Probable Cause Definition

Probable Cause Attorney | Probable Cause Lawyer | Criminal Defense Lawyer

Probable Cause Definition

Probable Cause Attorney | Probable Cause Lawyer | Criminal Defense LawyerProbable cause is a term that is used often in criminal law. At its core, the term allows a police officer to arrest or search someone without a warrant and it is required before a judge can issue an arrest warrant. Probable cause is also required before a grand jury can return an indictment.
The requirement that police act with probable cause comes from the 4th Amendment, which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

What is the Definition of Probable Cause?

Although probable cause is a term that is used often in the criminal law, it does not have a fixed definition. A common definition used by the courts is “a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person’s belief that certain facts are probably true.” This definition is painfully vague. It does not require the police officer to be confident that he or she is right nor does it require the police officer’s judgment to be ultimately correct. Indeed, probable cause can be found when a police officer makes a mistake as long as the mistake was reasonable. The definition allows a police officer to use his or her knowledge and experience in making the probable cause determination. Ultimately, probable cause exists when the facts and circumstances are sufficient to warrant a prudent person to believe that a person has committed, is committing, or is about to commit a crime.

How Can Probable Cause Be Established?

Probable cause exists when the police officer has sufficient facts to justify a stop or search. To warrant the search or seizure the police officer’s actions must be based upon actual facts and circumstances that would lead a reasonable officer to believe that criminal activity has occurred or is about to occur.

To satisfy the probable cause requirement a police officer is allowed to his or her personal observations; hearsay statements made to the officer; the officer’s expertise; and any circumstantial evidence available at the time of the search or seizure.

What Happens When the Police Conduct an Arrest or a Search Without Probable Cause?

Probable cause is a term that dominates 4th Amendment law. All warrantless arrests and searches must be conducted within the confines of the Constitution. The courts struggled to fashion an appropriate remedy for police that violated a person’s Fourth Amendment protections. Ultimately, the Supreme Court held that all evidence that was obtained as a result of a 4th Amendment violation must be suppressed and unavailable as evidence in any future prosecution. This drastic remedy is known as the exclusionary rule.

The exclusionary rule acts as a deterrent to future police behavior. The exclusionary rule not only suppress the evidence that was seized at the time of the illegal search or arrest but any evidence that was obtained following the illegal search or seizure. Of course, there are numerous exceptions to the exclusionary rule and evidence that is attenuated from the 4th amendment violation or evidence that would have been discovered regardless of the probable cause violation can still be used by the prosecution.

What is a Suppression Hearing?

The exclusionary rule does not automatically apply. In fact, the United Supreme Court has said that the exclusionary rule should be used only when the suppression will deter future police action. A defendant seeking to invoke the exclusionary rule must first file a motion to quash arrest and suppress evidence. The trial court will then conduct a hearing and receive evidence at the hearing. The defendant must establish that his or her 4th Amendment rights were violated by the police action. If the defendant is successful, then the prosecution must rebut the defendant’s evidence by a preponderance of the evidence.

Conclusion

Probable cause is a very fact-based legal term. Case law is filled with cases that are identical that have reached a different result on the legality of a warrantless arrest or search. Most of the time, the difference in results is the ability of the criminal defense attorney to establish a 4th amendment violation.

Jaleel Law P.C. has the experience to properly handle suppression hearings and the know-how to present the evidence in the effective and persuasive manner. If you have been arrested for any crime without a warrant, you may have a successful suppression motion based upon a lack of probable cause. Contact Jaleel Law P.C. to discuss your situation and how we can help.

The Right to a Speedy Trial

speedy trial

Speedy Trial Rights

The Right to a Speedy Trial

A speedy trial is guaranteed to anyone charged with a crime in Illinois or in a federal court. The right to speedy trial is guaranteed by the Sixth Amendment to the United States Constitution, which states, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” The Sixth Amendment  guarantees a trial within a set period of time and it prevents the prosecution from unnecessarily delaying your trial. Aside from the protections guaranteed by the United States Constitution, Illinois also provides a corresponding right in the Illinois Speedy Trial Act codified at 725 ILCS 5/103-5.

Barker v. Wingo– Constitutional Right to a Speedy Trial

In 1972, the United States Supreme Court issued its ruling in Barker v. Wingo, a case that dealt with the 6th Amendment. Barker involved a habeas corpus petition that sought review of Barker’s murder conviction. Barker was convicted in a state court in Kentucky in 1963 for a double murder that had occurred in 1958. The local police arrested Barker and his co-defendant, Manning, shortly after the murders. The prosecution believing that the case against Manning was stronger than the case against Barker chose to prosecute Manning first with the hope that after being convicted Manning would testify against Barker in exchange for a more lenient sentence. In October of 1958, the prosecution sought the first of 16 continuances in Barker’s case. Barker’s criminal defense attorney did not object to the vast majority of the prosecution’s continuances including the first 11 continuances but did object to continuances numbers 12, 15, and 16. Manning was convicted for his part in the double murder in December of 1962 in a trial where Manning exercised his 5th Amendment right to remain silent and the constitutional prohibition of self-incriination. Barker was convicted in October of 1963.

Barker challenged his conviction on 6th Amendment grounds to the the Kentucky appellate courts and to the Kentucky Supreme Court. After both reviewing courts in Kentucky affirmed his sentence, Barker filed his post-conviction petition to the federal district court in Kentucky, which affirmed his sentence as did the 6th Circuit Court of Appeals. The United States Supreme Court granted Barker’s writ of certiorari in 1972.

