Attorney James G. Dimeas
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DUI

I just received a phone call from a client who was arrested last night for a DUI and was asking me questions about the paperwork that the police gave her when she left the police station. More importantly, she wanted to know what a Statutory Summary Suspension means and how this will affect her ability to drive.  Because I’ve been handling DUI’s throughout Cook County, DuPage County and Kane County for 25 years, it’s easy to forget how confusing the whole DUI process can be for someone who does not handle cases like this every day.  So, I want to take this opportunity to explain the Statutory Summary Suspension process so you can understanding what is happening, and what will happen in the coming months with your driver’s license.

In Illinois, it is against the law to operate a motor vehicle upon the public roads while you are under the influence of alcohol or drugs.  If you are found guilty of Driving Under the Influence (DUI), you could be facing criminal penalties which cannot exceed one year in county jail and a fine of up to $2,500.  Most people know this.  But what many people do not know is that when you have a DUI case, you also have a separate legal matter between you and the Illinois Secretary of State which involves your driver’s license.  If a police officer requests that you submit to a Breathalyzer Test and your blood alcohol level (B.A.C.) is .08 or above, your driver’s license will be suspended for six months starting 46 days after your arrest for a DUI.  If the police officer asks you to take a Breathalyzer Test, and you refuse to take that test, your license will be suspended for 12 months starting 46 days after your arrest for a DUI.

A refusal to take a Breathalyzer Test is defined a little more broadly than simply refusing to submit to the test.  If you agree to take the test and are unsuccessful in submitting an adequate breath sample, then this will be considered a refusal to submit to a Breathalyzer Test. What typically happens is that the police officer will instruct you on what you must do to provide an adequate breath sample so that the machine can register a valid result.  You must pay close attention to what the police officer is saying because if you do not follow the police officer’s instructions and are unable to provide an adequate breath sample, the Secretary of State will try to suspend your license for 12 months because they will consider this to be a refusal.

Lake-County-Criminal-Charges-300x200The Lake County State’s Attorney’s office has announced a new program that allows first time misdemeanor and felony offenders an opportunity to avoid having a criminal conviction permanently on their record. The Lake County State’s Attorney’s Office calls it the Alternative Prosecution Program. If the crime involves violence the offender is not eligible for the program. The Lake County State’s Attorney’s office makes the final decision on whether an offender will be allowed into the program. Here’s how it works.

A request to enter the program can be made by the prosecutor, judge, defense lawyer, public defender, or police officer. The request can be made at any time but it is usually made at the first court date. The applicant will have to pay a $70 fee which is non-refundable. An applicant will be required to take a drug test. A positive drug test will not necessarily keep an offender from getting into the program.

After you pay your $70 fee, you will schedule an interview with a representative from the Lake County State’s Attorney’s Office. The screening process will include feedback from the victim and the arresting police officer. After this interview, if you meet all the requirements of the program, and you are acceptable to the Lake County State’s Attorney’s office, your case will be scheduled to be heard in front of the Alternative Prosecution Citizens Panel.   This panel is made up of citizens who live in Lake County Illinois. They will consider your case and make a recommendation to the Lake County State’s Attorney’s office. The Lake County State’s Attorney’s office will review your file and consider the recommendation from the Alternative Prosecution Citizens Panel and determine whether they will accept you into the program. The Lake County State’s Attorney’s office will make the final decision about whether you are accepted into the program or not.

Illinois-Felony-MisdemeanorWhat determines how serious a particular criminal charge in Illinois is depends on the potential criminal penalty that the crime carries. The lowest classification of crimes in Illinois is called a Misdemeanor. The highest classification of crimes in Illinois is called a Felony. Generally, any jail sentence for a Misdemeanor must be served in County Jail. Any jail sentence for a Felony must be served in State Prison. Any potential jail sentence for a Misdemeanor is under one year while any potential jail sentence for a Felony is one year or more. The range of penalties for Misdemeanors and Felonies in Illinois depend on what Class the crime you are charged with falls in. Every criminal offense is classified as a Felony or a Misdemeanor and assigned a specific Class. An experienced and knowledgeable criminal defense lawyer will know whether you are being charged with a Felony or a Misdemeanor and what class your criminal charge falls in.

