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Articles Posted in Criminal Cases

Excessive-Speeding-300x199I frequently receive phone calls from clients who have received a speeding ticket for driving at a high rate of speed. While speaking with these clients, it is not uncommon for me to find out that they were driving at such a high rate of speed that I need to explain to them that what they are charged with is not your typical, run-of-the-mill, speeding ticket. I end up having to explain to them that what they are facing is a criminal charge known as Aggravated or Excessive Speeding that carries a possible jail sentence in County Jail. Let me explain how an Aggravated or Excessive Speeding ticket in Illinois can land you in jail and lead to a criminal conviction that will appear on your record in a routine background search.

Most speeding tickets are considered a petty offense. The typical speeding ticket carries a fine only. This means that you cannot go to jail for your typical speeding ticket. Basically, Illinois Law provides that you cannot drive at a speed that is “greater than is reasonable and proper with regards to traffic conditions and the use of the highway, or endangers the safety of any person or property.” This basically means that you must drive at a safe speed. What is considered a safe speed depends on the conditions at the time. In other words, what is considered a safe speed may vary depending on the time of day and the weather conditions. However, if you are caught driving above the absolute speed limit, you may receive a ticket for speeding regardless of the time of day and conditions. If the speed limit is 55 and you are driving faster than the speed limit, you may receive a ticket regardless of the weather conditions or the time of day. The defense that you were driving with “the flow of traffic” will not work in Court. If the speed limit is 55 and you are driving 55 miles an hour in a blizzard while all the other cars on the roadway are driving at 30 miles an hour, you may receive a ticket for speeding even though you did not exceed the posted speed limit. As you can tell, being found guilty of speeding above the posted speed limit is much easier for the prosecutor to prove in court than it is for them to prove that you were driving greater than what was reasonable and proper with regard to traffic conditions and the use of the highway.

The absolute speed limit is posted on signs.  In general, the absolute speed limits on Illinois roads are as follows, unless posted otherwise:

Search-WarrantIn a closely-watched decision regarding the privacy rights of cell phone users and the power of the police to obtain cell phone tracking information, the United States Supreme Court ruled that the police must obtain a warrant before obtaining the tracking information for the cell phones for most cellphone users.

Timothy Carpenter was suspected in a series of robberies of RadioShack and T-Mobile stores in several States throughout the country. The FBI had obtained a simple court order allowing them to obtain 27 days of Carpenter’s cell phone location data from Sprint and from MetroPCS. The court order that had been used by the FBI was a simple court order that did not require that the FBI show probable cause for a search warrant. In response to the court order, the FBI was given a 12,898 location point catalog of where Carpenter had been over a period of 27 days. The location data represented an average of 101 data point locations per day. Carpenter was eventually convicted of the robberies and sentenced to over a hundred years in prison. During closing arguments, the prosecutor made a major point of the location data to help bolster his argument that Carpenter had committed the robberies.

On appeal, Carpenter argued that the location data that had been obtained by the FBI should not be admitted in his case because they were obtained without a search warrant. Lower courts disagreed with Carpenter and ruled that the FBI was not required to obtain a search warrant in order to get the location data from the cell phone providers.

Criminal-Case-300x200I recently met with a client who had a jury trial for a Domestic Battery charge. After several days of a trial and deliberations, the jury could not agree on a verdict and the judge declared a mistrial. Shortly after the mistrial was declared, the prosecution decided that they would retry the client and he came to my office looking to hire me for the second trial. The client had several questions about what happens at a re-trial and whether Double Jeopardy applied to his case. I answered his questions and realized that people misunderstand what Double Jeopardy means.

In order for you to be convicted of a crime by a jury, all 12 members of the jury must agree that you are guilty. At the same time, in order to be found not guilty of a crime by a jury, all 12 members of the jury must agree that you are not guilty. Their verdict must be unanimous. If a jury is unable to come up with a unanimous verdict, the Court will declare a mistrial. A mistrial does not necessarily mean that the case is over. When a mistrial happens, the prosecution will decide whether they want to try you once again for the same crime. The decision about whether the state will try you again for the same crime is a decision that rests with the prosecution. From experience, prosecutors will take a variety of factors into consideration when deciding whether to have another trial. A major factor for prosecutors is how close did they come to winning the first jury trial? In other words, if a vast majority of the jurors were in favor of finding you guilty, it is much more likely that the state will try you again. If the vast majority of the jurors were in favor of finding you not guilty, it is much more likely that the state will drop the case and not seek another trial.

The legal grounds for you not to be subjected to another trial can be found in the Fifth Amendment to the United States Constitution and Section 10 of the Illinois Constitution.