Although the Supreme Court held that the 5-year period between defendant’s arrest and conviction was “extraordinary” it still upheld Barker’s conviction in a unanimous vote despite the Court finding that only 7-months of the 5-years was a “justifiable” delay. In so doing, the Supreme Court created the standard to determine when a person’s speedy trial rights have been violated. The standard created by the Supreme Court was not based upon the passage of a certain number of days as the American Bar Association recommended. Instead, the Supreme Court created a balancing test to determine on a case-by-case basis whether a defendant’s constitutional right to a speedy trial had been violated. The Court created the following factors for lower courts to determine whether a defendant was prejudiced by the prosecution’s delay in bringing the defendant’s case to trial:

  1. The length of the delay
  2. The reason for the delay
  3. Whether the defendant ever asserted his right before trial
  4. The prejudice suffered by the defendant because of the delay

Illinois Statutory Right to a Speedy Trial

Illinois grants defendants not only the rights guaranteed by the 6th Amendment to the United States Constitution but it also has created a statutory right to a prompt and quick trial. In Baker v. Wingo, the American Bar Association recommended that the United States Supreme Court should create a constitutional rule that guaranteed a trial within a certain time period. The Supreme Court rejected this approach holding that it could not determine “how long is too long” of a delay. Despite the United States Supreme Court rejecting this approach, the Illinois General Assembly adopted such an approach for state courts located in Illinois. In Illinois, “how long is too long” depends upon whether the defendant is in pre-trial custody or whether the defendant is released on bond.

Defendants Released on Bond

Illinois treats defendants that are in pre-trial custody differently then it does defendants who are released on bond. Among the major reasons for the difference is because defendants that are on bond are less prejudiced by the delay in the trial then are defendants that are in custody. Defendants that are out of custody after posting the required bail bond, the statute requires the State to bring the defendant to trial within 160 days after the defendant formally demands a speedy trial.

Under Illinois criminal law, a defendant on bond must demand trial with a written a demand for trial. Defendants that do not take the requisite steps waive their rights to object to the State’s delay in bringing the case to trial. What that means is that to enforce your rights under the Speedy Trial Act you must take certain steps otherwise you will not enjoy your right to a speedy trial. Illinois requires a defendant out on bond to file a written demand for trial. In the written demand, the defendant must state the demand for trial is being made under the Illinois Speedy Trial Act. The demand must also list any prior demands under the Act. Time spent in pre-trial custody counts against the speedy trial period. However, after being released from custody the defendant must file a written demand upon being released from custody.

Defendants in Custody

The speedy trial period for defendants that are detained in pre-trial confinement are treated differently in Illinois. Defendants that are unable to post the bail bond amount and remain in custody while awaiting trial, have a shorter speedy trial period than defendants on bond. In custody defendants have a 120 day speedy trial period, which means the State must bring the defendant to trial within 120 days of the defendant being taken into custody by the State. The 120 day period begins to run automatically unless the delay in the trial was attributable to the defendant. Additionally, unlike a defendant released on bond, a defendant in custody does not need to file a written demand for trial to start the 120-day speedy trial period. However, to ensure that your right to a speedy trial is enforced you cannot agree to delaying the trial or consent to the State’s request for a continuance.

An important factor in computing the 120-day speedy trial period is the reason for the defendants incarceration. The speedy trial period does not apply to cases where the defendant is in custody as a result of a different offense. For example, if a defendant is facing two separate but simultaneous criminal charges and the defendant has an I-bond one charge and a no bail bond hold on another charge which is keeping the defendant in custody. The defendant cannot argue that the 120 day speedy trial period applies to the case that has an I-bond because that case in keeping him in custody. The 120-day period also does not apply to defendants who are in custody for a violation of parole or mandatory supervised release. The 120-day speedy trial period must be one continuous period of incarceration. In computing the 120-day term, separate periods of incarceration may not be combined. Also, if a defendant is taken into custody a second (or subsequent) time for the same offense, the term will begin again at day zero.

What is a Delay Occasioned by the Defendant?

The most important factor in the Illinois Speedy Trial Act is whether the delay was occasioned by the defendant. Regardless if the defendant is in custody or on pre-trial bond, the speedy trial period is tolled when the delay in the trial is caused by the defendant or if the defendant agrees to the continuance. Anytime a defendant files a pre-trial motion, even a motion for discovery, is a delay occasioned by the defendant because the prosecution is required to answer the motion prior to trial. The entire time that it takes to resolve the pre-trial motion is attributed to the defendant even in cases where the delay in proceeding to a pre-trial hearing is caused by the prosecution.

In most criminal defense cases, the defendant and the prosecution are in pre-trial negotiations. Those pre-trial discussions between the prosecution and the criminal defense lawyer sometimes involves plea negotiations, witness availability, trial stipulations, and a host of other items. Those discussions typically take several months to complete. During that time will likely involve several court appearances where the defendant, the criminal defense attorney, and the prosecution advise the trial court on the progress of the case. These continuances are usually agreed to by the defendant. These agreed continuances that are known as by agreement continuances also toll the speedy trial period.

A defendant can also waive his right to a speedy trial by his or her actions. All defendants that are on bond are required by the conditions of their bond to appear on time to their scheduled court dates. A failure to comply with this requirement will result in the defendant waiving his or her previous speedy trial demands. What that means is a defendant on bond who misses court will have the speedy trial period reset to Day 0 if the defendant ever is late or misses a court date. This result will occur regardless if the court issues a warrant for the defendants arrest.

