Illinois DUI Laws IV – The Automatic Felony DUI

A wrinkle in the DUI laws in Illinois that everyone should be aware of.

If you are pulled over for DUI and you do not have a valid license (it is is either suspended or revoked at the time) or you do not have insurance (it has to be valid at the time you are stopped), your DUI, even if it is your first, is a felony.

This is a huge deal for most folks. They don’t realize that you have to have BOTH a valid license AND insurance, not to get charged as a felony DUI, even for your first one. Otherwise, you would be able to get a misdemeanor for your first DUI, even your second.

Obviously, if you have a valid license and insurance, you are going to have your license statutorily suspended upon getting your first DUI (without a hearing). So now, you don’t have a valid license. And if you are caught driving for any reason, you’ll pick up a 625 ILCS 5/6-303 or a driving on a suspended license ticket. And those can get serious. They now can add up to felonies and automatic mandatory jail times up to 6 months. Frankly, the State of Illinois sometimes seems more concerned about putting people away for driving without a license than any other crime.

If you’ve had your license revoked because of a prior DUI, or just had it suspended for other traffic reasons, GET IT REINSTATED! Call a lawyer and take them to your hearing at the Secretary of State because driving without a license, or a DUI without a license, has become serious business.

Here is Part III of Illinois DUI Laws – Motions to Suppress

Here is Part II of Illinois DUI Laws – The Consequences.

Here is Part I of Illinois DUI Laws – The Initial Stop.

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Transvestite Bank Robber Masked?

I’m just rolling this one around in my head.

A man robbed a bank a few days ago in Park Ridge while wearing a dress.

Now, according to the article, at gunpoint he ordered two employees to empty a safe and herded them into a bathroom where he flex tied them and then left. He was reported to be wearing a dress and a big pink floppy hat.

What I think is clever about this is that he may not, for the purposes of the statute, be disguised. Generally, most state statutes for aggravated assault (threatening someone with a gun) while disguised (such as wearing a mask, hood, bandanna) is an enhancement, i.e. you get in more trouble. But here, he didn’t cover his face, he just dressed like a woman. Presumably, you would still be able to pick him out of a line up.

Speaking of which, would a fair line up have all the people in it dressed in drag?

Gun Possession Cases in Illinois – The Chicago Scourge

If possession of cocaine can get you deported and is generally a bad idea, a lot worse idea is possession of a gun.

Gun possession in Chicago, or “UUW (Unlawful Use of a Weapon) as it is generally known is a crime that is aggressively prosecuted. You will possibly get probation from a judge, but you will almost NEVER get it as an offer from a prosecutor.

To give you an idea of how common and pervasive this crime is, the annotated version of this statute, which is pretty long to begin with, runs 80 pages. That is over 250 cases describing all the ins and outs of gun possession. This is one heavily litigated crime.

There’s a reason for that. I tell my clients charged with UUW for the first time, you are having a giant T for Thug branded on your chest for this crime. If you have a UUW in your background and you pick up a new case, your bond is going to skyrocket. If you have a UUW in your background and you get another UUW, or anything that looks drug or gang related, your offer is going to skyrocket. This is one serious crime.

In order to prove gun possession, generally, the police must prove that they saw you with the weapon on your person, literally, touching you, or within a reasonable area to say you were in control of it (which is generally the area you can reach). As with drugs, guns can also be put upon you by means of constructive possession. This means that the gun must only be in an area over which you have exclusive and immediate control (i.e. your car, or your bedroom, etc.). But the case law on guns is terrible.

Also, if you are transporting the gun (and 90% of gun cases involve you having the gun in your car or on your person, so you are “transporting” it for the purpose of the law), there are a number of other things the state must prove. They must prove that you did not have the gun in a case, that the gun was in an operable condition and that you were not in possession of a Firearms Owner Identification Card.

Needless to say, I will get into gun possession cases more on some later dates, discussing the bad rulings, the good rulings, tactics and problems.

Can’t Make This Up

A short list of amusing courtroom anecdotes.

Today I was at 51st and Wentworth felony preliminary hearing court. The clerk called out the name of a gentleman with a case…”Brown, Cleveland!” Seriously. The whole front row of cops snickered.

At a sentencing in Rolling Meadows, two 18-year-olds charged with trespass to a vehicle (a nice way of saying “breaking into cars”). They each have a juvenile bust and are there with their parent(s). The judge asks them if they have anything to say before he sentences them. Warning! Usually, unless you are truly well spoken, or at least, truly sincere, just don’t say anything, not on a minor crime. One of the kids says “This is the stupidest shit I have ever done.” The judge snaps back “No it’s not, that was the first time. This is just you not getting the picture.”

Last, a fashion tip to the ladies. Do not come to court wearing stripper heels. I saw a young lady teetering about in 4-inch lucite heels the other day. Nothing good will come of that.

