Veterans CourtThe recent wars in Iraq and Afghanistan have seen a dramatic rise in the number of mental health and substance abuse issues involving military veterans returning from serving in those wars.  Some of these soldiers are returning home with mental health issues and are using drugs to deal with the mental health issues which such wars have caused.  Those issues have spilled into the criminal justice system when these military veterans are getting arrested for crimes caused by substance abuse and mental health issues arising out of their military service.  In an effort to address the specific needs of returning veterans, the Illinois Legislature passed legislation in 2009 establishing Veterans Courts in Illinois.  The 2009 legislation did not require that counties establish such courts.  Nevertheless, Cook County and Lake County did establish such courts. Veterans Courts are specific courts which are designed to steer military veterans out of the criminal punishment aspect of the court system and towards the treatment aspect of the court system.  Specific courts have been established at 26th and California, Skokie, Rolling Meadows, Maywood, Bridgeview and Markham. The Veterans Courts in Cook County have been very successful and have been used as a model by court systems throughout the United States to help them establish their own Veterans Courts.  The Illinois Legislature recently passed legislation requiring that each county in Illinois establish such a court by January 1, 2018.  In anticipation of this new law taking effect, counties throughout Illinois are beginning to make plans to establish these courts.  Kane County officials are aware of the new law and are beginning to make plans to start the process of establishing these courts.

In order for a veteran to be eligible for Veterans Court in Cook County, enrollment has to be agreed to by the Court, Prosecutor and the Defendant.  The crime that the veteran is charged with cannot be a crime of violence.  The veteran will not be eligible unless they have demonstrated a willingness to undergo treatment in the program.  They will also be ineligible if they have been convicted of a crime of violence within the past 10 years or if they have been discharged from a similar program within the past 3 years.

Lake County’s Veterans Court is similar with minor changes to the eligibility requirements.  To be eligible for Veterans Court in Lake County the veteran must have been honorably discharged from the military, must have a service related disability or currently be in the military, must be charged with a felony or misdemeanor in which probation or supervision is available, and must be willing to participate in the program before and after they enter the program.  They prefer that the veteran be eligible for VA benefits but is not a requirement.  For any crime involving a crime against an individual, the victim must agree to allowing the veteran to enter such a program.

Felony ConvictionThis is a question that I am asked frequently around election time.  Most people do not understand what the rules are when it comes to whether you are allowed to vote if you have a felony conviction.  Rules vary from state to state and this has created confusion.  People don’t understand that each state has it’s own rules which requires that people with felony convictions inform themselves of what the rules are in their state. My experience with this issue is that most people are not informed as to what the law is in Illinois when it comes to felony convictions and voting rights in Illinois. Illinois has passed a specific law which spells out what effect a felony conviction can have on your right to vote in Illinois.  The law is set out in 10 ILCS 5/3-5.  In Illinois, a convicted felon has just as much of a right to vote as any other citizen in the state.  As long as you are not incarcerated, meaning serving a prison sentence, you can register and cast a vote in Illinois.  If you are in court and fighting your case, you can vote in Illinois.  Even if you are in jail fighting your case. If you are on probation, you can vote in Illinois.  If you are on parole, you can vote in Illinois.  As long as you have not been convicted and are in prison, you can vote.  However, if instead of being in prison, you are allowed to serve your sentence outside of prison, such as prison furlough or work release, you will not be allowed to vote until you finish your sentence.  If you went to prison and lost the right to vote you should re-register once you are released from prison so that you can go to the polls and cast your vote.

When someone is not allowed under the law to vote, they are called “disenfranchised” voters.  In 2010, roughly 2.5% of the nation’s voting age population could not vote because of a felony conviction.  In Illinois, that comes out to about 800,000 people who have been convicted of a felony.  If 800,000 people do not realize that they have not been stripped of their right to vote, and sit out an election because of their mistaken belief, this could make a big difference in a close election.  In my opinion, which is based on the questions that I get from criminal clients, as well as members of the public, not enough is being done to educate the public about this issue.

In seven states, people convicted of a felony are barred forever from ever voting.  Florida has the largest number of disenfranchised voters with roughly 10.42% of all voters.  In two states, Maine and Vermont, even prison inmates are allowed to vote.  In other states, convicted felons are required to petition the Governor to have their right to vote reinstated, or restored, once their sentence is completed.