What Can You Do to Enforce Your Right to a Speedy Trial

Both the United States Constitution and the Illinois Speedy Trial Act act as a shield to protect defendants against the prosecution unnecessarily delaying your trial and prejudicing the defendants right to due process that includes a right to a fair and impartial trial. The actual protections guaranteed are different whether the right being violated is the defendants right to a speedy trial under the United States Constitution or under Illinois law. Although the rights are different, the protections they provide are applied contemporaneously and separately, which to use depends upon the individual circumstances of your case.

That is why the most important thing you can do is to hire an criminal defense lawyer that not only understands both protections but a criminal defense attorney that can and is willing to communicate with you about your case. Time and time again as both a prosecutor and now as an Illinois criminal defense attorney, I have seen defendants agreeing to continuances without any explanation from their attorneys. The defendants look up and over a year has passed on their case without any benefit or end in sight. A criminal defense lawyer who will communicate with you the reasons for the continuance or the reasons why pre-trial motions have been filed will ease your mind that your case is processing as it should be. Only with an attorney that will communicate with you is how you can ensure rights to a speedy trial are protected and enforced.

At Jaleel Law, we pride ourselves on responding to our client’s questions as soon as we can and in most cases well within 24 hours. We never feel like our clients are bothering us or disturbing us, instead, we believe that an open communication between an attorney and the client is critical piece in a successful defense. We rely on our clients to speak to us truthfully and honestly just like our clients want the same. Whether you are charged with a crime and want to ensure that your rights are protected by a former prosecutor who actually cares what happens to you or whether your rights have been denied, we can help. We have successfully defended people just like you in the trial courts and in the appellate courts. We have the experience to win regardless of where your case is currently. Contact us today to see what we can do in your case.

Consequences of a DUI Conviction

Consequences of a DUI Conviction

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Consequences of a DUI Conviction

The consequences of a DUI conviction can be severe. The consequences of a DUI include both the criminal penalties for a DUI and the collateral consequences to your driving privileges. Collateral consequences include the revocation of your driving privileges.

When is a DUI Conviction Possible?

A conviction for a DUI can occur even after your first DUI arrest. Typically, first-time DUI offenders do not receive a conviction as a sentence. Rather, first-time DUI usually receive a sentence of supervision. However, anyone charged with a subsequent DUI is ineligible for supervision and the only sentencing option is a conviction. A sentence of supervision can become a conviction if the State successfully gets a court to revoke your supervision based upon a violation of the supervision terms.

A DUI can also go down as a default judgment that is treated by the Illinois Secretary of State’s Department of Motor Vehicles Division as a conviction. What that means is if you miss your court dates and a judgment is entered against you that judgment is the equivalent of a conviction for the DMV. In these situations, it is imperative that you contact a Chicago DUI lawyer as soon as possible to file the appropriate motions to vacate the default judgment. If successful, the motion to vacate will put the DUI case back on the court’s docket but more importantly it would vacate the judgment which would reinstate your driving privileges.

Out of State DUIConsequences of a DUI Conviction

Anyone that receives a DUI out of state will have his or her Illinois driver’s license revoked. The current procedure in place requires the state making the DUI arrest to report to the Illinois DMV that an Illinois resident was arrested for a DUI. At this point, Illinois will likely suspend the Illinois driver’s license under its Implied Consent and statutory summary suspension laws. If the out of state DUI results in a judgment that judgment will be reported to Illinois. Illinois then will revoke the person’s driver’s license. Under the current procedure a first-time DUI offender will have his Illinois driver’s license revoked. This absurd result will occur even if the first-time DUI offender would have received supervision in Illinois.

Criminal Consequences for a DUI Conviction

The Illinois DUI laws and the sentencing scheme it creates control the criminal consequences available for a DUI conviction. For example, mandatory minimum sentences are required for 2nd or subsequent DUIs, cases where the BAC is twice the legal limit, and if minors where in the vehicle driven by or in actual physical control of the DUI offender. The Illinois DUI laws increase the criminal consequences available to a sentencing court depending upon how many prior DUIs are in the offender’s background. A conviction for a DUI will be the only type of sentence available for anyone facing a 2nd or subsequent DUI.

Collateral Consequences of a DUI Conviction

The collateral consequences of a DUI conviction include all the consequences that occur after a DUI conviction other than the criminal consequences. Collateral consequences include the alcohol and drug treatment classes, the fines and fees, consequences to your job, and the potential embarrassment that comes with a DUI arrest. However, the biggest collateral consequence that follows a DUI conviction is the ramification to your driving privileges.

Following a DUI conviction, the DMV will revoke a person’s driving privileges for a minimum of one-year. Unlike a suspension that ends automatically after paying a reinstatement fee, a revocation stays in effect until the DMV reinstates your driving privileges. Typically, the DMV will reinstate your driving privileges only after a hearing with the Secretary of State.

At the hearing, the Secretary of State will make a determination whether your driving privileges will be restored. The Secretary of State hearing can either be a formal or informal hearing. A formal hearing is required anytime driving privileges need to be restored following a fatality or multiple DUIs. Typically, a restricted driving permit is issued prior to full-reinstatement.

