Attorney James G. Dimeas
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MarijuanaIn July of 2016, Illinois Governor Bruce Rauner signed legislation into law which makes possession of small amounts of marijuana a civil matter and not a criminal matter.  This new law made Illinois the 17th state to decriminalize the possession of small amounts of marijuana.  This means that if you are caught with the possession of 10 grams of marijuana or less, you will be issued a ticket charging you with a civil offense which carries a fine of up to $200.  However, individual towns are allowed to add additional penalties to the tickets, such as drug treatment or classes.  The new law also makes two more changes to Illinois law.  First, anyone charged under this new law will have the case expunged from their record automatically 6 months after the offense occurs. Expungements for these citations will happen automatically twice a year, January 1 and July 1.  This was added to the statute to make sure that such a case would not limit the ability of people, especially young people, to be able to obtain a job. The second change has to do with DUI’s. Under the old law, Illinois had a “no tolerance” policy when it came to driving a motor vehicle with the presence of any trace of marijuana in their blood system. Under the old law, if you had ingested marijuana a few weeks ago and were driving a motor vehicle, you could be charged with a DUI even if there were no signs of impairment.  Under the new law you cannot be charged with a DUI unless you have 5 nanograms of THC (the active ingredient of marijuana) in your blood, or 10 nanograms or more in your saliva.

This new law is pretty similar to a measure enacted in Chicago in 2012.  This measure allows police officers to issue tickets for possession of less than 15 grams of marijuana that carries fines of $250 to $500. The new law would not change what is happening in Chicago but would apply to any towns in Illinois that have no such measure so that there’s some uniformity in Illinois.

Similar legislation was passed in 2015.  But when it reached Rauner’s desk, he vetoed the legislation because he believed that it allowed for the possession of too much marijuana and the fines were too low. The legislature amended the legislation to satisfy Governor Rauner’s objections and he signed the bill into law. This measure went into immediate effect in Illinois.

Marijuana-300x203On January 1, 2014, Medical Marijuana became legal in Illinois. The Illinois Medical Marijuana policy is stricter than most other states that have enacted Medical Marijuana. Illinois does not allow Medical Marijuana to be grown at home. The Marijuana must be cultivated at a state-regulated facility that is under strict rules and regulations. To be allowed to use Medical Marijuana, you must apply for permission from the Illinois Department of Health. The application process is strict and it may take several months for you to be approved. If you are approved to use Medical Marijuana, you will be given an identification card. You will only be allowed to purchase 2.5 ounces of medical marijuana every 14 days. The program is tightly restricted and supervised.

While I was investigating how the Medical Marijuana laws have affected the DUI laws in Illinois, I discovered that if you get a Medical Marijuana card, this will be reported to the Illinois Secretary of State and your status as a Medical Marijuana patient will appear whenever a police officer runs your license. But as I looked into this further, I discovered some troubling news that all Medical Marijuana patients should be aware of. If a police officer is following your vehicle and they run your license plate, it is entirely possible that their computer will show that you are a Medical Marijuana patient. Most Illinois drivers will have their driver’s license number linked with the license plate number of the car that they own and is registered to them. If your driver’s license number is linked to the license plate number of your vehicle and when a police officer runs your license plate number, their computer will show that you are a Medical Marijuana patient. To verify this, I contacted a friend who works at the Illinois Secretary of State and asked him to confirm my findings. Initially, he told me that I was wrong and that this information is not reported to the Secretary of State, so this information would not appear if your license is searched or your plates are checked. I asked him to look into this further to make sure his information was correct because I had received conflicting information. After a short time he contacted me to inform me that my findings were correct and that the Medical Marijuana is reported to the Secretary of State. While not all driver’s licenses are linked to their license plate numbers, most licenses are.

You can imagine how this could be troubling for Medical Marijuana patients. While a valid argument could be made to allow the Secretary of State to place Medical Marijuana patient status on your driving record so that this information would appear if your license was ever run by a police officer, it makes no sense to make it possible for a police officer to discover this information when they are randomly running license plates of vehicles. While most police officers are honorable and honest, allowing this information to be available whenever a license plate number is run through a computer in a squad car opens the door to potential abuse and misuse. One can imagine a situation in which a police officer, who is randomly running license plate numbers of vehicles on the roadway, sees that a particular vehicle is registered to a Medical Marijuana patient and pulls over the driver of the vehicle just because he knows that there’s a pretty good chance that the driver of the vehicle has used marijuana in the recent past. This has the effect of placing a bulls eye on a Medical Marijuana patient who may doing nothing wrong other than being a Medical Marijuana patient.

