revolverIn a recent Illinois appellate case, the defendant appealed after being convicted of armed robbery, which is a Class X felony.  He was sentenced to 21 years in prison, which is the six-year minimum plus a 15-year enhancement for using firearms.  He was indicted based on a theory of accountability.  Prosecutors claimed he knowingly took money from the victim’s person by threatening the use of force while carrying a firearm.

The defendant was separately charged with attempted armed robbery, and he pled guilty to that charge. He was admonished of his right to a jury trial, and he agreed to waive his right. The case at hand was set for a jury trial, but a few months before the trial, the defense attorney told the court that sentencing in the attempted armed robbery case was supposed to occur on the same day. The defendant’s attorney also said at that point that the current case would be a bench trial, and they’d waived a jury trial. There was no written jury waiver.

Subsequently, the State filed a notice of intent to ask for a 15-year sentencing enhancement upon conviction under section 111-3(c) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/111-3(c)).

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Michael-FlynnI 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.

cannabisA recent Illinois appeal involved a Domestic Battery. The defendant was acquitted of Aggravated Domestic Battery and unlawfully interfering with a report of Domestic Violence, but he was convicted of Domestic Battery under 720 ILCS 5/12-3.2(a)(1). The trial court denied his post-trial motion, and he was sentenced to 30 months in prison. He appealed on the grounds that the court had made a mistake in permitting the prosecution to impeach him with his felony Cannabis conviction.

The case arose from allegations that the defendant knowingly caused harm to a woman by choking her after previously being convicted of a Domestic Battery. In addition to applying pressure to her throat, it was alleged that he stopped her normal breathing or blood circulation, and he knowingly stopped her from calling the police by taking her phone.

Before trial, the defendant tried to stop the State from impeaching him by showing he had a prior Domestic Battery conviction and a felony Marijuana conviction. At the hearing, the prosecution argued that the Marijuana conviction could be admitted because the charge was not similar to the defendant’s current charges, and it had impeachment value because it was a crime against society.

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parking-space-1441053-1-300x225In a recent Illinois appellate case, the defendant was convicted of unlawful delivery of a controlled substance under 720 ILCS 570/401(a)(1)(D). He appealed on the grounds that the prosecution hadn’t proven beyond a reasonable doubt that he knowingly participated in the drug transaction.

The detective testified that he’d investigated narcotics and money laundering cases in the past. Most of his cases involved surveillance. Often traffickers conduct heat runs to determine if police are watching. A heat run is an effort to take an out-of-the-way route to go to the transaction destination, such as making multiple turns or U-turns and going down back alleys.

On the day in question, the detective found that a prior investigation target was stopped with more than $100,000 on him. The detective went to the address where the car was registered. There they saw a car registered to the defendant at a Texas address. They saw a woman and boy leave the house and drive away to breakfast at a restaurant. When they came back to the address the defendant’s car was gone. It returned in the afternoon, with the defendant driving.

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knifeIt is crucial to retain an experienced attorney to defend you if you’re charged with domestic battery or aggravated domestic battery in Illinois. In a recent Illinois appellate case, the defendant was convicted of aggravated domestic battery after a bench trial. The couple had met in 2011 and started an intimate relationship. The woman gave birth to their child. She had no permanent place of residence, so she stayed with the defendant at his house. They frequently argued, which caused her to leave for a certain period before coming back.

In 2012, during a fight, the defendant threatened to kill her and put her in a chokehold. Their son was in a car seat on the floor. The mother flipped the defendant onto the floor, but he kept choking her for about two minutes until she had to stop. She left and called the cops, but she didn’t want medical treatment when an officer offered to call an ambulance. She filed an order of protection against the defendant, but she had no way to go back to court to make sure the order continued to be in effect. After that, she lost custody of the child.

The couple continued to argue. On the last occasion, the defendant stabbed the victim. She didn’t realize she’d been stabbed until she saw the blood, and then she panicked. He told her to run, and she did. She passed out on the street, and when she woke, the police were there and asked who’d stabbed her. She had to have an emergency surgery to fix the wound.