Conclusion

The consequences of a DUI conviction cover both the criminal consequences and the collateral consequences. Currently, the law only requires a DUI lawyer to discuss the criminal consequences of a DUI conviction because the courts have said that the criminal consequences are what matter. That logic makes no sense. Anyone convicted of a DUI knows first-hand that losing your privilege to drive has dramatic consequences. An attorney advising someone to cop out to a DUI conviction must discuss the collateral consequences as well.

At Jaleel Law we understand that in the real world collateral consequences matter just as much as the criminal consequences. That is why we will discuss all the consequences involved in your case and we will tell you the pros and cons of every decision that you are required to make in a DUI case or any other case we represent you in. We are not a law firm that encourages pleading guilty and we always look for ways to win your case. We are not afraid to fight for you. If you decide though that you would rather get your case over with as fast as possible, we promise that you will fully know and understand what you are getting yourself into by pleading guilty. On a daily basis we receive calls from clients seeking to appeal their cases and 9 times out of 10 those potential clients tell us “my attorney never told me that.” We promise that will not happen to you because you will know not only the criminal consequences but also the collateral consequences to a conviction in your case.

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How to Remove Sex Offender Registration- Petition to be Removed from Sex Offender Registry

sex offender registery name removal

How to Remove Sex Offender Registration- Petition to be Removed from Sex Offender Registry

Removing your name from the sex offender registry is not an impossible task but it is certainly not easy. In Illinois, removing your name from the sex offender registry is only possible for people who were convicted of a sex crime as a juvenile and sentenced as a juvenile offender.

Who Can Remove His or Her Name from the Sex Offender Registry?

The procedure to remove your name from the sex offender registry applies only to offenders who were found to be delinquent in a juvenile proceeding. All adult offenders are currently unable to petition a court have their names removed from the sex offender database; however, other options such as a pardon may exist. The Illinois Sex Offender Laws also prohibit juveniles convicted as adults from petitioning a court to have their names removed from the sex offender registry.

What is the Waiting Period Before Filing a Petition to Remove Sex Offender Registration?

The time period that a juvenile must wait before petitioning a court to terminate the sex offender registration requirements varies depending upon the nature of the crime committed by the juvenile.

Felony Offenses

Remove Sex Offender Registation If the juvenile was found delinquent of an offense that would have been a felony had an adult committed it, then the waiting period is 5 years. What that means is that a juvenile must register as a sex offender for a minimum of 5 years before petitioning a court to terminate the sex offender registration requirements.

Misdemeanor Offenses

A juvenile adjudicated delinquent for an offense that would be a misdemeanor offense if committed by an adult is treated differently. Instead of requiring a waiting period of 5 years, a juvenile adjudicated a delinquent of a misdemeanor offense can apply to have his or her name removed as a sex offender after waiting only 2 years.

When Will a Court Remove Someone’s Name from the Sex Offender Registry?

To be successful, the person filing the petition to remove the sex offender registration requirements must establish by a preponderance of the evidence that he or she no longer poses a risk to the community.

What are the Factors a Court Considers Before Removing Someone from the Sex Offender Database?

At the hearing on the petition to terminate the sex offender registration the court will consider the following factors:

  • A risk assessment performed by an evaluator licensed under the Sex Offender Evaluation and Treatment Provider Act;
  • The juveniles’ sex offender history;
  • Evidence of the juvenile’s rehabilitation;
  • The age of the juvenile at the time of the offense;
  • The juvenile’s mental, physical, educational, and social history;
  • Any victim impact statements;
  • Any other factors deemed relevant by the court.

Based upon these factors a court will make a determination if the person is more likely than not to pose a risk to society. This decision is appealable to an appellate court.

Conclusion

Being successful in a petition to remove sex offender registration is not an easy task. It requires you to establish that it is more likely than not that you pose “no risk” to the community. Overcoming this burden is no easy task and it requires an attorney who has the experience and the know how to win. If you were adjudicated as a juvenile delinquent that now requires you to register as a sex offender, we can help. We will prepare a petition to remove sex offender registration that will give you the best chance to win. Contact us today to discuss what we can do for you.

Know Your Rights: Can the Police Make You Get Out of Your Car?

Can a Police Officer Order You Out of Your Car

Can a Police Officer Order You Out of Your Car

Know Your Rights: Can the Police Make You Get Out of Your Car?

Most encounters with the police occur after a traffic stop and while most traffic stops are routine, the cops are trained to view traffic stops as a potentially dangerous or deadly situation. That view sometimes can result in terrible outcomes, which is why it is imperative that everyone knows their rights.

A situation that arises more often than not is a police officer asking someone to get out of his or her car following a routine traffic stop. While common sense says that being asked by the police to get out of your car after being stopped for something as trivial as an expired registration sticker or not using a turn signal is unreasonable and an invasion of someone’s rights, the United States Supreme Court held otherwise. In a landmark decision, the Supreme Court held that the police can make you get out of your car after a valid traffic stop. This ruling applies to the driver and all the passengers in a car. Because of this ruling in Pennsylvania vs. Mimms, a person must exit their car if ordered to do so by the police.

Background of Pennsylvania vs. Mimms

Mimms involved a case where two Philadelphia police officer stopped a car being driven by Harry Mimms for driving with expired plates. After stopping his car, the police ordered Mimms to step out of his car, which was common practice for the police department. After Mimms complied with the officer’s order, the police observed an unusual bulge in Mimms’s jacket. The police then searched Mimms and discovered a handgun.

