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Ask Our Lawyer – July 2021

On Behalf of | Aug 18, 2021 | Firm News


NOTE FROM ROD – This article is worth repeating and thanking both the Officer and Sean McDonald for their efforts.

Sean McDonald was having a wonderful day on his bike until he reached the intersection of Bronk and Caton Farms Roads.  There he was confronted with a notorious traffic signal device from hell – well known around the Joliet area.  This type of signal delay problem is the reason for a state law allowing bikers to proceed through a red signal after waiting a specified time.

So much time elapsed for Sean, that he had time to get off his bike to adjust his saddle bags.  After he complied with state law,  he proceeded as the red light still glared.  About the time he shifted into 3rd gear, one of Joliet’s finest was in the rear view mirror and he had an inkling of the problem he was about to confront.

The conversation went like this.  Officer. “May I see your driver’s license”.  Sean. “No, because I did nothing wrong”.  Officer.  “Are you resisting”.  Sean, (humously) “Are you calling for backup”.  Sean knew she was stopping him for proceeding through the red light.  And he knew that he had waited the legally required amount of time, so he was like the Christian with four aces.  In defense of the officer, she was not a rider and had not been informed of the state law allowing a bike to proceed through a traffic signal under specified conditions.  Still, Sean couldn’t believe that the officer was citing him, despite his protests. And he couldn’t believe she was unaware of the law allowing him to “run the red”.  He invited her to look up the statute on her computer.  Neither could find it (more on that later), so Sean was cited for running the red light.  He couldn’t believe it.

At home that evening, he was surprised to see Officer Maureen drive up to his garage and exit her squad car – smiling.  Her first words were magnanimous, “ Sean, I am here to let you know that I am big enough to admit I was wrong and that you were right.  Give me the citation that I issued today as I have notified the department that the citation was incorrectly written”.  She had found the law authorizing Sean’s actions.

I salute both of these citizens; Sean for sticking up for his rights and Officer Maureen for admitting a mistake.  And I predict that Maureen will be running the department one of these days, and Sean will still be sticking up for what is right – the epitome of the perfect ABATE member.

Since this statute is so hard to find, I have provided the citation and summary of the Illinois law.  Clip this article and carry it with you as you may run into other non-riding officers that are unaware of the change.  Same goes for many other states that have a similar law.  And follow Maureen’s and Sean’s lead – keep it light and smile.

In short, this law allows motorcyclists to proceed through a red light after waiting the required time.

(625 ILCS 5/11-306) (from Ch. 95 1/2, par. 11-306)

3.5. In municipalities with less than 2,000,000 inhabitants, after stopping as required by paragraph 1 or 2 of this subsection, the driver of a motorcycle or bicycle, facing a steady red signal which fails to change to a green signal within a reasonable period of time not less than 120 seconds because of a signal malfunction or because the signal has failed to detect the arrival of the motorcycle or bicycle due to the vehicle’s size or weight, shall have the right to proceed, after yielding the right of way to oncoming traffic facing a green signal, subject to the rules applicable after making a stop at a stop sign as required by Section 11-1204 of this Code.


Q.   My friend was killed while escorting a funeral procession when a vehicle that was not part of the procession cut in between the vehicles of the procession. Unfortunately, while trying to drive through the procession, that vehicle cut into the path of my friend’s escort vehicle. What is the law concerning funeral processions and rights of way?

A.   Indiana, Illinois and Ohio all have strict regulations giving funeral processions the right‑of‑way. In fact, most states have laws granting a funeral procession the‑right‑of way. Most states prohibit any vehicle from driving between the vehicles of the funeral procession, except when a police officer authorizes same, or the vehicle is an emergency vehicle with a siren. Typically, state law forbids persons who are not part of the funeral procession from joining in for the purpose of securing the right‑of‑way rights granted by statute. Other requirements include the obligation of participating vehicles in the procession to follow the preceding vehicle as closely as is practical and safe, as well as requiring that headlights and taillights be illuminated. Additionally, those vehicles may display flashing amber lights. In some states the lead and last vehicle may display the vehicle’s hazard warning lights while in the procession.


 What do you do when the men and women in blue show up? What are your rights and what should happen? We get many inquiries from parents, neighbors, and concerned friends about their rights and what to expect. The following tips should help:

1. When am I arrested? You are arrested (or considered under arrest) when officers deprive you of your freedom of movement in order to have you answer for an alleged crime.

2. They want to question me – what are my rights?  Just like in those TV shows, you have the right to remain silent. If you don’t keep silent, anything you say can be used in court against you. If you start answering questions, you can stop at any time. You have the right to speak with your lawyer and have them with you during questioning.

3. The cops won’t let me go, but they haven’t arrested me. Can they do that?  An officer can temporarily detain you in order to ask for identification and to get an explanation of your presence at a particular time. You can be subject to a limited pat-down search to ensure that you have no weapons if the officer believes you are armed. You have the right not to answer the questions, but if you refuse to give any identification, the officer may have grounds to arrest you. Once this temporary detention is over, the officer must either arrest you or let you proceed on your way.

4. They want to arrest me, but don’t have a warrant.  Officers can make an arrest without a warrant if they witness the offense being committed. They can also make an arrest if they receive information from a credible person that the suspect committed a felony and is about to escape.