Most Misdemeanor cases in Illinois are Class A Misdemeanors. A Class A Misdemeanor is punishable by a maximum of one year in county jail and a maximum fine of up to $2,500. An example of a Class A Misdemeanor is a Retail Theft or a simple Battery. But not all Class A Misdemeanors are treated equally. Domestic Battery is a class A Misdemeanor. However, if you are found guilty of a Domestic Battery, it can never be removed from your record while a Retail Theft can be. In addition, you can receive Court Supervision for a Retail Theft but you cannot receive Court Supervision for a Domestic Battery.

A Class A Misdemeanor that I am seeing more and more in court is Aggravated Speeding. You can be charged with a Class A Aggravated Speeding offense if you are speeding 35 miles or more over the posted speed limit. This crime used to be a simple speeding ticket. That is no longer the case in Illinois. So, if you are speeding 35 miles an hour over the speed limit, then you can be charged with a Class A Misdemeanor which carries a potential jail sentence of up to 364 days in County Jail and a fine up to $2,500.

Possession-of-Marijuana-300x200Because of the widespread use of marijuana in our society, it is common to see criminal cases involving people who have been caught with marijuana and charged with Possession of Marijuana. While several States have legalized the recreational use of marijuana, Illinois is not one of those States. The furthest Illinois has gone to legalizing marijuana is to enact the Medical Marijuana statute which allows for the medical use of marijuana.  Unless you have been approved to use Medical Marijuana, it is illegal to use and possess any amount of marijuana in Illinois. So what could happen to you if you are arrested by the police and charged with possession of marijuana?

As of about a year ago, if you were caught with any amount of marijuana whatsoever, you could be facing a Class A misdemeanor which carries a maximum punishment of up to one year in jail and a maximum fine of $2,500. But about a year ago, the law was changed to make the possession of 10 grams or less of marijuana a civil matter and not a criminal matter. In other words, if you are caught with 10 grams or less of marijuana, you will be given a ticket and charged with a Municipal Violation and not a criminal case. You will have to pay a fine, like you received a traffic ticket.  The marijuana possession law was changed so that someone charged with the possession of a small amount of marijuana could avoid having a criminal matter show up on a background search. The new law provides that six months after the municipal violation, your criminal record will automatically be expunged so that a charge of a small amount of the Possession of Marijuana will not show up on a background search. Expungements for possession of less than 10 grams of marijuana will happen July 1st and January 1st of every year automatically.

If you are caught with more than 10 grams of marijuana, you could be facing criminal charges. The potential penalties that you could be facing will depend on the amount of marijuana you are caught with. If the marijuana was more than 10 grams but less than 30 grams, you will be facing a Class A misdemeanor. If you are caught with over 30 grams but less than 500 grams, you could be facing a class 4 felony, which carries a possible prison sentence of one to three years. If you are caught with over 500 grams of marijuana but less than 2000 grams, you could be facing a class 3 felony which carries a potential jail sentence of between two to five years. If the weight of the marijuana was over 200 grams but less than 5000 grams, you could be facing a Class 2 felony which carries a possible prison sentence between 3 to 7 years. If the weight of the marijuana is over 5000 grams, you could be facing a Class 1 felony which carries a possible prison sentence of between 4 to 15 years.

Bond-Hearing-2Cook County Chief Judge Timothy Evans has issued an order which makes the greatest attempt yet to deal with overcrowding in Cook County Jail which is caused by defendants being forced to sit in jail while their cases work their way through the Cook County criminal justice system simply because they cannot afford to post the bond needed to walk out of jail.  Estimates place the number of defendants who are sitting in Cook County Jail just because they can’t afford to post bond at between 250 to 300 inmates per day. Most of those bonds are for $1,000 or less.  This problem plays a major role in the overcrowding of the 9,000 inmate Cook County Jail.  The overcrowding problem at Cook County Jail is causing a major strain on Cook County’s limited budget resources.

