April 23, 2014

WHAT DOES IT MEAN TO KNOWINGLY POSSESS?

The Cannabis Control Act states, "It is unlawful for any person to knowingly possess cannabis" (720 ILCS 550/4).

The Illinois Controlled Substances Act states, "Except as otherwise stated by this act, it is unlawful for any person to knowingly possess a controlled or counterfeit substance or controlled substance analog" (720 ILCS 570/402).

Pertaining to guns and other weapons, the law states that Aggravated Unlawful Use of a Weapon is committed when "a person commits the offense of aggravated unlawful used of a weapon when he or she knowingly..." (goes on to state all of the actions which fall under this statute) (720 ILCS 5/24-1.6).

The Illinois Controlled Substance, Cannabis Control Act, and Act 5 Criminal Code of 2012 have something in common, they all require the defendant to knowingly possess the substance or item.

What does it mean to possess something knowingly? There have been many controversies over the definition of knowledge over past years in the courts. In 2010, Illinois established what they recognize to be a definition of knowledge under the Criminal Offenses Act.

"The nature or attendant circumstances of his or her conduct, described by the statute defining the offense, when her or she is consciously aware that his or her conduct is of that nature or that those circumstances exist. Knowledge of a material fact includes awareness of the substantial probability that the facts exist" (720 ILCS 5/4-5).

In short, this means that the circumstances of a particular case can result in a person being deemed to be aware that he/she is in possession of any unlawful substance, or is probably. This is a lower standard than having a subjective intent to be in possession. The good part is that these are fact questions which are left to the jury to decide. As we will see, sometimes seemingly incriminating facts have an innocent explanation.

When you are charged with the possession, it is the States job to prove you knowingly or intentionally possessed that item. "Not only is it the State's job to prove you knowingly possessed the cannabis, but they also must prove that you understood, or knew, the material was an illegal, controlled substance "(U.S. v. Covarrubias, 65 F. 3d 1362 (1995)). In U.S. v. Covarrubias the district court stated a way which knowledge may be inferred or assumed :

You may infer someone has knowledge of something from a combination of feeling or thought that something is likely or true, and a lack of interest or concern in the truth (U.S. v. Covarrubias, 65 F. 3d 1362 (1995)).

Listed below are several examples where the fact of knowingly possessing has played a large roll in the decisions of cases.

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March 25, 2014

EVERYTHING YOU NEED TO KNOW ABOUT CANNABIS CHARGES AND PENALTIES

The penalties and fines for possession, distribution, growing, and driving under the influence (DUI) of cannabis span a range from probation to 30 years in prison. When you are charged with any crime relating to cannabis, you should consult an effective trial attorney. If you want to find out on your own what you are faced with, this material should help.

First-Time Offenders
The punishments if you are a first-time offender tend to be more lenient than if you are a reoccurring offender.
For purposes of leniency, you are a first time offender if you plead guilty or are found guilty of possessing, or possessing with the intent to deliver, 30 or less grams of cannabis.
To qualify for leniency you must not have been previously convicted, placed on probation, or placed on court supervision for any offense under the Cannabis Control Act or other law concerning cannabis or other controlled substances.

• If you are a first time offender who is found to knowingly possess less than 30 grams of cannabis the penalty you generally face is "First Offender Probation" for 24 months.
(720 ILCS 550/10)

Possession of Cannabis
If you knowingly possess cannabis or other substances containing cannabis you may be charged with the possession of cannabis. The penalties for possession of cannabis will vary depending on the amount of cannabis you are charged with possessing.
(770 ILCS 550/4)

