Chicago Criminal Lawyer Blog

Avoiding a criminal conviction is one of the most important duties an Illinois criminal lawyer owes his client. This is because, under Illinois law, a conviction bars you from asking a court to destroy your record of arrest, also known as asking a court to "expunge" your record. Given the stigma associated with a criminal conviction and the increased use of background checks by schools and potential employers, this is unacceptable to many people.

The following are some ways to avoid a conviction through the negotiations process. One important note: you get the best deals by negotiating from a position of strength. This means investigating the facts of your case, doing the proper research, and knowing the weaknesses in the accusation against you.

1. Deferred Prosecution. One of the best ways to avoid a conviction and a guilty plea is through an agreement with the government's prosecutor for "deferred prosecution." This typically involves counseling, community service, or continuing education. For example, a person charged with soliciting a prostitute might agree to complete community service and attend health and safety education in exchange for the prosecutor dismissing the case. Once the case is dismissed you may qualify to immediately file a petition before a court to destroy the record of your arrest.

Traditionally, this type of arrangement was only available for misdemeanors. Recently, however, the Cook County State's Attorney unveiled a new Cook County Felony Deferred Prosecution Program. Under this program, non-violent first offenders can avoid a felony conviction if they, among other things, maintain a job, perform community service, stay out of trouble, and, if applicable, make restitution or attend drug treatment.

2. Supervision. Supervision is an agreement available in misdemeanors where the Defendant pleads guilty and agrees to stay out of trouble for a period of time; in exchange, no conviction is entered on your record. Supervision is less desirable than Deferred Prosecution because it requires a guilty plea. Although a guilty plea is not as bad as a conviction, it does require you in most cases to wait 2-5 years before you can petition a court to destroy the record of your arrest.

3. Special Probation. "Probation" usually means a conviction, however, not 710 probation or 410 probation. These are two types of probation where those charged with possession of small amounts of marijuana or controlled substances can avoid a conviction. The condition is that you, among other things, submit to periodic drug testing and perform community service.

4. Treatment as a Drug or Alcohol Addict. Because addiction is a disease, an addict is a victim, and it makes little sense to punish a victim. If you qualify, under the Treatment Alternatives for Safe Communities (TASC) probation, you may attend counseling, undergo periodic drug testing, or even be housed in an inpatient program. If you successfully complete the program you can avoid a conviction.

Although these alternatives to a record of conviction exist, it does not mean you necessarily qualify for them. Even if you do qualify, defendants in Illinois do not have a right of entry into these programs. Rather, it is at the discretion of the court and the government. To get into these programs, it is important to accentuate your positives in dealing with the government. Military service, a sincere desire to make amends, or an otherwise law abiding life provide some ammunition to get you into these programs. Nothing, however, is more powerful than negotiating from a position of strength, and the best way to do this is by finding the weaknesses in the accusation against you.

As a Chicago criminal lawyer who deals extensively in defending against accusations of drug offenses, financial crime, and sexual misconduct accusations, I know first-hand the importance of getting the accused out on bond. A defendant who is out on bond can more easily prepare his defense with his lawyer, is subconsciously seen by prosecutors and judges in a more positive light, and, perhaps most importantly, does not have to wait in jail while his case is resolved or goes to trial.

Under Illinois law, every person arrested for a felony has the right to a bond hearing before a judge. At this bond hearing the judge determines whether to grant a bond at all, and if so, what amount the bond will be. The judge considers several factors including, to name just a few, a person's violent or peaceful nature, ties to the community, gang allegiance, and the accused's financial ability. If charged with possession or delivery of cannabis, cocaine, or Methamphetamine, the court also considers the "street value" of the alleged weed, cocaine, or meth pursuant to 725 ILCS 5/110-5(b)(4).

When and if the judge sets a bond, your bond is posted by friends or family at the jail and you are able to go home while your case is resolved. In Cook County, you may use cash, cashier's check, or credit card to post bond. It as at the jail with the money in hand that those posting bond sometimes encounter a nasty surprise: although a bond has been set by a judge, there is a hold because the government has filed a "Source of Bail." This means that prosecutors have filed a written request that those persons posting bail be required to prove that the money used to post bond is obtained from a legal source and is not the proceeds of illegal activity.

