“How can you sleep at night?”

I get this question from time to time from people who hear that I represent criminal defendants.

Sometimes they ask the question without any hostile intent. They may just be curious as to why I would choose this profession.

Other people ask the question in such a way that their sarcasm and contempt could not be any more obvious.

And despite what you may expect, it is the rude people who get my most genuine response:

“If you were charged with a crime, wouldn’t you want a good lawyer?”

This is typically met with an awkward silence, followed by some self-serving statement like,

“But I would never get arrested because I didn’t do anything wrong.”

To which I say, “But that’s exactly what happens to my clients.”

I represent good people who get into bad situations. I often tell my clients during our first meeting that my job proves that you can never predict what is going to happen in life.

My clients come to me in a time of need and I owe it to each of them to fight the case like it is my last. Each case is a legacy. For a moment, you have the ability to touch someone’s life. So what kind of mark will you choose to make?

That’s my question for attorneys:

“What kind of legacy do you want to leave in the courtroom?”

All persons who have ever been arrested in Cook County should be aware of the free expungement seminar scheduled for June 2, 2012.

Under Illinois law, any person who is arrested and charged with a crime has a record with the Illinois State Police that can be disseminated nationwide. The record of the arrest remains even if the person is found not guilty, or receives court supervision.

The only way to remove the record is to file a petition to expunge or seal it. The process was changed in 2010 to make it easier for people with records to get them expunged.

Cook County is providing a clinic on expungement that costs nothing to attend.

It is sponsored by State’s Attorney Anita Alvarez, Public Defender Abishi Cunningham Jr, and Cook County Sheriff Tom Dart, Dr. Byron Brazier of the Apostolic Church of God in Chicago, and many others.

The event will take place all day on June 2, 2012 at the Apostolic Church of God at 6320 S. Dorchester Ave in Chicago.

Download more information.

Illinois state law concerning retail theft has seen some significant changes in the year 2012. State lawmakers in Springfield have overhauled the retail theft statute. First, the offense is no longer found under 720 ILCS 5/16A-1. That section was repealed, and replaced by Section 16-25. All charges for retail theft written in 2012 fall under 720 ILCS 5/16-25. Second, the penalties have changed in some very important ways.

The elements of the crime of retail theft remain relatively the same. The law provides that a person is guilty of retail theft when he or she knowingly takes possession of, carries away, transfers or causes to be carried away, any merchandise displayed or offered for sale in a retail mercantile establishment with the intention of retaining such merchandise or depriving the merchant permanently of the possession, use or benefit of such merchandise without paying full retail value.

As before, it is also still a crime to alter, transfer, or remove any label or price tag, or for an employee of the retail store to under-ring merchandise (that is, to charge less than the full retail price for a friend or family member). And as before, it is a crime to use or to possess any theft detection shielding device which would enable the person to pass through security without being detected with stolen merchandise.

The retail theft statute still provides that the court can draw an inference of guilt against the defendant where he conceals upon his person or in his belongings any unpurchased merchandise. Also, the court can infer guilt against a person who removes the merchandise beyond the last point-of-purchase (cash register).

The good news is that, despite the inference of guilt, a retail theft case can still be won in court. The fact is that people commit retail theft all the time unintentionally. It is a daily occurrence for shoppers to go to their cars in the parking lot and find merchandise on the bottom of a shopping cart that they failed to pay for through neglect. Fortunately for these people, the law presumes that they are innocent. They can only be proven guilty with proof beyond a reasonable doubt. There is a difference between making a mistake and not paying for merchandise and intentionally stealing something.

Also, for people who are arrested for retail theft and make a statement admitting that they possessed the item, an admission to possessing an item that was not paid for is different from an admission of guilt. Basically, a person who is honest can take responsibility for not paying for something and have that misconstrued as though it was a confession to a crime. For example, a person who was stopped with unpurchased merchandise may say, “That’s my fault. I’m sorry.” But that does not mean that the person intended to commit a crime. Because that statement is exactly what an innocent person would say when they realize that they made a mistake and failed to pay for something.

The state legislature changed the penalties for retail theft in 2012. Whereas before, if the value of the stolen merchandise was greater than $150, the offender could be charged with a felony. Now, as long as the value of the merchandise is $300 or less, the offense is a misdemeanor. This is a very important distinction. If a person is found guilty of a felony, he will have a permanent conviction that cannot be expunged or sealed. Ever. Compare that to a misdemeanor, which can be expunged.

There is one exception to this new rule, where there stolen goods are motor fuel. Apparently, lobbyists in Springfield convinced the legislature that people who steal from a gasoline station should be punished more severely. If the value of gas taken from a gas station is greater than $150, the offender can be charged with a felony.