ConfessionYesterday, the United States Supreme Court issued several opinions on cases that had been closely watched by observers. The case that has received most of the public attention involves legalized sports betting. But lost in the coverage was the release of two opinions involving the 4th and 5th Amendment rights of criminal defendants. These opinions expand the rights of motorists in their vehicles and the rights of criminal defendants facing prosecution in Criminal Courts. I want to take this opportunity to discuss these two cases and how they will impact the criminal law.

Motorists Rights Expanded

The first case involves the appeal of the conviction of Terrence Byrd’s appeal of his conviction in Pennsylvania of Possession of Heroin and the Possession of Illegal body armor. Byrd plead guilty but reserved his right to appeal. Byrd had been sentenced to 10 years in prison. Byrd appealed and his conviction had been upheld by the Federal Court of Appeals. Yesterday, his conviction was overturned by the United States Supreme Court.

Speeding-Ticket-300x226In the past few years, the Illinois Legislature has enacted laws which make Excessive Speeding a much more serious matter than most people think. Most people are conditioned to believe that if they are pulled over for speeding they will receive a simple speeding ticket and the most that could happen to them is that they have to pay a steep fine and take a Traffic School class. The recent changes to the speeding laws have made certain Excessive Speeding tickets an actual crime. From all of the calls that I get from prospective clients, this area of the criminal law may be one of the most misunderstood subjects.

If you are caught speeding 26 to 34 miles per hour over the posted speed limit, you will be charged with a Class B Misdemeanor. A Class B Misdemeanor for speeding 26 to 34 miles per hour over the posted speed limit carries a maximum punishment of 180 days in County Jail and a maximum fine of up to $1,500. If you are caught speeding 35 miles per hour, or over, the posted speed limit, you will be charged with a Class A Misdemeanor. A Class A Misdemeanor for speeding 35 miles per hour over the posted speed limit carries a maximum punishment of up to one year in County Jail and a maximum fine of up to $2,500. So, if you are pulled over for speeding 26 miles per hour, and over, the posted speed limit, you will not receive a simple speeding ticket. You will be arrested and charged with a crime which carries a potential jail sentence. In addition to any possible criminal penalties, a conviction for speeding 26 miles per hour over the posted speed limit may result in the suspension of your driver’s license by the Illinois Secretary of State. A conviction for Excessive Speeding will remain permanently on your driving record with the Secretary and will appear as a criminal conviction in a routine background search. Not only will a prospective employer find out that you have been convicted of a crime, but your insurance company may use this conviction to drop you from their Auto Insurance plan or increase your insurance premiums.

Yesterday, the Illinois Department of Transportation greeted local motorists with some good news which may help reduce the number of Excessive Speeding cases that could lead to a criminal conviction and a potential jail sentence. Up until now, the speed limit on I-90 west of Elgin was 70 miles per hour all the way to Wisconsin. Yesterday, the Illinois Department of Transportation announced that the speed limit from Randall Road in Elgin to Mount Prospect Road has been increased to 70 miles per hour for all passenger cars. The new speed limit matches the 70 mile per hour speed limit from Elgin to Wisconsin. The previous speed limit from Randall Road in Elgin to Mount Prospect Road was 55 miles per hour.

Criminal-Defense-Attorney-300x201Last week I had a meeting with a client in my office in Schaumburg who was being charged with a felony in Rolling Meadows. The client has a lawyer who was representing him for the case. The client came in for a consultation because he was not happy with the services that his current lawyer was providing and was considering hiring me to represent him in the case. The client told me that he had spoken to his lawyer and requested copies of the police reports. His lawyer refused to provide copies of the police report and the client was very upset with that decision.

This is a very common scenario. I frequently talk with clients who want copies of the police reports so that they can review them at home with their friends and family. I’m sure that many of those clients want to talk to another lawyer and get a second opinion. When a criminal defense lawyer tells a client that they cannot give them copies of the police reports, the clients usually think that’s because the lawyer doesn’t want to lose the case. While that may be the reason behind refusing to give a client police reports in some cases, people need to understand that your criminal defense lawyer is prohibited from giving you copies of the police reports. Let me explain why.

Your lawyer is required to follow certain rules. Your lawyers’ conduct is governed by the Rules of Professional Responsibility. Those rules provide for certain ethical responsibilities that lawyers have to their clients and to the Court. The Supreme Court of Illinois has also enacted certain rules which limit what your lawyer can, or cannot do. The Supreme Court Rules govern what happens in court and what your lawyer can or cannot do while they are representing you in a criminal case in court. Your lawyer is required to follow all those rules.

