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DUI-300x225Last week, the Alliance Against Intoxicated Motorists released their annual survey of DUI arrests in Illinois. The Alliance Against Intoxicated Motorists conducts annual surveys of DUI arrests by the 700 police agencies in Illinois. The survey is funded by the Illinois Department of transportation. The survey gives us an understanding of where most DUI arrests happen and allows us to compare previous years to see any emerging patterns and trends involving DUI cases and DUI arrests.

As usual, the Chicago Police Department reported the largest number of DUI arrests in Illinois. The Chicago Police Department made 1,622 DUI arrests in 2021. This figure represents an almost 28% decrease from 2020, when the Chicago Police made 2,240 DUI arrests.  Decatur came in second with 353 DUI arrests in Illinois in 2021. Aurora, the second largest city in Illinois, came in third with 325 DUI arrests in 2021. Aurora’s numbers are significant because the number of DUI arrests increased almost 63% over 2020. In 2020, Aurora only had 200 DUI arrests. Compared to 325 DUI arrests in 2021, one can see how significant the increase in DUI arrests was in Aurora in 2021.

The Illinois State Police also saw a big increase in the number of DUI arrests in 2021 compared to 2020. The Illinois State Police made 6,596 DUI arrests in 2021. In 2020, the Illinois State Police made 5,947 DUI arrests. The Illinois State Police saw an increase of almost 11% in 2021 over 2020 in DUI arrests.

Unlawful-Use-of-a-Firearm-300x200Can you have a Medical Cannabis Card and a FOID card at the same time? Can you have a Medical Cannabis Card and a Conceal and Carry Permit at the same time? You would think that these questions are easy to answer. However, these questions have caused great confusion and misunderstanding in Illinois. The State Legislature has done a terrible job of clearing up the law and making this an easy issue to solve. Instead, you have to search for answers to these questions for yourself. If you ask an employee at a gun shop if you can have both, you will get a different answer depending on the day of the week. Let me try to explain the situation and what I believe the law is. Stay tuned for a way around it. Something you will not find anywhere else!

Illinois has decriminalized the possession and use of small amounts of Cannabis. Illinois instituted a Medical Marijuana program several years ago. However, the possession and use of Marijuana remains a crime under federal law. In our system, federal law supersedes state law. In spite of that, the cannabis industry has thrived in Illinois. Legal dispensaries have sprung up throughout the cities and suburbs of Illinois and municipalities and taxing authorities are reaping the resulting tax revenues. The legalization of Recreational Marijuana in Illinois, and the introduction of Medical Cannabis in Illinois, has created a conflict for legal gun owners in Illinois.

In order to possess a firearm in Illinois, you must have a Firearm Owners Identification Card (FOID). To obtain a FOID, you must apply to the Illinois State Police, and pass a thorough background search. Under Federal Law, it is unlawful for Marijuana users to own firearms. 430 ILCS 65/8 sets forth the grounds for the Illinois State Police to deny a FOID application. Section (n) of the statute states that “a person is prohibited from acquiring or possessing firearms or firearm ammunition by any Illinois State Statute or by federal law.” In response, the Illinois State Police has stated that they will not revoke anyone’s FOID card solely because they are using marijuana. However, the Illinois State Police stated that “the ISP (Illinois State Police) will revoke FOID cards where it is demonstrated that an individual is addicted to or a habitual user of Marijuana.”

Criminal Defense LawyerIt is common for clients to ask me if I can get their case dismissed because the police did not tell them that they have the right to remain silent when they were arrested. The right to remain silent comes from the 5th Amendment to the United States Constitution which protects citizens from incriminating themselves. This means that you cannot be forced to testify against yourself. The 5th Amendment’s right to remain silent is an important right that every citizen has but is not asserted as often as it should be by criminal defendants. In order for a statement made to the police during a custodial interrogation to be used against you in Court, the state has to prove that you made a knowing, intelligent, and voluntary waiver of your 5th Amendment right to remain silent. Let me explain.

It’s important to know when your 5th Amendment right to remain silent kicks in. Many people mistakenly believe that you can assert your 5th Amendment rights as soon as you are arrested. But that may not always be the case. The 5th Amendment’s right against self-incrimination applies to situations in which the defendant is in custody and is being questioned by the police. If you waive your 5th Amendment right to remain silent and voluntarily speak to the police, anything you tell them can be used against you in Court to prosecute you for the crime(s) that you are being charged with.