• If you are found to knowingly possess less than 2.5 grams of cannabis you will generally be charged with a class C misdemeanor (720 ILCS 550/4). The penalty you generally face for a class C misdemeanor is up to 30 days in jail along with fines which are not to exceed $1,500 (730 ILCS 5/5-4.5-65).
• If you are found to knowingly possess more than 2.5 grams but less than 10 grams of cannabis you will generally be charged with a class B misdemeanor (720 ILCS 550/4). The penalty you generally face for a class B misdemeanor is up to six months in jail along with fines which are not to exceed $1,500 (730 ILCS 5/5-4.5-60).
• If you are found to knowingly possess more than 10 grams but less than 30 grams of cannabis you will generally be charged with a class A misdemeanor (720 ILCS 550/4). The penalty you generally face for a class A misdemeanor is less than one year in jail along with fines which are not to exceed $2,500 (730 ILCS 5/5-4.5-55). If you have been previously convicted of a cannabis related offense, and are found to possess more than 10 grams but less than 30 grams of cannabis, you will generally be charged with a class 4 felony. The penalty you generally face for a class 4 felony is one to three years in prison and fines which are not to exceed $25,000 (730 ILCS 5/5-4.5-50) (730 ILCS 5/5-4.5-45).
• If you are found to knowingly possess more than 30 grams, but less than 500 grams you will generally be charged with a class 4 felony (720 ILCS 550/4). The penalty you generally face for this offense is one to three years in prison and fines which are not to exceed $25,000 (730 ILCS 5/5-4.5-50) (730 ILCS 5/5-4.5-45). If you have been previously convicted of a cannabis related offense, and are found to possess more than 30 grams but less than 500 grams, you may be charged with a class 3 felony (720 ILCS 550/4). The penalty you generally face for a class 3 felony is two to five years in prison and fines which are not to exceed $25,000 (730 ILCS 5/5-4.5-50) (730 ILCS 5/5-4.5-40)
• If you are found to knowingly possess more than 500 grams but less than 2,000 grams of cannabis you will generally be charged with a class 3 felony (720 ILCS 550/4). The penalty you generally face for this offense is two to five years in prison and fines which are not to exceed $25,000 (730 ILCS 5/5-4.5-50) (730 ILCS 5/5-4.5-40).
• If you are found to knowingly possess more than 2,000 grams but less than 5,000 grams of cannabis you will generally be charged with a class 2 felony (720 ILCS 550/4). The penalty you generally face for a class 2 felony is three to seven years in prison and fines which are not to exceed $25,000 (730 ILCS 5/5-4.5-50) (730 ILCS 5/5-4.5-35).
• If you are found to knowingly possess 5,000 grams or more of cannabis you will generally be charged with a class 1 felony (720 ILCS 550/4). The penalty you generally face for a class 1 felony is four to fifteen years in prison and fines which are not to exceed $25,000 (730 ILCS 5/5-4.5-50) (730 ILCS 5/5-4.5-30).
* County jail is where people may be held for up to 364 days and prison is where people are held or confined for more than one year.

Manufacture or Delivery of Cannabis
If you are found to manufacture or deliver cannabis, or possess cannabis with the intent to manufacture or deliver you may be charged with the manufacturing or delivery of cannabis. The penalties for this offense will vary depending on the amount of cannabis you are charged with manufacturing or delivering, or possessing with the intent to manufacture or deliver (720 ILCS 550/5).

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October 8, 2013

RECKLESS DRIVING GUIDE FOR DUI AND TRAFFIC LAW PRACTITIONERS IN ILLINOIS

You are prepared to try your client's DUI case. You are looking forward to the trial because you've got a good case and you are confident of a not guilty verdict. Suddenly, the State offers a plea to dismiss the DUI if your client pleads guilty to Reckless Driving. What are the consequences of the plea? Here is most everything you need to know to advise your client.


SUMMARY

Reckless Driving is a Class A Misdemeanor, punishable by up to 365 days in jail and fine of $2,500 plus court costs.

If the Client pleads guilty to Reckless Driving on a plea where a DUI is dismissed, he/she will keep his/her license unless (1) Client has 2 or more other moving violation convictions within the last 12 months (supervision for speeding ticket does not count against the Client); or (2) Client is pleading guilty to, or is convicted of, aggravated Reckless Driving; or (3) if Client has 2 prior reckless driving convictions in the last 12 months.

ANALYSIS

I. Class A Misdemeanor

First, watch out for jail time. Reckless Driving is a Class A Misdemeanor. An open plea to reckless driving could result in your client spending 364 days in the county jail. Make sure the jail term is eliminated or mitigated in your plea negotiation.

II. Reckless Driving Statute

625 ILCS 5/11-503.

(a) A person commits reckless driving if he or she:

(1) drives any vehicle with a willful or wanton disregard for the safety of persons or property; or

(2) knowingly drives a vehicle and uses an incline in a roadway, such as a railroad crossing, bridge approach, or hill, to cause the vehicle to become airborne.

(b) Every person convicted of reckless driving shall be guilty of a Class A misdemeanor, except as provided under subsections (b-1), (c), and (d) of this Section.

(b-1) Except as provided in subsection (d), any person convicted of violating subsection (a), if the violation causes bodily harm to a child or a school crossing guard while the school crossing guard is performing his or her official duties, is guilty of a Class 4 felony.

(c) Every person convicted of committing a violation of subsection (a) shall be guilty of aggravated reckless driving if the violation results in great bodily harm or permanent disability or disfigurement to another. Except as provided in subsection (d) of this Section, aggravated reckless driving is a Class 4 felony.

