Archive for August, 2013

NEW ILLINOIS CELL PHONE LAW

You have probably heard that Illinois has passed a new cell phone law that makes it illegal to drive while using a cell phone – that is partly true.

First, the things NOT covered by the change in the law: GPS devices or communication devices “physically or electronically integrated into the car.” In other words, if your car has a built in hands free phone with voice activation, it is still legal. This obviously means, and is expressed by the law, that hands free cellular phones or those with headsets can still be used. You can still use your CB, or a two way mobile radio licensed by the FCC.

Presumably you can use a cell phone that allows you to dial by using a single button (a cellular memory with phone numbers stored permitting you to dial or hang up using one button), or to hit redial – as long as you are using a speaker phone, or a headset. You will still be able to use a hands-free cell phone with voice activation.

To paraphrase the law in plain English, you can’t drive with a cell phone in one hand, and the steering wheel in the other, and you can’t dial a milti-digit phone number while driving.

Use of hand held phones, digital assistants or mobile computers are prohibited.

Your first violation of this law should not count against you for a “three moving violation in one year” suspension, but after the first violation, any subsequent breaking of this law is a moving violation. Get a second violation of this law, and two speeding tickets in one year, and your driving privileges should be suspended. Beginning January 1, 2014, you can no longer drive with a phone to your ear. A first offense costs $75, a second costs $100, a third $125 and a fourth will cost $150.

You can still use your hand held phone while parked on the shoulder of a road, or when traffic is stopped, and you have your car in neutral or park. You can use a normal cell phone while driving if you are reporting an emergency.

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IL POWER OF ATTORNEY FOR PROPERTY

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There are two common powers of attorney (POA): for property or for health care. This article will explain POA for property.

The POA for property, act, and the suggested legal forms, are available on the internet, or through the laws of Illinois, officially called Illinois Compiled Statutes (ILCS) at 755 ILCS 45/3-3 (c), (d), (e), and before and after these citations.

The person who is granting POA is known as the “principal.” The person who receives the POA powers is known as the “agent.” The principal grants the agent certain powers, but the agent is not legally bound to accept the responsibility. If the agent acts as an agent under a POA document, he is bound to act in the best interests of the principal. The agent has what is known as a “fiduciary obligation” toward the principal, which means that the agent must use due care to make decisions in the financial best interests of the principal.

A POA from another state is usually valid in Illinois. The agent must keep records of any actions he takes while acting as the agent under the POA document. Many POA documents have beginning and ending dates, and if there is no ending date, it ends with the death of the principal. If you wish, you can appoint a successor agent, so upon the death of your primary agent, a new successor agent has the authority granted the deceased primary agent. The POA document must be signed by at least one witness and by the principal in the presence of a notary public.

Unless you say otherwise, the agent can legally conduct business for you in the following types of transactions: real estate, financial institutions, stocks and bonds, tangible personal property, safe deposit boxes, insurance and annuities, retirement plans, commodities and options, lending and borrowing, estate, or any other property transactions. The agent can represent you regarding social security, employment and military service benefits; in tax matters; claims and litigation; and business operations.

Although an agent is legally bound to act in your best interests, he or she can deplete your estate partially or totally before you become aware of it, and any damage done might not be reversible, so choose a POA agent very carefully.

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IL Medical Marijuana Law Covered Illnesses

As most of us know, Illinois has joined 18 other states in making the use of marijuana legal for certain medical conditions. The media has made general descriptions of the new law, but the question on the minds of potential benefactors of this law is: just which medical conditions will permit patients to acquire medical marijuana? In future articles I will deal with some of the specifics of the new law, but for this article you are being provided the list of covered illnesses. The list can be amended by petitioning the Department of Public Health, and if your physician will go to bat for you, you may get other illnesses to qualify you for the right to get medical marijuana.