Mimms unsuccessfully sought to have the gun suppressed on the grounds the police violated his 4th Amendment rights against unreasonable searches and seizures. The Pennsylvania Supreme Court ruled that the police did not have probable cause to order Mimms out of his car and reversed the conviction against him. However, the Supreme Court of the United States agreed to take the case on appeal to answer the question whether the police order to Mimms for him to get out of the car, which was given after Mimms was lawfully stopped for a traffic violation, was reasonable and thus permissible under the 4th Amendment?

In a 6-3 per curium opinion, SCOTUS held that the police routinely asked drivers who were being ticketed to exit their cars for the safety of the officer. The police stated that it would diminish the chance that person could get something from the car while the police officer is writing the ticket and attack the officer. Also if the stop was executed in a high traffic area, having the driver stand between the police car and the driver’s car allows the police to conduct the traffic stop away from moving traffic.

Why Can the Police Make You Get Out of Your Car?

The Mimms Court held that allowing the police to make a driver exit his car is a nothing more than a “mere inconvenience” to the driver especially when compared to the safety benefits to the police. The Court reasoned that since the car was stopped after a valid traffic stop and ordering the driver to get out of the car was a “minimal and reasonable intrusion” of his freedom. The Court further held that the search would have occurred regardless if the Mimms was out of his car or seated because the bulge in his jacket was visible while he was seated in the car. The Court held that the bulge allowed the police to assume that Mimms was armed and posed a danger to the police. Under these circumstances, the Mimms Court held that any cop of “reasonable caution” would likely have conducted the “pat down” of Mimms.

The dissenting opinions in Mimms that were written by Justices Marshall and Stevens argued that the new rule created by Pennsylvania vs. Mimms greatly expanded the police officer’s right in searching an individual that they stopped. The dissenting opinions predicted what would happen, the police were limited in searching an individual only to the extent they could an invent a justification for the search based upon officer safety.

After a traffic stop it is imperative that you do everything possible to protect your rights and that can only begin if you know your rights. If stopped by the police for a traffic stop, the officer can order you out of your car without violating your constitutional rights. However, that doesn’t prevent you from doing everything to protect your rights. Remember the interaction as best as you can and write it down, better yet record the interaction.

However, the most important thing you can do is hire a criminal defense attorney who knows what he or she is doing. Not all criminal defense lawyers are fully versed on the 4th amendment and search and seizure law. Contact Jaleel Law today to discuss how we can help win your case.

 

Conclusion

The current state of search and seizure law allows a police officer to order a driver and the passengers out of vehicle that is stopped for even a minor traffic violation. However, the law does not require you to answer any questions or to consent to a search of your vehicle. If a police officer orders you out of your car, you must comply and do what the officer orders but remember to not answer any questions and don’t allow the police officer to search your car.

If you have been arrested following a traffic stop, contact the Chicago criminal defense attorneys at Jaleel Law P.C. to discuss your options. We have successfully had the evidence against our clients suppressed because the police violated our clients’ 4th Amendment rights. Call us today to discuss what we can do for you.

At Jaleel Law P.C. we can help you appeal your case if you have been wrongfully accused of a crime. Contact us today via our Appeals website

How to Beat a DUI Charge- Top 5 Ways

Learn the Top 5 Ways to Beat a DUI

How to Beat a DUI Charge in Illinois-Top 5 Ways

A DUI charge in Illinois is a serious crime that carries with it significant penalties for a DUI including mandatory jail time in certain situations. However, a DUI charge will never go to sentencing if you beat your DUI case. Here are the 5 best ways to beat a DUI charge in Chicago or anywhere else in Illinois.

1) Win a Motion to Suppress Evidence and Quash Arrest

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Learn the Top 5 Ways to Beat a DUI
Learn the Top 5 Ways to Beat a DUI

Every person, regardless if they are a citizen or undocumented, has a 4th Amendment right to be free from an unreasonable search and seizure. Most driving while under the influence or DWI charges start following a traffic stop. Because of this fact, every DUI/DWI charge that begins with a traffic stop must be supported with probable cause, which means the police officer must have a valid basis to stop your car in the first place because the 4th Amendment protects drivers from being arbitrarily stopped by the police for no reason. However, any traffic violation however small can be enough probable cause to conduct a valid traffic stop within the meaning of the 4th Amendment.

An experienced DUI attorney can use the protections provided by the Fourth Amendment to beat a DUI case. For example, when the police allege a aggravated speeding violation to justify a traffic stop, a skilled DUI attorney can establish that the police were incorrect in their assessment because their radar gun was not properly calibrated prior to the traffic stop or it was used incorrectly. If a lane violation is the probable cause to justify a traffic stop, a very common police claim, a DUI attorney well versed in Illinois DUI law can establish that the lane violation was warranted based upon the road or traffic conditions, which could defeat the probable cause claim offered by the State.

A competent DUI attorney experienced in fighting 4th Amendment issues can use a litany of arguments to win a probable cause hearing based upon a constitutionally deficient traffic stop. After winning a motion to quash arrest and suppress evidence the State will be forced to dismiss charges against you that is why winning a motion to suppress evidence and quash arrest is such a great way to beat a DUI charge in Illinois.

2) Get the Breathalyzer Evidence Suppressed

Any competent DUI lawyer would advice his or her client to never submit to a breathalyzer test. The reason is simple. A breathalyzer result that is over the legal limit is the strongest evidence a prosecutor has in a DUI/DWI case. However, before a prosecutor can admit the results of the breathalyzer, a proper foundation needs to be established. The foundation required before a breath test can be used as evidence include a host of different things from the licensing required of the operator; the type of breathalyzer machine that can be used; how the test must be conducted; to how the log books that record the results are kept and maintained.

