Friday, May 14, 2010

Vacating Traffic Convictions & Driver’s License Reinstatement

If you’ve handled a lot of traffic court matters for clients, then you probably know the Illinois Vehicle Code pretty well. But if not, then here is a quick primer for you. In this article I’ll provide an overview of vacating traffic convictions and driver’s license reinstatements when the underlying basis of the suspension is for failure to appear in court, failure to pay fines or court costs, and/or for convictions on petty traffic offenses.

In general, under the Illinois Vehicle Code 625 ILCS 5/1-100 et. seq., for most petty traffic offenses, an Illinois driver is entitled to two court supervisions within a 12 month period for violations occurring in two separate incidents or occurrences. The 12 month period can be any rolling 12 month period. Multiple court supervisions are available for citations issued at the same time without violating the “two in twelve” rule so long as there are no more than two episodes in the 12 month period. If the driver is pulled over a third time for moving violations within the 12 months, by statute, court supervision is not available. Keep in mind there is a growing list of violations in Illinois for which court supervision is statutorily unavailable. This includes several “serious traffic offenses” listed in the IVC. The sentencing guidelines are found in the Code of Corrections at 730 ILCS 5/5-6-1.

The IVC at 625 ILCS 5/6-205 and 625 ILCS 5/6-206 outlines discretionary and mandatory driver’s license suspensions and revocations. In general, a driver under the age of 21 will get a suspension if they pick up a second conviction within any 24-month period, 625 ILCS 5/6-206(a)(36), and a driver over the age of 21 will be suspended if they get a third conviction within any 12-month period, 625 ILCS 5/6-206(a)(2). The provisions in the code change just about every year because the Illinois General Assembly can’t keep their damn hands off of the IVC. Watch out for changing IVC provisions as well as changing Illinois State Police and Secretary of State agency regulations.

If your client picks up too many moving violations within the given time period, it is inevitable they will face a suspension of their driver’s license. Convictions are routinely handed out in traffic court for defendants who no longer qualify for court supervision. If a defendant fails to appear on their court date, when the violation is a petty traffic offense they will be convicted ex-parte and a judgment of conviction or “JOC” will be entered by the court. The JOC conviction is also referred to in the vernacular as a “failure to appear” or “FTA” conviction. If a defendant is placed on court supervision and fails to pay their fines and court costs, and fails to appear in court for their final return date, then they may have court supervision revoked ex-parte and replaced with a conviction. A defendant in this situation can end up with a “failure to pay” on their driving record. Additionally, for various inexplicable and unpredictable reasons that I don’t quite yet understand, (I don’t know if a rational explanation even exists), the Secretary of State’s Office is routinely handing out convictions to defendants with reasonably clean driving records, who are otherwise eligible for court supervision through mail-in guilty pleas on petty traffic offenses.

The circuit court clerk routinely reports the disposition of its court cases to the Secretary of State’s Office. JOC convictions, FTA convictions, unsatisfactory termination of court cases and unsatisfied judgments are all reported to the Secretary of State and will result in a drivers license suspension in Illinois.

The statutes and courtroom procedures are confusing, but understanding comes best through practice. I am confident that you can master it. Once you master it, you will be able to do a world of good for your clients. Below, I explain how you can navigate this system to benefit your clients.

The typical scenario is that you get a phone call from a prospective client who has received too many convictions on his or her record and just received notice of suspension from the Secretary of State. The prospective client wants you to do whatever necessary so they do not lose their license. You’ve got a window here of about 46 days from the time when notice was sent out by the Secretary of State before your client’s license suspension goes into effect… Here is what you need to do.

The first step will be to located your client’s court cases and miscellaneous traffic tickets. Organize the client’s file geographically by county as well as in chronological order. Its extremely helpful to send your client to the Department of Motor Vehicle and have them obtain a certified copy of their driving history. You can review the certified driving record or “abstract” to determine the underlying reasons for the suspension as well as which which tickets likely led to the suspension. Once you are organized, you can determine which tickets or court cases need to be addressed in order to reinstate your client’s driver’s license.

