Illinois Supreme Court Clarifies Obstruction of Peace Officer

In the recent opinion of People v. Baskerville, 2012 IL 111056, the Illinois Supreme Court found that a husband didn’t commit the crime of obstructing a peace officer (720 ILCS 5/31-1) when he allegedly lied to a police officer about his wife’s whereabouts but where the lie didn’t actually impede the officers’ progress in investigating the crime.

In Baskerville, a La Salle County sheriff’s deputy observed a woman driving whose license he believed to be suspended. He followed her home and initiated a traffic stop, but she went inside the house. Her husband then came to the sheriff’s deputy and told him that his wife was not at home and that he was the one that was driving and offered to show him his driver’s license. The husband then went back into the house and after emerging again, told the officer that he could search the house for the wife if he wanted.

Both the husband and the wife were charged with obstructing the police officer based on the false statements and were convicted. On appeal, the appellate court found that that there was a physical act that was required under the statute to obstruct a peace officer and overturned the husband’s conviction on those grounds. However, while the Illinois Supreme Court reversed the conviction, it did so on separate grounds.

The supreme court held that false statements could be considered to obstruct a peace officer and that a physical act is not required, as “applying the dictionary definition, it is evident that 'obstruct; encompasses physical conduct that literally creates an obstacle, as well as conduct the effect of which impedes or hinders progress. Furnishing false information could thus be included within that definition, as it can undoubtedly interfere with an officer's progress". At Paragraph 19 of People v. Baskerville.

The supreme court found, however, that there was insufficient evidence that there was obstruction of a peace officer because the officer was not actually impeded. While the husband initially falsely denied the wife was in the house, he later gave the officer consent to search the house, though the officer did not do so. The Supreme Court found that because of the consent to search the house, the officer was not actually impeded and overturned the conviction.

Illinois Supreme Court Confirms Squad Car Video from DUI Arrest is Discoverable Under Schmidt

For attorneys working in misdemeanor courtrooms, discovery is always an amorphous concept. Unlike felony discovery, which follow Illinois Supreme Court Rules 411-417, misdemeanor discovery is limited to a few statutes and due process requirements. In People v. Kladis, 2011 IL 110920, the Illinois Supreme Court directly addressed whether squad car videos are discoverable by the defendant in a DUI proceeding.

In Kladis, the defendant made a written notice five days after her DUI arrest. The request included the squad car video from the related stop. At her first appearance, the defendant also made an oral request for the squad car video. Almost 45 days after the DUI arrest, the state tendered a letter to the defendant noting the squad car video had been destroyed pursuant to departmental policy, which automatically deleted videos 30 days after their creation.

The trial judge sanctioned the state for the destruction of the squad car video. As a sanction, the trial judge would not let the officer testify about the occurrence during which the video was running.

In its ruling, the court looked to People v. Schmidt, 56 Ill.2d 572 (1974) and noted that defendant's are entitled to the following materials:

1. List of witnesses. 725 ILCS 5/114-9.
2. Written confessions and witnesses who witnessed written or oral confessions of defendant. 725 ILCS 5/114-10.
3. Exculpatory evidence. Brady v. Maryland, 373 U.S. 83 (1963).
4. Reports prepared by the prosecution's witnesses for impeachment purposes. People v. Cagle, 41 Ill.2d 528 (1969).

In Kladis, the Illinois Supreme Court added squad car videos to discoverable items under Schmidt. 2011 IL 110920 ¶ 28. In so holding, the Court noted that squad car videos further the courts' truth-seeking process. Id. Squad car videos are an "integral part" of traffic arrests, and they "objectively document[] what takes place." 2011 IL 110920 ¶ 29. They both help the state prove their case and help defendants decide to take pleas or litigate their claims of innocence.

For attorneys practicing in these courtrooms, they must make these demands for videos early and often—create a record by filing a motion for discovery, issue a subpoena to the arresting agency, and make a demand on the record for these materials.

Illinois Gets Tough on Wage Theft

Illinois Gets Tough on Wage Theft

Illinois amended the Wage Payment and Collection Act (“IWPCA”) to give employees new powers and protections when an employer fails to pay an employee her “final compensation” or otherwise violates the IWPCA (other provisions specify when wages must be paid, what deductions are allowed, and what records must be kept).

