Chicago Criminal Lawyer Blog

What Happens if I Refuse to Take a Breathalyzer Test in Illinois?

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

DUI Illinois has some very strict laws, rules, and regulations involving DUI’s. I frequently get questions from clients asking about whether they should or should not take a breathalyzer when they are requested to by a police officer. There is no simple yes or no answer to that question. Whether someone who has been stopped for a DUI should submit to a breathalyzer test or not is a very complicated question that depends on each case and the specific facts surrounding each case. All I can do is explain what the legal consequences of a refusal to submit to a breathalyzer test would be and what could happen if you take a breathalyzer test and you fail that test.

Let’s talk about what a breathalyzer test is. The only way to test how much alcohol is in somebody’s blood is with a blood test. A breathalyzer test measures the amount of alcohol in your breath. That reading gives a very accurate estimate of how much alcohol is in your blood. A breathalyzer test is performed by blowing into a machine which registers a reading. The results from that machine have been accepted in court as reliable and admissible evidence in DUI cases throughout Illinois.

Under Illinois Law, driving is a privilege not a right. Therefore, when you are given a driver’s license in Illinois you give the police the implied consent to ask you to submit to a breathalyzer test when you are requested to do so by a police officer. You can refuse to submit to a breathalyzer test when requested to take one but the consequences are very severe. Under Illinois law, if you refuse to submit to a breathalyzer test your license will be suspended for one year. If you are taken to a hospital the police can force the hospital to draw your blood to measure the amount of alcohol in your blood. That’s part of the implied consent that the law implies that you gave the police when you were issued a driver’s license in Illinois.

What is a Municipal Ordinance Violation and Do I Need a Lawyer for a Municipal Ordinance Violation?

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

Municipal-Violation Just like State laws create State crimes, and Federal laws create Federal crimes, individual towns, cities and villages also create laws, called Municipal Ordinances, which can give rise to charges alleging a violation of a Municipal Ordinance. I’ve been handling criminal cases for the past 27 years throughout Cook County, DuPage County, Kane County, and Lake County. I’ve noticed a dramatic rise in the number of Municipal Ordinance Violation cases throughout all of these counties. Many cities, towns and villages have established their own Municipal Violation Ordinance Courts which mainly impose monetary civil penalties upon violators that have become big sources of revenue for these municipalities. I’m seeing more and more cases being charged as Municipal Ordinance Violations rather than criminal cases in Circuit Court. This is especially true in Chicago, DuPage County, Kane County, and Lake County. I see the number of Municipal Ordinanve Violation cases increasing in the future

The rise in the number of Municipal Ordinance Violation cases has led to more and more clients calling me and asking me to explain what a Municipal Ordinance Violation is and what will happen when they appear in Court. Perhaps the most common question I get from clients is whether they need to hire a lawyer to handle their Municipal Violation Case. My advice is that you should have a lawyer representing you for a Municipal Violation Case. There’s several reasons for that so let me explain to you why you should have a lawyer with you for your Municipal Ordinance Violation case.

The consequences of being found guilty, or liable, for a Municipal Ordinance Violation are much less severe than the criminal penalties for a misdemeanor or a felony under state law. Typically, the consequences for a Municipal Violation involve paying a civil penalty, or a fine. A Municipal Ordinance Violation is generally not considered a criminal case. However, some of the conduct that could give rise to a Municipal Ordinance Violation charge can also be enough to charge you with a misdemeanor. For instance, if you shoplift from a store, the police can charge you with a Retail Theft misdemeanor. The police can also charge you with a Retail Theft under the Municipal Ordinance of the town in which the shoplifting occurred. This is a choice that’s made by the police officer or the prosecutor. So, if you try to shoplift and you receive a Municipal Ordinance violation ticket, instead of going to the Circuit Court for your case, you will have to go to the Village City Hall for a hearing before a Hearing Officer. Some towns hold their Municipal Ordinance Violation hearings at the local courthouse

Chicago Tribune Article Suggest Chicago May Be Losing Fight Against Gun Violence

May 5, 2017 | by James G. Dimeas, Esq.