There are 2 basic elements to the 5th Amendment that must apply to the case in order for the 5th Amendment to kick in. The first element is ‘custody’. In order for the 5th Amendment to apply, you had to have been in custody. Whether you were in custody or not depends on the specific facts of your case. Generally, you will be considered to have been in custody if you were not free to leave. When raising a possible 5th Amendment violation in Court, when the police officer is testifying, the defense attorney will ask the officer if the defendant was free to leave when the questioning began.

DUI ArrestToday, I met with 2 new clients to talk about representing them for their criminal cases at the Rolling Meadows Courthouse. Both cases have different facts, and both clients responded differently when they were confronted by the police. I want to talk about these 2 cases because they illustrate how what clients do when they interact with the police, can often be the difference between winning and losing a criminal case, going to jail, or walking away from criminal charges without a conviction.

The first client I met today is charged with a DUI. I represented the client’s wife for a DUI in Rolling Meadows about 3 years ago. When I met with the client’s wife, the current client was with her and heard everything I said to her. I told his wife what she should do if she is ever stopped again for a DUI charge. The client was paying attention to what I told his wife because he followed my suggestions almost perfectly. After the client was stopped by the police officer, the officer asked him if he had been drinking. The client refused to answer the question. The officer asked the client where he was coming from and where he was going, and he refused to answer the officer’s question. When the officer asked the client to exit the car, he complied, but when the officer asked him to perform the Standardized Field Sobriety Tests (SFST) on the side of the road, the client refused. When the officer asked the client to blow into a Portable Breath Device (PBD), the client refused. When the client was asked to submit to a Breathalyzer Test at the police station, he refused. The client told me that he knew he was legally intoxicated so he remembered what I told his wife and followed my advice.

The other client I met today is charged with Unlawful Use of a Weapon by a Felon (UUW by a Felon). This client was a front seat passenger in his friends vehicle. The driver was pulled over for a minor traffic violation. The officer claimed that he smelled burnt cannabis and asked the driver and the passenger to exit the vehicle. The officers found a loaded firearm in the backseat area of the vehicle. When the police asked my client and the driver who the gun belonged to, my client admitted that the gun was his. He told me that he admitted to the gun being his to protect his friend. The problem with the admission is that my client is a convicted felon. Because he has a prior felony conviction, he is being charged with UUW by a Felon which carries a mandatory prison sentence. Probation is not an option for a charge of UUW by a Felon.

Distracted Driving

Distracted Driving is defined as doing anything that diverts a driver’s attention away from driving their vehicle. There are four types of Driver Distraction. They are as follows:

  1. Visual – Not looking at the road.
  2. Auditory – Hearing something that is not related to driving a motor vehicle.

Schaumburg Criminal Defense LawyerCriminal Defendants do not get to pick and choose when the police come and place them under arrest. However, sometimes the writing is on the wall and you know what’s coming. Either the police are looking for you or attempting to contact you, or your employer is asking questions and you know that you may be in trouble. Either way, you should reach out to an experienced and knowledgeable criminal defense attorney as soon as possible. There is no down side to talking to a criminal lawyer as soon as you think you may be in trouble so you know what to do when (and if) the time comes.

Sometimes, talking to a criminal lawyer early ends up becoming the most important decision you make. If you talk to the police before talking to a lawyer, you may end up making a mistake that you will not be able to recover from. Talking to an experienced criminal defense attorney early on, will give you some idea of what you are facing and what you should do if the police start asking you questions or want you to come down to the police station. When you are initially contacted by the police when they are conducting an investigation, the police have a tremendous advantage over you. You have no clue what the police are doing, have done, who they have spoken to, what evidence they have, and what their intentions are when coming to talk to you. Talking to a criminal defense lawyer before talking to the police will give you some protection from what’s to come.

Signs That You May Need a Lawyer

DUI LawyerLast week I was talking to a client about his case and the circumstances surrounding his arrest. He was explaining what the police did and was convinced that his “rights had been violated”. After he told me that “the police did not read him his rights” after he was arrested, I explained to him that a common misperception is that the police must read you your rights once you are arrested. After I explained this to the client, he asked me what rights he had when he was confronted by the police. This got me thinking about what rights citizens have when they are confronted by the police and how a lack of information about the legal rights that citizens have when the are approached by the police has led to so many criminal defendants making mistakes that should not have to be made. Let me discuss.

