Attorney James G. Dimeas
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DUIIt’s that time of the year again. The Alliance Against Intoxicated Motorists has released its annual study that keeps track of DUI arrests throughout Illinois. Once again, Rockford and Elgin top the list of towns in Illinois reporting the most DUI arrests in 2017. In 2017, Rockford reported 490 DUI arrests compared to 459 in 2016. The 2017 figures represent a 6.8% increase over the 2016 DUI arrest figures. Elgin came in second with a total of 418 DUI arrests in 2017. Elgin had 365 DUI arrest in 2016, a 14.5% increase over 2017.

Every year, Schaumburg based Alliance Against Intoxicated Motorists sends out surveys to roughly 700 police departments throughout the State of Illinois. Most of the police agencies respond to the surveys and the Alliance Against Intoxicated Motorists releases the figures for DUI arrests throughout all of the cities and towns in Illinois and gives us a picture of which towns are more aggressive when it comes to DUI arrests.

The lengthy list of DUI arrests compiled by the Alliance Against Intoxicated Motorists has the DUI arrest figures for virtually every town and village in the State of Illinois. I want to include the figures for local towns and villages that may be of interest to my readers. Chicago is not on this list because Chicago has far and away the most arrests and is included on a seperate list published by the Alliance Against Intoxicated Motorists. The first number in the list below is what place the town or village is in and the second number is the total number of DUI arrests in 2017:

Search-WarrantIn a closely-watched decision regarding the privacy rights of cell phone users and the power of the police to obtain cell phone tracking information, the United States Supreme Court ruled that the police must obtain a warrant before obtaining the tracking information for the cell phones for most cellphone users.

Timothy Carpenter was suspected in a series of robberies of RadioShack and T-Mobile stores in several States throughout the country. The FBI had obtained a simple court order allowing them to obtain 27 days of Carpenter’s cell phone location data from Sprint and from MetroPCS. The court order that had been used by the FBI was a simple court order that did not require that the FBI show probable cause for a search warrant. In response to the court order, the FBI was given a 12,898 location point catalog of where Carpenter had been over a period of 27 days. The location data represented an average of 101 data point locations per day. Carpenter was eventually convicted of the robberies and sentenced to over a hundred years in prison. During closing arguments, the prosecutor made a major point of the location data to help bolster his argument that Carpenter had committed the robberies.

On appeal, Carpenter argued that the location data that had been obtained by the FBI should not be admitted in his case because they were obtained without a search warrant. Lower courts disagreed with Carpenter and ruled that the FBI was not required to obtain a search warrant in order to get the location data from the cell phone providers.

Criminal-Case-300x200I recently met with a client who had a jury trial for a Domestic Battery charge. After several days of a trial and deliberations, the jury could not agree on a verdict and the judge declared a mistrial. Shortly after the mistrial was declared, the prosecution decided that they would retry the client and he came to my office looking to hire me for the second trial. The client had several questions about what happens at a re-trial and weather Double Jeopardy applied to his case. I answered his questions and realized that people misunderstand what Double Jeopardy means.

In order for you to be convicted of a crime by a jury, all 12 members of the jury must agree that you are guilty. At the same time, in order to be found not guilty of a crime by a jury, all 12 members of the jury must agree that you are not guilty. Their verdict must be unanimous. If a jury is unable to come up with a unanimous verdict, the Court will declare a mistrial. A mistrial does not necessarily mean that the case is over. When a mistrial happens, the prosecution will decide whether they want to try you once again for the same crime. The decision about whether the state will try you again for the same crime is a decision that rests with the prosecution. From experience, prosecutors will take a variety of factors into consideration when deciding whether to have another trial. A major factor for prosecutors is how close did they come to winning the first jury trial? In other words, if a vast majority of the jurors were in favor of finding you guilty, it is much more likely that the state will try you again. If the vast majority of the jurors were in favor of finding you not guilty, it is much more likely that the state will drop the case and not seek another trial.

The legal grounds for you not to be subjected to another trial can be found in the Fifth Amendment to the United States Constitution and Section 10 of the Illinois Constitution.

Police-Interrogation-300x200I recently met with a client whose son had been questioned by the police at the police station and charged with a Retail Theft. The client was complaining that the police questioned her son at the police station without providing a lawyer for him and without allowing her to be present with her son. She wanted to know whether the police could question her son without her being present. Here’s what I told her:

What is Considered a Minor in the Criminal Justice System?

As with many other things, the criminal justice system has different definitions for common terms than most people realize. For instance, what is considered insane by the medical profession is different than what the criminal law defines as insane. The same applies to what is commonly considered to be a minor and what is commonly considered to be an adult. In the real world, 18 years old is the cut-off between being a minor and being an adult. But under the criminal law, whether you are treated as a juvenile, or minor, or an adult, depends on whether you are being charged with a felony or a misdemeanor. If you are being charged with a misdemeanor, you will be considered an adult if you were 17 years or older when the offense occurred. For felony offenses, you will be considered an adult if the offense occurred when you were 16 years or older.

