsibility
Parents face fines and possible imprisonment for allowing persons under the age of 21 to consume alcohol. It is important to note that the parents face repercussions for failing to supervise minors or knowingly allowing minors to consume alcohol; parents do not have to supply the alcohol. A parent or legal guardian who knowingly allows persons under the age of 21 to consume alcoholic beverages at a private residence is guilty of a Class A misdemeanor, and faces possible imprisonment of 12 months and a $500-2,500 fine.
If a parent or legal guardian knowingly allows persons under 21 to consume alcohol by failing to control access to a private residence or access to alcoholic beverages in the residence, and bodily harm results to someone as a result of this access, the parent/guardian is guilty of a Class 4 felony. If great bodily harm or death results, the parent/guardian faces possible imprisonment of 1-3 years and possible fines of up to $25,000.
Thanks for reading my blog-I hope you have found this information to be interesting and informative. If you have a question or comment, feel free to post it here, but keep in mind your response will not be confidential. If you are under 21 and have been accused of a DUI offense in the State of Illinois, contact me for immediate assistance.
Monday, July 14, 2008
Social Host Liability in the State of Illinois
The Drug or Alcohol Impaired Minor Responsibility Act (“the Act”) became law in the State of Illinois in 2004. The purpose of the law was to discourage social hosts from serving alcohol to minors by imposing legal liability on the host for death or injuries caused by the consumption of alcohol or illegal drugs. The Act is similar to a dram shop liability law that imposes liability on bars or other businesses that serve alcohol for death or injuries to third parties, if the person who was intoxicated was served at the establishment and was visibly intoxicated or a minor. Illinois dram shop laws will hold a business establishment responsible if the following conditions are met:
- Alcohol was sold to the patron;
- Proximate cause exists between the sale of alcohol and intoxication;
- Injuries were sustained; and
- Intoxication was at least one cause of the injuries.
The Act differs from dram shop laws in that it allows a cause of action for minors under the age of 18 who are injured by an impairment that was caused by the consumption of alcoholic beverages or illegal drugs. According to statistics released by the Illinois’ Department of Human Services’ Division of Community Health and Prevention, underage drinking is on the rise in Illinois.
Lawsuit Against Social Hosts
Just one month after the Act went into effect, an accident involving social host liability led to a lawsuit. Four girls were leaving a Halloween party where they had consumed beer from kegs. All four girls were minors. The driver of the vehicle made an illegal turn in front of a semi-tractor trailer, and one of her passengers was seriously injured. The driver submitted to a Breathalyzer test, and her blood alcohol level registered .08. The injured girl’s family filed a lawsuit against the hosts of the party under the Drug or Alcohol Impaired Minor Responsibility Act, alleging negligence on the part of the hosts. Specifically, the family alleged the host was negligent in failing to check IDs or failing to hire someone to check IDs of partygoers. The lawsuit was settled for $1,625,000.
How to Avoid Liability as a Social Host
If you are hosting a party or event, you should be aware of your responsibilities under the Drug or Alcohol Impaired Minor Responsibility Act. The Illinois Department of Transportation offers the following tips for social hosts to ensure the safety of their guests:
- Appoint a reliable bartender to monitor guests’ drinking. Don’t let your guests mix their own drinks.
- Do not serve alcohol to anyone under the age of 21. If you aren’t sure if a guest is over the age of 21, request ID.
- Set up an “alcohol free” bar with juices, flavored waters and punch or “mocktails” as an alternative to alcoholic beverages.
- Serve plenty of food to keep guests from drinking on an empty stomach
- Stop serving alcohol 90 minutes before the party ends.
- Insist that impaired guests stay over or find them a ride home. Keep the numbers of local cab companies handy.
I hope you found this blog posting to be interesting and informative. If you have any comments or questions, please feel free to respond to this posting. If you have been accused of a violation of Illinois’ driving under the influence or traffic laws, contact me for immediate, confidential assistance. Thanks for reading.
Monday, July 7, 2008
Holiday Drivers Warned of Possible Seizure and Forfeiture of Vehicle
This past July 4th holiday weekend, authorities warned of an increased police presence and additional roadside checks over the weekend. Illinois State Police Commander Jeffrey Hedrich is quoted in the Chicago Sun-Times before the weekend as saying some 200 police agencies in the state will be conducting over 100 roadside checks over the weekend.
DuPage County authorities have announced that they will be seizing vehicles from drivers; so far this year, they have seized 417 vehicles, mostly as a result of alcohol-related stops. State Attorney Joseph Birkett reminded the public in a news conference that pursuant to Illinois state law, local law enforcement agencies are authorized to seize and sell vehicles from drivers who are under the influence.