If these requirements are not met then the results of the breathalyzer test could be suppressed. An experienced DUI lawyer can file a motion to suppress the breath test results based upon a lack of a proper foundation for the breathalyzer results. Although a successful motion to suppress the breath test results likely won’t result in an outright dismissal, it will result in the suppression of a key piece of the State’s evidence in a DUI case, which is why it is such a great way to a beat a DUI case in Illinois.

3) Attack the Reliability of the Field Sobriety Tests

Another great method of beating a DUI charge is attacking the reliability of the field sobriety tests. Field sobriety tests or FSTs consists of 3 tests created by the National Traffic Safety Administration. According to the studies conducted by NHTSA, field sobriety tests that are conducted according to its stringent guidelines are 90% accurate in detecting whether someone has a BAC higher than 0.01. It is important to note that the FSTs are not 100% accurate even when conducted in an ideal situation. However, such a situation rarely ever occurs in an actual DUI case where the field sobriety tests are conducted on the side of the road usually in the middle of a cold night.

A DUI attorney who has the requisite knowledge and experience can attack the reliability of the field sobriety tests to the extent that they play no part in a jury’s verdict. Once a skilled lawyer attacks the reliability of the field sobriety tests, the remainder of the police officer’s testimony is also called into question, which is why it is one of the top 5 ways to beat a DUI.

4) Prevent the Prosecution from Establishing Under the Influence

Most DUI/DWI charges in Illinois require the State to prove that the DUI defendant was under the influence of alcohol, drugs, or a combination of alcohol and drugs. Under the influence is a legal term that is vastly different than being drunk. Under Illinois DUI law, under the influence can be any amount of alcohol that lowers a person’s ability to drive or act with ordinary care.

A skilled DUI lawyer can poke holes in the State’s theory and establish reasonable doubt as to whether a DUI defendant was under the influence. The crux of being under the influence is bad driving or in DUI parlance, erratic driving. An experienced DUI lawyer can establish that even though alcohol may have been consumed it didn’t result in the driver being “under the influence” because the alcohol didn’t affect the person’s ability to operate a car with ordinary care. Even in situations where an accident occurred, a proficient DUI lawyer can establish that the traffic crash was not a result of the alcohol but a result of the road conditions or mechanical error as opposed to driver error. Because under the influence is an element of most Illinois DUI charges and because it can be attacked in numerous different ways, it is a critical means of beating a DUI charge.

5) Jury Nullification

The final method in beating a DUI case is arguably the most difficult and requires the most proficiency from a DUI attorney. According to Wikipedia, jury nullification “occurs in a trial when a jury acquits a defendant, even though the members of the jury may believe that the defendant did the illegal act, yet they don’t believe he or she should be punished for it. This may occur when members of the jury disagree with the law the defendant has been charged with breaking, or believe that the law should not be applied in that particular case.“ Based on this definition one can see why it requires more than just a competent DUI attorney to pull off. To be successful, DUI lawyer must convince the jury to deliberately reject the evidence or to refuse to apply established law. Most importantly, a DUI attorney must persuade the jury to ignore the oath they took to return a verdict based solely on the law and the facts of the case. If this burden wasn’t difficult enough, the law prohibits a lawyer from arguing jury nullification to the jury. Despite all these shortcomings, jury nullification is still a great way to beat a DUI case.

In DUI law, jury nullification typically arises in actual physical control cases. In these situations, the DUI defendant is never caught driving a car; rather, the person is caught sleeping in a car while intoxicated. According to Illinois DUI law, sleeping in a car is the equivalent of driving. However, to most people sleeping in a car while drunk is vastly different from driving a car while drunk. A capable DUI lawyer can use the jury’s common sense to establish jury nullification without violating the prohibition from an attorney arguing for jury nullification. Although difficult jury nullification sometimes is the only available defense and when an experienced attorney employs it the outcome could result in an acquittal. Jury nullification is always a defense of last resort but when nothing else is available it could be a way to beat a DUI charge.

Conclusion

How do I beat my DUI case, is a question that we are asked on a daily basis at Jaleel Law P.C. While all DUI charges are different and the individual facts of each case are different, at least one of these top 5 ways to beat a DUI charge should be available in your case. However, as you can see being successful depends upon the ability of your DUI lawyer to effectively deploy these tactics because an incompetent attorney attempting these methods will likely result in you losing your case and possibly finding yourself in jail.

If you are facing a DUI charge in Chicago or elsewhere in Illinois, contact us today to discuss what method we can use to potentially beat your DUI case.[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

The Crime of Embezzlement in Illinois

The Crime of Embezzlement in Illinois

Embezzlement in Illinois is a specific type of a white-collar crime that falls under the theft statute codified at 720 ILCS 5/16-1. While all theft crimes involve taking something from another person what makes embezzlement in Illinois unique is the relationship between the person taking and the person whose property was taken. In all embezzlement cases, whether under federal or Illinois law, requires that the defendant in the embezzlement case to have legal access to the victim’s property.

Legal Access to Property in Embezzlement

Embezzlement in Illinois Embezzlement requires a relationship between the defendant and the victim where the defendant has access to the victim’s money or property but legal ownership still remains with the victim. Most often these types of situations arise when a fiduciary duty exists between the parties or at the very least the defendant is in a position of trust. For example, embezzlement can occur when an elderly person signs a power of attorney to a family member to manage his or her affairs and instead the family member spends the elderly person’s money on personal items. Embezzlement can also occur when a home buyer gives her realtor money as escrow but instead the realtor deposits the money in his personal account.