ConfessionYesterday, the United States Supreme Court issued several opinions on cases that had been closely watched by observers. The case that has received most of the public attention involves legalized sports betting. But lost in the coverage was the release of two opinions involving the 4th and 5th Amendment rights of criminal defendants. These opinions expand the rights of motorists in their vehicles and the rights of criminal defendants facing prosecution in Criminal Courts. I want to take this opportunity to discuss these two cases and how they will impact the criminal law.

Motorists Rights Expanded

The first case involves the appeal of the conviction of Terrence Byrd’s appeal of his conviction in Pennsylvania of Possession of Heroin and the Possession of Illegal body armor. Byrd plead guilty but reserved his right to appeal. Byrd had been sentenced to 10 years in prison. Byrd appealed and his conviction had been upheld by the Federal Court of Appeals. Yesterday, his conviction was overturned by the United States Supreme Court.

file221258166932-300x225Everybody knows that if you are arrested and charged with a Retail Theft, or Shoplifting, you will be facing serious criminal penalties that could have serious implications for your future. How many people are surprised to find out that in addition to the criminal implications of a Retail Theft, they will probably soon be facing a potential Civil Penalty. This part of a Retail Theft arrest is not well understood by clients. Many clients mistakenly believe that what happens in one aspect of a Retail Theft case will affect the other aspect of the Retail Theft case. In other words, many people believe that if they just pay the Civil Penalty then the criminal case will be dismissed. This is not how things work and people need to understand what the Civil Penalty is and how it relates to a Retail Theft.

Most people charged with a Retail Theft will be facing a Class A Misdemeanor. The potential penalty for a Retail Theft depends on the value of the item(s) that you stole, or attempted to steal. The cut-off between a Misdemeanor and a Felony officially is $300. If the aggregate value of the items is $300 or less, you will be charged with a Misdemeanor. If the aggregate value of the item(s) is $300 or more, you may be charged with a Felony. A Class A Misdemeanor conviction for a Retail Theft carries a maximum punishment of up to one year in county jail and a maximum fine of $2,500. Most Felony Retail Theft charges are Class 4 Felonies in Illinois. A Class 4 Felony charge for Retail Theft in Illinois carries a maximum punishment of one to three years in prison and a maximum fine of $25,000.

In the past few years I have seen a drastic increase in the number of Retail Theft cases charged as a Municipal Ordinance Violations. Almost every City, Town, and Village has set up a Municipal Violation court system that moves cases from the County Criminal Court to an Administrative Municipal Ordinance Violation Court that is controlled by the Town or the Village in which the offense occurred. The Judge who presides over the case is an Administrative Law Judge who is employed by the municipality. Many times the Administrative Law is a full-time employee of the town. The standard of proof in a Municipal Court is much lower than in a Criminal Court. A Municipal Ordinance Violation is a civil matter between you and the municipality. The Rules of Evidence are relaxed and the penalties that can be imposed by an Administrative Law Judge in a Municipal Court are civil in nature. In other words, the penalties are monetary as opposed to Criminal. However, depending on the County, the Town, and the facts and circumstances of your arrest, the Municipal Ordinance Violation may appear in a background search. If you were fingerprinted, your Retail Theft may appear in a background search. Some Counties will put your case in the Court computer system which could be found in a background search. Many employers will not hire someone if they suspect that the prospective employee may steal from them. Therefore, it is imperative that you consult with an experienced Retail Theft lawyer if you receive a Municipal Ordinance Violation. An experienced Retail Theft attorney will know whether there’s a possibility that a Retail Theft Municipal Ordinance Violation may appear in a background search. You cannot simply assume that a Municipal Ordinance Violation for Shoplifting will not appear on a background search.

Illinois-DUIMost drivers will never have to decide whether to take a breathalyzer test or not. But if you are driving a vehicle in Illinois, you should be aware of what could happen to you and to your license if you are ever pulled over by a police officer and asked to take a breathalyzer test.

If a police officer pulls you over and suspects that you may be under the influence of alcohol, that police officer has a right to take you down to the police station and ask that you take a breathalyzer test. If you are ever faced with a situation like this, you have to make a quick decision between two choices. Should you take a breathalyzer test or should you refuse to take a breathalyzer test? If you have not had any alcohol to drink, then the choice seems pretty clear. Taking a breathalyzer test would prove that you have no alcohol in your system. But if you have been drinking and are unsure about whether you should take a breathalyzer test, you need to be aware of what the consequences could be of refusing to take a breathalyzer test.