UUW

Today, the Chicago Tribune re-published a story that indicates that law enforcement authorities in Chicago may be losing the fight against gun crimes. Everyone is aware of the ridiculous number of gun related crimes in the city of Chicago. It is the subject of national news stories and was the subject of a recent movie by Spike Lee which places the spotlight on the out of control gun violence in the City of Chicago. The gun violence in Chicago entered the discussion in last year’s Presidential campaign. Recently, President Trump has threatened to send in the National Guard to deal with the gun violence in Chicago. Law enforcement authorities and the politicians in Chicago have made fighting the out-of-control gun violence the focus of their collective efforts. However, the Chicago Tribune today re-published a story which should cause the citizens of Chicago to be seriously concerned about whether the authorities are fighting an effective fight against gun violence.

The Tribune reports that since 2012 the average bond set for a felony gun crime has doubled. In 2012, the average bond for a felony gun case was $25,000. In 2016 the average bond for a felony gun case was $50,000. The Tribune reports that this has done nothing to keep gang members off the streets. The number of defendants posting bond has more than doubled from four years ago. Therefore, in spite of the bonds for felony gun crimes doubling, four times as many defendants are getting out of jail on bond than they did four years ago. In 2012, the average number of days that a defendant charged with a felony gun crime spent in jail before posting bond was 42 days. In 2016 that number had dropped to 18 days. Fewer and fewer guns are being recovered by the Chicago Police. From 2012 until the end of last year, 9% fewer guns have been recovered.

Recently, Cook County authorities have been looking closely at reforming the Bond system in the Circuit Court of Cook County. Too many Defendants charged with minor non-violent crimes our spending too much time in Cook County Jail simply because they are unable to afford to post the bond. This is adding strain to the Cook County budget which is already in facing increasing economic pressure. Cook County authorities are trying to come up with a way to reserve precious jail resources for criminal defendants who are identified as posing a danger to the community.

Can I be Guilty of a UUW by Just Having a Gun in My Glove Compartment?

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

UUW This question cannot be answered with a simple yes or no answer. Unfortunately, the Illinois Unlawful Use of a Weapon (UUW) statute is a little complicated and requires an explanation. Another question I frequently get asked is: How do I legally transport a handgun in Illinois? Here it goes.

To be able to legally own a firearm in Illinois, you must obtain a Firearm Owner’s Identification Card, which is referred to as an FOID card. To obtain an FOID card, you must fill out an application with the Illinois State Police, pay a small application fee, provide a current color picture of yourself and wait for the Illinois State Police to conduct a very thorough background search. If they approve your application, they will mail you a card which has an expiration date on it. The FOID card allows you to legally own a firearm in your residence in Illinois. Until 2013, it was illegal to carry a loaded gun in public anywhere in Illinois. In 2012, the Federal Court of Appeals ruled that Illinois was violating the Second Amendment to the Constitution by not providing a mechanism by which citizens of the state would be allowed to carry a concealed firearm in public. Later in the same year, the Illinois Supreme Court agreed with the Federal Court of Appeals and ruled that the Illinois Unlawful Use of a Weapon Statute was unconstitutional because it did not provide a way for citizens of Illinois to lawfully carry a loaded gun in public. The following year, the Illinois Legislature enacted a Conceal and Carry statute which provided for a way for citizens of Illinois to lawfully carry a loaded concealed firearm in public. Illinois became the last state in the country to provide for conceal and carry.

To obtain a Conceal and Carry permit in Illinois, an application has to be submitted to the Illinois State Police. You are required to take gun safety classes and undergo a very thorough background search. The Conceal and Carry permit is only good for 5 years. So, since 2013, if you have a valid Conceal and Carry permit you can carry a loaded firearm in public as long as the location that you are at does not specifically prohibit the carrying of loaded firearms. If you only have an FOID card, you cannot legally carry a loaded firearm in public.

Will I Be Charged with a Domestic Battery if I Slap My Child?

