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Michael Helfand

What to know about losing your license after a DUI in Illinois

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It’s no surprise that you can lose your license if you drink and drive, but the details can be confusing because in Illinois there are two different ways in which you can lose your license. There is what’s called a “statutory summary suspension” from the secretary of state, and then there potentially is a separate license suspension or revocation if you are found guilty of driving under the influence.

Statutory summary suspension

The main thing to know about Illinois’ statutory summary suspension is that it’s automatic. If you are arrested and a blood alcohol test at the police station confirms that you were intoxicated beyond the legal limit (.08), the secretary of state automatically suspends your license for six months. If you refuse the test, you will get an automatic one-year suspension. These are for first offenses. For a second offense, the statutory summary suspension for testing above the legal limit is one year, and for refusing testing it’s three years. There is no penalty for refusing a field sobriety test at the side of the road.

A statutory summary suspension does not begin right away. It actually starts 45 days after your arrest. The suspension is not based on guilt or innocence. It’s an administrative and automatic penalty for failing a chemical test or refusing a chemical test. You can, however, go to court and ask the judge to cancel your suspension by proving that your arrest was unlawful or based on some other reason why your license should not have been suspended.

Revocation

If you are convicted of a DUI, your license can be revoked for a year or more. Unlike the suspension described above, a license revocation is a criminal penalty that applies if you are proven guilty. If you receive court supervision as the outcome after a DUI, you may not face revocation. For second, third or further offenses, license revocation can last anywhere from five years to life.

If you drive on a suspended or revoked license you can face felony charges. After the period of suspension, you have to pay a fee for reinstatement. After revocation, you may have to go to a hearing. Be certain that your license is properly reinstated before you start driving again.

 Other things to keep in mind: If your driving privileges are suspended or revoked in Illinois, then they are suspended and revoked in other states, as well. Also, the above rules and timelines can be different for drivers who are under 21. First-time offenders might be eligible to drive during suspension if they get a monitoring device.

Written by Michael Helfand

What is a whistle-blower lawsuit?

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A whistle blower is someone who alerts the government to fraud. The term often gets used in a broad sense to describe someone exposing the unethical or illegal behavior of a corporation. Actual whistle blowing, however, is exposing fraud against the government.

If your employer is cheating customers, encouraging sexual harassment in the workplace, or violating health and safety codes, it’s technically not a whistle-blower situation. You certainly can turn them in for these bad actions, but it doesn’t fit within the definition because these actions are not against the government.

So what does constitute whistleblowing? Reporting your employer for tax evasion, or for cheating the government out of money in a contract. There are state and federal whistleblowing laws, and there are Illinois lawyers who help whisteblowers take action and expose the wrongdoing.

What happens next? The whistleblower doesn’t just tell someone what’s going on. They also file a lawsuit against the wrongdoer. It’s a unique situation, because the lawsuit is on behalf of the government. It’s called a qui tam lawsuit. You serve the lawsuit on the Justice Department, rather than directly on the defendant. The Justice Department can take over the case if they choose, or else the whistleblower can follow through.

Why would anyone go through all that trouble? Some do it for moral and ethical reasons, but the law also rewards the whistleblower for sticking their neck out and taking on a lawsuit. If the case is successful, the government will be awarded damages and penalties. The whistleblower is allowed to share in the penalties that are paid to the government. A whistleblower might get around 15-25%. The amount can depend on how much the defrauder is ordered to pay and what type of fraud they were involved in.

Written by Michael Helfand

What is the difference between a personal injury case and workers’ compensation?

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Personal injury and workers’ compensation are two types of injury cases in Illinois. Both can involve the same types of injuries, such as a slip and fall, a vehicle accident, or an injury caused by a machine or piece of equipment. The difference lies in the cause of the injury.

If your injury is caused by your job, it will be considered a workers’ compensation case. The main difference is that you will not file a lawsuit (the law actually prevents you from suing your employer after a work injury) but rather you will file a claim for benefits. Your employer likely has workers’ compensation insurance that pays workers who are hurt on the job.

If your injury is caused by a third party who is not your employer, it’s more likely a personal injury case. You can file a lawsuit against the party who is at fault. Proving fault is a major part of any personal injury lawsuit. In a workers’ compensation claim, however, fault is irrelevant. Your work injury could be your fault or your employer’s fault or no one’s fault. Benefits are available regardless, as long as you qualify otherwise.

The benefits available to injured workers are set by law. Benefits include payment of 100% of your medical bills, with no co-pays or out-of-pocket expenses, as well as a portion of your regular pay if you are unable to work. Wage-loss benefits are called temporary total disability (TTD) and amount to 2/3 of your average weekly wage. You can also get a settlement to compensate you for any permanent injury you have after your recovery is complete.

