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.

This Week in Ridiculous Criminal Laws IV – Fortification of a Building

So, we’re back. Please note that it’s been awhile, but I promise, TWIRCL is back with a vengeance!

Again, with this series I am trying to highlight the silliness, redundancy or unnecessary use of punitive means for non-dangerous behavior…hence, its ridiculousness.

This week in ridiculous criminals laws, 720 ILCS 5/19-5 “Criminal Fortification of a Building or Residence.”

This ridiculous law, found in the section on burglary and burglary tools, criminalizes the act of having a lair. Or a Batcave. Or a Fortress of Solitude.

Not really. This law specifically makes it illegal to put a “steel door, wooden planking, crossbars, alarm system, dogs or similar means” in the way of officers trying to bust your drug house. Now, this law does make it specific that it only counts if you are using that building or residence for “the purpose of manufacture, storage, deliver or trafficking of cannabis or a controlled substance.” So, drug houses and pot farms need only apply.

Here’s why it’s ridiculous. Say I’m a jewel thief. Or a hacker. Or I run a brothel. Then presumably my “fortifications” which include Rover, the ADT alarm system from the condo association, and the broom handle stuck in the sliding door are all legal! In fact, the steel door reinforcement, the Master Lock Security Bar, the killer Goldendoodle you got from the breeder and the motion sensor alarms you purchased are just fine and dandy.

This law is ridiculous. This law is a Class 3 felony which carries a 2-5 year sentence for violating (and is probationable). It is conceivable that you could be busted for possession with intent to sell cannabis, between 10 and 30 grams, which would be a Class 4 felony, and have the alarm system on your door would be a larger crime.

This law has been attacked for vagueness in People v. Rasmussen 233 Ill. App. 3d 352, but to no avail. It seems that there is some use for this, although presumably this is just another of those “tack-on” crimes that prosecutors love so much.

I had noticed in the past that on warrant entry forms used by the police that they note fortifications and the use of dogs (they even have little boxes to check off for “booby trap” and “attack dogs”). I had no idea what the purpose of that was until I discovered this ridiculous law. I have yet to see a client charged with it, but I suppose I should only give it time.

After all, if it’s on the books, why not use all the laws available, even the ridiculous ones!

Illinois DUI Law – II – The Consequences

We are back to the analysis of Illinois DUI law…and now we are on to the Consequences.

This is important to understand, because there are a lot of misconceptions about DUI’s and the penalties that you face with them.

There are two types of penalties that you face from DUI’s, civil and criminal. Criminal penalties range from community service to fines to jail or prison time. Civil penalties are “administrative” penalties..i.e. losing your license.

First, the criminal penalties. As noted before, although DUI is not in the “criminal code” or section 720 of the Illinois for criminal code. It is in section 625 for vehicles, specifically 625 ILCS 5/100 et. al . Here you will find the definitions of, penalties for…and incoherently long and poorly written legislation regarding the application of, the DUI laws in Illinois.

It should be noted that smarter lawyers than myself have done the hard work of appealing DUI penalties based on the fact that there are six (6!) versions of the same law all competing with each other in that section. The updates, penalties, additions and such contradict one another. According to Illinois law, when the legislature makes a mistake like that, the last published Act controls. Therefore, there are judges who think that some penalties exist that are actually harsher than the ones that should. Consult with your lawyer to make sure you understand the issues here.

It should also be noted that the DUI law was cleaned up by the Legislature and as of June, 2008, this year, there are new penalties, and new standards. This is going to confuse judges and lawyers for a while, so kick them in the butt if they don’t know about this change.

From here on in I am discussing the NEW 2008 DUI laws, not the old ones. If you were charged PRIOR to June 1, 2008, THESE DO NOT APPLY TO YOU.

Your first DUI is sort of a gimme. It is a class A misdemeanor, punishable by up to 1 year in jail and up to $2,500 in fines. Usually, a first time DUI offender will NOT receive jail time but they will get the maximum fine. Even with a cheap DUI lawyer, your total bill for a first time DUI will run you, on average, $4000 in total fines, fees, and legal bills. You will also be ordered to take classes to make you address your drinking problem. Generally, you will receive supervision, maybe probation if you have a criminal background. Supervision is the best outcome for you, so try not to blow it by getting in trouble again.