IDOCThe United States Court of Appeals for the Seventh Circuit sided with an inmate who had ordered the death certificate of his victim and was not allowed to keep it when his mail was opened by prison officials.  The case involves Kevin Williams. Kevin Williams was convicted of the murder of Traci Todd and sentenced to 65 years in  prison.  While he was incarcerated at the Pontiac Correction Center, a maximum security prison in Illinois, Williams ordered the death certificate of his victim from the County Clerk’s Office.  The death certificate was received in the mail at Pontiac.  His mail was opened by prison officials and inside the envelope, they found the victim’s death certificate along with an unsigned note which stated that “there is a place in hell waiting for you as you must know you will reap what you have sowed.”  The prison officials confiscated the mail claiming that they were doing so to insure the safety and security of the facility and not to negatively impact his rehabilitation. Williams filed a civil suit in Federal Court against the prison warden, the Director of the Illinois Department of Corrections, and the prison employees responsible for confiscating his mail for a Deprivation of his First Amendment Rights.   Initially the Federal Court dismissed Williams’s lawsuit against some of the defendants because they had not been involved in the confiscation of his mail.  The court then dismissed the lawsuit against the remaining defendants because the court found that confiscating the mail would decrease the chances that inmates would retaliate against him for boasting about his crime, and that it would protect family members from the release of private information about surviving family members.  The Court of Appeals overturned the decision of the District Court and struck the confiscation of his mail.

The Court started by stating that prisoners have a First Amendment right to send and receive mail.  However, prison officials can confiscate a prisoner’s mail if they are able to show that doing so is reasonably related to a management of prison interest.  A mere statement by prison officials that they are protecting this interest is not enough.  They have to come forth with some evidence that shows that this restriction is justified.  In this case, the note did not threaten any harm in prison.  It warned of harm “in hell.”  There was no allegation by prison officials that the letter threatened any harm to Williams inside the prison.  Prison officials argued that the death certificate could be used as a “trophy” by Williams to boast in prison and that would cause security problems and negatively impact his rehabilitation.  The Court found that this is a legitimate interest for prison officials but pointed out that in his deposition, Williams claimed that he needed the death certificate so he could pursue an appeal of his conviction rather than as a trophy.  The assertion by prison officials that he was going to use the death certificate as a trophy without any supporting evidence, was insufficient to justify the confiscation of his mail.  Prison officials could have avoided this controversy if they held on to the death certificate until he wanted a copy of it to include in his appeal.  Instead they imposed a blanket prohibition against him having any ability to have access to this document.  If they had testimony from a fellow inmate that Williams had made statements that he wanted the death certificate as a trophy, they may have prevailed in this lawsuit.  But all the Court had was Williams testifying that he needed this document to pursue an appeal without any evidence to rebut this claim by prison officials.  The Court upheld the dismissal against the defendants not involved in the confiscation of his mail but the lawsuit is reinstated against the remaining defendants.

This case establishes that inmates are entitled to send and receive mail and that in order to stop that from happening, prison officials need more than just a mere allegation.

UUWA decision this week out of the Court of Appeals of the Sixth Circuit has added fuel to a new front to the 2nd Amendment debate.  Under federal law, certain groups, or classes of people, are barred from owning a firearm. Those groups include convicted felons, fugitives and people with a prior history of domestic batteries.  The case decided this week in the Sixth Circuit deals with a provision in the law which bars people who have been committed to a mental institution from owning a firearm.  The law allows an individual to appeal for relief from the prohibitions imposed by this law to the Attorney General of the United States. The Attorney General has delegated the authority to investigate such petitions to the Director of the Bureau of Alcohol Tobacco and Firearms.   This appeal process is called the “relief from disabilities program.”  The law is pretty detailed about what an individual is required to provide in such a petition to the director of the ATF.  The law requires that the petitioner provide copies of the court order mandating commitment to a mental institution, and all other medical records having anything to do with the person’s mental condition along with letters of recommendation from at least three people along with a written consent allowing the Attorney General to obtain any medical records.  The law then sets out in detail what the Director of the ATF is supposed to do when it comes to making a decision as to whether to grant relief from this law.  However, in 1992 Congress defunded the relief from disabilities program.  The defunding of this program has continued since then.  In 1998 Congress authorized federal grants to help states pay for determining which individuals may own a gun and to help states pay to provide this information to the federal government.  However, in order for a state to qualify for these federal funds, each state has to show the federal government that they have an appeal process similar to the relief from disabilities program which gives people who are barred from owning a gun the right to an appeal which allows their case to be considered for relief from the state’s prohibition.  About half of the states have established such relief processes.  Michigan is one of the states that has not.  This is where this case comes from.

Seventy three year old Clifford Charles Tyler had been involuntarily confined to a mental institution by a Michigan Court in 1986 because he was suicidal.  Tyler had been served with divorce papers by his wife who had been cheating on him.  The opinion details in great length the seriousness of the mental issues that Tyler was dealing with and the extensive steps that were taken to treat him.  In 1999 Tyler remarried and in 2012 his psychologist reported that he has fully recovered from his mental condition and that he can no longer detect any mental illness.