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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-TheftClients that are charged with retail theft frequently call me a few weeks after they are arrested and tell me that they received a letter from the store’s lawyers demanding money.  They usually have two questions when they receive that letter.  The first question is whether this means that if they pay the amount they are asking for will that mean that their case is dismissed?  The second question is whether they have to pay the amount they are demanding.  I will explain to you what I tell them and what that letter means.

When you are arrested and charged with a retail theft, or shoplifting in Illinois, this means that you have violated the criminal law of the State of Illinois. You will be assigned a court date and you will have to go to court to answer to the criminal charges. Under Illinois Law, that same retail theft gives the store, known as the retail establishment, the right to sue you in civil court for civil, or money damages.  The very last part of the statute which deals with the crime of retail theft discusses the civil penalties available to the retail establishment. The amount of money the store’s lawyers can go after you for it is the actual retail value of that you stole, or tried to steal, plus anywhere between $100 and $1,000, plus their attorney fees and any court costs associated with the attempt to collect on this civil penalty.  You will first find out that the store is trying to do this when you receive a letter from their attorneys informing you that they are seeking the civil penalty against you. That letter will inform you that you need to contact them to discuss payment. You need to understand that this proceeding is completely separate and distinct from the criminal case that you are facing. Paying the amount they are seeking will not halt the legal proceedings in the criminal case. As a matter of fact, the prosecutor handling your criminal case and the civil attorney representing the store for money damages have nothing to do with each other.  They are not communicating with each other nor are they working together.  Often, payment of the civil penalty is something that an experienced Illinois retail theft attorney can use when negotiating with the prosecutor to work out a favorable resolution to your criminal retail theft case.  Showing a prosecutor proof that you paid the civil penalty can only help convince a prosecutor you have accepted responsibility and are trying to make good for the bad that you did.  I have used it many times to help get a good deal for a client charged with retail theft.  At the very least, it has never harmed the client to come to court with proof that they paid the civil penalty.  It’s important to know that the statute provides that payment of the civil penalty cannot be used against you in the criminal case to prove that you admitted responsibility or confessed to the crime.  From my experience, if you are unable to pay the full amount that the store is demanding, if you contact their attorneys they will work out reasonable payment plans.

What happens if you do not make the payment? First, you cannot go to jail for not making the civil penalty payment. Technically, the store has a right to file a lawsuit against you. But this rarely happens. That’s because the amount owed isn’t worth the expense to the store and their attorneys of filing a lawsuit against you. What frequently happens if you don’t make the payment is that they will turn over the claim to a collection agency. The collection agency will come after you just like any other collection agency would for any other type of debt owed. They may put this on your credit report and make annoying phone calls to your home and work to try to get you to pay.

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 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.  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.

DUIThe question posted in the title to this article is one that I am frequently asked by my clients. There’s no easy answer to this question. When asked this question, the best I can do is explain the consequences of taking a breathalyzer test and the consequences of refusing to take a breathalyzer test.

First, let’s talk about what a breathalyzer test is. Basically, a breathalyzer test refers to the test that is used by the police to measure the amount of alcohol in the breath of the person that is taking the test.  This test is almost always administered at the police station.  If the test is administered properly and the machine is functioning properly, the results from that test can be used in court to prove that you were driving a vehicle while under the influence of alcohol.  Before you are asked to take a breathalyzer test the police officer has to have reasonable suspicion to believe that you were driving a vehicle under the influence of alcohol. Typically, what an officer will do first is to ask you to perform field sobriety tests to determine if you are under the influence of alcohol.  The field sobriety test is really three standardized tests performed on the side of the road that can tell a police officer if you are under the influence of alcohol. The three tests are the horizontal gaze nystagmus, the walk-and-turn and the one-leg stand.  Police officers receive specialized training on how to perform these tests and on how to properly score the results. If a police officer determines that you failed these tests, the officer may ask you to take a preliminary breath test (PBT). The PBT is a handheld device that the officer carries in their police vehicle that is not accurate enough to be allowed by the courts to be used to prove that you were driving under the influence of alcohol. But it can be used as evidence to help form a basis for reasonable suspicion for the officer to place you under arrest and to take you down to the police station so that you can be asked to take a breathalyzer test.  In other words, the PBT, along with the police officer’s observations and the results of the field sobriety test can be used to by the prosecutor to provide the court with a basis for the reasonable suspicion needed to place you under arrest and to take you down to the police station to request that you take a Breathalyzer test.  Unlike a breathalyzer test Illinois Law does not impose any penalties on a refusal to submit to a PBT.