Missing Your Court Date – What Happens?

The judge will forfeit your bond (take it away) and issue a warrant for your arrest.

That’s the short answer. The long answer (or excuse that you might have) is more complicated.

You have a court date. It’s coming up, you know it’s happening, but you can’t get off of work. Or you have no one to watch the kids. You’re broke and you have no ride. There are a lot of reasons why you might miss court. And none of them are any good.

Going to your court date is the only thing you have to do that day. If you miss your court date, whether it’s for a traffic ticket, or a more serious crime, the result is the same. A warrant is issued for your arrest, and your bond is forfeited (the county takes the money you put in, and won’t give it back).

Now, this isn’t the end of the world. As your attorney, I can bring you in front of the judge, explain why you didn’t make it (usually just about any excuse will work), and ask the judge to reinstate your bond and quash (take back) the warrant for your arrest. HOWEVER! This only works once. If you blow it again, you’re going to go to jail.

WORD OF WARNING! If the judge doesn’t like you for some reason, like this is the second or third time you’ve done this, or you are sarcastic, surly, or mean to the judge, you can be shipped straight to jail even on your first missed court date. I have NEVER seen this happen, although I’m sure it has. That doesn’t mean it can’t. So don’t press your luck.

So what happens if you don’t come in front of the judge with me and vacate the bond forfeiture and quash your warrant? Well, you can come in on the next court date, which will be the last one you have. This will basically allow you to go through the same process I just described.

OR, you can completely skip your court dates from there on, have a warrant hanging over your head and a judge ready to just throw you under the bus the next time you appear.

And you WILL appear before that judge. If you are pulled over, stopped, arrested for any other reason, or have a run in with the police, you will be picked up, and taken to jail, where you will NOT get a bond, and have to go before the judge whose court date you missed before, and explain why you weren’t there. This is not the optimal way to appear before the judge, wearing the CCJ tan jumpsuit.

If you miss a court date, don’t panic. Have your lawyer “motion up” the case and appear before the judge looking sorry and all will be well. Just don’t make a habit of it.

UPDATE: Just last week I had a client who had missed a court date because he got hurt. He had visited his doctor, who told him to take time off of work, but my client DID NOT GET A LETTER from his doctor explaining that he was currently injured. I called my client because he had missed his court date and told him to arrange a date with me to bring him in, quash his warrant and reinstate his bond. He did so, but canceled, twice.

He DID come on the final date he had for court, his JBFX date, as it is known. On this date, he still had no letter from his doctor, no excuse better than “I was hurt and I couldn’t make it in earlier.” The judge, not in a good mood, lectured him from the bench, then revoked his I-Bond (which required no money down) and turned it into a D-Bond. This required my client to pay $2,000 to get out of jail. I told him this was a possibility.

Now…he gets taken straight into the holding cell in the courtroom. I had wanted to fight his case, but now, if I do, he has to put up $2,000 to get out to continue to fight it, or wait for his next court date (or two). The prosecutor gave him a good offer and my client had a really bad choice to make. He could take the deal, or pay the bond and fight the case. Or not pay the bond, lose his job, and fight the case (since he hadn’t expected, although he was warned, to have stay in jail, and he really didn’t have the $2,000).

What’s the lesson here? CALL YOUR LAWYER! GET TO COURT AS SOON AS YOU CAN AFTER YOU MISS YOUR COURT DATE!

I can only do so much, before your behavior puts you exactly where my client was…in a cell.

Musica Justicia – III

It’s been awhile, but I’ve decided to make this a bit more brief.

Artist – Hangar 18
Genre – Hip Hop

Best new hip hop group I’ve heard in a long time. Rapid fire rhyming and a combination of futuristic and old school beats. Love it.

Artist – The Baseball Project
Genre – Rock

This whole CD of straightforward garage rock is based on baseball. It’s got Peter Buck from R.E.M. in it…and not one song is a miss. If you like baseball like I do, and rock and roll, this is a must have.

Artist – Blood on the Wall
Genre – Rock

A guy and a girl trade off singing lead, a power trio with a sludgy bottom end, and a song entitled “Turn Around and Shut Up.” What’s not to like?

Remember, all bands recommended are vetted by my thorough process of listening to these CD’s while driving on my rounds throughout Cook County.

Deportation for Baking Soda: Or Why Possession of Cocaine Can Really Screw You

I had a client the other day have his drug case get dismissed. The reason? His labs came up clean, he had purchased $40 worth of baking soda, instead of cocaine.

However, as noted earlier on this blog ICE is watching all felony arrests at Cook County Jail. My client had applied for asylum many years ago and been denied, and presumably had received notification that he was to be deported. Of course, he ignored it. Now, he’s being kept without bond at Cook County Jail on an immigration hold, and in the next few days, we’ll see if ICE picks him up and sends him packing.