In an injury lawsuit you are asking the judge to order the other side to pay your damages, which include medical bills and lost wages, but also pain and suffering in many cases. A jury often decides what your case is worth. There are no juries in workers’ compensation cases.

Both types of cases have an impartial third party to handle disputes during the case and make final rulings after trial if there is one. In an injury lawsuit, this is the judge (and jury). In a workers’ compensation case, you have an arbitrator who is similar to a judge.

While some personal injury attorneys might handle workers’ compensation cases and vice versa, it’s better to hire an attorney who focuses on one or the other. Your workers’ compensation attorney, for example, should know the arbitrator in your case because they are at the hearing site often and handling a lot of similar cases.

Both types of cases have strict deadlines in Illinois. For a personal injury, the statute of limitations is two years from the date of injury. For workers’ comp, the statute of limitations is three years from the date of injury or two years from the date of your last payment of benefits, if any.

 

Can I be fired without notice?

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We hear from a lot of people who are naturally upset after suddenly getting fired. Many call because they’re wondering if it’s illegal for their employer to fire them without two weeks’ notice. Some ask whether they’re at least entitled to pay for those two weeks. The law on this, for most people, is pretty straightforward.

The majority of employees in Illinois are “at-will” employees, which means that either side can end the employment at any time and for any reason. You can be fired on the spot, and you can quit on the spot. Even if you give them the courtesy of two weeks’ notice when quitting, they can fire you right then. They don’t even need to have a reason. The exception is illegal discrimination. You can’t be fired because of your race, religion, national origin, age (if over 40), etc. If you are fired for one of these reasons, that is illegal.

In some cases, there is an employment contract or union agreement that changes the at-will rule. If there is an agreement in place that obligates your employer to give you notice, then by not doing that they are breaching the contract. You can sue for breach of contract. If you sign a contract when you’re hired, always ask for a copy right then. If you don’t have a copy, there should be one in your employment file, which you have the right to look at.

Even though there is no Illinois or federal law that says you have to give your employer two weeks’ notice when quitting your job, it’s common practice. Legally, you can just leave. But many people want to leave on good terms, especially if they might need a reference for a future job.

When it’s the employer who ends the employment, it can often happen quickly. You may or may not get a severance; the law does not require it. You should, however, get your last paycheck no later than the next regular pay day. Also, if you have earned vacation time that you haven’t used, you should be paid for that time.

If you think you’ve been fired for an illegal reason, such as discrimination, talk to an Illinois employment attorney. The same goes if you have trouble getting the pay you were owed up until the time you were fired or quit.

Written by Michael Helfand

See also: 12 Tips On Illinois Severance Agreements

Can’t I just get a public defender to defend my case?

Not everyone is entitled to a public defender. There has to be financial need. Also, don’t be so sure that you want a public defender. If hiring a private attorney is an option for you, it might be a better idea.

Everyone has the right to a defense, and if you are facing jail time, you have the right to an attorney. If you can’t afford an attorney, one will be appointed for you. The judge isn’t going to take your word for it, though. You have to fill out an Affidavit of Assets and Liabilities at your first court appearance. Then, the judge decides whether you will get a free attorney based on the information you provide.

Public defenders are only available in criminal cases. The court will not appoint a free attorney in a divorce or any other type of civil case, except a paternity matter. If you have a civil case, there may be a legal aid organization that can help. Also, many people don’t realize that a lot of civil cases don’t require any attorney fees up front. These are called contingency cases, and you pay your lawyer at the end of the case if and when you win. There is no fee if the case is lost. So, anyone can afford to hire a contingency lawyer.

Public defenders are free, but they might not be your best option. Public defenders are paid for by taxpayers, as a government service, rather than by individual clients. This doesn’t mean they aren’t good attorneys. They are licensed and trained like other attorneys, and they handle a lot of cases so their experience is solid. But like most things, you get what you pay for. Public defenders typically handle a lot of cases and many are overworked. The main benefit of a private attorney is their time.

If you hire a private attorney, you will be paying them hourly, so the time you pay for is yours. An established law firm is going to have the ability to devote more time to your case, as a general rule, and put extra effort into investigating and researching your defense. They’re busy, too, but they have an added incentive for moving your case along quickly because that’s how they get paid.

We’re not saying all private defense attorneys are great. Some really aren’t. But if you choose wisely, you’ll be in a good position to get a positive outcome. Look for someone who has a lot of experience handling similar cases in the same courthouse. If you later realize you made a bad choice in hiring your private defense attorney, you can change your mind at any time. You can fire him or her and find someone else. This is not an option with a public defender. You generally do not get to choose who represents you when you have a court-appointed lawyer.

Written by Michael Helfand

Illinois makes it easier to seal a felony conviction

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A felony conviction can follow you for the rest of your life. It shows up on background checks, which means that you’ll have to disclose it, and many people can end up seeing it. It can make it more difficult to get and keep a job, and it can altogether prevent you from applying for certain types of jobs. With this in mind, Illinois has made it easier to move on after a felony conviction, at least for some, by making more felony convictions sealable.

Expungement and sealing laws are somewhat complicated and hard to explain because they apply differently depending on a person’s prior record, type of offense and outcome of the case.  The general rule has been that you can’t clear your record of felony convictions. There was a very narrow exception for Class 4 felony drug possession and prostitution convictions. Those were eligible for sealing.

The list of exceptions has recently been expanded. The following non-violent felonies are now eligible for sealing in Illinois:

– Class 4 felonies: prostitution, possession of cannabis, possession of a controlled substance, offenses under the Methamphetamine Precursor Control Act, offenses under the Steroid Control Act, theft, retail theft, deceptive practices, forgery, possession of burglary tools

– Class 3 felonies: theft, retail theft, deceptive practices, forgery, and possession with intent to manufacture or deliver a controlled substance

Convictions of these felonies can be sealed four years after the end of the individual’s sentence. Any subsequent felony convictions cannot be sealed, and if there is a second felony conviction, the prior sealed conviction may be unsealed. A petition (request) to seal a record is filed with the clerk of the court.

There might be a hearing, if the prosecution or police files an objection. At the hearing, the judge may consider several things when making a decision, including the evidence supporting the conviction, the reasons why the prosecutor is opposed to sealing the record, the defendant’s age, criminal history and employment history, how much time has passed and the “adverse consequences the petitioner may be subject to if the petition is denied.”

Sealed convictions do not show up on employer background checks, and employers are not allowed to ask about sealed criminal records.

If you want to know if your record in Illinois can be sealed or expunged, give us a call or fill out our contact form and you can talk with one of our experienced attorneys for free.

How much does Illinois workers’ compensation pay?

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If you are injured on the job, Illinois law says that you get 2/3 of your wages while you are unable to work. If you earn $900 a week, you should get checks for $600 a week. All of your related medical bills should be covered too, and you might get a settlement if your injury is serious of permanent. That’s the simple answer.

The more complicated answer is that you are entitled to these things if you are eligible. You have to be eligible, your injury has to be eligible, you have to notify your employer and see a doctor, and you can’t miss the deadline for filing a claim.

In order to be eligible, you have to be an employee, not an independent contractor (but don’t take your employer’s word for it – it’s fairly common to be mislabeled). Most importantly, your injury has to arise out of and in the course of your employment. This means that you have to be doing your job, or at least something for the benefit of your employer, when you got hurt. Also, the injury has to be related to your job. A random heart attack at work is not covered.

Illinois law requires injured workers to notify their employer within 45 days in order to be eligible for benefits. There also is a statute of limitations, or deadline, for filing a claim. A claim is a formal request for benefits and is filed with the Illinois Workers’ Compensation Commission. You might start getting benefits without a formal claim, but we suggest filing one anyway just in case. The outside limit on a claim is three years from the date of injury or two years from the last payment of benefits. There are some exceptions.

Always get medical attention after an accident at work, and explain to your doctor how you were injured. Your doctor’s opinion matters, especially if the insurance company tries to argue that your injury does not qualify as a work injury.

Although 2/3 of your wages might seem simple to calculate, it’s more complicated if your pay isn’t regular. Also, there are minimum and maximum amounts set by law. Sometimes, an employee can still work in a different position but it doesn’t pay as much. If this happens to you, you may be able to get 2/3 of the difference. If you suspect that your benefits aren’t being calculated properly or if you’ve been denied, talk to an Illinois workers’ compensation attorney. The insurance company that pays your benefits is more concerned about their bottom line than making sure you’re fully compensated.
Written by Michael Helfand

Timeline of a criminal case in Illinois

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From arrest to sentencing, here’s a general overview of what you can expect in an Illinois criminal case.

Pre-arrest. Sometimes a criminal case starts with an arrest. Other times, a victim or someone else calls the police to report a crime. If warranted, police detectives will investigate the crime. Once they have enough “probable cause” they can make an arrest. Having probable cause means that the police have a reasonable belief that a crime was committed.

Arrest. Sometimes, an arrest happens right away, such as when an officer sees the crime occurring and arrests the suspect on the spot. Other times it happens after some investigation or a search for the suspect.

Charges. After an arrest, the police or the state’s attorney, or both, will determine which charges are appropriate for the crime allegedly committed.