State Attorney Birkett is referring to the seizure of vehicles under 720 ILCS 5/36-1 and the corresponding forfeiture proceedings pursuant to 720 ILCS 5/36-2.1. If you are driving on a suspended license (such as a statutory summary suspension) or a revoked license (based on a previous DUI conviction) and are arrested on suspicion of felony DUI charges, your car is subject to possible seizure and forfeiture.
When a person is arrested, the vehicle is seized by the arresting police department and must be delivered “forthwith” to the sheriff of the county where the seizure occurred. Upon delivery of the vehicle, within 15 days the sheriff must notify everyone listed on the title to the vehicle by certified mail to the address on file with the Secretary of State, and must also notify the State’s Attorney in the county where the seizure occurred. The statute provides that the spouse of the owner of the seized vehicle can file a hardship provision transferring title to the vehicle to the spouse if the vehicle is the family’s sole form of transportation and the hardship to the family outweighs the state’s interest in the vehicle. Hardship relief is only available once per family. If someone in the family subsequently has the same or another vehicle seized, hardship relief will not be available.
Unless there are other mitigating factors warranting remission of the forfeiture, the State Attorney must file a complaint for forfeiture in the circuit court and serve notice on the appropriate parties, who must file a verified answer to the complaint within 20 days from the date the complaint was mailed. If the vehicle is subject to a lien, the lienholder will typically file an answer asserting their interest in the vehicle and stating they had no knowledge the vehicle would be used in the commission of an offense. The lienholder will also file a petition seeking the return of the vehicle under their security interest.
If the vehicle is not released on a hardship provision or on a lienholder’s petition, a hearing is held on the forfeiture. The state must only show by a preponderance of the evidence that the vehicle was used in the commission of a crime. The vehicle owner does not have to be convicted of the underlying offense to uphold a forfeiture proceeding.
If you have been accused of a violation of Illinois’ DUI laws, or if your vehicle has been seized, contact me for immediate assistance. Thanks for reading, and have a safe 4th of July holiday weekend.
DuPage County authorities have announced that they will be seizing vehicles from drivers; so far this year, they have seized 417 vehicles, mostly as a result of alcohol-related stops. State Attorney Joseph Birkett reminded the public in a news conference that pursuant to Illinois state law, local law enforcement agencies are authorized to seize and sell vehicles from drivers who are under the influence.
State Attorney Birkett is referring to the seizure of vehicles under 720 ILCS 5/36-1 and the corresponding forfeiture proceedings pursuant to 720 ILCS 5/36-2.1. If you are driving on a suspended license (such as a statutory summary suspension) or a revoked license (based on a previous DUI conviction) and are arrested on suspicion of felony DUI charges, your car is subject to possible seizure and forfeiture.
When a person is arrested, the vehicle is seized by the arresting police department and must be delivered “forthwith” to the sheriff of the county where the seizure occurred. Upon delivery of the vehicle, within 15 days the sheriff must notify everyone listed on the title to the vehicle by certified mail to the address on file with the Secretary of State, and must also notify the State’s Attorney in the county where the seizure occurred. The statute provides that the spouse of the owner of the seized vehicle can file a hardship provision transferring title to the vehicle to the spouse if the vehicle is the family’s sole form of transportation and the hardship to the family outweighs the state’s interest in the vehicle. Hardship relief is only available once per family. If someone in the family subsequently has the same or another vehicle seized, hardship relief will not be available.
Unless there are other mitigating factors warranting remission of the forfeiture, the State Attorney must file a complaint for forfeiture in the circuit court and serve notice on the appropriate parties, who must file a verified answer to the complaint within 20 days from the date the complaint was mailed. If the vehicle is subject to a lien, the lienholder will typically file an answer asserting their interest in the vehicle and stating they had no knowledge the vehicle would be used in the commission of an offense. The lienholder will also file a petition seeking the return of the vehicle under their security interest.
If the vehicle is not released on a hardship provision or on a lienholder’s petition, a hearing is held on the forfeiture. The state must only show by a preponderance of the evidence that the vehicle was used in the commission of a crime. The vehicle owner does not have to be convicted of the underlying offense to uphold a forfeiture proceeding.
If you have been accused of a violation of Illinois’ DUI laws, or if your vehicle has been seized, contact me for immediate assistance. Thanks for reading, and have a safe 4th of July holiday weekend.
Subscribe to:
Posts (Atom)