As of September 18, defendants charged with a felony will be interviewed before their bond hearing about their financial resources.  Criminal felony defendants are already interviewed by Pretrial Services before their bond hearing.  They are asked about their criminal record, current and past employment history, family history, residence status and mental and physical health status.  As of September 18 they will also be questioned about their financial resources.  The report will be presented to the judge presiding over the Bond Hearing.  According to Judge Evans order, judges will not be allowed to set a higher bond than defendants charged with a felony can afford provided that the defendants do not pose a danger to the public.

This approach, goes a long way towards addressing criticism that bond procedures in Cook County discriminate against the poor because it unfairly imprisons the poor, merely because they don’t have the money to post bond.  This problem disproportionately affects racial minorities.  This problem has been gaining attention as well as support from important Cook County law enforcement personnel.  Cook County Sheriff, Tom Dart, has been a long-time proponent of changing the procedures for the setting of bonds to release defendants who are poor and cannot afford the low bonds needed to be released from Cook County Jail.  Cook County State’s Attorney, Kim Foxx, has been taking steps to address this problem as well.  In March she announced that her office will not oppose the release of defendants who have a bond of $1,000 and under set.  Last month she announced that her office will agree to have Individual Recognizance Bonds set for more defendants. Individual Recognizance Bonds, also known as an “I-Bond” do not require that any money be posted for release.  Just a signature by the defendant that they promise to appear in court to answer to the charges filed against them.

Kane-County-Drug-Crime-300x226Last week, Kane County State’s Attorney, Joe McMahon, reported that Kane County Prosecutors have seen a rise in the number of criminal cases filed in Kane County in the first six months of this year compared to last year. McMahon reports that felony filings are up 15.7% compared to the same period last year. The increase in criminal cases in Kane County is happening with misdemeanor and traffic cases as well. In the first six months of 2017, 1,247 new felony cases were filed. During the same period last year, 1,078 cases were filed. Aurora, the largest city in Kane County, has seen a drop in the number of new felony cases. Most criminal cases in Kane County come from Aurora. The Village of Carpentersville has seen a rise in the number of Retail Theft cases. Carpentersville police attribute this to the opening of a new Walmart in Carpentersville. Elgin, the second largest city in Kane County, has seen a rise in violent crimes. McMahon is concerned with the increase in the number of criminal cases filed in Kane County since the number of criminal cases filed increased in 2016 as well.

In 2016, McMahon talked about the inability of authorities to make a dent in the number of Domestic Battery, or Domestic Violence cases filed in Kane County. In 2016, McMahon reported that of the almost 5,700 misdemeanor cases filed in Kane County in 2015, 1,219 involved Domestic Battery, or Domestic Violence charges. 200 Aggravated Domestic Battery felony charges were filed in Kane County in 2015. In the same 2016 discussion, McMahon talked about the impact that the heroin problem is having on Kane County. McMahon echoed his concerns about the heroin problem in Kane County last week when he announced an increase in the number of criminal cases filed in Kane County. Last week, McMahon stated that drug-related cases, “continue to be a serious problem.”

This morning, the Chicago Tribune is reporting about efforts that police departments throughout the State of Illinois are taking in an attempt to get drug users into drug treatment. Many local police agencies are trying to implement a program started by the police in Glocester Massachusetts a few years ago. The programs are commonly referred to as “Safe Passage.” If people walk into a police station and give up their drugs and ask for help, instead of placing them under arrest, the police will dispose of the drugs without filing criminal charges and will place them in drug rehab programs. More and more police agencies in Illinois are trying to do something like this with varying results. Authorities in Dixon Illinois report great success with their program. Dixon police report that 170 people have been placed into rehab with this program. More than half of the people placed in drug rehab have successfully completed their drug treatment. Dixon police report a 39% decrease in the number of misdemeanor and felony criminal cases filed.