If you are taken down to the police station the police officer will ask you to take a breathalyzer test. At that point you have a decision to make. You can either agree to take it or refuse to take the test. If you agree to take the test you will be informed by the police officer that if the results of the breathalyzer test indicate that your blood alcohol level is .08 or above your license will be suspended for 6 months if you are a first-time DUI offender. If you are not a first-time offender you will be advised that your driving privileges will be suspended for at least 3 years. You were involved in an accident that caused personal injury to another person, your license will be suspended for 12 months.

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social-imageKim Foxx was sworn in as the new Cook County State’s Attorney last week. Yesterday, she made her first major announcement.  She announced that her office will not be charging Retail Theft cases as felonies unless the amount that is involved is more than $1,000 or if the defendant does not have anything less than 10 prior Felony Retail Theft convictions.   This announcement represents a dramatic shift in policy at the Cook County State’s Attorney’s office.  Under current state law, you can be charged with a Class 4 Felony Retail Theft if the amount of the goods involved is more than $300 or if you have one prior felony retail theft conviction.  If you have one prior felony conviction you can be charged with a felony even if the amount is under $300.  If the amount is over $500, you can be charged with a class 3 felony.  Foxx’s announcement drastically raises the bar for what constitutes a Felony Retail Theft in Cook County.  Anita Alvarez, Foxx’s predecessor, had been trying to get the State Legislature to raise the bar for charging a felony up to $1,000 for many years now.  However, the state legislature has resisted.  As a result, the statewide threshold for charging someone with a felony retail theft, as opposed to a misdemeanor, remains at $300.  Compared to the other states around Illinois, the Illinois threshold is very low.  In Wisconsin the threshold is $500.  In Indiana, the threshold is $750.

Foxx’s announcement follows news from last week that Cook County is actively looking at ways of limiting the population at Cook County Jail. There is an understanding that the cost of housing inmates at the Cook County Jail is putting significant stress upon the limited budget resources of Cook County.  Last year, approximately 76 defendants who had been charged with Felony Retail Theft, spent more time in jail than what they were eventually sentenced to.  The total amount of the excess days served was 4,159.  The extra cost to the Cook County taxpayers was about $675,000.  Almost 80% of all Felony Retail Theft cases charged in Illinois between 2010 and 2012 were for less than $1,000.  As of today, about 101 people are housed at Cook County Jail on Felony Retail Theft charges.  The majority of the people that are locked up in Cook County Jail are there because they simply lack the financial resources to post bond.  As a result, Cook County taxpayers are footing the bill for their incarceration in the jail.

It remains to be seen what the impact of this announcement will be on retail theft cases. Looking at the reader comments in the local papers today they clearly indicate that this is a controversial decision.  What’s disturbing is that some of the comments are clearly racist in nature.  Some people will wonder whether the announcement will discourage storekeepers from calling the police if they know that the person they caught stealing from their store will not be charged with a felony. Others are going to argue that this announcement will just encourage people to steal because they know that they will not be facing felonies in Cook County. While prosecutors have always had the discretion to decide when and what to charge someone with, some people will argue that this is more than just an exercise of discretion.  It can be argued that the prosecutor is doing an end run around the will of the State Legislature.  The same prosecutor’s office that has been unsuccessful in lobbying the legislature to change the law, changes it on its own by exercising its discretion without legislative approval.  I would not be surprised to see someone charged with a Felony Retail Theft outside of Cook County argue an Equal Protection violation because the law is not being applied uniformly throughout the State of Illinois.