(d) Any person convicted of violating subsection (a), if the violation causes great bodily harm or permanent disability or disfigurement to a child or a school crossing guard while the school crossing guard is performing his or her official duties, is guilty of aggravated reckless driving. Aggravated reckless driving under this subsection (d) is a Class 3 felony.

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October 1, 2013

TALKING AND DRIVING NOW ILLEGAL IN ILLINOIS

Texting and driving has been illegal in Illinois for some time now. For those of you who like to talk and drive, be aware-or beware-that the General Assembly has passed a blanket ban on all uses of "electronic communication devices" while driving. The amended law now prohibits the use of the following devices for any purpose: hand-held wireless telephones, hand-held personal digital assistants, and portable or mobile computers. This means that you will risk being ticketed if you hold a cell phone to your ear while talking to your grandma on the other end. A sure way to avoid such a situation is to buy-and actually use-a hands-free device; the device must be capable of answering calls by pressing a single button. Further, the law does not prohibit use of global positioning systems (GPS), navigation systems, and devices that are physically or electronically integrated into the vehicle.

The maximum fine for a first offense is $75. A second or subsequent offense will be considered a moving violation, and may be punishable by a maximum fine of $100 for a second offense, $125 for a third offense, and $150 for a fourth or subsequent offense. The new law goes into effect on January 1, 2014. http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=098-0506&GA=98

September 25, 2013

Slower Speeding to Become Potential Jail Time in Illinois

Driving 26 mph Over the Speed Limit Now a Class B Misdemeanor

SPEEDERS BEWARE: Driving 26 mph in excess of the speed limit will now be a Class B misdemeanor in Illinois, effective January 1, 2014. The legislature amended the law to lower the cut-off speed from 31 mph to 26 mph.

In the same vein, driving 35 mph in excess of the speed limit will now be a Class A misdemeanor; the former cut-off speed for a Class A misdemeanor was 40 mph. Public Act 098-0511; 625 ILCS 5/11-601.5.

The maximum penalty for a Class A misdemeanor is $2,500 and 365 days in jail.
The maximum penalty for a Class B misdemeanor is $1,500 and 180 days in jail.

You should think twice before pleading guilty to any of these offenses without the benefit of representation.

September 4, 2013

DUI - Challenging the Blood Draw


A Blood Draw is a "Search"

Recently, the United States Supreme Court upheld the Fourth Amendment against the concept that DUI enforcement always warrants a blood draw against a person's consent. The Court held that the mere fact that alcohol metabolizes in the body is not sufficient to do away with the Fourth Amendment's requirement for a warrant.

Entrenched in United States case law on the Fourth Amendment is the holding that warrantless searches are presumptively unreasonable. Against that position, however, under current Illinois DUI implied consent law, a person who drives or is in actual physical control of a motor vehicle shall be deemed to have given consent to "a chemical test or tests of blood, breath, or urine" to determine the content of alcohol ... in the person's blood. 625 ILCS 5/11-501.1(a). This means that a police officer need not obtain a warrant to stick a needle in a person's arm to extract a blood sample.

Further, Illinois law provides that a police officer "shall" obtain a non-consensual, warrantless blood sample of a person suspected of driving under the influence of alcohol (DUI) who has caused the death or personal injury to another:

"[I]f a law enforcement officer has probable cause to believe that a motor vehicle driven by or in actual physical control of a person under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof has caused the death or personal injury to another, the law enforcement officer shall request, and that person shall submit, upon the request of a law enforcement officer, to a chemical test or tests of his or her blood, breath or urine...." 625 ILCS 5/11-501.2 (emphasis added).

What about incidents where there is no death or no personal injury? One would infer that the above statute prohibits non-consensual, warrantless blood samples in DUI incidents that do not involve death or personal injury to a person other than the driver. But, in People v. Jones, the Illinois Supreme Court held to the contrary. The Court stated that testing without consent-even where there was no death or personal injury-did not violate the Fourth Amendment so long as (1) the officer had probable cause to believe that the person was driving under the influence of alcohol and (2) that the evidence of intoxication might be lost due to the body's natural metabolization of the alcohol. 214 Ill. 2d 187, 200, 824 N.E.2d 239 (2005).

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August 9, 2013

Getting You License Back - Challenging Breath Tests

Although there are serious criminal consequences of being charged with driving under the influence of alcohol, often the most punitive effect is losing your license. In Illinois this happens before you have either been convicted or acquitted of the offense of DUI. This method of losing your license is called a statutory summary suspension. and you have a very limited time to do something about it. Depending on the facts of your case, you may need to file a petition challenging the suspension. This procedure is called a Petition to Rescind Statutory Summary Suspension. For more on this see our Post Getting Your License Back - Challenging an Improper Traffic Stop.

