Archive for March, 2014

STEREO EAR BUDS AND MUD FLAPS

As a DUI lawyer, I know that many, if not most of the people arrested for DUI, are stopped by an officer for something other than impaired driving. Failing to use turn signals, speeding, failure to dim headlights, and equipment violations (inoperable lights and signals) all give the officer the right to stop the driver, and if there is an odor of alcohol on the driver’s breath, he can be convicted of a DUI, and/or subject his vehicle to a search.

My other point is that even if you were totally innocent of anything other than the equipment violation, and you did not know you were committing such a violation, you need to know about some of these obscure legal driving requirements.

Years ago in college, too poor to buy new speakers, I installed a jack in my car stereo system so I could use stereo headphones. That was back when all headphones looked like a can of soup beside each ear held from a strap over your head – an officer couldn’t help but see the headphones. I was ticketed for wearing stereo headphones.

Fast forward years later to now, and Illinois has a law that says that you must use a headset, or hands free device if you use your cellphone while driving. I therefore logically concluded that surely if it was now legal to play loud stereo speakers in your car, and to wear a headset for your cellphone, that it is OK to wear stereo headphones. Of course, today we have ear buds that are not the stereo headphones of forty years ago.

BUT the law has not changed. You still cannot wear speakers (or receivers) on BOTH ears. So when you use your I-Phone to listen to your music list, and wear ear buds, there is a (usually bright white) wire coming from each of your ears that will be visible to the police. Having those buds in each ear is a traffic violation that gives any officer the right to pull you over, and could result in a search of your vehicle.

And I recently discovered that if you drive a pick-up truck without mud flaps, that you are committing an equipment violation. The relevant statute goes on for a whole page, describing exactly how those flaps should be shaped. You don’t need flaps for your SUV, for your station wagon, a van, or even a passenger van that carries as many as nine people. After twenty five years as a lawyer, and having read thousands of police reports, without ever hearing of such a law, I now know, and so do you, that you can’t legally drive a pick-up truck without mud flaps.

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ILLINOIS NO FAULT DIVORCE

Don’t think in a few words that I can explain to you how to acquire a “no-fault” divorce — but I can convey to you the essence of the concept.

In a traditional divorce there are ten grounds that can be alleged: physical and mental cruelty, adultery, etc. In such a divorce, there must be a bad spouse and a good spouse, or even two bad spouses. In a no-fault divorce, there can be no bad guys, just a failed marriage.

The law requires that in order to allege no-fault as grounds, the couple must have lived separate and apart for a period of two years. Or, if both parties so choose, they can waive that two year period, and instead inform the court that they have lived separate and apart for six months. The actual meaning of living separate and apart is left to the judge to determine.

Case law has provided the following possible elements of living separate and apart. Such an interpretation of the meaning of separate and apart can permit even a couple residing in the same place, to allege living separate and apart. At least one appellate court interpreted separate and apart as meaning that the couple must live separate lives, even if they live under the same roof. The judge can use a combination of some or all of these if he so chooses, the couple: no longer sleeping together, living in separate bedrooms, doing their own laundry, having ceased marital relations, eating meals at different times, taking separate vacations, avoiding conversation or communication, providing no contributions to household expenses, or other indications that the relationship has ceased.

A divorce is something that if done incorrectly, can haunt you for nearly the rest of your life. Especially if there is property to be divided, or if there are children, you will probably never benefit by the advice of a lawyer greater than during a divorce.

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COMMERCIAL PROPERTY AND SIDEWALK SNOW REMOVAL

If you read my last article, you will remember I made reference to the “Illinois Snow and Ice Removal Act.” It is important to understand that the law applies only to residential property. The legal obligations for businesses are very different.

Most businesses are within a city, so make certain you know the local municipal ordinances regarding your obligations as a merchant in your city.

The next principle that applies is the same as for residential property. If you disturb the natural accumulation of snow, and doing so creates a more dangerous situation than if you had not disturbed the snow (the natural accumulation rule), the business owner can be found liable for injuries from slipping on the ice. This is usually the situation where snow is piled on a parking lot, melts during the day, and then creates slippery ice the next morning. So should you just leave the snow where it is? NO!!!

An Illinois court explained the rule clearly when it said that the operator of a business has a duty to provide a safe means of entering and leaving the property. The court went on to say that business owners are not excused from the obligation to keep their property safe by the “natural accumulation” rule that protects residential property owners from liability.

If you own a business, you are inviting customers to your property. You have a legal obligation to keep those invitees safe from dangers inside and outside your structure. The same principle applies to wet slippery floors, falling ice cycles, icy steps or parking lots, and snow covered walks.

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SHOULD I REMOVE SNOW FROM MY SIDEWALK ?

We’ve probably all heard that if you shovel your sidewalk after a snow, that you can be found liable if someone slips, so it is better to just leave the snow and ice as it is.

Let’s deal with residential property in this article, as opposed to commercial property. Believe it or not, there is a 1986 law called, “The Illinois Snow and Ice Removal Act.” The law states that it should be public policy that any property owners or residents removing snow or ice from sidewalks abutting their residences should not be found liable for damages because of that removal. This law covers you, your landlord, your roommate, and the kid you hire to shovel the snow.

There a few minor exceptions to this rule. If you commit “misconduct” due to “acts or omissions” and that misconduct was “willful or wanton” you can be found liable if someone falls on the sidewalk. And pay particular attention to the word “sidewalk” in the name of the act. At least one court has interpreted the act not applicable to driveways – but it does apply to your porch. In other words, you do not have the protection of the snow removal act in your driveway, but you are protected on your sidewalks and porch.