The current list of illness for which one can qualify for medical marijuana includes: cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Crohn’s disease, agitation of Alzheimer’s disease, cachexia/wasting syndrome, muscular dystrophy, severe fibromyalgia, spinal cord disease, including but not limited to arachnoiditis, Tarlov cysts, hydromyelia,syringomyelia, Rheumatoid arthritis, fibrous dysplasia, spinal cord injury, traumatic brain injury and post-concussion syndrome, Multiple Sclerosis, Arnold-Chiari malformation and Syringomyelia, Spinocerebellar Ataxia (SCA), Parkinson’s, Tourette’s, Myoclonus, Dystonia, Reflex Sympathetic Dystrophy, RSD (Complex Regional Pain Syndromes Type I), Causalgia, CRPS (Complex Regional Pain Syndromes Type II Neurofibromatosis, Chronic Inflammatory Demyelinating Polyneuropathy, Sjogren’s syndrome, Lupus, Interstitial Cystitis, Myasthenia Gravis, Hydrocephalus, nail-patella syndrome, residual limb pain, or the treatment of these conditions.

The medical marijuana bill is about one hundred pages long. In my next article, I hope to anticipate some of your other questions and provide answers.

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FORCED PLACE INSURANCE AND WELLS FARGO

If you have a mortgage through Wells Fargo and have paid “forced place insurance” in the past, you may have been over-billed. Forced place insurance is home insurance that is paid for by the mortgage company after you have failed to pay home insurance in accordance with your obligation to do so as created by your mortgage agreement. If you don’t pay your home insurance on time, there is a grace period during which the home can be insured before the policy lapses. The mortgage company will not let a home they could acquire through foreclosure, go uninsured. Before the insurance can be cancelled, the mortgage company forces you to accept the insurance company and policy that they choose, and your monthly mortgage payments increase by the extra amount you pay for forced place insurance – which in virtually all circumstances costs much more than the home insurance coverage you can acquire on the open market.

A law firm is considering a class action lawsuit to collect money for Wells Fargo mortgage holders who have paid excessive prices for forced place insurance. In a class action lawsuit you simply tell the attorney that you want to be included, and wait for a settlement, should he win. If you are not included in the lawsuit, you can still sue Wells Fargo, but you will have to find your own attorney. To find out more about this lawsuit, contact info@ktmc.com, or call 888-299-7706.

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AVAILABILITY OF IL HARDEST HIT PROGRAM FUNDS ENDS SOON

The Illinois Hardest Hit program is a federally funded grant available to help you pay your mortgage if you have fallen behind because of unemployment or underemployment. The program can help by paying up to $35,000 toward your mortgage. The program will accept no more applications after September 30, 2013. The money in the fund is rapidly depleting, so if you plan to apply, do so immediately. There is no guarantee that funds will be available through September 30. Apply at www.illinoishardesthit.com or call 855-873-7405.

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YOU CAN LOSE YOUR CAR DRIVER’S LICENSE FOR BOATING UNDER THE INFLUENCE IN IL

Illinois has passed the new boating under the influence (BOA) law that results in a suspension of your vehicle driver’s license for a BOA conviction. The new law becomes effective on January 1 of 2014. If you are involved in a boating accident resulting in serious injury or death, and you refuse to take a blood, breath, or urine test requested by law enforcement authorities; or if you take such a test and drugs or alcohol at or beyond the .08 limit are detected – your right to operate a vehicle in Illinois will be suspended.

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THE ILLINOIS LEMON LAW

I’ve had several inquiries about the Illinois Lemon Law in the last few months. Those of us, who are old enough, remember in the late sixties and seventies, seeing cars with lemons painted all over them, or with the word lemon repeated maybe fifty times all over a new car. There was a time when Detroit was turning out bad cars on their assembly lines, day after day. If you bought one of these cars that was flawed at the point of manufacture, you were stuck with it. Rumors suggested that disgruntled employees purposely sabotaged cars for days leaving thousands of cars that were lemons, or that simple design flaws, or defective products may have left tens of thousands of the same make and model flawed.