If you consented to a preliminary breath test and/or an evidentiary breath test, one of the several grounds for challenging the statutory summary suspension is that the breath alcohol concentration (BAC or BrAC) test was not conducted in accordance with Illinois State Police (ISP) standards and did not result in a BAC of .08 or more.

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August 2, 2013

Getting Your License Back - Challenging an Improper Traffic Stop

If you are arrested in Illinois for driving under the influence of alcohol (DUI), your drivers license will be suspended 46 days after the date of your arrest.

This is before you have been either convicted or acquitted of the offense of DUI, and it is called a statutory summary suspension. All that is required for the Secretary of State to suspend your license is for the officer to issue a uniform traffic ticket for the offense of DUI and file a sworn report with the circuit court that he did so. The circuit court informs the Secretary of State of the traffic ticket and sworn report, and the Secretary of State suspends your license.

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August 1, 2013

Mixing Alcohol with Artificial Sweeteners May Make Your BAC "Artificially High"

Think about this the next time that you order a whiskey and Diet Coke: New research proposes that alcohol consumed with beverages containing artificial sweeteners, such as diet sodas, results in a higher breath-alcohol content (BAC) than if consumed with beverages containing sugar sweetener. The researchers hypothesize that the stomach takes longer to break down sugar (as opposed to artificial sweeteners), thus collaterally slowing the absorption of the alcohol consumed along with the sugar-sweetened drink.

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December 6, 2012

Illinois State Police: What Is Their Obligation With Video And Audio Recording For DUI and Traffic Stops?

The Illinois State Police, by statute, are required to video and audio record a vast array of different types of encounters with civilians while on the job. By June 1, 2011, all Illinois State Police cars were required to contain video and audio recording equipment for the purposes of recording most encounters that a trooper might come across. 20 ILCS 2610/30(b). State Troopers carry wireless microphones on them at all times to audio record such encounters. Id. Speaking specifically about traffic offenses and DUI cases, the statute provides that "Any enforcement stop resulting from a suspected violation of the Illinois Vehicle Code shall be video and audio recorded. 20 ILCS 2610/30(e). Recording equipment must be able to last up to 10 hours. 20 ILCS 2610/30(b).

The plain language of the statute seems clear. Whenever a vehicle is stopped for a suspected traffic violation, the entire encounter must be video and audio recorded.

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November 10, 2012

What To Do When State Fails to Preserve Audio/Video

Move For a Discovery Sanction - Suppression of Evidence Is and Should Be Required When the State Fails to Retain Video

In 2011 the Illinois Supreme Court decided People v. Kladis, an important case which every criminal defense attorney should know. In Kladis, an officer had arrested the defendant on a misdemeanor DUI charge. Five days after the defendant's arrest, defense counsel filed a petition to rescind statutory summary suspension as well as a Rule 237(b) Notice to Produce at Summary Suspension Hearing. People v. Kladis, 355 Ill.Dec. 933, 935 (2011). The Notice specifically requested "any and all video tapes of defendant" while in custody. Id.

The Northlake police department had an internal policy that all videos were purged within 30 days of arrest. Despite receiving the request within 5 days of arrest, no copy was ever provided to the defendant and the video was subsequently purged on day 30. The lower court noted that the State was placed on "clear notice" that the defense wished to have the video, that the video was an "important piece of evidence," and imposition of a sanction was proper. Id. at 936. The Court ruled that the arresting officer was precluded from testifying as to anything that occurred five seconds prior to the start of the video recording until the arrest of the defendant when the video was turned off. Id. at 942. However, he was not precluded from testifying as to any events prior to or after the specified time, including previous observations of the defendant driving or her statements subsequent to arrest. Id.

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September 27, 2012

Iowa Driver in Illinois - Your License after DUI Charge

DUI - Getting Your Iowa Driver License & Your Illinois Driving Privileges Back When You Have Been Charged With An Illinois DUI

In Western Illinois, it's not uncommon for people to both work and play at different points along the boarder between Illinois and Iowa. When the bars close around 1:45 in the morning in Iowa, drivers will often cross the boarder into Illinois to visit bars which stay open as late as 5:00 AM. Illinois law enforcement is aware of this, and Illinois DUI stops are frequent, if not indiscriminate, along the Illinois/Iowa border in the early hours of the morning.

For an Iowa driver charged with an Illinois DUI, the effects of the Illinois DUI charge on the individual's Illinois driving privileges and Iowa driver license are fairly immediate and can be long term. This is because Iowa drivers who either refuse or submit to or fail an Illinois evidentiary breath test are subject to a civil suspension of their driving privileges in the State of Illinois. Then the Illinois Secretary of State informs the Iowa Department of Transportation (the "Iowa DOT") of this suspension, and the Iowa DOT then reciprocally revokes the individual's Iowa driver license for the refusal or failure of the Illinois evidentiary breath test.

