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Domstic-BatteryArguably, the most common question I am asked by clients. This happens all the time with Domestic Battery cases. While it’s always better to have a victim, or complaining witness, that is willing to cooperate with the defense, it does not mean that the case will be dismissed or that the Defendant is guaranteed to win their case. Let me explain.

Your criminal case begins when you are arrested by the police. If you are facing a misdemeanor criminal charge, the police will charge you with whatever they believe they can prove in Court. If you are charged with a felony, police will consult with the prosecutor’s office who will review the facts and evidence in your case, and file whatever criminal charges they think are appropriate. Police and prosecutors make the ultimate decision to file criminal charges. The victim’s input is important and almost always taken into consideration. The victim’s wishes are taken into consideration and play a major role in almost every criminal case.  However, the victim’s wishes are not determinative of whether criminal charges will be filed or how the case will proceed in Court. Prosecutors are required to keep victims informed about the case and give victim’s an opportunity to attend every court date and address the Court if the need arises. But the threshold issue, of whether criminal charges will be filed, or what criminal charges will be filed, or whether the case will be dismissed, will be decided by the prosecutor based on their discretion and their continuing ethical obligations. The Judge plays no role in those decisions and does not have the power to dismiss charges because the victim is not cooperating with the prosecution and wants the case dismissed.

Situations like this often arise in Domestic Violence cases. The victim and the defendant are in a relationship and the victim does not want anything to happen to the defendant. Many times the victim does not appear in Court for the Defendant’s Domestic Battery case. This is common in Domestic Violence cases. While this is usually good news for the Defendant, it doesn’t mean that the case will be dismissed or that the Defendant will win their case. When victims do not appear in court, it does not mean that your case will be dismissed. The prosecutor has the right to proceed with the case without the cooperation and testimony of the victim. Whether the prosecutor decides to dismiss the case or continue with the case will depend on the evidence gathered by the police. The prosecutor may decide to proceed with the case if they determine that they can prove the Defendant’s guilt without the testimony and cooperation of the victim. I have seen the state proceed with Domestic Battery cases when the victim is not cooperating with the state when the state has other witnesses that are willing to testify, confessions or other statements made by the defendant, and video evidence that shows what happened.

DUI-300x231The best evidence that the police and the prosecutors have to prove a DUI in Court is a Breathalyzer Test. While it is not necessary for the State to have a breathalyzer test to prove you guilty of a DUI in Court, it is the best evidence that the state can have in a DUI case. I frequently talk to clients who do not understand what a Breathalyzer Test is and how easy it is to get a result that could make it very difficult to fight a DUI case. I want to discuss some facts about the Breathalyzer Test and eliminate some common misunderstandings.

What is a Breathalyzer Test?

The Breathalyzer Test measures the ratio of alcohol to blood or breath. A motorist is asked to blow into a machine, usually at the Police Station, and the machine will record a result which indicates what the alcohol to blood or breath ratio is. In Illinois, a blood alcohol ratio (BAC) of .08 or above is considered to be over the legal limit. If you are under the age of 21, you cannot have any alcohol in your system while operating a motor vehicle. For motorists under 21, if the breathalyzer test detects the presence of any alcohol, that would be enough to charge you with a DUI. If you are a school bus driver, you can be charged with a DUI if a breathalyzer test detects the presence any alcohol in your body. If you are a commercial driver’s license holder, a BAC of .04 or above above is enough to arrest you and charge you with a DUI.

DUI-300x288I frequently speak to clients who have been arrested for a DUI. After the initial shock of being arrested wears off, most DUI clients start to think about the future and the possible implications of having a DUI. As with most things, most people do not think about what could happen to them if they picked up a DUI until it actually happens to them. When I receive those calls, most clients are initially worried about whether they will be going to jail. After I explain to them that jail is usually not an option for a first time DUI, the next question is whether they will lose their license as a result of the DUI. I want to take an opportunity to talk about how a DUI can affect your drivers license.

A first time DUI is considered a Class A Misdemeanor in Illinois. A Class A DUI Misdemeanor carries a maximum penalty of up to one-year in County Jail and a maximum fine of $2,500. While it is possible to go to jail for your first DUI, It is highly unlikely that you will be sentenced to jail for your first DUI. It is always possible to receive Court Supervision for your first DUI. Court Supervision is not considered a criminal conviction. A sentence of Court Supervision for your first DUI will allow you to keep your license and maintain your driving privileges in the State of Illinois. Most first time DUI offenders that are found guilty of a DUI, receive Court Supervision for their first DUI. Conditional Discharge is another possible sentence for a first time DUI. Conditional Discharge is considered a conviction that will have serious implications for your drivers license. A sentence of Conditional Discharge for a DUI will result in the revocation of your drivers license and will prohibit you from being able to operate a motor vehicle in the State of Illinois. While it is possible to receive Conditional Discharge for your first DUI, it is rare to see this happen for a first time DUI. However, if you get a second DUI, you cannot receive Court Supervision. The lowest sentence that you can receive for a second DUI is Conditional Discharge. A sentence of conditional discharge for a DUI, whether it’s your first or second DUI, will result in the revocation of your drivers license and will cause you to lose your driving privileges in the State of Illinois.

