Chicago Criminal Lawyer Blog

Supreme Court Imposes Limits on Police and Motorists in DUI Case

January 29, 2018 | by James G. Dimeas, Esq.

DUI Last June, the United States Supreme Court issued a decision in a DUI case that many DUI lawyers had been closely following. The case is actually three separate cases consolidated into one case captioned, Birchfield v. North Dakota. What united all 3 cases was that they all dealt with a North Dakota law which made it an actual crime to refuse to take a breathalyzer test and a blood test when requested to do so by the police. There is no such law in Illinois. A refusal to take a breathalyzer test or blood test can result in the suspension of your driving privileges in Illinois but is not an actual crime in Illinois. However, 13 other states make a refusal to submit to a breathalyzer test or blood test a crime. Both North Dakota and Illinois have “implied consent” laws which means that when you operate a motor vehicle upon the public roads, you consent to submitting to a breathalyzer and a blood test when requested to by the police. Illinois warns you that failure to consent to a breathalyzer test could result in the suspension of your driving privileges while North Dakota warns you that failure to consent to a breathalyzer test could result in criminal prosecution. Refusing to submit to a breathalyzer or a blood test is not a crime in Illinois. The refusal to submit to such testing can only result in the suspension of your license for a period of time, usually one year, if this is your first DUI. Sometimes, refusing to submit to a breathalyzer or blood test could benefit the underlying DUI case making it harder for the state to prove their case with test results, but will not stop the suspension of your driver’s license. Refusing to submit to a breathalyzer test or a blood test is a misdemeanor in North Dakota. By making it a crime to refuse to submit to a breathalyzer or a blood test, a driver would be more likely to consent to such testing, thereby making it easier for the state to prove guilt in an underlying DUI prosecution.

In a 5 to 3 decision, the Supreme Court ruled that the police do not need a warrant to do a breathalyzer test but need a warrant to take a blood test. The majority opinion was written by Justice Alito who held that “because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving.” Since it’s considered a search incident to a lawful arrest, a warrant is not needed.

Since the case involved 3 separate DUI arrests, there were 3 different outcomes. One driver, Danny Birchfield, had his conviction for failing to consent to a blood test overturned. The second driver, Danny Bernard, Jr., had his conviction for failure to submit to a breathalyzer test upheld. The third driver, Steve Beylund, who consented to a blood test under threat of criminal prosecution, had his case returned to the trial court in light of the holding that a warrant is required for a blood test.

Win Source of Bail Hearing. Bond Posted, Client Released

January 16, 2018 | by James G. Dimeas, Esq.

Recently, I won a Source of Funds hearing at the Maywood Courthouse. At my client’s initial bond hearing, the judge required that my client prove the source of funds prior to being allowed to post the required amount of the cash bond. Immediately after the bond hearing I was contacted by my client’s family and hired to do whatever I could to get my client out of jail. I immediately got to work and today, my client is a free man. Here’s how this case started and how I was able to get him released.

My client was pulled over in his vehicle by the Chicago Police. After he was pulled over the police officer determined that his license had been suspended and he was placed under arrest. His vehicle was subsequently searched and the police recovered approximately 2 pounds of marijuana and about 120 grams of mushrooms from inside his vehicle. The arrest occurred late on Friday so he was taken to Central Bond Court at 26th and California on Sunday. At the bond hearing the Judge set the bond at $10,000 cash. The state filed a Petition requiring proof of Source of Funds, and the court granted their request. Source of Funds is a procedure by which the Court will require proof that the money that will be posted for a bond is money that was lawfully obtained. The law does not want drug money to be used to bond someone out of jail. Prosecutors frequently request such proof in drug cases in which they believe that the defendant is a drug dealer. Based on the amount of drugs found in our client’s vehicle, the Court felt that there was enough evidence to believe that my client was in the business of selling drugs. When the prosecutor files such a request and the Court grants their request, then the burden shifts to the Defendant to file a Petition requesting that the Court conduct a hearing to allow the bond to be posted. This is known as a Source of Bail Hearing. At this hearing, the defense has the burden of proving that the money that will be posted for the bond is not drug money.

After the bond hearing I met with the friends and family of our client in my office and obtained bank records, pay stubs, tax returns, business documents, and prepared affidavits to prove that the money that would be used to post the required bond was not drug money. I filed the petition at the first court date in Maywood, which was just a few days after the bond hearing. Less than a week later the Court held a hearing which lasted over 2 days. At the hearing I presented live testimony and presented evidence to the court to prove that the bond money was legally and lawfully obtained. The Court was convinced that the bond money was not drug money and allowed the family to post the bond.