Eventually most states passed lemon laws that were directed at providing a way to correct the wrong that was done when a consumer purchased a defective new car that was not readily repairable by a dealer. The law is directed only at vehicles, and only new ones.

If you purchase a new car or light truck or van (under 8,000 pounds), and the vehicle is out of service for 30 or more business days, you can make a claim under the law. It does not cover used cars, motorcycles or boats. The law only covers vehicles in their first twelve months or 12,000 miles of use, whichever comes first, after a new purchase.

Of course virtually all new cars with less than 12,000 miles will still be under warranty, but if the dealer chooses to repeatedly try to service the vehicle rather than replace a lemon, you can make a claim under the law. Work through the problem with the dealer first, but don’t forget, that your rights under this law expire in twelve months, or 12,000 miles.

Find your manufacturer’s Industry Third Party Dispute Resolution Program (either your owner’s manual or the dealer will have the necessary information). Keep meticulous records of the problems with the car, the dates you identify the problems and all contacts with the dealer. With the price of new cars, if you buy a lemon, it would probably be prudent to consider working through a lawyer to protect your claim. The Illinois Attorney General’s Office may also be able to help.

If you win your claim, you should get a replacement vehicle of value similar to your lemon, or the dealer will buy it back from you at its value after normal depreciation.

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BOATING UNDER THE INFLUENCE IN IL

You commit Boating Under the Influence (BUI) if you operate, or are in control (even if parked, and not moving) of a watercraft while your blood or breath alcohol concentration is at .08 or greater, or you are under the influence of alcohol or any other drug, legal or illegal, to a level that renders you incapable of safely operating a watercraft. In other words, even without a chemical test, if the arresting authority can convince a judge or jury that you were drunk, you can be convicted. If a blood or urine test result shows that you have ANY cannabis or controlled substance in your body you can be convicted. Remember that even if the drug in your system was prescribed, you can still be found guilty of BUI if it affects your ability to control the watercraft.

If there were no injuries arising from your first BUI, it is a Class A misdemeanor (up to 364 days in jail). If it is your second BUI, or if there were injuries, or if you are operating a watercraft while your right to do so is suspended or revoked, it can be charged as a Class 4 felony (possible years in prison ). It’s a class 2 felony if a death was involved. Have a child under 16 in the boat at the time and a conviction will cost you a minimum of $500 and you will have to do 5 days of community service. If an emergency response team is summoned because of your BUI, you will have to pay the costs for the team’s services.

If you take the breath, blood, or urine test, no suspension of your boating privileges for your first offense, but the next one will be a one year suspension of your boating privileges, not your right to drive a car (but be aware, some legislatures are looking at suspending driving privileges for BUI). Get court supervision for the first BUI, and you will still be suspended for the next one. A felony conviction is accompanied by a 3 year suspension.

If you operate a boat in Illinois, you are subject to the implied consent doctrine, meaning that you agree to take a blood, urine, or breath test if properly arrested for BUI. If the arresting officer can convince a judge that he had probable cause to arrest you for the offense, and you don’t take any or all the tests the officer demands, you can be suspended for 2 years. You will have 28 days to contest the suspension in writing.

For a more complete explanation of boating rules you can visit the website: http://www.boat-ed.com/il/handbook/ski.htm

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IL BOATING LAWS

For a more complete explanation of boating rules you can visit this website: http://www.boat-ed.com/il/handbook/ski.htm. Following are the highlights:

1) Unless you have a sailboat, an unpowered vessel operated on a private lake, or a vessel registered out of state used in IL for less than 60 days, your boat must be registered with the Illinois department of natural resources (IDNR). Registration is valid for 3 years, and expires on June 30. Contact the IDNR to register (866-867-3542).

2) All vessels manufactured after 1972 have hull identification numbers. Find yours, and write it down, keeping it in a safe place, away from the boat.