Speeding-Ticket-LawyerIn the past several weeks, I have spoken to several clients who were arrested for Aggravated or Excessive Speeding and were charged with a crime. Most of the people I spoke to did not realize that they could be arrested for speeding. Many people do not understand the Illinois speeding laws and how a simple speeding ticket can lead to you being arrested and facing the real possibility of having a criminal conviction appear on your record and a possible jail sentence in your future. I want to take this opportunity to try to help people understand just how drastic the consequences of a speeding ticket in Illinois can be.

In general, if you are pulled over for speeding over the posted speed limit, you will not be arrested. The police officer will issue you a speeding ticket and depending on the County that you were pulled over in, and your driving record, you may be given the opportunity to avoid going to Court by paying a fine or by attending Traffic Safety School. But in certain circumstances, being pulled over by a police officer for speeding could result in an arrest and criminal charges.

Aggravated or Excessive Speeding

Police-Vehicle-Search-300x200It is common to have a client come into my office who is facing criminal charges resulting from a search of their vehicle by a police officer. Many of those clients want to know whether the police had the right to search their vehicle and whether I can have the evidence that was recovered thrown out of Court. There’s no simple answer to this question. Whether the police had the right to search the vehicle and whether I can convince the Court to throw out the evidence depends on the facts of each individual case. I want to talk a little bit about the general rules and what the constitutional limits are when it comes to the police searching a motor vehicle.

Generally speaking, the police cannot search your vehicle without a warrant. The Fourth Amendment to the United States Constitution protects us from unreasonable searches and seizures when we have a reasonable expectation of privacy. Courts have consistently ruled that we do have a reasonable expectation of privacy in our motor vehicles. At the same time, the Courts have recognized that there is an “automobile exception” to the search warrant requirement when it comes to our cars. The “automobile exception” provides that individuals have a lower expectation of privacy when it comes to their cars as opposed to their homes. The Fourth amendment creates minimum requirements that apply to all states and in all cases. However, states are free to grant their citizens more rights than what’s afforded to them by the United States Constitution.

The police can search your vehicle without a warrant only under certain limited circumstances. The limited circumstances are set forth as follows:

Expert-Witness-300x201There was a time when eyewitness testimony was considered the best evidence in a criminal case.  But recent scientific developments have cast doubt on the reliability of eyewitness testimony.  Surveys of jurors in criminal cases show that jurors place great weight on the testimony of eyewitnesses. This can be dangerous because jurors will put greater weight on the testimony of an eyewitness and disregard other powerful and compelling evidence of innocence.  Several high-profile cases in which defendants were convicted based on eyewitness testimony were later overturned after it was proven that the defendants were not guilty. Kyle Bloodsworth was convicted of the rape and murder of a nine-year-old girl based on the testimony of five eyewitness.  He was later cleared of the rape and murder after DNA testing proved that he was innocent.

Eyewitness testimony is based on the human memory.  To determine the reliability of eyewitness testimony, you must understand how the human memory works.  Most people think that the human memory is like a video recorder.  They believe that the human memory records the events and just plays them back exactly how they happened.  But researchers have discovered that this is not how the human memory actually works. Researchers believe that the human memory is more like a giant puzzle.  It seems like pieces of material are put together by the human brain in order to create a memory, or a narrative, of what happened.  That puzzle can be manipulated by questioning from defense attorneys or from other pieces of material that the person who is recalling the events is exposed to.  In addition, the accuracy of someone’s memory can be affected by psychological issues or substance abuse issues that the person providing eyewitness testimony may be suffering from.  In controlled studies, researchers have been able to create false memories in individuals by introducing pieces of information that did not actually occur.  The scientific studies have changed the way the legal system is dealing with eyewitness testimony.  In recent years, there has been a steady movement in the courts to allow expert testimony to be presented before a jury so that they can understand the true significance of eyewitness testimony.  The expert testimony is giving juries a more balanced and greater understanding of eyewitness testimony so that juries may be able to give a more measured response to such testimony.

Earlier this year, the Illinois Supreme Court addressed the issue of eyewitness testimony.  The court looked at the murder conviction of a man who had been convicted of the murder of a friend.  The only evidence in the case was the eyewitness testimony of a witness and a statement made by the victim identifying the defendant as the shooter.  When the defendant’s attorney sought to introduce expert testimony at trial to contest the accuracy and reliability of the eyewitness testimony, the trial court did not allow the expert testimony to be presented.  In overturning the murder conviction, the court cited the scientific evidence that we discussed earlier in this article along with the number of convictions later overturned after defendants were exonerated by DNA evidence.  The court pointed out that since 1989 there have been 150 wrongful convictions in Illinois. One-third of those wrongful convictions were based on mistaken eyewitness testimony.  The Illinois Supreme Court ruled that if prosecutors wanted to retry the defendant, the trial court must allow expert testimony to be introduced concerning the reliability of the eyewitness testimony.

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

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

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

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