When a police officer asks you to take a breathalyzer test, the officer will hand you a document entitled, “Warning to Motorist” which will inform you that if you submit to a breathalyzer test and the test indicates that your blood alcohol level was .08 or above, your driver’s license will be suspended by the Illinois Secretary of State for 6 months. If you refuse to take a breathalyzer test, your driver’s license will be suspended for 12 months by the Illinois Secretary of State. These driver’s license suspensions will take effect on the 46th day after your arrest.

DUI-1-300x200I recently met with a client who was arrested and charged with a DUI after he had pulled over his car to take a nap because he was afraid that he had too much to drink. You do not have to actually be driving your car to be charged with a DUI. You could be charged with a DUI as long as you had actual physical control of a vehicle on the public roadway. So as long as you were in a vehicle and you had the keys near you, the law will consider you to have been in actual physical control of the vehicle.

In the case I was recently consulted for, the client had been at a bar with some co-workers after work. He had been drinking when he decided to go home. His car was parked down the street from the bar. When the client entered his vehicle he immediately realized that he was in no condition to drive and fell asleep in the front passenger seat of his vehicle. The vehicle was not running but the car keys were in his pocket. An off-duty police officer saw him sleeping in his vehicle and started tapping on his windshield to make sure that he was okay. After the off-duty officer was unable to get a response from the client, he called the local police to report that someone may be unresponsive inside of a parked vehicle. The police officer arrived and was able to wake up the client. When the officer made contact with the client he noticed a strong odor of alcohol coming from his breath and the client appeared to be under the influence of alcohol. The police officer had the client exit the vehicle and perform field sobriety tests. The police officer arrested the client for suspicion of being under the influence of alcohol and took him down to the station. At the station, the officer requested that the client take a breathalyzer test and the client refused. In spite of there being no breathalyzer test, the client was charged with a DUI and given a court date.

In Illinois, if you take a breathalyzer test and your blood alcohol level is .08 or above, you will be facing a mandatory 6 month suspension of your driver’s license if this was your first DUI. If you refuse to take a breathalyzer test, you will be facing a mandatory 12 month suspension of your driver’s license. The suspension of your driver’s license will go into effect 46 days after the date of your DUI arrest. The same law that provides for the suspension of your driver’s license for a DUI also provides a mechanism by which you can challenge the suspension in court. In order to challenge a suspension of your driver’s license for a DUI, you must file a Petition to Rescind the Statutory Summary Suspension before the same court that is hearing your DUI case.

DUI-300x226Police get frustrated when they pull over a motorist for suspicion of Driving Under the Influence of Alcohol and the driver refuses to submit to a breathalyzer test when the officer requests that they take such a test. The reason behind their frustration is because, in many cases, if they do not have a breathalyzer test result, it becomes harder for the state to prove in Court that the driver was operating a motor vehicle under the influence of alcohol.

The Illinois Legislature has clearly given motorists the right to refuse to submit to a breathalyzer test. The Legislature has imposed a severe penalty for refusing to submit to a breathalyzer test when requested to do so by a police officer. If you refuse to submit to a breathalyzer test you will be looking at a mandatory 12 month suspension of your driver’s license. The suspension will kick-in 46 days after you are arrested for a DUI unless you are able to persuade a court otherwise.

For several years, police and prosecutors have been trying to get around a motorist’s refusal to submit to a breathalyzer test. For the past several years, Kane County has established “no-refusal” weekends. “No-refusal” weekends were centered around certain events like New Year’s Eve and Fourth of July weekends. Kane County authorities would set-up roadblocks to close off certain roads and stop every vehicle. If the police suspected that the driver of a certain vehicle was Driving Under the Influence, they would request that the driver submit to a breathalyzer test and if they refused, the police would obtain a warrant from a judge who was on the scene to force a blood draw from the driver. If the driver refused to comply with the judge’s order, the driver could be arrested and charged with Contempt of Court.

Arrest-300x226Being arrested by a police officer is something that nobody would ever want to experience. While being arrested by a police officer does not automatically mean that you will be charged with a crime, it usually means that you are suspected of committing a crime and you should be aware of what may happen and what you should do to protect yourself from what the future may hold.

When you are arrested by a police officer, this means that you are in custody. This means that you are not free to leave. If you are arrested, you will be taken to the local police station. If the police believe that they have enough evidence to prove you guilty beyond a reasonable doubt in court of committing a crime, you may be charged with a crime. However, if the police believe they need to gather more evidence, they can hold you in custody for a limited period of time for questioning.

Whether you are charged with a crime or being held for questioning, you need to understand that you are under no obligation to answer any questions asked by the police. What you need to do is provide some basic information, such as your name and address, but you are not required to answer any questions involving the reason behind your arrest.