Let’s start off with this concept: In America, you are innocent until you are found guilty in Court. If you keep this principle in the front of your mind, then everything else I discuss in this article makes sense. I have been practicing criminal law for over 28 years. The biggest mistake that criminal defendants make is that they talk to the police. When you are approached by a police officer an are asked questions, you are presumed to be innocent. The only way to remove that presumption of innocence is if you go to Court and plead guilty, or are found guilty after a trial. Until, and unless that happens, you are innocent. Just because a police officer is asking you questions does not make you guilty of anything. You are under no obligation to prove your innocence. The state has the burden and the responsibility of proving you guilty beyond a reasonable doubt. You also have the absolute right to demand that the state prove you guilty without using any evidence or statements that you made to the police. That is your right as a US citizen. You have the absolute constitutional right to remain silent when the police are questioning you. Yet, most criminal defendants fail to exercise their most important and fundamental constitutional right. It’s the right to remain silent. You have the absolute constitutional right to not cooperate with the police when you are being questioned by them.

Your right to remain silent is found in the Fifth Amendment to the United States Constitution. The famous case that discusses this constitutional right is commonly known as the Miranda case. Your right to remain silent kicks in as soon as you are subject to a custodial interrogation. This means that you have a right to assert your Fifth Amendment right to remain silent and not incriminate yourself if you are considered to be in custody at the time on the questioning. In custody has been determined to mean that a reasonable person looking at the facts and circumstances would determine that you were not free to leave. In the case I discussed at the very top of this post, the client was not read his Miranda rights after he was arrested. The reason that it did not matter in his case was that he did not make any statements to the police that would be considered incriminating. Not only were there no incriminating statements, but there were no statements made that the prosecutor would have any reason to admit in Court.

Domestic Battery CaseThis is, without a doubt, one of the most common questions I get from clients, especially if the client is accused of Domestic Violence and is charged with a Domestic Battery. Most of my clients appear for their first Court date only to be disappointed when the Judge continues their case and tells them to come back with a lawyer. Because a Domestic Battery is a Class A Misdemeanor that carries up to one year in jail, the question is not if you need a lawyer, but whether you will have a Public Defender represent you or whether you will have your own lawyer represent you. This will depend on whether the Court determines that you have the ability to afford to hire your own lawyer. If the Judge determines that you do not have the money to hire a lawyer, the Judge will appoint a Public Defender to represent you.

The decision about whether Domestic Battery criminal charges will be filed against you are not made by the victim. If you are facing a misdemeanor, the police will decide whether criminal charges will be filed. The police will make their decision based on the evidence, the facts and circumstances of the case, and the wishes of the Complaining Witness, or victim. Criminal charges for a Domestic Battery will not be filed because the victim insists that charges be filed. Criminal charges for a Domestic Battery will not be filed because the Complaining Witness insists that charges not be filed. The same holds true once the case goes to Court. While the victim’s wishes are always taken into consideration, since the victim did not file the charges, the victim cannot dismiss the criminal charges. The criminal charges can only be dismissed by the party that filed the criminal charges. If you are facing a felony, the decision to file criminal charges was made by the prosecutor’s office who reviewed the evidence and made the decision about whether to file criminal charges and what criminal charges to file.

In order to be convicted of any criminal charges, including a Domestic Battery, the prosecution must prove each and every element of the offense beyond a reasonable doubt. Prosecutors evaluate every case based on whether they believe that they will be able to prove their case beyond a reasonable doubt in Court. When prosecutors are prosecuting someone for a Domestic Battery, it is common for a Complaining Witness, or victim, to not show up to Court. When that happens, prosecutors will evaluate their case and determine whether they will have enough evidence to prove you guilty beyond a reasonable doubt without the cooperation, and testimony, of the victim. While not having a testimony of the victim usually means that that the prosecutor will not be able to prove their case beyond a reasonable doubt, that is not always the case. There’s more than one way for a prosecutor to prove their case. If you made a statement to the police, prosecutors may be able to admit it into evidence. If there were witnesses to the incident, prosecutors may be able to prove their case with the witnesses. If you made a statement that falls under one of the hearsay exemptions, that statement may be used against you in court to help prove the state’s case.