Can I be Guilty of a Violation of Order of Protection by Just Sending a Text Message?

January 5, 2018 | by James G. Dimeas, Esq.

Order-of-Protection-200x300 Many times when someone is arrested and charged with a Domestic Battery the Court will issue an Order of Protection that seeks to protect the person claiming to be abused (Petitioner) from being harmed or harassed by the person who is being charged with the Domestic Battery. When I have a client (Respondent) that has an Order of Protection entered against them they often get confused and do not fully understand what this means and what they can and cannot do. I want to discuss what an Order of Protection is and what you need to do to protect yourself from Violating the order and getting into deeper trouble.

Basically an Order of Protection is a Court Order which prohibits someone from doing something. There’s two ways for an Order of Protection to come into existence. The most common way is when someone is arrested and charged with a Domestic Battery. At the first court date, which is usually the Bond Hearing, the court will enter an Order of Protection . This initial Order of Protection is only for a limited time until the Court conducts a hearing to determine whether to extend the Order of Protection or enter an Order of Protection that will last for as long as the Domestic Battery criminal case continues in court. This is called a Plenary Order of Protection. Another way for an Order of Protection to be issued is when someone goes to court and files a Petition asking the court to issue a Temporary Order of Protection. In cases like that, the Order of Protection is often issued without the other person being present in court and is only for a short period of time so that the other person can be notified to appear in court so that a hearing may be conducted to determine whether the Order of Protection should be extended or issued for up to two years.

Not every Order of Protection is the same. From my experience there’s basically two types of Orders of Protection that are usually entered. The most common Order of Protection is a “full no contact” Order of Protection. That type of Order of Protection provides that the Respondent is not allowed to have any contact whatsoever with the Petitioner. The other type of Order of Protection that is commonly entered prohibits any harmful or offensive contact. The full no contact Order of Protection means what the title says. If you have that type of Order of Protection entered against you this means that you cannot have any contact whatsoever with the other person. Those types of Orders usually provide that you cannot be within a certain number of feet of the other person, that you cannot go to their residence, that you cannot go to their place of employment and other places where they may be. It also means that you cannot contact them by electronic means whatsoever. This includes email, social media, telephone calls, and text messages. The reason that you are trying to contact that person is irrelevant. The mere fact that you tried to contact them by sending an email or a text message, or posting something on their Facebook page is enough for you to be considered in Violation of the Order of Protection.

Can I Be Guilty of a Retail Theft if I Did Not Get Out of the Store?

December 26, 2017 | by James G. Dimeas, Esq.

This is one of the most common questions I get asked by people that have been arrested and charged with a Retail Theft. When I get asked that question, that’s when I start asking questions. Because whether or not they committed a Retail Theft depends on the specific facts of their case. Most of the time they tell me that they forgot to pay for an item that they had mistakenly placed in their purse or in a bag. Some people tell me that their child took an item and hid it from them without them knowing. Other people tell me they tried on a piece of jewelry and forgot to take it off. Whatever the explanation is, many of them tell me that they don’t understand how they could be charged with stealing something from a store if they did not physically leave the store when they were stopped by security.

Like many other things having to do with the legal system, there is a difference between what is commonly considered to be Retail Theft, and what the law considers to be a Retail Theft. Retail Theft is commonly referred to as shoplifting. You do not have to get out of the store with the item in order to be guilty of a Retail Theft in Illinois. If the state is able to prove that you took something from a store with the intent to take that item without paying for it, that’s enough to prove that you are guilty of a Retail Theft. Taking something doesn’t mean that you walked out of the store with it, taking means that you took it from the shelf or the place where it was and took possession of it with the intention of not paying for it.

There’s many ways that the state can prove that you took something with the intent to not pay for it. In my 24 years of experience I cannot even begin to count the number of ways that the state has been able to prove this in cases that I have handled. Sometimes there is a loss prevention agent who testifies that they saw my client put something in their pocket. I’ve had cases where video surveillance shows my client switching price tags or placing items in their pocket or in their jacket and then walking past the cash register and not paying for the items that they had taken. Once you walk past the last place of purchase, which is basically the cash register, without paying for the goods, then you have committed a Retail Theft.