If you are arrested for a DUI, you will be given some paperwork when you leave the Police Station. It is very important that you read, and understand, the paperwork you are given. One of the documents will be entitled, ‘Notice of Statutory Summary Suspension.’ Depending on whether you took a breathalyzer test or refused to take a breathalyzer test, one of the two boxes on the top left hand part of the document will inform you that your license will be suspended for a period of time. If you took a breathalyzer test and your blood alcohol level was .08 or above, the Notice of Statutory Summary Suspension will notify you that your drivers license, or your Illinois driving privileges, will be suspended for six months. The six-month suspension will begin 46 days after the date of the DUI arrest. If you refused to take a breathalyzer test, the Notice of Statutory Summary Suspension will notify you that your drivers license and your Illinois driving privileges, will be suspended for 12 months. The 12 month suspension will begin 46 days after the date of the DUI arrest. This is known as the Statutory Summary Suspension. The Statutory Summary Suspension will apply to cases involving a blood draw and a refusal to submit to a blood draw. To challenge the Statutory Summary Suspension, your lawyer must file a Petition to Rescind the Statutory Summary Suspension within 90 days of the date of your DUI arrest. When you meet with your lawyer for the DUI, make sure you bring all of the paperwork you received at the police station to the meeting with your DUI lawyer. The papers contain important information that your DUI lawyer will need to prepare and file the Petition to Rescind the Statutory Summary Suspension. We have previously discussed what a Petition to Rescind is, and how to pursue the Petition in court.

Miranda-300x200When most people find themselves facing criminal charges, basic human instincts will kick in and they will want to try to talk themselves out of the predicament that they find themselves in. This usually happens early on in a criminal case when the police question you and want to get your side of the story. You always have the right to talk to the police and to testify at your trial, however, that may not always be the best strategy. In my 28-years of practicing criminal law, I can honestly say that the biggest mistake that most criminal defendants make is talking to the police. Sometimes, defendants continue making the same mistake and insist on testifying at trial. I want to talk about what your rights are when you are on trial and why you should think twice about talking to the police and testifying at trial.

The famous court case that discusses your right to remain silent is Arizona v. Miranda. The Miranda decision is famous because of Hollywood and TV crime shows. Everyone knows that the Miranda case gives you the right to remain silent and refuse to testify in court. But there is a little bit more to Miranda that people should be aware of. The Miranda case deals with the 5th Amendment to the United States Constitution. The Fifth Amendment states that you cannot be forced to be a witness against yourself. This means that you cannot be forced to tell on yourself. The Fifth Amendment in the United States Constitution is known as the Right Against Self Incrimination. The Fifth Amendment’s right to remain silent attaches the moment you are the subject of a custodial interrogation. What is critical in determining whether the Fifth Amendment applies to your case is whether you were in custody or not. Generally, whether you are in custody depends on whether an objective person feels that at the time you were questioned by the police, were you free to leave or not. Generally, if you are being questioned by the police and you were not free to leave, that would be a custodial interrogation which requires that you be advised of your right to remain silent and that you freely and voluntarily waive that right.

Your Fifth Amendment right to remain silent is different when it comes to testifying at trial. You are under no obligation to prove that you are not guilty at trial. The government, or the prosecution, has the burden of proving you guilty of each and every element of what you are being charged with Beyond A Reasonable Doubt. However, since you have the right to testify at your trial, only you can wave, or give up, your right to testify at trial. And since you have the right to wave your right to testify, only you can make the decision about whether you want to testify or not. Since you have the constitutional right to testify, or not, if you decide that you will not testify at trial, your decision to waive your right to testify cannot be used against you by the prosecution, judge, or jury. In other words, if you refuse to testify at your trial, if the prosecutor argues to a judge or jury that your refusal to testify shows that you are guilty, that would be improper and would likely lead to a mistrial for making those statements.

Criminal-DiscoveryI often have to catch myself when I’m talking to my clients about their criminal cases. As lawyers, we sometimes use terminology that while it may be common for us, is foreign to most people who are not involved in the criminal justice system every day like we are. The other day I was talking to a client about the status of their criminal case and I mentioned to the client that I was ‘waiting for Discovery’. I didn’t give the terminology a second thought, assuming that the client knew what I was talking about. However, the client made it very clear that they did not understand what I was saying and I realized that most clients probably feel the same way. I want to take this opportunity to describe what Discovery is and why it sometimes takes a long time time for Discovery to be complete.

