The push to relieve the burdens on ex-felons has seen increased interest since the release of Michelle Alexander's "The New Jim Crow - Mass Incarceration in the Age of Colorblindness." Alexander, a highly acclaimed civil rights lawyer, explains how many of the discriminatory actions previously outlawed by the Civil Rights Act are now being legitimized by criminal convictions. Once a person has a criminal record, it is seemingly acceptable to deny employment, housing and many of the opportunities people need to escape (or avoid) the trappings of poverty.
Because of this, Illinois lawmakers will be considering HB 5723, a bill that would add to the list of offenses that could be sealed from basic background checks. Currently, those convicted of non-violent misdemeanors and certain felonies (prostitution, possession of class 4 controlled substances and possession of marijuana) may have their records sealed. To be eligible, a person must have had no contact with the criminal justice system for four years after the end of their last sentence.
]]> HB 5723 would add additional Class 2, Class 3 and Class 4 felonies to the list of offenses that may be sealed. The records of a number of crimes, including sex crimes, violent crimes, DUIs and offenses requiring registration as a sex offender would still be visible.While the general public would not be able to view sealed records, law enforcement agencies and state prosecutors would still have access to them, regardless of the offense. Also, safety sensitive entities such as banks, health centers and child care providers would still use them to conduct background checks.
A number of community groups support the bill, including the Cabrini Green Law Project, Protestants for the Common Good and the Chicago Coalition for the Homeless. They believe that it will reduce recidivism rates, and give ex-felons a better opportunity to reintegrate into society.
Source: Chicago Reporter, "Bill seeks to seal criminal records to prevent 'permanent underclass,'" Yana Kunichoff, March 28, 2012
]]>According to a statement by Illinois Attorney General Lisa Madigan, "Drug makers' continued attempts to sell synthetic drugs jeopardize the lives of teens and young adults." When referring to SB5233, she continued, "This bill recognizes that chemicals sold to be taken as drugs, regardless of what they're called or their bogus labeling, are life threatening and illegal."
]]> The bill, which was recently passed by the Illinois House, will stiffen penalties for those who sell and possess these substances. If it becomes law, it would:Lawmakers say that this legislation is necessary because the makers of synthetic drugs are always one step ahead of the current laws, and by simply altering the chemical makeup of their products, they are able to sell the drugs legally. However, what lawmakers fail to address are those Illinois residents that buy these currently legal products for their intended uses - for example, those who actually use the bath salts for a bath and not getting high. Lawmakers need to balance their zealous attempts to snuff out drug abuse with the freedoms of private citizens.
]]>This legislation is being proposed primarily for safety reasons. According to the Illinois Department of Transportation, distractions attributed to cellphone use caused more than 500 motor vehicle accidents in Illinois during the first half of 2010.
If the legislation passes, Illinois will not be the first state to ban using cellphones while driving; it will join the ranks of nine other states having some form of ban for cellphones in motor vehicles.
The new legislation bans using cellphones and other electronic communication devices for most of the time while driving, but there are some exceptions. Illinois drivers can still use hands-free devices, such as a Bluetooth wireless headset. Drivers are also permitted to use cellphones in voice-activated mode.
]]> In addition to the exceptions for hands-free and voice-activated cellphones, the new legislation would retain many of the exceptions that are contained in the current ban on texting while driving. The proposed ban on cellphones would not apply to:Violators of the new law can be charged with a petty offense, carrying a fine of up to $1,000 per violation. In addition to the fine, a violation of the law is a moving violation. All motorists over the age of 21 can have their driver's license suspended if charged with three or more (two or more if under 21) moving violations in a two-year period.
Source: "Illinois considering cellphone ban for most drivers," stltoday.com, 1/21/12
]]>The decision will undoubtedly have implications for how police gather evidence for the purpose of bringing criminal charges throughout the country, including Illinois.
This recent Supreme Court opinion stems from a drug operation that discovered $1 million and almost 100 kilograms of cocaine during a raid of a Maryland house in 2005.
Police and FBI had originally obtained a federal warrant to put the defendant under surveillance using a variety of methods, include cellphone taps - surveillance lasting for many months. However, the defendant's conviction was voided by a federal appellate court because police had followed the defendant for four weeks using a GPS tracker on his jeep without a proper warrant - their District of Columbia warrant had expired before the GPS was put on the vehicle in Maryland.