The misdemeanor offense of retail theft is a Class A misdemeanor, with a potential penalty of up to one year in jail and a maximum fine of $2500. The defendant would be eligible for supervision, which is not a conviction and can be expunged. Any jail sentence for retail theft would be served at 50 percent of time.

On the other hand, if the value of the stolen goods was in excess of $300, the offense is a Class 3 felony. In this instance, the potential penalty can include 2 to 5 years in the Illinois Department of Corrections. A conviction can never be expunged, and can never be sealed. A defendant can have that record removed only if the governor approves a pardon. Before Easter Sunday this year, Governor Quinn approved the pardons of approximately 50 people in Illinois. The governor typically approves pardons before a long weekend for a holiday, to avoid scrutiny from the press. It is unclear how many people applied for a governor’s pardon. Many of the pardons that were approved were backlogged under the former governor who is now in federal prison, Governor Blagojevich.

Any person who is charged with retail theft and has a prior offense of theft, robbery, armed robbery, burglary, residential burglary, possession of burglary tools, home invasion, unlawful use of a credit card, or forgery, can be charged with a Class 4 felony. And so, even a first offense of retail theft can be a felony if the person has a prior offense that triggers the enhanced penalty. A Class 4 felony has a sentencing range of 1 to 3 years in prison, but the defendant can receive probation.

This is an overview of the retail theft law in Illinois in 2012.

In the current legislative session, Illinois lawmakers are considering a very important new statute to be added to the criminal code. Senate Bill 3349, proposed by Senator Kwame Raoul (D-Chicago), would create a special type of probation for felonies that can be expunged.

If signed by the governor, a defendant with a pending felony would have the option of being sentenced by the law that was in effect at the time of the offense or the new law.

The newly proposed law would create what is called Offender Initiative Probation. The statute, 730 ILCS 5/5-6-3.3, would create a new type of probation for a felony offense that is not a conviction, and therefore, can be expunged. The only condition is that it must be the defendant’s first felony, and also the defendant cannot be charged with a crime of violence, or have a prior offense that was a crime of violence.

The bill is currently under consideration by the Criminal Law Committee. Senator Raoul is a member of the committee.

Copy Line News Magazine says the program is modeled after an initiative from the Cook County State’s Attorney’s office. The new statute would apply statewide.

The following offenses under the proposed law would qualify for this offender initiative probation:

• Theft
• Retail theft
• Forgery
• Possession of a stolen motor vehicle
• Burglary
• Possession of burglary tools
• Possession of a controlled substance
• Possession of cannabis
• Possession of methamphetamine

(The new law would also allow the defendant to expunge a felony conviction for prostitution under 720 ILCS 5/11-14(a)).

Both the court and the prosecutor must agree to this type of probation. This may be a very problematic component of the new law. Prosecutors rarely, if ever, agree to a lesser sentence. The fact that the prosecutor can veto this probation means that in counties like DuPage County, no one will qualify for this probation, because the prosecutor would always object. Also, questions remain whether other counties would support the program. For instance, Lake County does not provide TASC probation.

As said, the defendant is not eligible if the felony is a crime of violence, or the defendant has a prior crime of violence. Per the statute, a “violent offense” is any offense where bodily harm was inflicted or where force was used against any person or threatened against any person, any offense involving sexual conduct, sexual penetration, or sexual exploitation, any offense of domestic violence, domestic battery, violation of an order of protection, stalking, hate crime, driving under the influence of drugs or alcohol, and any offense involving the possession of a firearm or dangerous weapon.

An offender would be prohibited from receiving offender initiative probation even if a prior crime of violence occurred as a juvenile.

While I encourage the legislature to undertake serious reforms of the state sentencing guidelines, this bill has some major problems.

First, the list of eligible offenses contains some offenses which may be too serious. For example, the offense of burglary is basically breaking and entering. Burglary is a serious crime and involves unauthorized entry into property owned by another person. This may not be the right crime to have expunged. In this respect, the new bill is too lenient. The same can be said about the inclusion of possession of burglary tools. Possession of burglary tools is a premeditated crime. It shows that the defendant engaged in planning and forethought. In this respect, it shows a more serious criminal intent.

Compare that to theft, which can occur without much forethought or premeditation. Theft is an appropriate offense to have in the bill because it can happen in a moment of bad judgment.

Second, the new bill excludes people who have a prior DUI. In this respect, the bill is way too harsh. There is no good reason why person who gets a DUI should be prohibited from receiving the new probation on his or her first felony.

Also, there are other offenses which should be included but were not. For instance, unlawful use of a credit card is a felony, and it should be included. And why not include aggravated driving while license suspended or revoked? Many felony offenders charged with AGG DWLS or AGG DWLR are driving just to get to work and support their families.

All that being said, the bill is a good first step towards reforming the criminal code. The fact of the matter is that one felony offense can ruin a person’s life. That record cannot be expunged or sealed, and this prevents a person who wants to be employed and to contribute to society from doing so.