Speeding-Ticket-Lawyer-300x200Recently, I have represented clients who received speeding tickets. In the course of representing these clients, I have come to realize that people do not really understand the Illinois Speeding Laws. In the last few years, the Illinois speeding laws have been changed. The changes have drastically increased the penalties for excessive speeding on Illinois roadways. Drivers are not adequately informed of what the potential consequences can be for a speeding ticket.

As someone who has received speeding tickets in the past, I remember when the biggest inconvenience associated with receiving a speeding ticket was having to take time off of work or school to go to Traffic Court at 321 North LaSalle, pay to park my car downtown, and wait for my case to be called and be dismissed because the police officer did not appear. Hundreds of thousands of Chicagoans used to visit that building every year.  Those days have changed. What used to be a major inconvenience can now lead to a potential jail sentence and a suspension of your driver’s license. Let me explain how the Illinois Legislature has made speeding a potential crime and not just a mere inconvenience.

There have been some positive changes for Chicago residents.  For one thing, Traffic Court has now been moved into the lower levels of the Daley Center.  This makes it easier to get to traffic court.  The CTA train stops at the Daley Center so you don’t have to drive to Traffic Court and navigate your way through the heavy Loop traffic only to pay the high fees to park your car at a parking lot in the loop.  Traffic tickets are still being dismissed when police officers do not appear in Traffic Court but police officers are appearing in Traffic Court more often because Police Department policies have changed to require that police officers appear in Court.

Domestic BatteryAn Introduction to Domestic Battery in Illinois

A criminal charge of Domestic Battery is a very serious criminal offense in Illinois.  In recent years, public attention has been focused on Domestic Violence.  I noticed the increased attention on Domestic Violence cases after the infamous OJ Simpson case. State legislatures throughout the United States have passed laws which seek to punish crimes like this more severely and to try to put an end to this crime. This is true in Illinois as well.  Laws have been changed to make it easier for a spouse to obtain an Order of Protection.  Laws have been enacted to require the placement of GPS tracking devices on people have been ordered to stay away from victims.  Penalties for Domestic Battery crimes have been stiffened to impose harsher penalties on people convicted of Domestic Battery. Local prosecutors have established units within their offices that specialize in prosecuting Domestic Battery crimes and specific courtrooms have been established in most counties that only handle cases like this.

This article will discuss what the crime of Domestic Battery involves and the possible penalties.

DUIIt’s been a tough week.  You have been swamped at work and you have been busy at home with activities with the kids.  Finally it’s Friday and you made it. Your co-workers invite you to go out for drinks to relax after the end of a long week and you accept.  After a couple of hours at a local bar of unwinding with your co-workers and after a few drinks, it’s time to go home.  You get in your car and start driving and after a few minutes you realize that you may be in no condition to drive.  You don’t know if it’s the alcohol or if you are just tired from your long week, so you decide to pull over and take a nap because you don’t want to take a chance of nodding off while driving and getting into an accident.  So you pull over on a side street, park your car, shut off the engine and take a nap.  After a few minutes you wake up to the sounds of knocking on your car window.  It’s a police officer who is trying to get your attention.  You explain to the officer that you are tired so you pulled over to take a nap before heading home.  The officer asks you if you have been drinking and you tell him you had a couple of drinks a while ago but had a long week and are just tired.  You pull your car keys out of your pocket and the officer asks you to exit your vehicle.  The officer asks you to perform certain tests and then informs you that your are under arrest for suspicion of driving under the influence of alcohol.  So how can you be charged with a DUI when you were just taking a nap in your car?

This fact pattern is pretty common.  Unless you understand the law in Illinois, it’s hard to comprehend how you can be charged with a DUI when you were doing the responsible thing and getting off the road when you realized you were in no condition to drive.

The key factor in determining whether you could be charged with a DUI is if you had actual physical control of a motor vehicle.  Whether you had actual physical control of your motor vehicle depends on the specific facts of each case.  The Court will look at the totality of the circumstances to determine whether you had actual physical control of your motor vehicle.  The leading case on this issue in Illinois is City of Naperville v. Watson, 677 NE2d 955 (1977).  In this case, the police found Watson sitting in the driver’s seat asleep with his head on the passenger seat.  Watson had the engine running so he could have the heat on.  There was no evidence that he was driving or that he was planning on driving his vehicle.  Yet, in this case the Court found that he was in actual physical control of his vehicle based on the fact that he was sitting in the front seat, the keys were in the ignition and the car was running.  Since he was in actual physical control of his vehicle, he could be charged with a DUI.  What seemed to be important in that case was that Watson had possession of the keys to the vehicle.  The Court specifically found that “sleeping it off” is not a defense to a DUI.  The Court refused to give an intoxicated motorist a “good citizen discount” for realizing they were in no condition to drive.  Rather the court doesn’t want someone who is intoxicated from entering a motor vehicle unless they are a passenger.