TheftThis is one of the more common questions that I get asked when people call me wanting advice about how to deal with a situation like this.  Many people think that as long as it’s not the police asking questions, they have nothing to worry about.  Nothing can be further from the truth.  If your employer is suspecting that you stole something and they want you to come in to the office to discuss the matter, you need to be aware of how dangerous this situation can be.  This situation can be more dangerous than talking to the police.  Let me explain why.

Everybody watches TV shows involving police criminal investigations.  Everyone is aware of terms like “probable cause”, “search warrant”, “arrest warrant”, and “Miranda Rights”.  But most people do not truly appreciate exactly what these terms mean in the real world.  What happens on TV does not always reflect how the real world operates. What we commonly refer to as our constitutional rights only apply to when the government is acting against us.  In other words, if the police want to ask you questions and you are not free to leave, the police must read you your Miranda warnings.  The police must let you know that you have the right to remain silent and that anything you say can and will be used against you in court.  They also must inform you that you have a right to an attorney and if you can’t afford one they will provide one for you for free.  In order for questioning to continue, you have to waive your Miranda rights.  If the police want to search your vehicle or your desk at work, they need a search warrant or your permission.  But these rights do not apply to your employer or to your employer’s security agents, unless you work for the state, local or federal government.  Your employer is not the government.  The security agents work for your employer and not for the government. So, when your employer wants to ask you questions about a possible theft, they don’t have to read you your Miranda Rights.  When your employer wants to search your desk at work they don’t need a search warrant nor do they need your permission.

Many people falsely believe that since their employer and their security agents did not read them their rights then anything they say to the employer and their security agents cannot be used against them in court. Again, this would be a mistake.  Many Theft cases that I have handled were developed using information gathered by store security and loss prevention agents.  With many of those cases it was obvious that the police allowed the employer’s security agents to gather all of the evidence before the police got involved.  That’s because the police knew that it will be much easier for the prosecutor to use the evidence that was gathered by private security because private security is not hindered by the Constitution.  If you talk to your employer and their security agents and make a statement the prosecutor does not have to show that you waived your Miranda Rights when you made that statement.  Miranda does not apply to your employer and their security agents.  In many ways, this is very unfair.  If your employer asks you to come into the office and talk about a Theft investigation involving you, you know that if you do not show up to that meeting, you will probably lose your job.  And, as you try to keep your job, you may try to talk yourself out of it without realizing that you’re only digging a deeper hole for yourself.

402-ConferenceA Pre-trial conference is the usual way that a criminal case is resolved in Illinois without the need to go to trial. The Pre-trial conference is a meeting that occurs between the prosecutor, the defense lawyer, and the judge. The meeting is usually, but not always, behind closed doors, and the parties all get together to discuss the case to see if there’s a way to work out an agreement short of trial. Illinois Supreme Court Rule 402 allows for this conference to happen and sets forth the requirements for such a conference to occur. That’s why this type of conference is commonly called a “402 Conference” by lawyers and judges.

Supreme Court Rule 402 provides that a judge cannot request that the parties have a “402 Conference”. The request for a “402 Conference” has to be made by the lawyer for the defendant and the prosecutor must agree to participate in that conference. After the lawyer for the defendant requests that the court participate in a “402 Conference”, the court will admonish the defendant about what will happen at this conference and make sure that the defendant agrees to allow this conference to happen.

The judge will inform the defendant that the prosecutor will be present at this conference and will tell the judge about the facts of the case and what the witnesses are expected to say at trial. Many of the things that the judge will hear he would not normally hear unless the case went to trial. Some of the things that the judge will hear may not even be allowed to be introduced into evidence at trial. The judge will also find out about your criminal background. This is something that the judge would not hear about unless you were found guilty and the case proceeded to a sentencing hearing. At the same time, the judge will hear things about you that will be presented by your lawyer. Again, these are things that the judge may or may not hear about at the trial.