The second DUI now carries a mandatory 5 days in jail, or 240 hours of community service. To be honest, if you thought you could do it, I might recommend the jail time. That amount of community service (30 days of 8 hours a day) is likely to be a onerous burden that you might have a hard time meeting. And if you don’t, you may be ordered to serve jail time anyway for failure to comply. Fines remain the same but they will probably be towards the higher end of the maximum amount allowed.

The third DUI is where the law changes significantly. What used to be a Class 4 felony, punishable by 1-3 years in prison, is now a Class 2 felony, punishable by 3-7 years in prison. Maximum fine up to $25,000. This is serious. And far beyond what your third DUI used to be. Probation is available at this level, and you might get it, especially if your convictions are far apart and it looks like you’re trying to fight your alcoholism. If they’re within 5 years of each other though, I predict you do prison time.

Fourth DUI, non-probational Class 2. This means you HAVE to go prison. For 3 years, with day-for-day good time (plus the 6 months they shave off the top) means you only do 2. Same fines, etc.

Fifth DUI, non-probational Class 2, with the upper limit stretched to 15 years.

Sixth or subsequent DUI, Class X felony, 6-30 years, non-probational. Since I’ve had clients with over five DUI’s, this is a helluva penalty.

ENHANCEMENTS

There are two enhancements to the new law that are also important.

First, if you’re transporting a child under 16, you are subject to 6 months in prison (although if it’s your first or second time, you’re already subject to this penalty), and a minimum $1000 fine (which you were already going anyway).

Second enhancement, and the one most likely to affect you, is the conviction with a BAC over .16. If there was ever a reason NOT to blow, which has already been laid out for you, then this is even more of one. If you blow over a .16 (double the legal limit), you are subject to an additional $500 fine on your first DUI, a $1,250 on your second, $2,500 on your third, $5,000 on your fourth, fifth and sixth DUI. Also, on your second DUI, you get a mandatory 2 days in jail. Basically, they’re punishing you for being more drunk than other offenders. But THEY CANNOT SENTENCE YOU TO THESE ADDITIONAL PUNISHMENTS IF YOU DO NOT BLOW!

There are other wrinkles (for instance, driving a school bus drunk) that are of incredibly limited application to the general public, but keep it safe to say, the punishments have gotten harsher, the fines bigger, and the mandatory minimums worse than ever.

You, the Illinois DUI defendant, have got an uphill battle.

Read Part 1 HERE

Drug School

It’s not as fun as it sounds. In fact, it’s a sentencing alternative for first time street drug busts.

I have a client out in Bridgeview who was recently offered this opportunity. I say opportunity, because drug school is one of the saner alternatives offered in our criminal justice system.

Drug school is four classes, which if successfully attended and passed by the Defendant, the State will nolle prosequi (“do not pursue” in Latin) and drop the case. This alternative is frequently the best possible outcome for the Defendant. Since many drug cases are felonies even on simple possession, a first time “break” like this is a vital piece of the rehabilitation puzzle.

Drug school in Cook County is a similar system to the “drug courts” that have been established in many jurisdictions around the country. Where I attended college and law school, at the University of Wisconsin – Madison, it was a frequently used tool for first time offenders. Of course, a lot of those offenders were relatively well-off college students (mainly white, Wisconsin is the least diverse school in the Big Ten) who were being busted for pot, ecstasy, or other relatively not-hard drugs. Cook County offers drug school, which is more like a diversion program. In many jurisdictions, drug court is more like intensive probation where you are actually sentenced to a period of drug testing and classes, and upon completion, then the charges are dropped.

Here, you attend the classes before sentencing and if completed satisfactorily, the matter is then not prosecuted (with leave to re-instate later if you mess up again).

This all appears to be a part of the criminal justice system that is operating with the intent to rehabilitate (or at least, redirect) the criminal defendant. To that end, drug school is one of the few times that Cook County actually tries to help, rather than simply punish.

I have found that many of my clients are rarely offered it (of course, it’s limited to first time offenders and those with very small amounts of drugs anyway), and that it’s usually offered prior to a preliminary hearing.

I’m just interested to see what the numbers are for recidivists coming out of the program or even how many are in the program in a given year. I’d like to see the success rate (i.e. recidivism rates) of a program that makes you attend four classes telling you not to do drugs, and doesn’t even require drug screening. That sounds like high school health classes, not an effective drug deterrent program.

Still, it’s a great alternative for my clients, a good deal if you can get it. I just wonder about its efficacy compared to drug courts in other jurisdictions.

Read further at the Drug School Act online to see the legislative authorization. It notes that statistics should be tracked, I’ve just never seen them.