Embezzlement can occur in every imaginable situation. However, what distinguishes embezzlement from other theft crimes is always the fact that the victims provided access to their property to the defendant and the thief uses that access for personal gain.

Sentencing in Embezzlement Cases in Illinois

The type of punishment available to a court in sentencing an embezzlement defendant varies depending upon the nature of the offense but most importantly about the dollar value of the amount embezzled and the defendant’s prior criminal background.

Embezzlement in Illinois of less than $500

Embezzlement of less than $500 is generally a Class A misdemeanor in Illinois punishable by a sentence of up to 1 year in a county jail. However, if the embezzlement was committed in a school or place of worship or if the theft was of governmental property than the embezzlement charge would be a Class 4 felony punishable up to 3 years in prison.

A person convicted of embezzlement could also face a Class 4 felony regardless of the amount embezzled if the defendant has a previous conviction of any type of theft, robbery, armed robbery, burglary, residential burglary, possession of burglary tools, home invasion, forgery, any crime relating to the possession of a stolen or converted motor vehicle, or any violation of the Illinois Credit Card and Debit Card Act. 

Embezzlement of $500-$9,999

A person convicted of embezzlement of property between $500 and less than $10,000 is guilty of a Class 3 Felony that is punishable by up to 5 years in prison. However, if the victim was a school or place of worship than the punishment is enhanced to a Class 2 Felony that is punishable by up to 7 years in prison.

Embezzlement of $10,000-$99,999

Any one convicted of embezzlement of property valued at $10,000 or greater and less than $100,000 is guilty of a Class 2 Felony. However, if the victim was a school or place of worship than the punishment is enhanced to a Class 1 Felony punishable by up to 15 years in prison.

Embezzlement of $100,000-$499,999

Embezzlement of property is a Class 1 Felony when the defendant is found guilty of embezzlement of $100,000 or more but less than $500,000. Again, if the victim is a school or place of worship than the punishment is increased to a Class X offense which is punishable by up to 30 years in prison.

Embezzlement of $500,000-$999,999

Embezzlement of property in excess of $500,000 but less than a million dollars is a non-probationable Class 1 Felony.

Embezzlement of one million dollars or more is a Class X offense.

Any one convicted of embezzlement in excess of $1,000,000 is guilty of a Class X felony punishable between 6-30 years in prison.

Conclusion

A charge of embezzlement in Illinois is a very serious matter that requires an attorney that is proactive and aggressive. Whether at trial or on appeal, Jaleel Law P.C. has the experience to win.

Failure to Register as a Sex Offender and Other Violations of the Illinois Sex Offender Registration Act

failure to register as a sex offender in Illinois

Failure to Register as a Sex Offender

failure to register as a sex offender in Illinois Failure to register as a sex offender is a serious felony offense in Illinois. A significant prison sentence is certainly a valid sentencing option for anyone convicted of failing to register as a sex offender. The sex offender registration laws require anyone convicted or adjudicated of certain sex offense to register as a sex offender. The Sex Offender Registration Act punishes sex offenders who fail to register as a sex offender and individuals who help a sex offender avoid arrest for a charge of failure to register as a sex offender.

What is the Penalty for Failure to Register as a Sex Offender?

Failure to register as sex offender is a Class 3 felony in Illinois. Like all Class 3 felonies, failure to register as a sex offender is punishable by 2-5 years in prison and a fine of $25,000. Court supervision is not available but a sentence of probation is possible. However, anyone who does get probation must serve a mandatory minimum period of 7 days in jail and pay a mandatory fine of $500 to the Sex Offender Registration Fund.

A second or subsequent violation of failing to register as a sex offender is punished much more severely. A second or subsequent violation of the failure to register as a sex offender statue is a Class 2 felony, which is punishable by 3-7 years in prison and a fine of $25,000.

What Court has Venue in a Failure to Register as a Sex Offender Charge?

Most crimes are prosecuted in the county where the crime occurred. For example, if an armed robbery occurs in Du Page County the crime would be prosecuted in Du Page County; likewise, a Chicago DUI would be prosecuted in Cook County. The crime of failure to register as a sex offender is different. The Sex Offender Registration Act allows for a sex offender or sexual predator to be arrested and tried in any Illinois county where the sex offender can be located not just the county where the person failed to register. Additionally, the local police department or sheriff’s office are not required to determine whether the sex offender is living within its jurisdiction prior to arresting a sex offender for a violation of failure to register as a sex offender.

What are the Penalties for Giving False Information When Registering as a Sex Offender?

The sex offender registration laws create extensive reporting requirements for all sex offenders and sexual predators. During this annual registration with the local police, the sex offender must provide detailed information about him or herself. If any of the information provided is incorrect, the sex offender faces a Class 3 felony, if the prosecutor can establish that the person knowingly or willingly gave false information.

Sex Offenders Cannot Change Their Name

Article 21 of the Code of Civil Procedure creates a mechanism for a person to legally change his or her name. However, sex offenders and sexual predators cannot change their name while they are required to register as a sex offender. The sex offender laws are so strict that any sex offender who even attempts to change his or her name can be charged with a Class 3 felony.

What are the Penalties for Aiding a Sex Offender?