If you are facing criminal charges, the US Constitution requires that you have a fair trial. Central to the notion of a fair trial in the criminal law is the requirement that you be provided with all of the evidence the prosecution intends to use in Court to prove you guilty of the criminal charges. In order to have a fair trial, there can be no surprises. Criminal defendants have a right to see all of the evidence the prosecution has. But fairness requires more than you be given the evidence that the prosecution intends to use against you. Fairness requires that you be given ALL of the evidence that is in the states possession. This includes evidence that may tend to show that you are not guilty of the criminal charges.

While the Constitution requires that a criminal defendant be afforded a fair trial, the prosecution is also entitled to be treated fairly. That is why the state has the right to be provided with any evidence that a defendant intends to use at trial. The bottom line is that there should be no surprises in any criminal cases. That is basically what the Discovery process in a criminal case is all about. It’s the part of the case where the parties exchange all of the evidence and then determine whether they want to go to trial, or work out a plea agreement to avoid going to trial. It is usually the most important part of a criminal case.

Illinois-DUI-300x200After 28 years of practicing criminal law, it is very rare to hear a client tell me something about a criminal case that I never heard before. Throughout the years, I have handled thousands of DUI cases. While every case is unique, there are certain common elements to certain criminal cases. This is especially true with most DUI cases. While it is common for me to speak with clients who were arrested for a DUI, for the clients I am speaking to, this is a unique and scary experience for them. Part of my job as a criminal defense lawyer is to listen to the client and guide them through the process so they understand what is happening and how the criminal justice system works. In this post, I want to explain to my readers what a typical DUI arrest looks like.

Most DUI cases begin with the driver being pulled over for a traffic violation. The most common traffic violation involved in a DUI is Improper Lane Usage. The police officer is following a vehicle as it’s swerving in and out of its lane or entering another lane without signaling the lane change. Other reasons for being pulled over could be for Speeding, Failure to Stop at a Stop Sign, Disregarding a Traffic-Control Device, or any other reason to cause the police officer to make contact with the driver of the vehicle. The other day, I signed up a DUI in which the client was involved in a minor traffic accident. Whatever the reason for the driver being pulled over, something happened to cause the police officer to make face to face contact with the driver of the vehicle.

After the police officer makes contact with the driver, something happens to cause the police officer to suspect that they may be under the influence of alcohol. In a typical DUI, a police officer will note that when they approached the driver of the vehicle, they smelled alcohol, or noticed that the driver was mumbling and had a glassy look in their eyes. Typically the officer will note that the driver appeared confused and disoriented. Sometimes the police will note that the driver admitted to consuming alcohol before driving their vehicle.

Court-Supervision-300x200When a criminal defendant pleads guilty, or is found guilty, of a criminal charge, the impact of the punishment depends on the sentence imposed by the Court. The Court can impose a variety of sentences in a criminal case. Perhaps, the best, or the least severe sentence in Illinois could be Court Supervision. The most severe punishment would be a conviction and the imposition of a jail sentence. I want to take this opportunity to discuss Court Supervision and why this may be the best option for your criminal or traffic case. This will be a general discussion of Court Supervision in Illinois. You should consult with your criminal defense lawyer to see how a sentence of Court Supervision would apply to your case and your particular situation.

The main benefit of getting Court Supervision is that if you successfully complete all of the terms of the Court Supervision sentence, you will not have a criminal conviction on your record. Court Supervision is a criminal sentence that is imposed on the majority of misdemeanor cases in Illinois. This is especially true if this is your first criminal case and the case did not involve violence or serious injuries to anyone. Court Supervision is very common in traffic cases. But just like everything in the law, the details are important because it’s not as simple as it initially appears.

If you are pleading guilty to a criminal offense and getting Court Supervision, at the time of sentencing, the Court will accept your guilty plea but will not enter a judgement of conviction that will go on your criminal record. Instead, the Court will impose a sentence and will set a final termination date to determine if you lived up to your end of the bargain and did everything the Court wanted you to do. Most of the time, if you are pleading guilty to a criminal offense, your lawyer will have entered into an agreement with the prosecutor that spells out all the terms of your sentence. One way to think about Court Supervision is to think of it as being like Court Probation. Like I tell my clients, when you plead guilty, the Court will take your guilty plea and leave it in the Court file until the final termination date. If you successfully complete your Court Supervision sentence, the Court will remove your guilty plea from your file and will tear it up and not put it on your criminal record. However, the Court computer and public Court records will show your criminal charges and the sentence imposed by the Court. Most criminal cases that result in Court Supervision can be Expunged or Sealed which means that it will not appear in a background search. Depending on the criminal charges you are facing, Court Supervision may be your best option.