ArrestThis is a very frequent question that I get from people that call me. They want to know how the police can arrest them without any evidence that they did anything wrong. Just because you were arrested by the police and charged with a crime does not mean that you are guilty. An arrest and a criminal charge is just an allegation. The police officer who arrested you, and the prosecutor that charged you with a crime, believe that you did something wrong. Now they must prove you guilty beyond a reasonable doubt in court. There’s several things that you can do to make it more difficult for the police and the prosecutors to prove you guilty in court. Let’s talk about some of the things that you can do to help your case.

First, let’s talk about something you should not do. You should not resist the police and give them a tough time. There’s no benefit to arguing with the police officer and making their job difficult. All that can do is make the police officer angry and cause them to be a little tougher on you than they might otherwise be. In addition, don’t forget that the police officer is armed with a gun. If the police officer feels threatened, he may use physical force against you which never ends in a good way. If you resist a police officer you could be charged with Resisting a Peace Officer, or if you disobey a police officer’s instructions, you could be charged with Obstructing a Peace Officer.  While both charges are misdemeanors, they are serious misdemeanors because they carry mandatory punishments which could include mandatory community service or even jail time. Simply pulling away from a police officer while they are trying to place handcuffs on you, or trying to run away from a police officer who is trying to place you under arrest, could result in serious criminal charges. Those criminal charges could stick even if you are ultimately found not guilty of the crime that you were originally arrested and charged with. Plus, if you cooperate with the police officer, the officer may go a little easy on you and may even decide not to arrest you, or even charge you with a crime if they are not sure that you did anything wrong.  Even if the police officer arrests you and charges you with a crime, the fact that you cooperated with the police officer and did not give them a hard time could help you when it comes to talking to the prosecutor who is handling your case in court. The prosecutor is much more likely to go easy on you if the police officer tells them that you cooperated with them and did not give them a hard time.

The next piece of advice that I commonly give clients is to exercise their constitutional right to remain silent. I commonly see people who are arrested trying to talk themselves out of it. It almost always ends up being a bad move. If a police officer thinks that you did something wrong, you can talk to them until you are blue in the face and you will not be able to stop them from arresting you. For instance, if a police officer pulls you over and suspects that you have been drinking and the officer believes that you are drunk, the officer will take you down to the police station so that you can take a breathalyzer test. No amount of arguing and pleading with the police officer will change anything. What is more likely is that during the course of trying to convince the police officer that you should not be arrested, you are likely to say something to the police officer that could be used against you later on in court. An example is if you tell the police officer that you only had a couple of drinks and that you are fine to drive. Admitting that you have been drinking can be used against you in court later on to prove that you are guilty of a DUI.

DUI-1Every year the Alliance Against Intoxicated Motorists releases it’s annual DUI arrest survey for Illinois DUI arrests.  This year’s study has some interesting statistics and numbers that I want to share with my readers.  The Alliance Against Intoxicated Motorists sends out surveys to almost 700 police agencies in Illinois.  Roughly 81% of the police agencies responded and they release the findings every year.

For 2016, Rockford reported the most DUI arrests in Illinois, with 459. The top 10 list included the local towns of Elgin, with 365, Naperville, with 312, and Carol Stream with 305.  On the lower part of the top 10 was Cicero, with 305, Aurora, with 234, Lombard, with 233, Oak Lawn, with 233, Joliet, with 212, and Elmhurst, with 201.  The DUI arrest statistics from Chicago are not included in the annual Alliance Against Intoxicated Motorists survey because the numbers from Chicago would dwarf any other town in Illinois, so they place the statistics for Chicago DUI arrests in it’s own, separate category.

The list provided by the Alliance Against Intoxicated Motorists is lengthy since it covers virtually every town and village in Illinois.  I want to include some of the local towns and villages that could be of interest to my readers. The first number is what place the town or village is in with DUI arrests in Illinois, and the second number is the total number of DUI arrests reported: