FAQs

Criminal Law Questions

Hello, I got a DUI in 2014 I blew a .06. I was sentenced to one year court supervision which I successfully completed so I was not convicted of my DUI. However for some reason my job can see the DUI on my driving record which has prohibited me from my initial job of delivering. I was curious if there is a way of sealing that since I was never convicted once my court supervision was completed and my fine paid off they dismissed it.

Thank you for contacting me. This is a very good question. You ask if your court supervision for a first time, successfully completed DUI can be sealed or expunged so potential employers cannot see the charge. A great resource for expungements and sealing court convictions can be found at the Office of the Illinois Public Defender. Follow the links under "Expungement" for questions regarding whether or not your particular crime is sealable or expungeable.

Specifically, as it applies to your DUI, court supervision. The unfortunate answer is: No. You cannot seal nor expunge a DUI court supervision conviction.

Can a North Pekin cop pull you over and write you a ticket out of jurisdiction?

The answer is both yes and no. An officer who is outside his jurisdiction can make an arrest under the Illinois citizen arrest statute. People v. Lahr, 147 Ill. 2d 379, 382, 168 Ill. Dec. 139, 589 N. E. 2d 539, 540 (1992). There, the Illinois Supreme Court interpreted the citizen's arrest statute as providing the officers with the same authority as ordinary citizens in making a warrant less arrest outside their jurisdiction. Further, there is some authority which indicates that a police officer has "jurisdiction" in any adjoining municipality. 65 ILCS 5/7-4-8.
That said, there are restrictions to this authority. For example, an officer may NOT use his radar gun to stop a motorist, such is an impermissible assertion of his police authority. Further, a police officer outside his jurisdiction can not speed to catch a speeder. People v. Kirvelaitis, 315 Ill. App. 3d 667 (2nd Dist. 2000). However, two years later, the same district held that a police chief's out of jurisdiction arrest for improper lane use was proper as an arrest by a private citizen. No higher court has resolved the seemingly controversial findings.
Further, note that stops for suspected drunk drivers ARE allowed under the guise that it's an emergency action required to protect citizens from a dangerous intoxicated driver. People v. Barwig, 334 Ill App. 3d 738 (5th Dist. 2002).
Thus, it depends highly on what the officer is stopping you for, what the officer saw that lead to the stop, how the officer brought you to a stop, and what the officer actually wrote you a ticket for.

Can I be charged with a DUI?

Yes, you can be "charged." The real question is: "how likely are you to be convicted?" To put it another way: what are your chances in front of a jury? Your question, as it was phrased, does not give me a lot to go on, but a few things come to mind. Such as: how is the state going to put you behind the wheel? Is there a suppression issue here? i.e. did the officer have sufficient evidence to conduct a DUI investigation? Sufficient evidence to arrest? etc. Having a full sit down with an experienced DUI attorney will give you an idea of what your real options are. A number of attorneys in town offer free consultations, such as myself. After a sit down an attorney can give you a better idea of what your options (chances) are.

Will a municipal violation in the city of Edwardsville, IL affect the ability to get a previous crime expunged?

The unfortunate answer is: it depends. First, and foremost. Consult with a local attorney who can walk you through the whys and how's of this process. To get a general overview of the rules, the Office of the State Appellate Defender has a great web site with a lot of information on this issue:www.illinois.gov/osad. Be sure to click on the "juvenile expungement information" link on page two of the "overview." If you click on the "flowchart" it appears that you are probably eligible. A word of caution however, expungements are always up to the discretion of the court. Thus, a judge may make you wait. Check with your local attorneys who have appeared in front of your judges to know what his or her courtroom policy is under your particular circumstances.

My first offense; I will appear in court on September 18th; obstructing a police officer in Illinois; what will happen to me?

Typically, what is best for you can't be determined without a sit down with an attorney. There are a handful of criminal defense attorneys, such as myself, who offer free consultations. We can advise you what the likely plea offer will be, depending on the nature of the case. Further, we can offer an opinion as to what your chances at getting an acquittal are with a jury. When you go for a consultation, bring all your documentation with you and a good recall of any other touches with the law that you have had. A sit down with a defense attorney will also give you and the attorney an opportunity to devise a strategy that works best for you.

Family Law Questions

Linda, I am hearing different things from people. If a father who pays child support gets married does the new spouse’s income affect the child support or is it the father’s income only? Thank you.

Great question! You are hearing different things because the answer is both yes and no. Traditionally a new spouses' income is not taken into consideration when figuring an obligor's statutory child support. However, the court is allowed to deviate from the statutory percentage (20% for one child, 28% for two, 32% for three, 40% for four, 45% for five, and 50% for 6+). A court may consider a parent's resources and a parent's standard of living if the court is going to deviate from the statutory guidelines.