April 25, 2017 | by James G. Dimeas, Esq.

Domestic-Battery-1 The short answer to this question is maybe. But whether you would be convicted of a Domestic Battery for simply slapping your child is a different question. This issue is a little complex so let me take a little time to explain what’s involved with this question.

You could be charged with a Domestic Battery in Illinois if you intentionally or knowingly make physical contact with another person that causes bodily harm or is of an insulting or provoking nature. What makes slapping your child a “Domestic” Battery is that the victim is a family member. Slapping a child clearly fits the statutory definition of a Domestic Battery. But the rules are applied differently when the physical contact involves the discipline of your child.

In 2002, the Illinois Court of Appeals considered this question and issued a decision which carves out an exception when the contact with the family member involves disciplining a child. The case is People v. Roberts, 351 Ill.App. 3d 684 (2002). The case involved an incident that began with an argument between a daughter and her mother. The father arrived home to find the two in the midst of a heated argument. The argument escalated and the father became involved in the dispute by grabbing the 16-year-old daughter by the hair which resulted in an injury to her eye. The police charged the father with a Domestic Battery because they claim that what he did, grabbing her by the hair, was without legal justification and fell under the elements of the Illinois Domestic Battery statute. The case proceeded to trial. At the jury instruction conference the lawyer for the defendant father requested that the court include a jury instruction instructing the jury that the defendant father could be legally justified in using reasonable force to discipline his child. The court denied the request because the Illinois Domestic Battery statute does not specifically allow for this defense. The defendant father was ultimately found guilty of Domestic Battery by the jury and appealed the conviction by claiming that the trial court made a mistake by not including this instruction in the jury instructions. The Court of Appeals overruled the trial court and threw out the Domestic Battery conviction because it found that the trial court should have included the instruction letting the jury know that “a parent is legally justified in using reasonable force when necessary as part of reasonable discipline of a child.” The court agreed that the statute does not specifically allow for this but applied the common law and established this defense to a Domestic Battery charge in Illinois involving the discipline of a child.

What Rights Do You Have if You Are Charged With a DUI?

April 18, 2017 | by James G. Dimeas, Esq.

DUI

Being arrested for a DUI can be a very confusing and stressful experience for most people. Based on my over-27 years of experience in handling DUI cases throughout Chicago, Cook County, DuPage County Kane County, and Lake County, I can tell you that most of the people that I have represented for a DUI are not criminals, nor are they bad people. Most of the people that I have represented for a DUI are hard-working citizens who have no criminal record. Some of them have never even received a traffic ticket. They simply made a mistake and were at the wrong place at the wrong time when they were caught driving when they had too much to drink. As a result, most of the people calling me wanting to discuss their DUI have lots of questions and want some guidance on what they need to do and what is about to happen to them. I want to take this opportunity to explain the process and what to expect.

If a police officer takes you down to the police station and asks you to take a breathalyzer test you have the right to refuse to take a breathalyzer test. But if you refuse to take a breathalyzer test, you will be facing a mandatory 12-month suspension of your driver’s license. If you agree to take a breathalyzer test then you must listen very carefully to the instructions given to you by the police officer. If you fail to properly blow into the machine, that failure will be considered a refusal to take a breathalyzer test which will result in the 12-month suspension. It’s not enough to argue you tried to follow the police officer’s instructions the best you could but failed to provide an adequate breath sample. It is your responsibility to listen to the instructions and provide the adequate breath sample.

If you take a breathalyzer test and the test indicates that the blood alcohol level in your system was .08 or above, you will be facing a six-month suspension of your driver’s license. The suspension of your driver’s license will begin 46 days after the arrest. Until then you can legally drive your car.

What Can Happen if I Violate My Probation?