If the situation is one where the client pleaded guilty in court, had court supervision, but then failed to return court on the return date, and the court supervision was taken away without a hearing, a violation of the client’s right to due process has occurred. The case can be motioned back up into court, the conviction that entered can be vacated, and court supervision can be reinstated.

If the situation is one where an unsatisfied judgment was entered because the client failed to appear for the final return date, was allowed to keep the court supervision, but the Secretary of State entered the Failure to Pay on the client’s driving abstract and used it as grounds for suspension, the Failure to Pay can be fixed easily enough. Payment can be made to the clerk’s office. Once payment is made, you will need to obtain a “failure to pay receipt” from the clerk. Take documentation to the Secretary of State in order to reinstate the driver’s license or prevent the suspension from going in to effect.

If the client chose to plead guilty by sending in the guilty plea through the mail, and was notified unexpectedly that they have been convicted, the mail-in conviction can be vacated by motioning the case up into court. You should be able to get court supervision for your client by going to court if the client was eligible for court supervision in the first place. Don’t make the mistake of going through the effort to motion up your client’s case if they were ineligible for court supervision for whatever reason in the first place…

Also, if the client failed to appear in traffic court and received a Judgment of Conviction, the failure to appear conviction can be vacated by going to court. The client will be sentenced to court supervision if they qualify.

Each of the hypothetical scenarios requiring a court appearance will likely require payment of certain notice or filing fees in your clerk’s office. It is customary to have the client forward these fees to you in advance at the time when they pay you. I advise that attorneys require payment for this type of work upfront. My rule is that the check has to clear before any work on the client’s file is done. This is non-negotiable. It’s for your own protection. Also, advise your clients that they will be paying court costs on any tickets they plead guilty to. These court costs absolutely will exceed the bond amount or “face value” of the ticket. Court costs have gone up astronomically throughout the Chicagoland area in recent years. Don’t let your clients be blindsided by that.

The great advantage to your client if you are successful, is that their driver’s license will be reinstated or you will save them from having the suspension go into effect in the first place… In a career that many practitioners do generally find unsatisfying, this should provide you with at least a little bit of job satisfaction at the end of the day. The other enormous benefit that you can pitch to your clients in situations where you do have to motion up a case in traffic court comes from the ability to negotiate for the best deal possible in your client’s case. If your client is faced with multiple charges, you should actively seek to have companion charges dismissed in exchange for a guilty plea on the remaining charges. In cases where the client pleaded guilty through the mail or was convicted via judgment of conviction ex parte, vacating the conviction and having the opportunity for counsel to negotiate for dismissal of one or more of the charges is absolutely tremendous.

One last thing worth mentioning is that jurisdiction in the circuit court will lapse after a certain period of time has elapsed. If your client’s tickets are too old, you will not be able to vacate their convictions. I believe the rule is two years, but I may be mistaken. (I just don’t have the statutory citation in front of me at the moment.) As a general rule of thumb, anything within a year will be vacated, no questions asked. If its more than a year old, expect the prosecution to object, but go in knowing that your motion will probably be granted by the judge without hesitation. Any requests to vacate convictions that are more than two years old will probably be denied. Just an FYI.

If you are successful, then your reasonable fees and the time and effort that you put into helping your client will be well justified. If your client is smart, then they will keep coming back and referring other prospective clients to you, and you will be justly rewarded for your effort.

As a side note, drivers license reinstatement is a complicated topic that could take a dozen or more blog entries to cover. Here we have only scratched the surface of the most common types of suspensions.

Matthew Kooperman is the founder and sole proprietor of The Law Office of Matthew I. Kooperman, located in Wheaton, Illinois.

1 comment:

Mohammad said...

Good Article. The stautory limit to vacate judgement is two years. I am exploring grounds so that the judgement could be vacated for violations issued more than years but less than three years ago. The client could have asked for supervision at the time, but did not know - he sent in the fine payment. Would apprecite help!

Sincerely,
Mohammad Iqbal, NIUCOL '98.