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Articles Posted in Criminal Cases

Distracted-Driving-300x200

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-Lawyer-300x226This 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.

DUI-1-300x199A few weeks ago, I signed up a new DUI case in Rolling Meadows. The client is only 23 years old and this was his first DUI. The client’s car broke down on the way home from a friend’s house and he had to to pull his car over by the side of the road. After a short time, a police officer approached his car and started asking him questions. The officer asked my client to perform the Standard Field Sobriety Tests on the side of the road and the client declined to do so because he is recovering from ankle surgery and was worried that he would fail the tests. The officer asked the client to blow into a Portable Breath Device to determine whether he was good to drive, and the client complied with the request. The Portable Breath Test indicated that he was slightly over the legal limit. The officer informed my client that he would be taking him to the police station to prepare some paperwork. When my client arrived at the police station, he was asked to take a Breathalyzer Test and refused. The officer told my client that he would be taken to the hospital for a blood draw to determine what his Blood Alcohol Level was. The client has a fear of needles so he refused to go to the hospital. The officer told my client that if he did not take a Blood Test that he would be placed under arrest. Fearing that he would be arrested for refusing to take a Blood Test, my client agreed to go to the hospital and agreed to have his blood drawn. Even though the police did not have the blood results, they arrested him and charged him with a DUI anyway.

This fact pattern in this case is somewhat unique. I have not had many cases where the police threatened to arrest a client for refusing to take a Blood Test or take a Breathalyzer Test. What this case does highlight is how not being fully informed about your legal rights as a motorist can come back to bite you when it really matters. You cannot be arrested because you refuse to have your blood drawn or because you refuse to take a Breathalyzer Test. Motorists should know what their rights are before something like this happens. Police officers are counting on you to not understand your rights so they can confuse you and get you to do something that you shouldn’t do and the police want you to do. If you are arrested for a DUI, you should not expect the police officer to give you advice on what you should, or should not do. Ultimately, you are responsible for yourself and you should not count on the legal advice of the police officer to help you make a decision on what is best for you.

You are not required to take a Breathalyzer Test, or a Blood Test, when you are asked to do so. There is no criminal penalty for refusing to take a Breathalyzer or Blood Test. Having said that, you should be aware that while there is no criminal penalty for refusing to take a Breathalyzer or Blood Test, the Illinois Secretary of State will suspend your license for 1 year if you refuse to take a Breathalyzer or Blood Test. This is a civil penalty, and not a criminal penalty. It is known as the Statutory Summary Suspension and the suspension will begin 46-days after the date of your DUI arrest.

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.

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.