Felony ConvictionThis is a question that I am asked frequently around election time.  Most people do not understand what the rules are when it comes to whether you are allowed to vote if you have a felony conviction.  Rules vary from state to state and this has created confusion.  People don’t understand that each state has it’s own rules which requires that people with felony convictions inform themselves of what the rules are in their state. My experience with this issue is that most people are not informed as to what the law is in Illinois when it comes to felony convictions and voting rights in Illinois. Illinois has passed a specific law which spells out what effect a felony conviction can have on your right to vote in Illinois.  The law is set out in 10 ILCS 5/3-5.  In Illinois, a convicted felon has just as much of a right to vote as any other citizen in the state.  As long as you are not incarcerated, meaning serving a prison sentence, you can register and cast a vote in Illinois.  If you are in court and fighting your case, you can vote in Illinois.  Even if you are in jail fighting your case. If you are on probation, you can vote in Illinois.  If you are on parole, you can vote in Illinois.  As long as you have not been convicted and are in prison, you can vote.  However, if instead of being in prison, you are allowed to serve your sentence outside of prison, such as prison furlough or work release, you will not be allowed to vote until you finish your sentence.  If you went to prison and lost the right to vote you should re-register once you are released from prison so that you can go to the polls and cast your vote.

When someone is not allowed under the law to vote, they are called “disenfranchised” voters.  In 2010, roughly 2.5% of the nation’s voting age population could not vote because of a felony conviction.  In Illinois, that comes out to about 800,000 people who have been convicted of a felony.  If 800,000 people do not realize that they have not been stripped of their right to vote, and sit out an election because of their mistaken belief, this could make a big difference in a close election.  In my opinion, which is based on the questions that I get from criminal clients, as well as members of the public, not enough is being done to educate the public about this issue.

In seven states, people convicted of a felony are barred forever from ever voting.  Florida has the largest number of disenfranchised voters with roughly 10.42% of all voters.  In two states, Maine and Vermont, even prison inmates are allowed to vote.  In other states, convicted felons are required to petition the Governor to have their right to vote reinstated, or restored, once their sentence is completed.

Veterans CourtThe recent wars in Iraq and Afghanistan have seen a dramatic rise in the number of mental health and substance abuse issues involving military veterans returning from serving in those wars.  Some of these soldiers are returning home with mental health issues and are using drugs to deal with the mental health issues which such wars have caused.  Those issues have spilled into the criminal justice system when these military veterans are getting arrested for crimes caused by substance abuse and mental health issues arising out of their military service.  In an effort to address the specific needs of returning veterans, the Illinois Legislature passed legislation in 2009 establishing Veterans Courts in Illinois.  The 2009 legislation did not require that counties establish such courts.  Nevertheless, Cook County and Lake County did establish such courts. Veterans Courts are specific courts which are designed to steer military veterans out of the criminal punishment aspect of the court system and towards the treatment aspect of the court system.  Specific courts have been established at 26th and California, Skokie, Rolling Meadows, Maywood, Bridgeview and Markham. The Veterans Courts in Cook County have been very successful and have been used as a model by court systems throughout the United States to help them establish their own Veterans Courts.  The Illinois Legislature recently passed legislation requiring that each county in Illinois establish such a court by January 1, 2018.  In anticipation of this new law taking effect, counties throughout Illinois are beginning to make plans to establish these courts.  Kane County officials are aware of the new law and are beginning to make plans to start the process of establishing these courts.

In order for a veteran to be eligible for Veterans Court in Cook County, enrollment has to be agreed to by the Court, Prosecutor and the Defendant.  The crime that the veteran is charged with cannot be a crime of violence. The veteran will not be eligible unless they have demonstrated a willingness to undergo treatment in the program.  They will also be ineligible if they have been convicted of a crime of violence within the past 10 years or if they have been discharged from a similar program within the past 3 years.

Lake County’s Veterans Court is similar with minor changes to the eligibility requirements.  To be eligible for Veterans Court in Lake County the veteran must have been honorably discharged from the military, must have a service related disability or currently be in the military, must be charged with a felony or misdemeanor in which probation or supervision is available, and must be willing to participate in the program before and after they enter the program.  They prefer that the veteran be eligible for VA benefits but is not a requirement.  For any crime involving a crime against an individual, the victim must agree to allowing the veteran to enter such a program.

Municipal-Ordinance-Violation-300x199The Public Safety Committee for the Village of Schaumburg has recommended that the Village of Schaumburg allow police officers to write local Municipal Violation tickets for first-time negligent driving offences. The measure is intended to go after drivers who are using hand-held cellphones while they are driving instead of hands-free devices. Village officials claim that the judges at the Rolling Meadows Courthouse are taking these tickets too lightly and not punishing offenders enough.