Bond. After being charged, a defendant will find out whether he or she will be released on bond. This means that they post the required bail and are released until the next court date. For most misdemeanors, the bond amount is pre-set. For more serious crimes, a bond hearing will be held, usually within 24 hours but almost always within 48 hours.

Arraignment. The arraignment happens about a month after an arrest. It’s the official notification of the charges against someone. For felonies, a grand jury first reviews the evidence and makes an independent determination on whether there is enough evidence to go forward with prosecution.

Discovery. Attorneys for both sides collect and review evidence and get ready for trial. There may be pre-trial motions during this time, often about the admission of various evidence. There may be other court dates set by the judge to make sure the case is moving along as it should.

Trial. The defendant has the right to a jury trial or a bench trial (no jury). It’s up to them. At trial, both sides – defense and prosecution – argue their case, present evidence and question witnesses in court. Guilt or innocence is determined by the judge or jury.

Sentencing. If the defendant is found guilty, the next and last step is sentencing. Both sides argue for what they think is a reasonable sentence. The prosecution might present evidence of past crimes, and the defense might present evidence of mitigation (defendant’s good standing in the community, for example).

An appeal follows a different process. If you have questions about what to expect in an Illinois criminal case, feel free to give us a call. 

Written by Michael Helfand

See also: Felonies vs. misdemeanors in Illinois

Can I change my child’s visitation schedule between my ex and me?

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Yes, if you can show that things have changed since the last visitation order was issued and that the changes warrant a new visitation order. In other words, you usually have to show that things aren’t working the way they are.

If one parent moves farther away, the current visitation schedule might not be practical or even possible to maintain. You can ask the judge to issue a new order that takes the new living situation into account. Similarly, work hours might change. If your schedule changes at work and you no longer are able to see your child during the set visitation times, then you can ask the judge for a new order with a new visitation schedule. Another reason a parent seeks a change is if the visiting parent has chosen not to see the child at the set times, or at all.

The need for a change in a visitation schedule might seem obvious but that doesn’t mean it’s automatic. In Illinois, the judge decides based on the “best interests” of the child – the standard that the courts must follow in most custody-related issues. These “best interests” include looking at the wishes of the parents and child, the relationship the child has with the parents and the ability for those relationships to continue, the child’s home, school and community, as well as the mental and physical health of all of those involved.

If you are trying to keep your child away from his or her other parent, you will have to have a good reason to do so. The courts will give reasonable visitation to non-custodial parents in most cases. In order to prevent that, you’ll have to prove that visitation with the other parent is dangerous for your child’s physical or mental health. Unless you are protecting the child from an imminent threat of harm, you should get the court order modified before taking matters into your own hands. If you interfere with a visitation order, you could be held in contempt of court.

Hopefully, you and the other parent can reach an agreement on the changes you want made to the visitation order. This will make the process much easier and quicker. To get started, you will have to file a petition with the court and properly notify the other side that you have done so. It’s a good idea to get the advice of an Illinois custody attorney.  If you like our advice or a referral to an attorney, please call us.

The Illinois Supreme Court disciplines lawyers

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Bad lawyers do get caught. Not all of them, but probably more than you think. The Illinois Attorney Registration and Disciplinary Commission (ARDC) investigates complaints made by clients, fellow attorneys and others. The legitimate and serious ones can make their way all the way up to the Illinois Supreme Court, which hands out punishments and disbars those attorneys who should no longer be allowed to practice law.

When someone files a complaint about an attorney with the ARDC, it doesn’t just end up in a file somewhere. The ARDC reviews each complaint and determines whether the complaint is legitimate and whether the case should go on to the next level. If the ARDC decides to take further action, it sends the complaint on to an inquiry board, which investigates the complaint. From there, cases go before the hearing board, which is a panel of three members who act as a trial court. Then, there is an ARDC review board that acts as the appellate court. Finally, most of these cases go on to the Illinois Supreme Court for a final determination. It can take a year or two to make it through this process.

The ARDC opens about 6,000 investigations a year. In 2013, 151 lawyers were disciplined, and 35 of those were completely disbarred. Lesser disciplinary action includes suspension, probation, censure and reprimand. Basically, it’s varying levels of punishment based on the offense.

As a client, you should look into the disciplinary record of any attorney you are thinking about hiring. These records are public information. Anyone can go to iardc.org, which has a lawyer search option, and type in the name of the Illinois attorney they’re curious about. The database should tell you what, if any, disciplinary action the attorney has faced. If you are unsure about what you find, ask the attorney about it.

If you have a complaint about an attorney, you can file a request for an investigation on the same website. If the issue you experienced caused you financial harm and you believe the attorney was negligent in handling your case, you might want to consider a legal malpractice lawsuit.

Written by Michael Helfand

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