5. I got hurt when I was arrested. How much force can they use?  An officer is entitled to use reasonable and necessary force to overcome resistance. These terms are relative, so the amount of force they can use depends on the situation.

6. They want to search my house. Do I have to let them?  An officer may conduct a limited search of the surroundings without a warrant. If you are in your home, they may seize contraband, stolen property, or evidence of a crime in plain sight. They may also check the residence for accomplices. If you are in your car, they can search for weapons that could be used against them. They may not conduct a broader search without a warrant, unless they reasonably believe that the vehicle has evidence of crime or contraband.

7. I’ve been arrested. Now what?  You are going to be taken to the detention facility, where you will be able to talk to an attorney. They should also tell you the charge being alleged. You can be required to participate in a lineup, give a handwriting sample, give a blood or urine sample, or perform certain other tasks.

8. I want out!  Bail may or may not be set for your case, depending on the seriousness of the charge. If the charge is relatively minor, you may be released on your own recognizance. You can also petition the court to reduce the amount of bail set.

9. Where can I get a lawyer?  If you don’t already know one, you can call your state or county bar association or us for a referral to criminal lawyers. If you can’t afford to hire an attorney, you should tell the judge, who will ask you questions to determine if you qualify for a public defender.

10. My kid just called from jail. What rights do they have?  Children have the same substantive rights as adults. In addition, they have the right to have a parent with them when being questioned. Also, the procedures in juvenile court are generally closed to the public.


COMMENT FROM A MEMBER ON A PREVIOUS COLUMN. I read your article (May Issue)  on the insurance companies and loopholes that may be in motorcycle policies, specifically the “no contact” rule.  I have been in the insurance industry, specializing in motorcycle insurance. One of the reasons I became involved with ABATE is because so many riders are unaware of the kind of coverage they have or need, or how much is enough, and I have always promoted that each rider should take the time to read his or her policy, or take it to a professional that knows motorcycle insurance, for a review.

While I have moved on from selling motorcycle insurance, I make an effort to stay on top of the ever-changing policy forms from various carriers.  It is true that under the uninsured/underinsured section of a policy in the State of Indiana in order to have a valid claim for property damage or bodily injury, there must be contact with an identifiable driver and/or vehicle (Some enlightened insurance companies have softened this rule).  This, again, is also true for private passenger vehicle policy.  As I am sure you have had your experience with a variety of insurance companies, the sub-standard carriers are more apt to look for a “way out” of a claim, which is why I do my best to educate my fellow bikers. (COMMENT FROM ROD – IF YOU CAN, TAKE OR HAVE A FRIEND TAKE A CELL PHONE PHOTO OF THE ESCAPING VEHICLE – THAT MAY HELP AS SOME INSURANCE COMPANIES MAY ALLOW THE CLAIM WITH NO CONTACT.)

As far as carriers offering seasonal coverages, I will admit there are a few out there that still write policies this way.  However, if a bike owner purchases this policy from an agent, it is the agent’s responsibility to explain the coverage, just as I’m sure you explain to your clients what the law says and what their options are when they come to you for help.  It is not the carriers fault for offering this type of coverage.  There are plenty of bikers out there who put the bikes away for winter, no matter what, so they don’t have to pay for an entire year.  But there are many insurance companies that have now discontinued these types of policies because of the increase in riders and the change in rider’s needs.


Q.     Is it legal in Illinois for outriders (with reflective vests) to stop traffic at intersections with or without local law enforcement’s permission during a motorcycle run?   Eastern Il. ABATE chapter.

A.    Most states have statutes similar to the ones in Illinois. Section 11-1416 of Illinois Vehicle Code (625 ILCS 5/11-1416) (from Ch. 95 ½, par. 11-1416) reads:

Sec. 11-1416. Obstructing person in highways. No person shall wilfully and unnecessarily hinder, obstruct or delay, or wilfully and unnecessarily attempt to delay, hinder or obstruct any other person lawfully driving or traveling along or upon any highway within this State or offer for barter or sale merchandise on said highway so as to interfere with the effective movement of traffic. (Source: P.A. 80-911.)

The “outriders” could be charged with violating this statute as well as a “local ordinance”.  The key word in §11-1416 is “unnecessarily.”  Although the “outriders” might argue that it was necessary for them to obstruct traffic, I doubt if a judge would make such a finding.  After all, the group could have accommodated local traffic if it had chosen to do so.

For some intersections the law is not clear.  If the ride was on a through street with no stop or yield signs or traffic signals and if traffic on intersecting streets were required to yield to traffic on the through street, then it would seem that the outriders did not obstruct traffic.  If this is what happened, then they did not stop vehicles.  Rather, they were protecting through traffic from illegal and dangerous interruption by vehicles that were required by law to stop.  But even this situation is less than clear.

If the ride was running red lights or stop signs, then they should be glad no one was arrested for such violations.  And if there are collisions, they probably will get sued.

The rule of thumb is that only persons with police powers are authorized to control traffic movement.  These persons would include all police officers and most laws allow flagmen to control traffic at construction sites.  Also, it may be necessary (note the key word discussed above) for individuals to guide traffic during emergencies when police are not available.  Other than these very few exceptions, individuals who interfere with traffic are in violation of