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

Violation-of-Probation If you have been placed on Probation this means that you either plead guilty to a felony, or were found guilty after a trial of a felony, and received a sentence of Probation from the court. A sentence of Probation is the sentence that you receive just short of going to jail. The court will require that you do certain things such as get a mental health evaluation and follow all treatment recommendations, get a drug and alcohol evaluation and follow through on any of their recommendations, perform community service or SWAP, get a high school diploma, or whatever other conditions that the court may require. Every case is different and the terms of the Probation will vary from case to case. While you are on Probation you cannot violate the law and you must appear for every court date and for every meeting with your Probation Officer. Plus, you must pay all the fines, fees and court costs.

If you plead guilty to a misdemeanor, or were found guilty of a misdemeanor after a trial, the judge could sentence you to Court Supervision, Conditional Discharge, or convict you of the misdemeanor. If you receive Court Supervision or Conditional Discharge, you will be sentenced to a period of Probation that will usually be supervised by the Social Services Department. The Judge will also impose conditions to the Supervision or Conditional Discharge which could be like the requirements placed upon those who receive Felony Probation. If you are convicted of the misdemeanor and sentenced to Misdemeanor Probation, the same Probation Department that monitors felony Probation will monitor your Probation.

When you are sentenced to Probation, or to a Probation type sentence for a Misdemeanor, just before you are sentenced, you will plead guilty to the charges. This is very important to remember because if you do not successfully complete your Probation then you cannot go back into court and challenge the criminal charges against you. You have already plead guilty so the issue of your guilt or innocence is closed. By pleading guilty you admitted that you did what you have been charged with and you are giving up your right to go back to court and fight the charges.

Do I Have to Answer Questions by Store Security When They Stop Me for a Retail Theft?

April 4, 2017 | by James G. Dimeas, Esq.

Retail-Theft

This is a common question that I am frequently asked by clients facing Retail Theft or Shoplifting criminal charges. The short answer is no, but let me explain further.

If you are under criminal investigation for anything, whether you are being investigated for a Retail Theft by store security or by the police, you are under no legal obligation to cooperate with them. This includes answering their questions.

Let’s talk about the police. If you are being questioned by the police, the law provides you with some protections. If you are in custody and the police start asking you questions the law provides that they must advise you of your Miranda Rights. You are in custody when you are not free to leave. If you are in custody and the police want to question you, they must inform you that you have the right to remain silent and that anything you say can and will be used against you in court. They must also inform you that you have a right to a lawyer and that if you cannot afford a lawyer they will provide one for you for free. If you waive your right to remain silent, then the police can use anything you say to them against you in Court.

Flynn and Immunity – More Than Meets the Eye

March 31, 2017 | by James G. Dimeas, Esq.

Michael-Flynn I woke up to multiple news reports this morning that former National Security advisor, Michael Flynn, has offered to cooperate with Federal Investigators in return for a grant of immunity. I was watching news coverage and notice that the media is not reporting all of the various factors and steps that have to be taken in order for this to happen. The reporting is very simple. However, the topic is certainly more complex than what is being reported. I want to focus on a couple of things that the media is not talking about.

Before I begin I want you to know that I have been a criminal defense lawyer for almost 25 years. I have represented numerous individuals who have either been facing criminal prosecution in the Federal courts, or were under criminal investigation by the federal government for various crimes. Some of my clients cooperated with Investigators and Prosecutors and were able to avoid criminal prosecution. Other clients agreed to cooperate with Federal Prosecutors and Federal Investigators in return for a reduced sentence in a Federal Criminal prosecution. So I approach this issue as someone who has experience representing people who were granted immunity in return for cooperating with government Investigators and Federal Prosecutors.

The first issue that I wanted to discuss is whether Flynn’s request for immunity means that he has something to hide. While his request for immunity may mean that he has reason to fear criminal prosecution, the mere request by him and his lawyers for immunity in return for talking to Investigators does not necessarily mean that he has anything to hide. It may simply mean that he has a good lawyer. Any lawyer representing anyone who wants to talk to Federal Investigators, or Federal Prosecutors would be committing malpractice if they did not try to get an agreement from the Prosecutors and Investigators that anything their client says to them cannot be used against their client in a criminal prosecution. Even if the lawyer believes their client when they say that they did nothing wrong, they would be crazy to put their entire faith in their client being 100% truthful with them. Plus, the lawyer does not know what evidence the feds have against their client. The job of a criminal defense attorney is to protect their client from the known and the unknown. As a lawyer, you cannot read your client’s mind. Therefore, the best way to protect your client when they are voluntarily talking to Federal Investigators and Federal Prosecutors is with a grant of immunity.