]]> So in an effort to uphold the conviction, the government claimed a warrant was never even needed for the GPS tracker to begin with - an argument the Justices didn't seem to agree with.Although the Supreme Court decision was unanimous, the Justices differed as to the reasoning. The minority generally favored an all-encompassing stance that the use of a GPS tracker not only trespassed on the defendant's private property but also that tracking the defendant for a month violated his reasonable expectation of privacy. The majority felt that the analysis didn't even have to go that far because they believed that simply putting the GPS tracker on the car was the same as a search of his home, which is impermissible without a warrant.
Technology is quickly evolving in today's world, and this opinion by the Supreme Court will help the justice system keep pace with these advancements.
]]>In Illinois, the criminal defense available under the double jeopardy clause is codified in statute and says, "A prosecution is barred if the defendant was formerly prosecuted for the same offense... if that former prosecution...resulted in...an acquittal." The question now becomes, "What constitutes an official acquittal?" This is in fact what the US Supreme Court is currently considering.
The Supreme Court case, which originated in Arkansas, revolves around the death of a 19-month-old baby - a baby who was struck and then died after his brain swelled. The accused, Alex Blueford, insisted during trial that the death of the baby was an accident, and that he inadvertently struck the child with his elbow after the child had surprised him from behind - which the jurors apparently believed to some degree.
After deliberating for some time, the jurors sent a note to the judge saying they were having problems coming to a conclusion. According to a partial transcript, when the jurors came back to open court the forewoman explained that they had voted unanimously for acquittal on both the capital-murder and first-degree murder charges, but they were split 9 to 3 on the manslaughter charge and had not yet discussed the negligent homicide charge. Blueford's lawyer requested the court to enter the verdicts regarding the two serious charges, but the judge declined - instead instructing the jury to try again. After the jury returned deadlocked on the manslaughter charge again, the court declared a mistrial.
]]> Following the mistrial, prosecutors again brought charges against Blueford, and his attorney asked for the two serious charges to be thrown out since they were already decided - and thus violated the prohibition on double jeopardy. The court disagreed stating the verdicts were never official or entered into the record. The Arkansas Supreme Court in their opinion went on to say, "The mere reading of the jury's verdict in open court does not constitute an acquittal."Obviously prosecutors routinely bring charges again after hung juries and mistrials, but as Blueford's attorneys in this case argue, the jury had in fact made a determination as to the two serious charges - they unanimously voted for acquittal on those charges.
The decision by the US Supreme Court will undoubtedly have double jeopardy ramifications for the entire country. Those accused, and successfully defended, should not have to defend themselves time after time - that goes against everything the Bill of Rights was drafted to protect.
Source: The Supreme Court: When Double Jeopardy Isn't Double Jeopardy
]]>Installed to improve safety by reducing the number of drivers running red lights - and ultimately reduce the number of traffic accidents - the cameras have not always lived up to this goal. In some instances, if drivers slam on their breaks, for example, red light cameras can cause rear-end accidents at intersections.
Another major issue with red light cameras is that the procedural safeguards that are in place for other types of traffic violations don't exist in red light camera cases. Because no human being observes the alleged violation, the driver has no accuser to confront. This is a potential constitutional violation.
]]> Another problem is that, unlike humans, traffic cameras do not have the ability to use discretion. A police officer may take into account such things as weather or road conditions and decide that running the red light was justified. A traffic camera simply snaps the picture and generates a ticket regardless of circumstances.Additionally, unlike when a police officer hands a written ticket to a citizen, traffic camera tickets are mailed, with no guarantee that the person the ticket is sent to ever receives it. It also may take days or even weeks after the photo is snapped until the person receives the ticket. In many cases, people may simply not remember the day in question or recall the reason if they did in fact commit the violation. Thus, the person accused also may lose potential defenses because of the slow procedure.
Red light cameras are not always right, and pictures don't always tell the whole story. If you believe you have received a traffic ticket you didn't deserve, an experienced attorney can help protect your rights.
