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DUI-300x200Being pulled over by a police officer can be a stressful and confusing situation for most motorists. This is especially true If you have consumed alcohol earlier in the day. When the officer approaches your car and starts asking you where you are coming from, and where you are going, and if you have been drinking. Now your mind starts racing and your heart starts beating. Am I getting arrested for a DUI? The officer takes your license and walks back to his vehicle to run your license. The officer returns to your car and asks you to get out of your vehicle and perform some tests to see if you are okay to drive. Let’s talk about what Field Sobriety Tests are and whether you are required to perform them.

What Are Field Sobriety Tests?

The Field Sobriety Tests are the tests administered by a trained officer to asses whether a driver is impaired. If the tests are properly administered by a properly trained officer, they have been scientifically proven to be 90% accurate. The results of a Field Sobriety Test are legally admissible in Court and are usually an important part of the state’s prosecution of a DUI case. There are three (3) basic tests that are designed to asses your balance, coordination, and your ability to divide your attention to more than one task at a time. The 3 Field Sobriety Tests are as follows:

Identity TheftIllinois law places severe restrictions on the ability of people convicted of a felony from legally changing their names. Illinois law is among the strictest in the United States for convicted felons seeking to change their names. The Illinois Secretary of State allows Illinois license owners to put their gender identity on their licenses. Under current Illinois law, felons convicted of a crime that requires that individual to be placed on a state registry, such as a Sex Offender Registry, are barred from ever changing their name. The lifetime ban also applies to people convicted of Murder, Arson, and Identity Theft. Anybody convicted of any other felony has to wait at least 10 years after the completion of their sentence before they can petition the court to legally change their name.

For many years, efforts have been underway in Springfield to change the law to allow convicted felons to petition the court to legally change their names. The efforts have been led by the LGBTQ community in Illinois. People that have had gender-affirming surgery have been seeking to change Illinois law to reflect their current gender. Supporters of the legislation also point to the plight of victims of human trafficking who want to change their name to make it more difficult for their traffickers to find them.

A bill that would drastically change current Illinois Law for convicted felons who are seeking to change their name is currently sitting on the desk of Illinois Governor J.B. Pritzker after being approved by the Illinois Senate on January 10. The bill passed the Illinois House with bipartisan support in 2021. The Bill would lift the lifetime ban for those convicted of the certain crimes, such as Identity Theft, and for those convicted of a crime that requires registration to a registry. For those convicted of any other felony, the 10-year waiting period is removed and people do not have to wait 10 years to apply for a change of name just because they have a felony conviction on their record. However, anyone convicted of a felony who wants to legally change their name will be required to convince a judge to let them do this before they can change their name. Anybody who had been the subject of the lifetime band will have to convince a judge to approve it and County prosecutors will be allowed to object to the petitions. In cases in which County Prosecutors are objecting to the name change petitions, the petitioners will be required to convince the Judge that they are changing their names because they are transgender, were legally married, were the victims of human trafficking, or have valid religious reasons for changing their names.

Speeding-Ticket-Lawyer-300x200

Over the holiday weekend, the Schaumburg police conducted their annual “Drive Sober or Get Pulled Over” enforcement campaign. The enforcement campaign ran from December 16 to January 2. The annual campaign is run by the Illinois Department of Transportation and is managed funded by the National Highway Traffic Safety Association, which provides the funding for the campaign. Most of the local police departments in the area participated in the campaign. The funds allowed the Schaumburg Police to add four additional units to be dedicated to enforcing the traffic laws during the campaign.

The Schaumburg Police released their numbers last week. The vast majority of citations issued were for Distracted Driving. That is not surprising. I have seen a drastic increase in the number of tickets issued for Distracted Driving in recent years.. Distracted Driving is what is commonly known as “texting and driving”. However, there’s much more to distracted driving than just texting. Authorities have been struggling with trying to curb the use of cell phones while driving. Numerous studies throughout the years have shown that using a cell phone while driving is more dangerous than drinking and driving. When cell phones started becoming popular, the state legislature made it illegal to text while driving. That’s why any new laws or rules having to do with the use of cell phones by drivers are commonly associated with texting. After the initial texting and driving laws were passed, authorities realized that much more needed to be done. The cell phone rules were tightened, and today, the rules against using a cell phone while driving are much more strict than ever. It is against the law to use a cell phone when driving as long as the phone is completely hands free. As a general rule, touching your cell phone while you are driving can land you a date in Traffic Court. There are some very limited exceptions to the general rule, but officers have become increasingly diligent and aggressive when it comes to enforcing the cell phone laws. On any given day in Traffic Court, it is not uncommon to see that a large percentage of citations issued are for Distracted Driving. When the first cell phone laws were passed, the punishment for getting caught was a fine that was not reported to the Secretary of State so it did not affect your license. The current laws have made a ticket for Distracted Driving to have the same effect on your license as any other traffic tickets. Distracted Driving tickets are reported to the Secretary of State and these tickets can count points against your license, just like any other ticket.

Only one speeding ticket was issued by the Schaumburg Police during the campaign and 1 DUI occurred during the campaign over the holiday.  The only DUI arrest was For Driving Under the Influence of Drugs. When Illinois legalized the recreational use of Marijuana, authorities were concerned that it would cause a big jump in the number of people charged with a DUI for Driving Under the Influence of Cannabis. That did not materialize. While it became much more common to see DUI cases involving the use of Marijuana, I have not noticed a big increase in such cases. It is not very common to see DUI cases involving marijuana.

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.