Section 505(a)(2) sets out the factors that the court is to consider when setting the child support obligation. These factors include: the financial resources and needs of the child, the financial resources and needs of the parents, the standard of living the child would have enjoyed had the marriage not been dissolved, the physical mental and emotional needs of the child, the educational needs of the child and the financial resources and needs of the non custodial parent.
Thus, the new spouses income is relevant insofar as their income relieves the payor of personal expenses and therefore frees up more the payor's income that can be used for support. In re Marriage of McBride, 166 Ill. App. 3d 504, 116 Ill Dec. 880, 519 N.E.2d 1095 (1st Dist. 1995).

In my experience, a new spouses income most often comes into consideration when the court is considering the non-statutory child support expenses of the child such as health insurance premiums, extra-curricular activities, and unpaid medical expenses.

In addition, a very common area where a new spouses income comes into play is in a situation wherein the obligor owes money for child support, commonly referred to as arrears.

I got divorced 4 years ago. We have two children and we have joint custody 50/50 visitation rights. We split everything down the middle and split all medical cost. I took no alimony and asked for no child support and have made life pretty easy on my ex husband. However now he wants a half more day in his visitation rights. I made the mistake of keeping his address as their main address due to I wanted them to go to the same school. My attorney advised me against this but I wanted out so bad I was willing to do whatever to make him happy. I want to know what are my rights? Do I hold the cards as the mother or am I at my ex husbands mercy now?

Thank you for your inquiry to Watson Law. The detail in your question was great and allows me to form this articulated response. Please let me know if you have any further questions!
Reducing a parent's visitation is tricky business. There are strict guidelines that a court must follow for such a result to occur.
750 ILCS 5/607 (c) articulates that "a court may modify an order granting or denying visitation rights of a parent whenever modification would serve the best interest of the child; but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical mental or moral or emotional health."
To put this very high burden into perspective, the Pleasant v. Pleasant articulated "The endangerment standard is an extraordinary finding that is onerous, stringent, and rigorous."
By way of some examples: The Slayton court found that even when the children did not like visitation especially since such was at a distance and the inconvenience involved, such was not an endangerment.
I like the Slayton's court's further comment as well: "we do not let children decide whether there should be visitation for the same reason we do not let them decide who should have custody."
That said, not every reduction in visitation is a "restriction" with this high standard. The Illinois courts have ruled that the purpose behind the reduction is controlling. Meaning: a modification looks at the child's best interests directly whereas a restriction looks at the suitability of the parent whose visitation would be curtailed.
Illinois cases are re pleat with examples of "restrictions" versus "modifications" and the question is thus treated on a subject by subject basis.
I can tell you that in this jurisdiction, court's generally do not like to take time away from a parent. If it's taken away in one calendar area, generally a court will require it to be made up in another, if the question of modification is one simply of convenience.
In addition, the parent requesting the reduction in another parent's time needs to beware. Parental alienation or "failure to facilitate a parent child relationship" is a hot button in court's right now. And if a parent is found to be hindering another parent's relationship, that parent can loose custody and/or visitation rights.

My wife changed the locks and won't let me in. How can I retrieve my personal property?

The best course of action is always a court motion/hearing and an order. Assuming your judge can do an emergency hearing that's the best way to go. While I agree with my colleges that legally, you have a right to enter the property, "rambo style", it would likely serve to rave-up an already contentious case, making the case more antagonistic and more difficult to resolve. In addition, why pass up an opportunity to show the family law judge exactly what you're dealing with? The family law judge will not be impressed with these antics. But the family law judge will be impressed by your calm and logical and legal response, which in turn can only help you in future court hearings.

Can my husband sell the house?

What you really need here is to go to court - immediately. I have no idea why he is not helping you with the bills, but with four children, assuming they are his children, you are entitled to 40% of his net salary. If he works and you don't, perhaps more. If the children are not his, and again, he works and you don't, you may be entitled to temporary maintenance. A good petition and a hearing on temporary issues would go a long way here. Naturally, representing you, I would ask for exclusive possession as well while the rest is getting figured out. Many of us local attorneys offer free consultations so that you can devise a strategy.

What if a judge signs an order but is suspended due to jud. misconduct before it is entered with the court? Is the Order valid?

To be safe, I would set the motion on which the order was issued up for hearing with the new judge and get a fresh order. If the parties agree with the old order, then having the new judge sign it with "all other orders being vacated" should safe-guard the integrity of the order. If the issues need to be re-litigated, then be prepared to assert such in court. I can't imagine that a Court won't set the issue for hearing.