If you find yourself in this situation it is important to act quickly to gather the material and information necessary to overcome the government's source of bail request so as to not needlessly delay bonding out the defendant. At a minimum, affidavits, bank statements, and a written notice for a source of bail hearing must be filed as soon as possible in order to speed up the process. After gathering and filing this information, live testimony at a hearing is often required. If all the information and testimony is presented in an orderly and convincing way, the judge should approve the source of funds and allow you to bond out the accused.

Those charged with felonies in Illinois are stuck with the requirements of the source of bond law until and unless it is declared unconstitutional for violating Due Process and the Presumption of Innocence. Until then, with the proper preparation and care, source of bail requests by the government need only delay, not prevent, bonding out the accused. Whether it is a short or long delay depends on how fast you can get the information and documents together and the experience of your Chicago criminal lawyer in handling source of bond hearings.

Continue reading "Getting Out on Bond When Prosecutors Have Filed a Source of Bail in Illinois" »

"No person...shall be compelled in any criminal case to be a witness against himself..."

-The Fifth Amendment to the United States Constitution

The Founding Fathers devised the Fifth Amendment Right to Remain Silent based on the philosophical belief that statements should be voluntary and never forced. As a Chicago criminal defense attorney I often say that every situation is different, that there are no blanket rules that apply to every situation, and that advice must be tailored to the unique facts of your case. One exception to this is the right to remain silent: it is always better to have the advice of a knowledgeable criminal lawyer before you make statements of any kind to law enforcement. If this is not possible, you should simply remain silent. Unfortunately, I often meet people only after they have waived this important right and have made statements to police either because of (a) police coercion, (b) because they think that if they are innocent the legal system will automatically treat them fairly, or (c) because they simply do not know that they have a right to refuse questioning and consult a lawyer first.

Why is making statements to law enforcement usually such a bad idea? Consider the following hypothetical: It's a Friday night and Alpha, Bravo, Charlie, and Delta Defendant are taking a road trip down I-290 headed into Chicago. Alpha is driving and smoking his glass bowl full of marijuana which he passes to his fellow passengers. (Driving with drugs in your car or, "Riding Dirty," is a dangerous and careless way to greatly increase your chances of not only death or injury, but also, a cocaine, marijuana, or possession of a controlled substance arrest that will cost you time, money, and possibly even your freedom. Please read my blog post "How to Avoid Being Arrested in Illinois with Drugs in Your Car" advising against it). Minutes later, Chicago traffic patrol pulls Alpha over for speeding and expired registration. As the Chicago policeman obtains Alpha's driver's license, he notices an overpowering smell of weed, arrests the car occupants, and questions them individually.

At first, everyone refuses to make a statement as to who the bowl belongs to and who was smoking pot. At this point, Illinois police can charge all four of the occupants with possession of marijuana and possession of paraphanalia, or, attempt to charge Alpha with constructive possession of the pot and paraphernalia because it was found in his car, in which case Bravo, Charlie, and Delta Defendant go home. Suppose, however, that Delta Defendant makes a statement saying "The bowl and pot are mine." Police now have evidence in the form of Delta Defendant's confession connecting him to the criminal act of marijuana and paraphanalia possession. Had he asserted his Constitutional Right to Remain Silent, he may have been sent home, or at the very least, the case against Delta Defendant of possessing drugs would have been significantly weaker than now, where law enforcement has his oral statements connecting him to the crime of marijuana possession under 720 ILCS 550/4 and possession of drug paraphernalia under 720 ILCS 600/3.5.

This is the position that the overwhelming number of people who seek my assistance as a Chicago criminal lawyer find themselves in. Most people give up their power in an arrest scenario by confessing or making statements either because of police intimidation or because they do not know they have a right to refuse to answer questions by law enforcement. What Delta Defendant should have done is asked to speak to his lawyer first or, if he could not reach his lawyer, insist on his Constitutional Right to Remain Silent. (Please read my excerpt "What should I do if I am arrested or asked questions by the police?" or contact us for a free wallet size "Rights Card" for an easy to use and remember approach to asserting your rights when under arrest or threat of arrest).

