Attorney James G. Dimeas
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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:

DUI-300x200Being pulled over by a police officer is a stressful experience. This is especially true if you know that you have been drinking alcohol. Your mind starts racing and you want to make sure that you don’t give the police officer any reason to suspect that you are under the influence of alcohol. Unfortunately, many motorists don’t really think before they open their mouth. They don’t realize that the police are not there to help them. The police have a job to do and their job begins the moment they notice your vehicle. You need to understand what the police officer is doing and how your conduct and your statements can be used against you in court.

First of all, a police officer cannot pull over your vehicle for no reason. In a typical DUI, a police officer will notice a driver committing a traffic violation. This could be speeding, failure to stop at a red light or a stop sign, or improper lane usage. Once the police officer pulls over your car, the police officer begins making observations that will provide them with the legal justification to pull you out of the car and ask that you submit to a field sobriety test. In order for a police officer to ask that you exit your car to perform a field sobriety test, the police officer must have probable cause to think that you may be under the influence of alcohol. A mere hunch is not enough. The police officer must have specific articulable facts to justify their suspicions.

The police officer will begin making observations as soon as they suspect that alcohol may be involved. If a police officer asks you to exit your vehicle, you should follow the officer’s request. It is not up to you to decide whether the police officer has probable cause to suspect that you may be under the influence of alcohol. The issue of whether the police officer had the legal right to ask that you exit your vehicle is a decision that will be reviewed later on in Court in front of a judge.

Kane-County-Drug-Case-300x226Yesterday, Kane County State’s Attorney, Joe McMahon, announced that Kane County saw a 7% increase in the number of felony cases filed by the Kane County State’s Attorney’s Office in 2017. The increase in the filing of felonies in Kane County continues a rise in the number of felony cases filed that began in 2015. In 2007, Kane County saw 3,349 felony cases filed. That number declined from that year until 2015, when 2,011 felony cases were filed in Kane County. In 2016, 2,255 felony cases were filed. In 2017, 2,413 felony cases were filed. That represents a 7% increase over 2016.

McMahon attributes the 7% increase over 2016 to the rise in the number of felony drug cases that were filed in Kane County last year. McMahon reports that last year, his office charged 447 felony drug cases. That number represents a 42% increase over 2016. Some of the cases filed in Kane County in 2017 were severe drug cases such as Possession with Intent to Deliver, Delivery of a Controlled Substance, and Drug Trafficking. The increase in the number of drug cases filed in 2017 coincides with the rising number of heroin-related overdose deaths that have been rising in King County and other surrounding counties.

McMahon believes that the increase in the number of felony drug cases in Kane County is a combination of an increase in the number of drugs coming into the area and the increased attention that law enforcement has placed on attacking the heroin and opioid-related crises in Kane County.

Domestic-BatteryOne of the most common questions I get asked by people who are charged with a Domestic Battery is whether they can be guilty of a Domestic Battery if they did not hit anyone.  The short answer to that question is yes.  But let’s talk a little about what a Domestic Battery is and why it is very important that you hire a good Illinois Domestic Battery lawyer who knows what they are doing.

First of all, most Domestic Batteries in Illinois are a misdemeanor.  The maximum punishment for a misdemeanor Domestic Battery is one year in jail and a fine up to $2,500.  But unlike most misdemeanors, if you are found guilty of a Domestic Battery in Illinois, you cannot receive Court Supervision.  Court Supervision is a type of sentence, that if successfully completed, does not result in a conviction on your criminal record.  The lowest possible sentence that can be imposed on a Domestic Battery in Illinois is Conditional Discharge.  A Conditional Discharge sentence for a Domestic Battery cannot be expunged from your criminal record.  This means that if you are found guilty of a Domestic Battery you will never be able to remove the conviction from your criminal record.  And that’s why even though a Domestic Battery is usually a misdemeanor it is more serious than most other misdemeanors.  Since it can never be removed from your record, the consequences of a conviction can last a lifetime.

Next let’s talk about what Illinois law considers a Domestic Battery to be.  In order for a Battery to be considered a Domestic Battery as opposed to a regular Battery, the victim has to be either a family or household member. What does that mean?  This means that the victim has to either be a spouse or former spouse, a child or stepchild, or someone related to you by blood or by a prior marriage.  The victim can also be a current, or former boyfriend/girlfriend or a current, or former spouse. A family or household member can be someone who lives with you, someone that you are alleged to have had a child with or are related to each other through a child.  A household or family member can also be someone that you are currently having, or have previously had, a dating relationship with.  So as you can see, a family or household member is rather broadly defined under Illinois Law.

DUILast 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.

Bond HearingRecently, 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.

Order-of-Protection-200x300Many 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.

Retail TheftThis 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.

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.

MarijuanaIn 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.