The IWPCA requires employers to pay a departing employee all final compensation owed no later than the next scheduled payday. “Final Compensation” includes everything the employer owes the employee for “wages, salaries, earned commissions, earned bonuses, and the monetary equivalent of earned vacation and earned holidays, and any other compensation...”

The amendments to the IWPCA give the employee added rights and powers including to:
· Pursue more individuals for personal liability through a broader definition of employer
· Go straight to court without first filing a claim with the Illinois Department of Labor (“IDOL”)
· Bring a case as a class action
· Recover reasonable attorney’s fees if she prevails
· Obtain additional damages of 2% per month of the amount not paid
· Receive a penalty from the employer of 1% per day if the employer fails to pay the court ordered amount within 35 days of the order
· Sue for retaliation if an employer discriminates against an employee for making an IWPCA complaint and recover her damages, costs, and reasonable attorney’s fees.

The amending act – known as the Illinois Wage Theft Enforcement Act – is available here:
http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=096-1407&GA=96

Submitted by Brian D. Moore, Class of ‘92
brian@moorelawpc.com
www.moorelawpc.com

Westlaw Headnote of the Day

Neither witness fees nor mileage will be allowed a witness who was too drunk to answer cross-examination.  Fritz v. Fritz, 1894 WL 3292 (Pa. Com. Pl. 1894)

Probable Cause in Drug and Alcohol Testing

A recent decision from the Second District highlights the importance of refusing any blood, breath and urine tests when one is suspected of driving under the influence of alcohol or drugs. In the case of People v. Miranda 2012 IL App (2d) 100769, No. 2-10-0769, the Second District held that the results of a urinalysis test which showed that a driver arrested for drunk driving had traces of cannabis and cocaine in his system was invalid because there was no probable cause to allow for the search warrant after he refused testing.

In Miranda, an Elmhurst police officer pulled over Miranda because he believed that he was intoxicated. The officer noticed an open beer bottle and after some investigation, arrested the defendant for driving under the influence of alcohol. Miranda refused the breathalyzer as well as the blood and urine test. The officer applied for a search warrant in which he said that in “his professional opinion... [defendant was] under the influence of alcohol and/or drugs.” After a search warrant was acquired, Miranda’s blood was taken to be tested for alcohol and a urine sample was taken for drug testing.

The results came back positive for metabolites of cannabis and cocaine. The trial court granted defendant's motion to suppress the evidence as it was taken based on a warrant that lacked probable cause, specifically, that the officer only had probable cause to suspect that driver may have been drunk but there was no mention in the warrant or his affidavit concerning drugs. On appeal, the Second District upheld the trial courts decision to suppress the evidence.

The state additionally argued that the implied consent statute meant that the defendant had no right to have the evidence suppressed. However, the appellate court found that because defendant had refused a drug testing, the state had no right to use the implied consent statute to force the withdrawal of the blood and urine, as he was revoking the implied consent.

This is an important case for any attorney defending a driving under the influence of drugs case because it reiterates the importance of probable cause for the type of testing (alcohol as opposed to drugs) as well as the importance of refusing consent.

Additionally, other drug metabolites can stay in a persons system for days longer than the effect of the drug has lasted. For example, metabolites from cannabis can stay in the system for up to 30 days, sometimes even more, depending on the weight of the individual as well as the quantity of cannabis they are smoking. This means that many people who might have had a joint a week ago would be considered under the influence of drugs, as a positive test result would be considered proof of influence in Illinois because of its strict per se DUI law, even if there is no indication that they were otherwise impaired. The only way for a person who may have drug metabolites in their system to avoid a conviction when a test is likely is to do as Miranda did and refuse the test, then challenge on probable cause grounds if it proceeds anyways.

Most of the public doesn’t realize these rules, as they seem counterintuitive, and may give the police a blood or urine sample when they might test positive. Just as you would advise your clients never to perform field sobriety tests or give a breath sample, they should avoid giving a blood or urine sample when suspected of driving under the influence of drugs and Miranda shows how it can be challenged.

He adopted his adult girlfriend!!

Check this story out! This is one way to shield assets. I'd be nervous that the girlfriend would take off with the money after the litigation! http://www.sun-sentinel.com/news/palm-beach/wellington/pb-john-goodman-adopts-girlfriend-20120131,0,3385741.story

NIU Networking Party: Feb 1st 5:30 to 7:30

The DuPage County Bar Association is hosting a networking event with NIU-COL Students at Pizza Villa in DeKalb! Please come out and share your professional experiences and help these students see the possibilities. Contact Sue Makovec of the DCBA to register. smakovec@dcba.org, or by phone at 630-653-7779.