Cell Phone TicketIllinois does not allow motorists to use their cell phone for talking, texting, or using any other means of electronic communication while they are operating their motor vehicle on a public road. The only way you can use your cell phone while driving is through Bluetooth technology, provided that you are 19 and over. In the last couple of years, tickets issued for using cell phones while driving have become common. The laws regarding use of a cell phone while driving have undergone several changes throughout the years. As a result, many motorists are not fully aware of what the rules are when it comes to using their cell phones while driving. Most of the clients who I meet for cases like this frequently tell me that they did not know how restrictive the cell phone usage laws are in Illinois. I want to take this opportunity to explain the cell phone Distracted Driving law in Illinois so that you know what is allowed and what is not allowed in Illinois.

In 2019, the Illinois legislature changed the Illinois Distracted Driving law by imposing stricter limits on the use of cell phones in cars, and making a ticket for using your cell phone while driving a moving violation in Illinois. Before 2019, a ticket for using your cell phone in your car was punishable by a fine only and was not reported to the Illinois Secretary of State so a ticket for using your cell phone would not affect your license. After 2019, a ticket for using your cell phone while driving is considered a moving violation which will be reported to the Secretary of State and will go on your driving record and affect the status of your driver’s license. A ticket for using your cell phone will never be removed from your driving record, regardless of what happens with the ticket.

What Is Not Allowed

Criminal Defense AttorneyThis morning I met with a client who was charged with a Domestic Battery against his wife last weekend. He and his wife have been going through some marital problems for several months which led to a very heated argument over the weekend. At the end of the argument, my client left the house to go for a ride in his car. After a couple of hours, he received a police a phone call from the local police asking him to return to the home so they can talk to him. When he arrived at his house, he found out that his wife had called 911 to report that she was a victim of Domestic Violence at the hands of my client. She told the police that when she tried to call the police my client fled from the residence in his car. My client insists that these allegations are false. My client’s wife obtained an Order of Protection and my client is not allowed to return to his house nor have any contact with his children. The client was very upset and was complaining that he should not have to hire a lawyer because he is innocent. This attitude by criminal defendants is very common. You need to understand how important it is that you have an experienced and knowledgeable criminal lawyer by your side if you are being charged with a criminal offense. Let me explain why.

The Sixth Amendment to the United States Constitution gives you the right to have a lawyer represent you whenever you are facing criminal charges. The Sixth Amendment also gives you the right to the lawyer of your choice, even if that means that you want to be your own lawyer. It’s important to understand what representing yourself means. Representing yourself means that you have the right to act as your own lawyer. It’s important to understand that if you exercise your Sixth Amendment right to represent yourself, you will be held to the same standards as any lawyer would. The prosecutor is a lawyer. Many prosecutors are highly experienced lawyers. Most prosecutors are in court all day, and have handled countless criminal cases. They have a law degree, passed a Bar Exam, a law license, and have the necessary knowledge and experience required of any lawyer who handles criminal cases. Most criminal defendants that represent themselves do not have the education, knowledge, and experience that the prosecutor has. If you choose to represent yourself, you should be aware of the obstacles you will face and how you are probably out of your league by taking on an experienced prosecutor. Do not think that because you are not a lawyer that the judge will cut you a break and not hold you to the same standards as any lawyer appearing in Court. You should not expect the Judge to help you or guide you through the process. You will be expected to know what you are doing and you will not be helped because you are not a lawyer. If you lose the case, you cannot get a new trial because you didn’t know what you were doing.

Your guilt or innocence will be determined by the judge or jury. The prosecution has the burden of proving you guilty Beyond A Reasonable Doubt. This means that the State has the burden of proving that every element of the crime that you are charged with has been proven by the state beyond a reasonable doubt. If the judge or jury are not convinced of your guilt beyond a reasonable doubt, you will be found not guilty of the criminal charges. Your job is to create reasonable doubt in the State’s case by challenging their evidence and their witnesses. An experienced criminal defense lawyer knows how to do this because they’ve done it before. If you’ve never done it before, trying to defend yourself in court can be an uphill battle. An experienced and knowledgeable criminal lawyer knows the laws and the Rules of Evidence which governs how evidence can be introduced in Court. If the prosecutor tries to introduce evidence that is not admissible in court, your lawyer will know to object and prevent the evidence from being introduced and admitted into evidence. If you fail to object, not only does the evidence come in, but you will lose your right to appeal because you never raised the objection. It is not an excuse to claim that you are not a lawyer. While every case is different, the basic principles in our criminal laws apply to all criminal cases. The Rules of Evidence govern the admissibility and exclusion of evidence. An experienced and knowledgeable criminal defense lawyer understands with the principles of our criminal laws are and knows what the Rules of Evidence are.