But, even if the police claim that you have made statements or have confessed, all is not lost. If your alleged statement was the result of either (a) coercion or (b) "custodial interrogation" and you were not first read your "Miranda" rights, you can turn to the protections of the Illinois and Federal Constitution to keep the alleged confession out of evidence. If your oral statement is the only or strongest evidence against you, this means that the case against you may either fall apart and be dismissed or, will be more easily defended at trial. Whether and how to suppress any alleged statements in court with a motion to suppress is a fact-specific analysis that is best done in person on a case-by-case and face-to-face basis.

Last week, I attended the Defending Drug Cases Seminar in Las Vegas sponsored by the National Association of Criminal Defense Lawyers. Hundreds of lawyers and other experts came in from all over the country, including a handful from Chicago and Illinois. During the seminar, I heard from speakers on the subjects of:

• How and when to contest K-9 drug searches,
• How to most effectively cross-examine a snitch,
• Motions to Suppress,
• Wiretaps,
• The jury as society's conscience,
• How to maximize the chance of gettiting out on bond, and
• The latest drug defenses.

The speakers in these areas, combined with the free exchange of ideas and strategies for beating drug cases with criminal defense attorneys from across the country, greatly increased my knowledge in areas rich with weapons for the defense of drug accusations. The Illinois Criminal Justice Information Authority reports that, from 1999 to 2008, the arrest rate for cannabis offenses in Illinois increased 13 percent. With drug prosecutions on the rise, creative and aggressive drug defense is more important than ever. I highly recommend the Defending Drug Cases seminar for anyone who is serious about staying on the cutting edge of this constantly evolving area of law.

One issue that frequently arises in my work as an Illinois drug lawyer is whether a person alleged to possess cocaine or marijuana merely possessed it for personal use, or possessed it intending to sell it to others. The difference is important because intent to sell or deliver a drug is more harshly punished and prosecuted than mere possession for recreational use. For example, possessing 1-15 grams of cocaine in Illinois is punishable by 1-3 years in prison while possessing 1-15 grams of cocaine with intent to deliver is punishable by 4-15 years in prison.

Consider the following scenario: Chicago police officers on patrol spot a car at midnight without its front headlights on. They stop the car and the driver bails out and runs. The cops outrun the man and he is arrested. After a search, $40 and 13 tinfoil packets of suspected narcotics are found in his jean pockets. Did the man possess the narcotics for his own personal use or with the intent to sell the drugs to others?

A fairly recent Illinois court opinion examined a similar set of circumstances and found insufficient evidence to show possession with intent to deliver. The court applied the following factors from Illinois v. Robinson in their decision:

• A quantity of cocaine or marijuana that is too much for personal consumption,
• The high purity of the drug confiscated,
• Possession of weapons,
• Possession of large amounts of cash,
• Possession of police scanners, beepers, or cell phones,
• Possession of drug paraphernalia, and
• The manner in which the confiscated drugs are packaged.

These factors should not be slavishly adhered to and the skilled drug lawyer should find significant room for interpretation and opportunities to fight back. For example, a person may purchase several ounces of marijuana not because she intends to sell it commercially, but rather, for the savings in costs, much like purchasing paper towels in bulk from a warehouse style store. And just because a person may have text messages on their phone requesting cocaine, does not mean that person sells cocaine unless he sent a response that would indicate he took the next step to arrange a cocaine transaction.

Recently, police searching the home of "Bad Girl" Catya Washington allegedly found cocaine, mushrooms, ecstasy, and a gun. Ms. Washington was arrested and is now accused of possession of drugs with intent to deliver. Protecting her rights and her freedom will depend on how skillfully her attorneys use these factors to prove that any drugs allegedly found in her home were for personal use and not for sale to others.

Continue reading "Drug Possession or Drug Possession with Intent to Deliver in Illinois?" »