Submitted by Brian D. Moore, Class of '92
www.moorelawpc.com

Defining Fraud in Litigation

I have been working on several cases involving fraud over the last couple of months. Fraud takes many shapes.  There are an endless number of ways to cheat someone out of money.  The facts of two cases are never really the same.  But they all end in the same way -- someone loses money.

There are also an endless number of ways to sue for fraud, or so it seems.  The first question is what type of relief does the plaintiff want.  Of course, the plaintiff wants money.  Lots of it and punitive damages.  But will money be enough to compensate for the fraud?  And is there enough money available, or are you dealing with a judgment proof defendant?  

Depending on the specific facts of the case, there are dozens of remedies other than money damages that are available to victims of fraud.  Contracts can be rescinded or reformed.  Fraudulent transfers of property can be set aside.  The court can grant preliminary or permanent injunctions.  The court can prevent a bankruptcy discharge.  The court can impose a constructive trust on assets in the hands of third parties.  

No matter what relief you seek, you will then have to prove that fraud occurred.  For that, you need a definition of fraud.  The case law interpreting fraud takes many different paths because of all of the remedies available, so there are dozens of definitions and elements in the case law.  The defendant will want to define fraud as strictly as possible.  But don't let the defendant frame the case in terms of the five-part test for a preliminary injunction or the four-part test for a constructive trust, for example.  

It is best to keep it simple.  Defining fraud as broadly as possible allows you to keep your options open regarding your damages.  I came across two good definitions recently.  Here they are:

Fraud is a generic term, which embraces all the multifarious means which human ingenuity can devise and which are resorted to by one individual to gain an advantage over another by false suggestions or by the suppression of truth. No definite and invariable rule can be laid down as a general proposition defining fraud, and it includes all surprise, trick, cunning, dissembling, and any unfair way by which another is cheated.  McClellan v. Cantrell, 217 F.3d 890, 894 (7th Cir. 2000);

and,

There is no general rule for determining what constitutes fraud.  The existence of fraud depends on the particular facts of each case.  Generally, fraud has been held to mean "anything calculated to deceive, including all acts, omissions, and concealments involving a breach of legal or equitable duty, trust or confidence resulting in damage to another."  Carey Electric Contracting, Inc. v. First National Bank of Elgin, 74 Ill.App.3d 233 (2d Dist. 1979).

If you have a fraud case, I would try working one of these into either your response to defendant's motion to dismiss, or your motion for summary judgment.  Most cases would be easy to prove if either of those were the standards.

The Village of Plainfield v. Michael W. Huseman

A couple of days ago, I was pulled over for speeding while I was on my way to court. As soon as the officer asked me for my license and registration, I politely informed him that I was an attorney and that I was on my way to the courthouse.  He was not impressed.  Nor was he aware, apparently, of my privilege from arrest in these situations.  

I knew, however, that I had just invoked my privilege so I did not argue any further with the officer.  I just waited patiently in my car while he walked back to his car.  I was actually hoping that he would write me a ticket, which he did.  He then came back to my car and explained my options regarding paying the ticket by mail or appearing in court.  I didn't mention it to him, but I knew at that time that I would choose the later.

When I got back to the office, I dusted off the old Illinois Criminal Code of 1961.  Just as I remembered, there is a statute titled "Persons Exempt from Arrest."  This law applies to electors during their attendance at election, senators and representatives during the session of the General Assembly, members of the militia during their attendance at musters (wtf?), and judges, attorneys, clerks, sheriffs, and other court officers while attending court and while going to and returning from court.  725 ILCS 5/107-7.  

Normally, an officer faced with an attorney's or judicial officer's timely assertion of the privilege from arrest should obtain the requisite information from the one asserting the privilege, make arrangements for the complaint to be issued later against the accused, and promptly permit the accused to go on his way.  People v, Lynch, 266 Ill.App.3d 294, 297 (2nd Dist. 1994).

A further review of the case law interpreting the statute shows that if the privilege is violated, a motion to dismiss is the proper way to invoke the privilege.  So, if anyone wants to see a copy of my motion, HERE it is.  Just don't ask me how much billable time I have into this already.  I'm pretty sure just paying the ticket would have cost thousands less.  

I will keep you apprised of any developments.

UPDATE: Ticket dismissed. It only took about six months.