In 2011 Tyler attempted to purchase a gun but was denied the right to do so because his name showed up on an FBI data base as someone who had previously been committed to a mental institution.  He appealed this determination by the FBI but his appeal was denied.  Tyler was informed that because Michigan has not established a relief process, there’s nothing that the federal government can do for him.

DUIIt’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.

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MarijuanaOn July 27 we reported that the DEA was considering reclassifying marijuana from a Class 1 Drug to something less.  Advocates for the legalization of marijuana were looking at this possibility as an important step to the possible legalization of marijuana.  On Wednesday the DEA made it’s decision public, and the decision did not make marijuana legalization advocates happy.  The DEA decided to keep marijuana in Class 1, which is the most serious classification of illegal drugs.  But what is especially troubling was the reason given by the DEA for denying the application to remove marijuana from the Class 1 category.  The DEA found that there is no accepted medical benefit for the use of marijuana and that it is highly vulnerable to abuse.  The DEA found that marijuana is not a safe and effective medicine.  This decision flies in the face of 42 states, and the District of Columbia, which allow for some form of medical marijuana use.

Today, sources are reporting that as early as today, the Obama Administration will issue new regulations which will make it easier for researchers to obtain the marijuana needed to conduct medical research. Currently, marijuana grown at the University of Mississippi has been the only source of medical marijuana available to medical researchers.  Currently, in order to obtain permission from the federal government to grow marijuana for medical research purposes, the process is so restrictive that it could take years to obtain it and is virtually impossible to get.  The new regulations will make it much easier to obtain permission to grow a supply of research grade marijuana.  The details are unclear but people who have seen the regulations believe that these changes could signal a major step towards the eventual legalization of marijuana.

Recently, Illinois has joined a growing group of states that are moving towards a more accepting treatment of marijuana.  Illinois allows for the use of Medical Marijuana.  The Illinois Legislature has accepted that there are medical benefits to the use of marijuana and they have set up a highly regulated process by which people who suffer from certain medical conditions can legally buy, possess and use medical marijuana as long as they have a valid prescription and obtain permission from the State of Illinois.  While the Illinois medical marijuana program is one of the most strict in the country, it is the product of a long and difficult fight in Springfield that took many twists and turns.

Illinois DUI

Most DUI’s in Illinois are a misdemeanor.  If you are operating a motor vehicle on the public roads with a blood alcohol level of .08 or above, you could be charged with a DUI. The maximum criminal punishment for a Class A misdemeanor in Illinois is up to one year in jail and a fine up to $2,500.00.  But there are situations where you could be charged with a felony.  This is known as Aggravated Driving Under the Influence, or Aggravated DUI.  This article discusses how you can be charged with an Aggravated DUI.

Special rules apply to people have have previously been convicted of a DUI.  If you are convicted of a 3rd or subsequent DUI, you could be charged with a Class 2 felony.  Generally, you could be facing a penalty of between 3 to 7 years in prison, probation up to 48 months, along with fines, fees and drug treatment.  If your blood alcohol level was .16 or above, you will be facing a mandatory 90 day jail sentence.   A fourth offense is non-probationable and carries a mandatory 3 to 7 year prison sentence.  A 5th offense is a non-probationable Class 1 felony that carries 4 to 15 years in prison.  A 6th offense is a non-probationable Class X felony which carries a mandatory 6 to 30 year prison sentence.  If the DUI results in the death of another, even if it’s your first DUI, you could be charged with a Class 2 felony.  You are eligible for probation, but in order to be sentenced to probation, the Judge has to find extraordinary circumstances to avoid imposing a prison sentence.  If you are sentenced to a prison sentence, you are facing 3 to 14 years for one death, and 6 to 28 years for 2 or more deaths.

The following instances allow the state to charge you with a Class 4 felony of Aggravated DUI:

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MarijuanaOn Friday, 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 makes 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 last year.  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 on Friday. This measure goes into immediate effect in Illinois.