Like it or not, ample amounts of alcohol are consumed on most college campuses in the U.S. In addition to the obvious health dangers of alcohol, many college students may begin to find themselves in precarious situations because of alcohol over-consumption. Specifically, college students engaging in sexual relations during an alcohol-fueled Saturday night may now be more easily condemned for sexual assault and be potentially subject to life-altering proceedings because of new U.S. Department of Education guidelines.
The U.S. Department of Education's Office for Civil Rights (OCR) recently released guidelines to the nation's colleges and universities outlining how to handle accusations of sexual assaults on campuses.
]]> One of the notable OCR guidelines asks universities to render a judgment under a "preponderance of the evidence" standard. The basically means that the "jury" - which often consists of faculty, administrators and possibly students - will only have to find that the accused is more likely than not to have committed the assault. This standard or proof is dramatically lower than the "beyond a reasonable doubt" standard used in criminal proceedings.Another OCR interpretation discourages universities from allowing the accused to question or cross-examine the accuser during their hearing - another fundamental right in an actual criminal proceeding now not available in a university hearing.
College hearings are devoid of many of the due process guarantees inherent in criminal proceedings, but that doesn't make consequences any less devastating. Students wrongly convicted are not only generally expelled, but they may be barred from many graduates schools and suffer immeasurable damage to their reputation - all in situations that often never lead to criminal charges because the evidence would be insufficient in a court of law.
Being accused and convicted of sexual assault in a university discipline hearing can be almost as life-altering as a criminal conviction. If you have been accused of sexual assault, either in a university or criminal proceeding, an experienced criminal defense attorney can advise you of your rights and options.
]]>Every state, including Illinois, recognizes a form a sexual assault commonly referred to as statutory rape. These assaults are known as statutory rape because an alleged violator can face charges even if the victim gave verbal consent to the act - this is because Illinois law does not recognize the capacity of those under 17 years old to consent to sexual activity.
However, Illinois statutes specifically identify three statutory rape offenses in which it is permissible for the alleged violator to raise the defense that he or she reasonably believed the minor in question was above the age of 17. In these situations, the alleged violator has the burden of proving that he or she actually believed that the minor was 17 years old or older and that the belief was reasonable.
]]> The three sexual abuse violations in which mistake of age may be used as a defense include:Charges involving sex offenses are serious and can haunt a person for the rest of his or her life - and can get exceedingly difficult in situations in which a young person lies about their age or attempts to appear older than they really are. An experienced criminal defense attorney can assist a person charged with a sexual assault navigate the complex sexual abuse laws.
]]>There was already a law in place that applied to anyone in possession of 10 grams or less of marijuana, but only in unincorporated Cook County. That particular version of the law has been in effect for two years; however Sheriff Tom Dart did not enforce it since it did not cover all areas patrolled by the Sheriff's police, such as the suburb of Ford Heights. Since it wasn't binding everywhere the Sheriff's police patrolled, there was no countywide policy to follow - but after the change a countywide law is now exactly what is in effect.
]]> One Board member stated that they believe the change was needed since it is better for low-level drug offenders to deal with their addictions instead of simply incarcerating them. Moreover, the same Board member said she will work to see that a similar law is passed state-wide in Springfield.Not in Effect in Chicago or Neighboring Counties
It is important to note that this expanded law does not cover Chicago since it is patrolled by its own police. However, Chicago Police Supt. Gary McCarthy has stated he supports a similar policy for Chicago.
In addition, this new policy is specific to Cook County, and does not extend to nearby areas such as Will County or Kendall County. Since policies can change from one county to the next, it is important to contact an experienced criminal defense attorney in your area to be advised of your rights and options if you have been arrested for marijuana possession.
Source: Cook County Expands Law To Issue Tickets For Small-Time Pot Busts
]]>Under Illinois law, photographing or videotaping anyone known to be under 18 years of age, engaging in a sex act or lewd pose while unclothed or transparently clothed is producing child pornography. It does not matter if the photo or video is of oneself. Asking a minor to film him or herself is solicitation to produce child pornography. Sending or forwarding such a photo is distributing child pornography. Keeping such a photo on a cell phone or computer is possession of child pornography.