For more detailed information on the Effect on An Iowa Driver's License of an Illinois Breath Test Failure or Breath Test Refusal, please see our previous post on that topic.

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September 19, 2012

Iowa Drivers Arrested For DUI In Illinois Face Double Trouble

A driver with an Iowa license who is charged with an Illinois DUI as the result of the failure of an Illinois evidentiary breath test - where no other extenuating circumstances are involved - will be subject to a 180 day revocation of his driving privileges in Iowa. This revocation is separate from and in addition to the Illinois suspension and, while the two periods may overlap, the Iowa revocation period will begin and end on different dates than the Illinois suspension.

An Iowa resident who successfully defends an Illinois DUI charge, and whose driving rights are restored in Illinois, may find that his home state Iowa license is still revoked for 180 days.

For how effective Illinois DUI lawyers bring challenges to an Illinois DUI charge, see our previous posts on traffic stops based on momentary crossing of lane lines and prolonged traffic stops.

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August 6, 2012

DUI - Prolonging the Traffic Stop to Observe Evidence May Be Unlawful

Despite the apparent latitude the Illinois Supreme Court gave police with their decision in People v. Hackett, DUI defense lawyers can still look to the safeguards provided by the 4th Amendment. While Hackett facially appears to give law enforcement the ability to stop a car for even a momentary lane crossing (albeit when it happens twice), it in no way changed the requirements for prolonging an initial stop. (See previous post for detail analysis of Hackett) Prolonging a traffic stop beyond the time required to perform the initial purpose is still violative of the 4th amendment unless the officer can point to observations warranting the continuation of the stop, like drugs, guns, or obvious and extreme alcohol impairment. In particular, note that a seizure which is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission."* Caballes, 543 U.S. at 407, 125 S.Ct. at 837, 160 L.Ed.2d at 846, cited by People v. Baldwin, 388 Ill. App. 3d 1028, 1033, 904 N.E.2d 1193, 1198 (3rd Dist. 2009).

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July 30, 2012

DUI TRAFFIC STOP - Illinois Supreme Court allows stop based on momentary inching across highway lane divider

DUI TRAFFIC STOP - Illinois Supreme Court decision may allow momentary inadvertent inching across highway lane divider as basis for law enforcement investigatory stop. First Paragraph: On Friday, July 6, 2012, the Illinois Supreme Court overruled the Hackett opinion of the Third District Appellate Court. People v. Hackett, 2012 IL 111781

Prior to the Supreme Court's opinion, Hackett stood for the rule that a police officer was not justified in stopping a driver who crossed over a lane line unless it was for some reasonably appreciable distance. The Appellate Court had ruled that there are too many innocent circumstances which may cause a driver to inadvertently and momentarily inch across a highway lane divider.

In Hackett, the driver was driving in the left, or passing, lane of a four-lane highway. The officer testified that Hackett went slightly over the black and white striped line between the two northbound lanes twice, 4 or 5 seconds apart.

The Circuit Court (trial court) had held that Hackett's driving did not give the officer reasonable grounds to stop him. The appellate court agreed.

The Supreme Court ruled that the Illinois lane usage statute does not differentiate between driving a long or short distance over the centerline, so distance is not a dispositive factor in determining whether the stop was justified.

The Court agreed that vehicle stops by police officers are subject to the fourth amendment's reasonableness requirement. As a general matter, it held that where the police have probable cause to believe a traffic violation has occurred, they may stop the driver but the Court also held that the less exacting standard of a "reasonable, articulable, suspicion" that a traffic violation had occurred, will justify a traffic stop. That is, the officer's belief need not rise to the level of probable cause to believe a traffic violation had occurred.

The Court noted that the lane usage statute creates an exception for violation because it requires driving only as near as "practicable" in one lane. Thus, whether there is "probable cause" or not to support charge of violation of the lane law statute requires a fact specific inquiry regarding, for instance, weather, road conditions, visibility, and obstacles which may be present. However, for the purpose of a traffic stop, the officer need not make all of these inquiries and rule out the exceptions - in judging a police officer's conduct, courts should apply an objective standard, considering whether the facts available to the officer at the moment of the seizure justify the actions taken. It may be a fair summary of Hackett that - if there are not readily apparent circumstances showing why driving in the same lane is not practicable - the officer may stop a vehicle to inquire further into the reason for the lane deviation.

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