Reliability of Eyewitness Testimony

December 20, 2017 | by James G. Dimeas, Esq.

Expert-Witness-300x201 There 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.

Illinois Decriminalizes Small Amounts of Marijuana

December 11, 2017 | by James G. Dimeas, Esq.

In July of 2016, Illinois Governor Bruce Rauner signed legislation into law which makes possession of small amounts of marijuana a civil matter and not a criminal matter. This new law made Illinois the 17th state to decriminalize the possession of small amounts of marijuana. This means that if you are caught with the possession of 10 grams of marijuana or less, you will be issued a ticket charging you with a civil offense which carries a fine of up to $200. However, individual towns are allowed to add additional penalties to the tickets, such as drug treatment or classes. The new law also makes two more changes to Illinois law. First, anyone charged under this new law will have the case expunged from their record automatically 6 months after the offense occurs. Expungements for these citations will happen automatically twice a year, January 1 and July 1. This was added to the statute to make sure that such a case would not limit the ability of people, especially young people, to be able to obtain a job. The second change has to do with DUI’s. Under the old law, Illinois had a “no tolerance” policy when it came to driving a motor vehicle with the presence of any trace of marijuana in their blood system. Under the old law, if you had ingested marijuana a few weeks ago and were driving a motor vehicle, you could be charged with a DUI even if there were no signs of impairment. Under the new law you cannot be charged with a DUI unless you have 5 nanograms of THC (the active ingredient of marijuana) in your blood, or 10 nanograms or more in your saliva.

This new law is pretty similar to a measure enacted in Chicago in 2012. This measure allows police officers to issue tickets for possession of less than 15 grams of marijuana that carries fines of $250 to $500. The new law would not change what is happening in Chicago but would apply to any towns in Illinois that have no such measure so that there’s some uniformity in Illinois.

Similar legislation was passed in 2015. But when it reached Rauner’s desk, he vetoed the legislation because he believed that it allowed for the possession of too much marijuana and the fines were too low. The legislature amended the legislation to satisfy Governor Rauner’s objections and he signed the bill into law. This measure went into immediate effect in Illinois.

Medical Marijuana Patients Beware: You May Have a Bulls Eye on Your Car

December 2, 2017 | by James G. Dimeas, Esq.

Marijuana-300x203 On January 1, 2014, Medical Marijuana became legal in Illinois. The Illinois Medical Marijuana policy is stricter than most other states that have enacted Medical Marijuana. Illinois does not allow Medical Marijuana to be grown at home. The Marijuana must be cultivated at a state-regulated facility that is under strict rules and regulations. To be allowed to use Medical Marijuana, you must apply for permission from the Illinois Department of Health. The application process is strict and it may take several months for you to be approved. If you are approved to use Medical Marijuana, you will be given an identification card. You will only be allowed to purchase 2.5 ounces of medical marijuana every 14 days. The program is tightly restricted and supervised.

While I was investigating how the Medical Marijuana laws have affected the DUI laws in Illinois, I discovered that if you get a Medical Marijuana card, this will be reported to the Illinois Secretary of State and your status as a Medical Marijuana patient will appear whenever a police officer runs your license. But as I looked into this further, I discovered some troubling news that all Medical Marijuana patients should be aware of. If a police officer is following your vehicle and they run your license plate, it is entirely possible that their computer will show that you are a Medical Marijuana patient. Most Illinois drivers will have their driver’s license number linked with the license plate number of the car that they own and is registered to them. If your driver’s license number is linked to the license plate number of your vehicle and when a police officer runs your license plate number, their computer will show that you are a Medical Marijuana patient. To verify this, I contacted a friend who works at the Illinois Secretary of State and asked him to confirm my findings. Initially, he told me that I was wrong and that this information is not reported to the Secretary of State, so this information would not appear if your license is searched or your plates are checked. I asked him to look into this further to make sure his information was correct because I had received conflicting information. After a short time he contacted me to inform me that my findings were correct and that the Medical Marijuana is reported to the Secretary of State. While not all driver’s licenses are linked to their license plate numbers, most licenses are.