]]> Easy to Get in TroubleSexting has become more prevalent with more personal and mobile technology. But the ease of sexting has increased the ease with which young people can get into serious trouble. For example, if a 16-year-old girl sends a nude photo of herself to her boyfriend at his request, and boyfriend forwards the photo to a friend who keeps it on his cell phone; all three have committed serious felony offenses.
The boyfriend has committed solicitation to produce, and distribution of, child pornography. The girlfriend produced and distributed child pornography. The friend has possessed child pornography. Before Illinois passed new legislation, all three would be treated as sex offenders and could face prison time. The irony is that had the girlfriend been 18 years old there would have been no crime.
The new Illinois law finally caught up with technology and now teens under 17 who are caught sexting are only subject to a class B misdemeanor, with a maximum punishment of six months in jail and a $1,500 fine. Asking another teen to sext is a class A misdemeanor, with a possible one year in jail and a $2,500 fine. However, posting a photo online to damage someone's reputation is a class 4 felony, punishable with one to three years in prison. There is no sex offender registration requirement.
Anyone over 17 found sexting with a minor is still subject to serious child pornography charges that could result in significant prison time and lifetime registration as a sex offender. However, the new Illinois law properly balances criminal behavior with modern youthful indiscretion and spares children the life-crushing requirement to register as a sex offender.
If your child has been charged with sexting, consult with an experienced criminal defense attorney to discuss your child's situation.
]]>Aaron Martin was involved in a car accident that caused the death of two people. He was required to provide a urine sample, which showed trace amounts of methamphetamine. There was no evidence whatsover that Martin was under the influence of the controlled substance at the time of the car accident. In other words, it was an unfortunate car accident resulting in the tragic loss of life, but not because of the use of drugs or alcohol. It was a case of pure negligence.
]]> However, the Illinois DUI statute makes it illegal to be in control of a motor vehicle while any amount of illegal drug is in your system. It is the drugs presence within the body that completes the crime of DUI, not being under the particular drugs influence at the time. Therefore, anyone who drives with an illegal drug in their system commits a DUI. Impairment is not relevant. A misdemeanor driving under the influence charge is eligible to be upgraded to a felony under a handful of circumstances. A DUI that results in causing great bodily harm or death to another is one of those circumstances.The Illinois Supreme Court ruled that Aaron Martin was properly found guilty of Aggravated DUI because his negligence was a proximate cause of the accident that resulted in death, and because he had an illegal drug in his system at the time. In particular, the Supreme Court ruled that impairment does not need to be a proximate cause of the accident or injuries.
Thus, the tilte of this post "marijuana and DUI". Ingest marijuana and it can stay within your system for approximately 30 days. Get involved in an accident resulting in anothers injury that is, at least, partly your fault within those 30 days and you may be defending a felony DUI charge -- even if you were completely sober at the time.
]]>If accepted into the TASC program, the defendant will pled guilty and be sentenced to TASC probation. The probation period typically ranges from 2 - 5 years. Counseling to address the drug and/or alcohol problem will next take place at no financial cost to the defendant.
Successful completion of all treatment recommendations and complying with the remaining terms of the probation will allow for the criminal conviction that entered at the time of the plea to be vacated. The case is next dismissed and now eligible for expungement. A lifetime felony conviction is avoided.
]]>Every Will County felony case begins with an arrest. If the arrest is based on an arrest warrant, the amount of bail needed to post for release has already been set. If the arrest happens without an arrest warrant, an appearance before a judge for the purpose of setting the amount of bail will be necessary. This appearance usually occurs within one day of the arrest.
]]> The purpose of the initial court appearance is limited to the setting of bail, the filing of a criminal complaint, and setting another court date for the purpose of arraignment. Prior to the arraignment, there most be a hearing to determine whether probable cause exists to believe the charged crime was committed. In Will County, this hearing is almost always done by the Will County grand jury.The grand jury convenes in secret for the limited purpose of determining the existence of probable cause for felonies. The defendant does not participate in this process. The prosecutor has a witness, or witnesses, testify before the grand jury regarding the case. If the grand jury believes probable cause exists for the crime, it will issue a bill of indictment. It is rare for the grand jury not to find probable cause.