If someone is injured on your property, they will probably try to collect from your homeowner’s insurance company, whether you shoveled the snow or not. Just be sure you don’t make things worse by shoveling. If you leave piles of snow above the sidewalk, that snow will melt during the day, and water will collect on the sidewalk. In the morning there will be ice – ice that is there only because of your shoveling. So think of the consequences of clearing sidewalks. Be sure melting snow leaves no ice where a person can slip.

And if you live in town, check with the city hall to see if your community has a snow removal ordinance. Ask for a copy of it, or have someone explain to you.

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CELL PHONE NUMBERS ARE NOT BEING RELEASED TO TELEMARKETERS

There is an email being circulated that has reached viral status, claiming that soon a cell phone, phone book will be printed, and that phone book will make everyone’s cellphone numbers available to telemarketers. The concern is that telemarketers will call cell phones and either we will answer and be charged for the phone time by our cellular provider, or the telemarketer will leave a message on our phones and when we retrieve the message we’ll be charged.

It is illegal for telemarketers to use auto-dialers to call wireless phone numbers. An auto-dialer lets the telemarketer spend time only talking on the phone, while a computer program makes the calls, and puts the caller on hold until the salesman is ready to talk. Very few, if any, aggressive telemarketers can do their jobs without auto-dialers.

Although I cannot confirm its legitimacy, there is a website that offers to give you the name of the owner of a cell phone number if you connect to the site, and pay a 99 cent fee. The website is “Intelius” – but please remember that I do not know if it works. I entered my cell phone number, and it correctly identified Southern Illinois as the origin of my number, and required me to pay to get the name of the person with the listing. Telemarketers probably won’t be interested in paying a dollar to get cell phone numbers.

The viral email referred to, states that in order to avoid having your cell phone number available to telemarketers, you have only a few days to register your cell phone with the Federal Do Not Call List. That warning is false. You can register anytime you wish by logging on to www.donotcall.gov, or calling 1-888-382-1222 from the phone you want to register.

And one other website that I can recommend is www.snopes.com. Anytime you receive an email that you are not sure about, and would like to find out whether it is legitimate, log onto Snopes and you should get a clear, reliable, unbiased analysis of the accuracy of the email. I offer thanks to Snopes for making much of the information in this article available.

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NEW JANUARY 1, 2014 ILLINOIS LAWS

1) DON’T USE YOUR CELL PHONE WHILE DRIVING – See my previous article about this law on my blog. The essence of the law is that you cannot have a hand on a cellphone while driving. You can use a hands free phone, or a speaker phone, but do not hold a phone while driving. And as before, there are greater penalties for breaking this law in school or construction zones.

2) CONCEALED CARRY BECOMES LEGAL – This doesn’t mean that starting January 1, that you can carry a concealed firearm; it means that beginning on that date you can apply for a permit. Contact the Illinois State Police, or see their website for details.

3) TANNING BEDS – If you are under 18 years of age, you can no longer legally use commercial tanning beds.

4) SPEED LIMIT GOES FROM 65 T0 70 – On interstate highways, or if so designated by the Department of Transportation, 4 lane roads with a separation between the lanes,. But beware that larger municipalities with such roads in their jurisdiction can leave the speed limit at 65mph.

5) CIGARETTE BUTS ARE LIKE ANY OTHER LITTER – You can’t throw them out your car window and you can’t flick them into the gutter while walking down the road or you are risking a $1,500 fine.

6) BREEDERS CAN’T SELL SICK DOGS AND CATS – New law holds private breeders to some standards that apply to pet shop operators. Breeders must disclose certain known serious illnesses of animals they sell, within a certain period of time, or pay veterinary costs, or accept return of the animal.

7) YOU CAN LOSE YOUR AUTOMOBILE DRIVER’S LICENSE FOR BOATING UNDER THE INFLUENCE.

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WHEN TO USE 911

The first rule is that if you are not sure whether to use 911, but you have a genuine belief that you should do so – call 911. As long as you don’t make a habit of repeated non-emergency, 911 calls, and as long as you believe the information you are providing in your call is true and an emergency, let the operator tell you whether it is an emergency or not.

Illinois law regarding improper 911 calls makes it a felony to call 911 “for the purpose of making or transmitting a false alarm or complaint and reporting information when, at the time the call or transmission is made, the person knows there is no reasonable ground for making the call or transmission and further knows that the call or transmission could result in the emergency response of any public safety agency.” This offense can be a felony, but to be convicted, the call must be false, and you must have no reasonable ground for making the call. In other words, if you truly believe there is an emergency – call 911.

What is an emergency, in the eyes of the 911 system? Generally speaking, anything that requires an ambulance, fire truck, or police vehicle to rapidly respond to your call will be a legitimate emergency. In the words of a larger Illinois Police Department, an emergency is defined as, “any serious medical problem (chest pain, seizure, bleeding), any type of fire (business, car, building), or any life-threatening situation (fights, person with weapons, etc).” The same department goes on to say that “you are also urged to call 9-1-1 to report crimes that are in progress, whether or not a life is threatened.”

A few more words are in order regarding 911 calls. Do not program 911 into your cell or home phone. You don’t want to mistakenly touch the wrong memory dial number, and mistakenly call 911. If you ever mistakenly call 911 – DO NOT HANG UP!!! Let the operator know that your call was a mistake; or you might soon be visited by emergency personnel. You could cause a person who really needs emergency response to wait for the responders to leave your non-emergency, and the delay could cost someone his or her life.

If you have a cellphone, and your car gets a flat tire away from home, or your car breaks down, depending on where your car is located – you might have an emergency. If the car is off the road, and you are safe, a call on your cellphone to 411 might suffice (might cost a few dollars). Find out if your cellular provider makes 411 services available to you. If so you can tell the operator where you are, and the operator can call you a wrecker to tow your car.

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