Criminal-Defense-Lawyer-300x238The internet has made it easy for people to sell items online to make some extra money. Popular websites, such as eBay and Craigslist, have made it easy for almost anyone to instantly go into business by simply using a computer or a cell phone to get into the retail business. However, you should be aware of the potential pitfalls of doing business like this. Recently, I was hired to represent a client charged with violating the Illinois Counterfeit Trademark Act. The Counterfeit Trademark Act (765 ILCS 1040/) makes it a crime to sell look alike goods or services bearing a fake trademark or logo. The client that I was hired to represent was selling knockoff high-end watches on Craigslist that he had purchased legally from China. The client was buying the watches for about $50 and selling them online for between $200 and $250. This was not the clients main source of income, but it made him enough money to comfortably pay his bills and provide for his family. That’s until the client was arrested charged with violating the Counterfeit Trademark Act. It was not until the client came to my office bad he found out that what he was doing was against the law and that it carried some pretty serious criminal and monetary penalties.

I want to discuss this crime and lay out the penalties and consequences of being charged with violating the Illinois Counterfeit Trademark Act.

The idea behind making it illegal to sell counterfeit goods is to avoid confusing and duping consumers. You can be guilty of violating the Counterfeit Trademark Act even if the buyer and seller are aware that the item is a knockoff. Not all knockoff items are considered to be counterfeit. For instance, gym shoes that look like the real Nike gym shoes are not automatically considered to be counterfeit just because they look like the real Nike gym shoes. What could make them illegal is if they have a Nike logo on them that looks like the real Nike logo. The fake Nike logo is what could fool a consumer into believing that its the real thing. Think of counterfeit goods as infringing on the Trademark of a brand and making money trying to do that.

Marijuana-300x226Illinois has decriminalized the possession of small amounts of marijuana in Illinois. As of January 1, 2020, you can legally possess up to 30 grams cannabis flower. If you are visiting the State of Illinois, you can legally possess half of the amount that residents of Illinois can possess.

Since marijuana possession was legalized in Illinois at the beginning of this year, I have noticed a big increase in the number of people arrested for the illegal possession of cannabis in their motor vehicle. The issue of having marijuana in a vehicle is misunderstood by many people and is leading to the arrest of many people. The other day, I met with a client who was pulled over by a police officer for a speeding violation. When the police officer asked the client if he had anything in his vehicle, the client voluntarily admitted that he had a small amount of cannabis in the ashtray of his vehicle. The client mistakenly believed that since the possession of marijuana is now permitted in Illinois, that he could transport marijuana in his vehicle without any limitations or consequences. After the client admitted that he had marijuana in his vehicle, he was asked to exit his vehicle and was placed under arrest. This is has become a common occurrence in Illinois

Under Illinois Law, you cannot smoke marijuana in any motor vehicle. You cannot smoke marijuana near anyone under the age of 21. Anyone under the age of 21 cannot legally possess any amount of marijuana in Illinois. You can legally transport marijuana in your motor vehicle but it must be out of arm’s reach of the driver and must be completely sealed in its original packaging. The same rule applies to medical marijuana patients who are transporting medical marijuana in their vehicle. If you buy Medical Marijuana at the Medical Marijuana Dispensary, they will put the product in its original packaging in a paper bag and staple it so that you do not have any problems if you are pulled over by the police.

Juvenile-Criminal-Charges-300x200Children are not considered adults until they reach 18 years of age. But what happens if a child, under the age of 18, commits a crime? Can they be charged and prosecuted as if they were an adult, or will the criminal justice system treat them as a juvenile who will be prosecuted in Juvenile Court?

Why Does It Matter?

Juveniles, that are prosecuted in Juvenile Court, are treated much less harshly than adults who are charged with the same crime in Adult Court. For one thing, it is much less likely that the juvenile will be confined in jail. Incarceration for juveniles is reserved for the most serious cases and the most violent and most chronic juvenile offenders. The main focus of Juvenile Court is to rehabilitate the juveniles. Rehabilitation, is just part of the focus in Adult Criminal Court. Adults are prosecuted and punished in Criminal Court so that the public can be protected, a message can be sent to the public, the defendant can be punished, and the defendant can be rehabilitated. Since rehabilitation is just part of the focus in Adult Criminal Court, it is much more likely that a juvenile will be incarcerated if they are prosecuted in Adult Criminal Court. Since the main focus of Juvenile Court is to rehabilitate juveniles, judges have greater flexibility to craft sentences that are less harsh than the sentences that you usually see in an adult criminal case.