At the arraignment, the bill of indictment will be presented to the defense, the judge will order the prosecution provide the defense the police reports and all other material in its possession. The case will be assigned to one of six potential felony trial judges, who will preside over the case for its remainder. Lastly, another court date will be set for the first time appearance before the assigned trial judge.
The process of the felony case at this juncture will vary to some extent depending upon the particular practices of the trial judge. However, each case will go through a "pre-trial" process. This process will include the filing and litigation of any pre-trial motions, such as a motion to suppress evidence, and ensuring all discovery has been properly exchanged between the parties.
Also during the pre-trial phase of the case, plea-bargaining will take place. The prosecution will offer a settlement of the charge to the defense. This can be a give and take process that will vary depending on the nature of the charge and the potential penalties involved.
If no agreement is reached in the plea-bargaining process, a defendant can still plead guilty to the case, or sometimes, part of the case and ask the judge to issue the sentence. This is referred to in Will County as a "blind plea" and its purpose is to, hopefully, achieve a lighter sentence than that requested by the prosecution.
If the case is not resolved by a guilty plea, the case will then proceed to trial where a judge or a jury will determine whether the defendant is guilty or not guilty by determining whether the evidence in the case meets the standard of "proof beyond a reasonable doubt". An acquittal, of course, ends the case. After a guilty verdict, the case will lastly proceed to a sentencing where the judge will determine the penalty to be imposed.
Please feel free to contact Joliet criminal defense lawyer Steven Haney regarding any questions about a Will County felony case involving you or a loved one.
]]>It is considered a deferred dismissal of the charge. No conviction enters during the period of supervision and upon its successful completion, the case is finalized as a dismissal. Therefore, a criminal conviction is avoided.
]]> Avoiding a conviction is always an important goal for any criminal case. Some cases can be won on the merits, many cannot. For those that cannot gain an acquittal, court supervision is the tool available to eliminate the sting of a criminal conviction. It is only available for misdemeanor charges, and there are a handful of Illinois misdemeanor crimes for which this sentencing option is unavailable.Domestic battery, resisting arrest, obstructing justice, and second time offenders for DUI and driving on a revoked license are prohibited from receiving a sentence of court supervision. Supervision is available to almost all remaining misdemeanor offenses. These include offenses such as retail theft, battery, and disorderly conduct. It is also available to those alleged to be first time DUI offenders, as well as those charged with a first time offense of driving while revoked.
Additionally, a successful completion of a sentence of supervision will, typically, allow for the charge to be expunged. An expungement totally erases the history of the incident. Exceptions exist though and include DUI and any other traffic offenses.
Skillful representation by an experienced lawyer is always an important asset to use in order to best position a case to avoid a criminal conviction. Every jurisdiction has different practices and procedures. For any criminal misdemeanor charge prosecuted in the Joliet, Will County courts, court supervision can usually be secured by an attorney knowledgeable in the practices and procedures of the Will County misdemeanor courtrooms.
]]>Most offenders entering the program are not able to get felony probation for a variety of reasons and are, therefore, facing a prison sentence. Boot camp allows its successful participants to be home after approximately 6 months, rather than serve the actual sentence with which they initially entered the Illinois Department of Corrections.
]]> If the offender cannot successful complete the program, he/she will then be required to finish out their remaining sentence. Those who do successfully complete the program and are discharged home, still remain under the control of prision authorities because they will be on parole. If they violate any parole conditions, they can be returned to prison to serve the balance of the original sentence.Elibility for the program depends on a several factors. The most common include the following:
1. the person cannot be older than 35 years of age,
2. certain criminal offenses are excluded, such as any class X offense, certain crimes of violence, and sexual assault crimes,
3. the sentence imposed cannot exceed 8 years, and
4. the person must be physically and mentally fit.
It is also important to understand that the person will enter the Illinois Department of Corrections with a "recommendation" from the judge that he/she be placed within the impact incarceration program. The Department of Corrections has final approval of the placement of the person into the boot camp program. It is very uncommon, though, for a recommended and eligible person not to be placed into the program.
As a practicing criminal defense lawyer in Joliet, Will County, Illinois, I have successfully used the Illinois Impact Incarceration program to significantly reduce sentences for various clients, otherwise, looking at lengthy prison sentences. It is a great tool to be used in the proper circumstance.
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