The Kane County Deferred Prosecution Program – Avoid a Conviction – Keep Your Record Clean

March 28, 2017 | by James G. Dimeas, Esq.

Kane-County-Diversion-Program The Kane County State’s Attorney’s Office has a unique program which gives first time non-violent offenders an opportunity to avoid having a felony or misdemeanor conviction on their record. It’s called the Deferred Prosecution Program. The Kane County Deferred Prosecution Program started in 1995 and was originally called “Second Chance.” Prosecutors working in Kane County, as well as criminal defense lawyers, have long sensed that this was a good program with good results. Recently, those beliefs were proven to be true. A study was conducted with the help of Aurora University to study how effective this program was. That study showed that 92% of criminal defendants placed into this program have not been convicted of any crime since completing the program. A 92% success rate is good no matter how you look at it. In my 26 years of practicing criminal law, I have had the opportunity to have many of my clients accepted into this program and agree that it is effective and is a great opportunity for a first-time offender to avoid having a criminal record. Let’s discuss what this program is and how it all works.

What originally started as one big program in Kane County has been split into 5 different Deferred Prosecution programs. There is the Felony/Misdemeanor Program, Misdemeanor Drug and Alcohol, Domestic Violence, Felony Drug, and Solicitation/Prostitution. Whichever program applies to you, the process is essentially the same. You must apply to be admitted into this program. The application can be made by the Prosecutor, your defense lawyer, the police department, or the judge. This referral is usually made within 90 days of your arrest. Once you have been referred to this program, you must contact the State’s Attorney’s Office to arrange for an intake interview. You will be interviewed by a panel of citizens and they have to vote to approve your entry into this program. If the panel recommends that you enter this program their recommendation is sent to the State’s Attorney’s Office. The State’s Attorney’s office will review the application and your criminal record and will contact the victim and the arresting police officer for their input prior to making the decision about whether to allow you to enter the Kane County Deferred Prosecution Program. You will not be eligible to enter the Deferred Prosecution Program if you have had any prior conviction for any crime or are currently on Probation or Court Supervision for any crime. If you are an active gang member you will be denied entry into this program. You cannot get into the Kane County Deferred Prosecution Program if you have a DUI, traffic offense, or the charge you are facing is a violent crime. You will not be allowed into the Kane County Deferred Prosecution Program if you are charged with a crime against an elderly person or if the crime involves the use of a weapon.

Once you enter this Kane County Deferred Prosecution Program your case is continued for a period of time for you to successfully complete the requirements of the program. Before you are placed into the Kane County Deferred Prosecution Program you will appear in front of a judge and you will plead guilty to the crime. This means that if you do not successfully complete the Deferred Prosecution Program you cannot fight the case because you have plead guilty. If you do not successfully complete the Deferred Prosecution Program you will go back to court and then the only question before the court will be what your punishment will be. While you are in the Kane County Deferred Prosecution Program you will not be allowed to leave the jurisdiction without the approval of the coordinator of the program. You must keep them informed about where you are working and where you are living. You cannot use any drugs or alcohol and you must consent to random urine drops. You cannot violate any criminal law and you cannot associate with any known gang members. You will be required to pay the fees associated with being in Kane County Deferred Prosecution Program. Those fees consist of an application fee of $50, program fee of $570, and court cost of approximately $300. There are also fees associated with the random drug tests. If the staff of the Deferred Prosecution Program requests that you come in and meet with them, you must do that. Most people who enter the program only have to mail in a monthly report about their status. You will appear at a final court date and when the judge is informed you have successfully completed the requirements of the Kane County Deferred Prosecution Program and paid all your fines, fees and court costs, the case will be dismissed and you will be released without having a criminal conviction on your record.