If this measure is adopted by the Schaumburg Village Board, police officers will have the option of writing a local Municipal Ordinance Violation ticket, issue written warnings, or issue a State Citation for a ticket violation which allow offenders an opportunity to go to Court and contest the ticket in Court, in front of an actual Judge. The fine for the Schaumburg Municipal Violation will be $75.

What’s a little troubling about this proposal is that the Public Safety Committee is proposing that the definition of negligent driving be defined more broadly than what current state law defines as negligent driving. According to one of the trustees of the Schaumburg Village Board, “the definition of negligent driving can be relevant even when an officer can’t prove a handheld cell phone was the cause.” In other words, if the police officer had a hunch, or was guessing, based on his experience, that a handheld device was being used, that would be enough to allow them to issue a ticket. I would like to see what the final ordinance says, but it seems to me as if officers will be allowed to issue these tickets based on a mere hunch without any proof. That does not seem very fair to me and could be open to a legal challenge which could cause Schaumburg’s taxpayers to pay the legal bills for a court fight.

Domestic-BatteryYou can be charged with Interfering with the Reporting of a Domestic Battery when you prevent a family member from making a call to report a Domestic Battery incident.  You can also be charged with Interfering with the Reporting of a Domestic Violence charge if you interfere with a family member who is reporting the incident to the police.  It is very common to see this charge added to a criminal Domestic Battery charge.

Let’s talk a little about how charges like this usually come about.

The police are called to the scene of a report of a Domestic Battery.  Basically, you can be charged with a Domestic Battery when you make physical contact with a family member.  What the law considers to be a family member is defined rather broadly in Illinois.  A current or past boyfriend or girlfriend is considered a family member under Illinois Domestic Battery law.  If the police are convinced that you made contact with a family member that resulted in physical harm to that family member you can be arrested and charged with a Domestic Battery.  But you don’t have to injure the family member to be charged with a Domestic Battery.  You can be charged with a Domestic Battery if the contact that was made was of an insulting or provoking nature.  If the police are convinced that any of these two types of contact occurred, you can be arrested and charged with a Domestic Battery.  If the police determine you did something to prevent the family member from calling the police, or 911, you can be charged with Interfering with the Reporting of Domestic Violence.  An example would be if you took the phone away from the victim, or unplugged the phone or removed the battery from a cell phone resulting in the inability to make a 911 call.   You don’t have to actually prevent the person from calling 911 or the police.  Simply attempting to prevent them from calling the authorities can make you guilty of this crime.  You can also be guilty of Interfering with the Reporting of Domestic Violence if you prevent, or attempt to prevent, a victim from obtaining medical assistance or from making any report to any law enforcement official.  If the police arrive and you threaten the victim with physical harm if they tell the police the truth, that can be considered Interfering with the Reporting of Domestic Violence.

410 ProbationIllinois law has made a special type of Probation available for first-time felony drug offenders to avoid a felony conviction on their record. This type of Probation is commonly known as Section 410 or Section 1410 Probation. In order to be eligible for this type of Probation, you cannot have previously been convicted of, or placed on Probation or Court Supervision, for any criminal offense related to Cannabis or Illegal Drugs. This includes Prescription Drugs.  If you are eligible for this type of Probation, here’s how it works:

At the time of sentencing, you will have to plead guilty to the charges. The court will accept your guilty plea but will not enter judgment. The court will place you on a period of Probation that will last 24 months. The only time you should have to go back to court before your Probation ends is if a Petition to Violate your Probation is filed or if the court schedules a check date to see how you are doing. While you are on Probation the court will require that you do not violate any criminal laws in any state. You will not be allowed to possess a firearm or any other dangerous weapon. The court will order that you submit to random and unscheduled drug testing.  You will be required to pay the cost of the drug testing but you should not have to take more than 3 drug tests during the period of your Probation. You will also be required to perform 30 hours of community service. In addition, the court may require additional conditions such as payment of additional fines and court costs, require that you continue with your education, undergo medical or psychiatric treatment, and may require that you appear in court periodically.  The statute gives the court great latitude on imposing additional conditions on your 410 Probation.  Since every case is different, any additional requirements will depend on your particular case.

There are some drawbacks to this type of Probation. The main problem being that since you have pled guilty to the charges, if the court determines that you violated your 410 Probation for any reason, you cannot go back to that court and fight the case because you have already pled guilty. So if you violate this Probation, the only question before the court will be what your sentence should be. You will not be able to contest your guilt or innocence. If you violate your Probation, typically the court will convert the 410 Probation to a felony conviction which could result in a sentence of felony Probation or a jail sentence.