3) Children under 10 years of age may not operate any motorized vessel. Children between 10 and 12 may operate a motorized vessel, only if they are under the direct control of a parent, guardian, or someone at least 18 years old designated by the guardian to supervise the child. Persons 12 through 18 may operate a motorized vessel only if they are accompanied by an approved supervisor; of they complete a boating safety course accepted by the IDNR.

4) All vessels must have at least one Personal Floatation Device (PFD) for each person on board. All children under 13 must wear one. All Jet Ski users must wear one. If your jet ski has a wrist attached cut off switch, the user must attach it to her wrist.

5) All vessels with internal combustion engines must have fire extinguishers.

6) If your boat motor is too loud, you can be ticketed.

7) All motorized vessels must have an air horn, bell, or whistle that can be heard for at least one half mile.

8) Navigation lights must be used after sunset, before sunrise, and during periods of restricted visibility. If your boat is anchored or moored in an area other than a designated mooring area between sunset and sunrise, you must display a white light above the boat that is visible for one mile.

9) Knowing the right of way rules can save lives. Learn them!

10) Boating accidents involving injury to anyone or with more than $2,000 in property damage must be reported to IDNR.

11) You must obey IDNR officers, or any law enforcement officers, and slow your boat first, and stop if so ordered.

12) If you are towing a skier, you must have a designated observer of that skier.

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DUI BLOOD ALCOHOL LEVEL WILL DROP TO .05

Not today, not next month, maybe not by January 1, 2014, but the current Illinois blood alcohol content (B.A.C.) of .08, at which you are presumed to be under the influence if in control of a vehicle, will eventually drop to .05.

The National Transportation Safety Board (N.T.S.B.) recently voted to “recommend” to all the states in the U.S. that they should lower their B.A.C. to .05. Their position is something much more than a recommendation. In reality, the N.T.S B. will require all the states to lower their presumed level of intoxication, which currently is .08 in all fifty states – to .05. No state will refuse to do as told by the N.T.S.B., or they will lose millions of dollars in federal funding. Just as the N.T.S.B. did when the states lowered the B.A.C. to .15, then .10, then .08, we can expect another new lower B.A.C. in a few years after the .05 level is implemented by all the states.

It must be made clear, that this new .05 level has not yet been made the law, but it is only a matter of time before it will be the law.

At the .05 level, a 120 pound woman will be classified as drunk after drinking 2 twelve ounce beers in one hour and a 200 pound man will be drunk after 4 beers in two hours. As you can imagine, the bar and restaurant associations will do all they can do to oppose the reduction in the legal limit, but it is only a matter of time before the .05 limit is the law.

There are estimates that lowering the B.A.C. to this level will save 1000 lives per year, and clearly that is a good thing. The other side of the change is that hundreds of thousands of drivers who are law abiding, careful driving, normal citizens – will become criminals after that last beer.
In my experience as a DUI lawyer, too many people are arrested for lighting cigarettes, or not using turn signals, or changing radio stations, rather than being actually unable to control their cars due to intoxication. Any momentary weaving within your lane of traffic gives an officer the right to pull you over for DUI, and lowering the B.A.C. will permit the police to cast an even broader net to criminalize the most responsible drinkers.

In most instances it is not illegal to work 6 ten hour shifts in one week, and drive home, in a daze after dark; or to talk on your cellphone paying inadequate attention to those around you; or to pay attention to the crying child in the back seat; or to be half asleep driving to work in the morning. All these activities involve some level of personal responsibility that can diminish one’s ability to control a vehicle – yet none are criminal like driving after two beers. (Note that the Illinois General Assembly is presently considering whether to make it illegal to drive a car while using a cell phone.)

I don’t advocate criminalizing these activities, but do suggest that driving after two beers should be no more criminal than all the other things we do that compromise our ability to flawlessly control a vehicle. Lowering the B.A.C. punishes the wrong people.

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