marijuana-Schedule 1The DEA has announced that they are considering reclassifying Marijuana from a Schedule 1 Drug to something less.  The implications could have enormous consequences which could drastically change the way we deal with marijuana in the criminal justice system.  Under current federal law, Marijuana is classified as a Schedule 1 Drug.  This is the highest classification for the ranking of drugs.  This classification includes Heroin and Cocaine.  The current classification of marijuana makes it illegal under federal law to prescribe marijuana for medical purposes since Class 1 drugs have no current accepted medical use.  24 states currently permit medical marijuana in violation of federal law.  If the federal government reclassified marijuana to something less than a Schedule 1 drug, this would allow researchers to work with the plant to explore possible medical uses.  Since Marijuana is classified a Schedule 1 drug, researches can only legally obtain the plant through a single federal government garden that has strict restrictions on the ability to obtain the plant for research purposes.  Marijuana was added to schedule 1 in 1970.  The DEA regularly considers reclassifying drugs.  They have previously considered reclassifying marijuana in the past and have always refused.  In a letter to Congress, the DEA informed them that they will be conducting a review of marijuana but did not include a date by which they will decide.  It is expected that a decision will be coming down sometime this summer.  There is a growing belief among medical professionals that marijuana may have medical benefits that could provide a viable alternative to prescription drugs.  The belief is not universal but there is a growing consensus that the medical benefits do deserve to be explored and that research needs to be conducted.  Unlike prescription medication, marijuana comes in different strains and potency which could affect different conditions in unique ways.  Classifying marijuana a Schedule 1 drug has made it very difficult for medical research to conduct the necessary research to explore any possible benefits.

It seems like the political climate is moving towards easing the prohibition on marijuana.  In addition to the legalization of medical marijuana, a couple of months ago, the Republican led House of Representatives passed a measure which would allow VA doctors to legally recommend, and prescribe, medical marijuana to veterans, the same way doctors can in the 24 states that have allowed for medical marijuana.  The Senate has passed a similar measure, but since there’s slight differences in the legislation, the bills need to be reconciled.  It is believed that President Obama would sign such legislation if it were sent to his desk.  The fact that Congress would pass such legislation is further proof of the momentum that has been building towards becoming more tolerant and accepting of marijuana.

While nobody thinks that marijuana is going to be legalized anytime soon, reclassifying marijuana from a Schedule 1 drug to something less is clearly a necessary first step to the beginning of this process.  In preparation for the possible legalization of marijuana in the future, people are already looking at the possible financial benefits that could arise.  According to a recent report from NerdWallet, states could stand to gain $3.1 billion per year in tax revenue if marijuana were to be legalized.  The Federal Government is seen as the biggest obstacle to legalizing marijuana.  The Federal Government classifying marijuana a Schedule 1 drug means that businesses engaging in the marijuana business cannot take tax deductions like normal business can.  In addition, financial institutions are unwilling to do business with business that do business with marijuana out of fear of criminal prosecution.  For that reason, reclassifying marijuana to something other than a Schedule 1 drug may be the beginning of a movement that could eventually lead to legalizing marijuana.

Stingray Cell TowerOn Friday, Illinois Governor Bruce Rauner signed a bill into law which requires law enforcement officials to obtain a warrant before deploying a stingray device to intercept a person’s cell phone communications to determine their location.

A stingray device is basically a cell phone simulator which intercepts the transmission from cell phones without anyone’s knowledge or consent.  In some cases the stingray can intercept actual phone calls and text messages.  The stingray tower will fool the cell phone into thinking it is communicating with the cell phone carrier’s cell phone tower when it is actually communicating with a tower that is being run and monitored by law enforcement agents.  The stingray tower doesn’t just target one device.  It will intercept the cell phone transmission of all the cell phones in a particular location.  Unknown to anyone, law enforcement officials are listening to the conversations and intercepting text messages and other data communications.  Law enforcement agencies have been using stingray towers for several years without any scrutiny.  A few years ago in a federal drug case in California, federal agents claimed that they had received a tip from a confidential informant about the drug dealing activity of a defendant charged with dealing drugs.  During the discovery phase, prosecutors mistakenly turned over documents to the defense which revealed the use of these stingray devices.  Before this case, nobody had ever heard of such devices.   The federal government sought to block the defense from obtaining any discovery about these devices claiming that national security would be compromised.  The Court eventually ordered the government to turn over the stingray discovery to the defense but ultimately admitted the evidence obtained by the stingray device.  In response to this case, the State of California passed legislation requiring that the police obtain a warrant before deploying a stingray. Several states, such as Washington, Virginia, Minnesota and Utah joined California and enacted a similar warrant requirement.  Last year, the Department of Homeland Security and the Justice Department imposed rules which require that federal agents obtain a warrant before deploying a stingray.

Last month, for the first time, a federal judge, in a drug case, suppressed evidence that had been obtained by a stingray that had been used without a warrant.  U.S. Drug Enforcement agents had used a stingray to locate a cell phone that had been used in a drug investigation.  The agents used the stingray to track the cell phone to the Defendant’s apartment.  U.S. District Judge William Pauley ruled that “absent a search warrant, the government may not turn a citizen’s cell phone into a tracking device.”  The Judge suppressed all of the evidence obtained by the use of the stingray device.  This marks the first time that any court has suppressed any evidence obtained by the use of a stingray.

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