The sex offender registration laws in Illinois punish people who aid sex offenders in certain situations. Aiding a sex offender is a Class 3 felony. To fall within the law, a person first must have a reason to believe that the sex offender is not complying with the registration requirements of the sex offender laws and the person must intend to assist the sex offender in eluding the police by:

1)    Providing false information to the police department that is responsible for maintaining the sex offender’s registration;

2)    Harboring, attempting to harbor, or assisting another person to harbor or attempt to harbor the sex offender; or

3)    Concealing, attempting to conceal, or assisting another person in concealing or attempting to conceal, the sexual predator.

Attorneys and other professionals who have a duty of confidentiality cannot be guilty of aiding a sex offender. Additionally, no one can be found guilty of aiding a sex offender if the sex offender is incarcerated or in a psychiatric hospital.

Conclusion

Failure to register as a sex offender is a charge that cannot be taken lightly. The consequences for pleading guilty to the charge of failure to register as a sex offender carries with it the potential of years behind bars and it simply doesn’t make sense to hire an inexperienced attorney.

Jaleel Law P.C. knows what it takes to properly defend a failure to register as a sex offender charge and we have the experience to make sure that the State is forced to meet its tremendous burden of proofing you guilty beyond a reasonable doubt. If you are charged with failing to register as a sex offender, contact us to discuss how we can help.

Is Adultery a Crime in Illinois?

Adultery | Chicago Criminal Defense Attorney

Is Adultery a Crime in Illinois?

Adultery | Chicago Criminal Defense Attorney Adultery touches upon moral, ethical, and religious issues but most people don’t realize that cheating on your spouse is also a crime in Illinois. Adultery is a Class A misdemeanor and the criminal sentencing options include any combination of one year in jail and a fine of $2,500. Court supervision is also an option.

What Constitutes the Crime of Adultery in Illinois?

The crime of adultery punishes sexual intercourse with someone that is not your spouse. Additionally, because it takes two to tango, the laws in Illinois also prohibit an unmarried person from having sex with someone that the person knows is married.

The laws exempt a person from prosecution if the person admits to having an extra-marital affair during the process of obtaining child support.

What is Open and Notorious for Purposes of Illinois’ Adultery Law?

To constitute adultery in Illinois, the behavior has to be “open and notorious.” Open and notorious is a legal phrase that is most commonly used in property law. For the purposes of Illinois’s sex crime laws, open and notorious is defined as behavior that is known by the public, which runs counter to the community’s accepted moral values.

Conclusion

Illinois is still one of the few states in the country that punishes adultery as a crime. Although it is punished in the same sentencing category as domestic battery, possession of cannabis under 30 grams, Illinois DUI, and aggravated speeding, it is an antiquated crime that is rarely charged in Illinois. In fact, I have never seen anyone actually charged with adultery in the Chicago area.

If you are charged with a sex crime in Illinois, the Chicago criminal lawyer at Jaleel Law P.C. has the ability to make a difference in your case. Contact us to discuss how we can help.

Possession of Cannabis in Illinois

possession of cannabis in illinois

possession of cannabis in illinois

Possession of Cannabis in Illinois

Possession of cannabis is still a crime in Illinois despite the General Assembly acknowledging that cannabis is widely used within Illinois. Despite marijuana being legalized or decriminalized in a dozen or so states and medical marijuana being legal in Illinois, the State’s official policy is that cannabis use carries with it physical, psychological, and sociological damage and that it deserves to be criminally punished.

What is Possession of Cannabis in Illinois?

Possession of cannabis prohibits the actual or constructive possession of marijuana. The Illinois marijuana laws define cannabis very broadly. Under Illinois’ marijuana laws cannabis includes:

  • Marijuana;
  • Hashish;
  • Any part of the Cannabis Sativa plant whether growing or not; except for the mature stalks;
  • The seeds of the Cannabis Sativa plant; and
  • Any substance created from the plant, seeds, or resin of the Cannabis Sativa plant.

What are the Penalties for Possession of Cannabis in Illinois?

The purpose of the Cannabis Control Act was to create a “reasonable” penalty system that punished marijuana possession while not unnecessarily imprisoning a large segment of the population. The Illinois marijuana laws are meant to punish commercial traffickers and large-scale suppliers of cannabis. Possession of marijuana can either be a misdemeanor or a felony.

Misdemeanor Possession of Cannabis

  • Possession of not more than 2.5 grams of cannabis is a Class C misdemeanor;
  • Possession of more than 2.5 grams but not more than 10 grams of cannabis is a Class B misdemeanor;
  • Possession of more than 10 grams but not more than 30 grams of cannabis is a Class A misdemeanor.

Felony Possession of Cannabis

  • Any subsequent possession of more than 10 grams but not more than 30 grams of cannabis is a Class 4 Felony;
  • Possession of more than 30 grams but not more than 500 grams of cannabis a Class 4 felony,                                                                                                               Any subsequent offense is a Class 3 felony;
  • Possession of more than 500 grams but not more than 2,000 grams of cannabis is guilty of a Class 3 felony;
  • Possession of more than 2,000 grams but not more than 5,000 grams of cannabis is a Class 2 felony;
  • Possession of more than 5,000 grams of cannabis is a Class 1 felony.

Conclusion

Unfortunately, Illinois still punishes possession of cannabis like any other criminal offense. Like any other crime, possession of marijuana can land someone in jail or even in prison.

The Chicago criminal defense attorney at Jaleel Law P.C. has the experience to defend your possession of cannabis claim. If you have been arrested for possession of cannabis contact us today to discuss how we can help.