You can imagine how this could be troubling for Medical Marijuana patients. While a valid argument could be made to allow the Secretary of State to place Medical Marijuana patient status on your driving record so that this information would appear if your license was ever run by a police officer, it makes no sense to make it possible for a police officer to discover this information when they are randomly running license plates of vehicles. While most police officers are honorable and honest, allowing this information to be available whenever a license plate number is run through a computer in a squad car opens the door to potential abuse and misuse. One can imagine a situation in which a police officer, who is randomly running license plate numbers of vehicles on the roadway, sees that a particular vehicle is registered to a Medical Marijuana patient and pulls over the driver of the vehicle just because he knows that there’s a pretty good chance that the driver of the vehicle has used marijuana in the recent past. This has the effect of placing a bulls eye on a Medical Marijuana patient who may doing nothing wrong other than being a Medical Marijuana patient.

Illinois Speeding Tickets Can Lead to Jail Time

November 26, 2017 | by James G. Dimeas, Esq.

Speeding-Ticket-Lawyer-300x200 Recently, 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.

Domestic Battery in Illinois

November 16, 2017 | by James G. Dimeas, Esq.

An Introduction to Domestic Battery in Illinois

A criminal charge of Domestic Battery is a very serious criminal offense in Illinois. In recent years, public attention has been focused on Domestic Violence. I noticed the increased attention on Domestic Violence cases after the infamous OJ Simpson case. State legislatures throughout the United States have passed laws which seek to punish crimes like this more severely and to try to put an end to this crime. This is true in Illinois as well. Laws have been changed to make it easier for a spouse to obtain an Order of Protection. Laws have been enacted to require the placement of GPS tracking devices on people have been ordered to stay away from victims. Penalties for Domestic Battery crimes have been stiffened to impose harsher penalties on people convicted of Domestic Battery. Local prosecutors have established units within their offices that specialize in prosecuting Domestic Battery crimes and specific courtrooms have been established in most counties that only handle cases like this.

This article will discuss what the crime of Domestic Battery involves and the possible penalties.

Can You Be Charged With a DUI If You Pull Over “To Sleep it Off”?

November 9, 2017 | by James G. Dimeas, Esq.

DUI It’s been a tough week. You have been swamped at work and you have been busy at home with activities with the kids. Finally it’s Friday and you made it. Your co-workers invite you to go out for drinks to relax after the end of a long week and you accept. After a couple of hours at a local bar of unwinding with your co-workers and after a few drinks, it’s time to go home. You get in your car and start driving and after a few minutes you realize that you may be in no condition to drive. You don’t know if it’s the alcohol or if you are just tired from your long week, so you decide to pull over and take a nap because you don’t want to take a chance of nodding off while driving and getting into an accident. So you pull over on a side street, park your car, shut off the engine and take a nap. After a few minutes you wake up to the sounds of knocking on your car window. It’s a police officer who is trying to get your attention. You explain to the officer that you are tired so you pulled over to take a nap before heading home. The officer asks you if you have been drinking and you tell him you had a couple of drinks a while ago but had a long week and are just tired. You pull your car keys out of your pocket and the officer asks you to exit your vehicle. The officer asks you to perform certain tests and then informs you that your are under arrest for suspicion of driving under the influence of alcohol. So how can you be charged with a DUI when you were just taking a nap in your car?

This fact pattern is pretty common. Unless you understand the law in Illinois, it’s hard to comprehend how you can be charged with a DUI when you were doing the responsible thing and getting off the road when you realized you were in no condition to drive.

The key factor in determining whether you could be charged with a DUI is if you had actual physical control of a motor vehicle. Whether you had actual physical control of your motor vehicle depends on the specific facts of each case. The Court will look at the totality of the circumstances to determine whether you had actual physical control of your motor vehicle. The leading case on this issue in Illinois is City of Naperville v. Watson, 677 NE2d 955 (1977). In this case, the police found Watson sitting in the driver’s seat asleep with his head on the passenger seat. Watson had the engine running so he could have the heat on. There was no evidence that he was driving or that he was planning on driving his vehicle. Yet, in this case the Court found that he was in actual physical control of his vehicle based on the fact that he was sitting in the front seat, the keys were in the ignition and the car was running. Since he was in actual physical control of his vehicle, he could be charged with a DUI. What seemed to be important in that case was that Watson had possession of the keys to the vehicle. The Court specifically found that “sleeping it off” is not a defense to a DUI. The Court refused to give an intoxicated motorist a “good citizen discount” for realizing they were in no condition to drive. Rather the court doesn’t want someone who is intoxicated from entering a motor vehicle unless they are a passenger.