NOTE! Cocaine has NO misdemeanor possession amount. Check 570/402(c) of the Illinois Controlled Substances Act or just take my word for it. It should be noted that less than half a gram is SOMETIMES thrown out by Cook County judges, namely because a police officer would usually lack probable cause to search you for it, but generally for the more practical reason that it’s just not enough to get all worked up about. Cocaine possession is never a misdemeanor, although luckily, judges in Cook County generally treat possession of less than 5 grams as if it were.

My client was arrested for what was thought to be cocaine. Tests proved it wasn’t. But he got caught up in the dragnet of our new War on Immigrants and he’s probably leaving the country. I know a lot of people wouldn’t be too upset about it. However, I find that a lot of my (illegal) Hispanic clients aren’t too worked about this. These people have family, friends, jobs, their whole lives here. If they’re deported…I feel like they look at it as an inconvenience…but they’ll be back.

Constructive Possession, Drug Busts and the U.S. Mail

Today we went to trial and won without even putting on any witnesses for the defense. Out in Bridgeview (the 5th Municipal District) I watched the State’s Attorney have their case fall apart like tissue paper. It was a teaching moment, not their fault, but indicative of what you can face as a person caught up in the War on Drugs.

An informant had claimed to have bought drugs at the house of my client. The informant (confidential, of course) said that my client had offered her marijuana, left the room they were in (the living room) went into his bedroom and returned with weed. My client supposedly said that she could come back at any time.

My client was described as 5′ 08″ Hispanic male with dark hair. Really? Isn’t that about 75% of the Hispanic population in Chicago? Anyway, based on this flimsy info, the police obtain a search warrant and raid my client’s former home.

See, my client had moved out over a month prior to the alleged drug sale. My client had rent receipts and witnesses from Indiana where he was living. The police still came in, without any information that there would be guns or possible violence, shot all three of the family’s dogs (two of which were chained up and on less than four feet of leash) and tore the house apart. My client was not there, because he did not live there.

Now. In order to prove the intent of drug possession with intent to deliver, you must prove 1) knowledge of the presence of the cannabis, 2) it was in the person’s immediate control and 3) the quantity was in excess of an amount that might be viewed as for person use. I should note, my client barely made it over the limit for personal use possession.

However, it’s number two that is the kicker. The police must prove you had it in your immediate control, and what if when they find it, you’re not around? In our case, that was the issue, my client wasn’t home when they found a small amount of drugs in a bedroom. In order to prove that it was his, the State must prove “constructive possession.” Constructive possession is circumstantial proof that you, the criminal defendant, exert control over the area the drugs were found.

In order to do this, the police, during drug raids, take two things. Pictures and mail. Pictures are meant to show that you had pictures of yourself up and why would there be pictures there if it wasn’t your room (or house, or whatever). The other is the mail. When they find mail at the residence with your name on it, they grab it.

In our case today, the police grabbed…a four year old tax return, a bill with our client’s name on it…but it turned out to be for his father (who has the same name) and a pay stub, dated two days prior to the raid. Obvious defects were there with the tax return and the bills for our client’s father, but the pay stub was a problem. Clearly, there’s evidence there from our client from right before the raid…but of what?

Turns out, of nothing. For two reasons. Our client still visited home quite often. He was a young man and he did laundry at home, came home for meals, had four younger siblings still there. But more damning, the State didn’t have the police officer present from the raid who could testify from where any of the mail was found. What we knew was that they just grabbed a basket full of bills from the living room and took everything with our client’s name on it (which was also the name of his father). This pay stub was probably in there…but we’ll never know because no where in the police reports and no where in evidence did we have a clue as to where the mail came from.

In the end, the judge spent a good ten minutes from the stand lecturing the State on the weakness of their case. This was one of those “teaching moments” where I actually believe the judge was lecturing the police because of the really poor job they did. In fact, at one point, the judge noted that the police never asked our client the one question they should have. Which was, which bedroom was yours? Now the judge also noted that the police didn’t want my client to deny he lived there, or state the wrong room. So the police gambled. They gambled that they would be able to prove with the poorly documented and hastily gathered evidence, that there was constructive possession of the drugs they found. Which they could not, hence, my client was not guilty.

Of course, there is but one lesson to be learned from this whole escapade, which is the same one to be learned from all our teaching moments here. NEVER TALK! Ask for your lawyer, insist on not answering any more questions until you have been allowed to see your lawyer and just shut up. Proving constructive possession isn’t easy…don’t hand it to the State on a silver platter.

Local Criminal News

I realize coffee is expensive…but this is a little unnecessary.

Stealing beer goggles makes for a tough getaway (if you’re wearing them).

Three inept bank robberies in one morning. It’s an epidemic of pseudo-crime!