As of March 22, 2012, the bill is under consideration by the Criminal Law Committee.

An identical house bill, HB 5499, proposed by Representative Kimberly du Buclet (D-Chicago), has also been proposed.

All in all, I commend these lawmakers for their efforts. And given the fact that there is so much give and take in the legislative process, I would accept this bill as it is written rather than have nothing passed all.

The Associated Press interviewed me for a story on March 10, 2012 about a bill proposed in Springfield that would make a significant change to the Illinois Vehicle Code. Read the article.

The story teaches a lesson about Illinois criminal law.

House Bill 5099, sponsored by Representative Jerry Costello, D-Smithton, would amend two sections of the vehicle code that prohibit the use of cell phones while driving.

Apparently, the bill’s own sponsor is not aware of the reach of proposed law.

The bill would amend 625 ILCS 5/12-610.1 and 625 ILCS 5/610.2. The first section would be changed to ban using cell phones, even with an earpiece, within 500 feet of an accident.

The second section, 625 ILCS 5/12-610.2, would be changed to prohibit taking, sending, or receiving pictures or video with a cell phone any time while operating a motor vehicle.

The House passed the bill 62-38, and it is now in the Senate.

The law is problematic because it would ban taking a photo or video at an intersection to document the commission of a crime, accident, or civil rights violation.

But more importantly, this is apparently not the intent of the lawmaker.

Illinois has seen this problem before, when the legislature created Section 10 probation under the Illinois Cannabis Control Act (720 ILCS 550/1 et seq). This special probation allows a felony offender to get out of the case without a conviction and also with the ability to expunge the record. See 720 ILCS 550/10.

But the Illinois House and Senate must have been confused, because oddly, it allows a drug dealer to avoid a conviction and get the record expunged, but an ordinary user cannot do so. That is just plain wrong.

Credit goes to reporter Shannon McFarland who spotted the inconsistency in the law. That is why we have a free press.

But it remains to be seen whether the Senate will recognize the problem.

The accusation of sexual misconduct can be devastating for a defendant. First, the person is tried in the court of public opinion, and almost always found guilty when his or her mug shot appears in the news. Second, regardless of any sentence imposed in a criminal case, the defendant will be required to register as a sex offender. In many respects, the requirement of registration as a sex offender is a more punitive sanction than any sentence a court can fashion.

That being said, the defendant is still protected by the presumption of innocence. The prosecution has to prove the case beyond a reasonable doubt to a jury of 12 people who do not always side with the police.

I have a strong opinion that in most sex cases, the defendant should plead not guilty and demand trial. These cases are harder for the State to win than most expect.

But before any decision is made, it is important to know the law. The statutes against sexual assault and sexual abuse used to be found under Section 11, but the state legislature moved them over to Section 12 in the year 2011.

This article is a summary of Illinois sex laws. Under no circumstances should it serve as a substitute for legal advice.

Criminal Sexual Assault

Illinois law does not use the term ‘rape’ in sex crimes. What other people may consider rape, state lawmakers have termed ‘criminal sexual assault.’ The intent of the legislature in discarding the term rape was to lessen the stigma attached to the crime, and therefore encourage more victims to come forward and pursue the offender in court.

Criminal sexual assault is found in the criminal code at 720 ILCS 5/12-13. The offense is a felony. Criminal sexual assault is categorized as a Class 1 felony offense, with a potential penalty of 4 to 15 years in prison. This charge is a non-probationable felony. That means that the judge is not permitted under the law to sentence the offender to probation. A prison sentence is mandatory. Therefore, the minimum penalty for criminal sexual assault is 4 to 15 years in prison.

If the defendant has a prior conviction for sexual assault, then a second or subsequent offense is a Class X felony. The possible sentence on a second offense is 6 to 30 years in prison, or 30 to 60 years as an extended sentence, or the natural life of the offender.

Criminal sexual assault consists of the following elements:

Sexual penetration combined with one or more of the following:

• Force or threat of force.
• The victim was unable to understand the nature of the act or to give knowing consent.
• The victim was under 18 years of age and the defendant is a family member.
• The victim was at least 13 years old but under 18 years of age, and the defendant was 17 years of age or older and held a position of trust, authority, or supervision in relation to the victim.

Aggravated Criminal Sexual Assault

Illinois law says that a person who commits aggravated criminal sexual assault is guilty of a Class X felony. The crime is codified at section 720 ILCS 5/12-14.

A Class X felony is non-probationable. Consequently, the court is not authorized to sentence the defendant to probation. Under no circumstances can a person who is found guilty of aggravated criminal sexual assault receive a probationary sentence as opposed to imprisonment. The offense is punishable by 6 to 30 years in prison, with possible extended terms of 10, 15, 20, or 25 years for the use of a firearm during the commission of the offense, or natural life.

A second or subsequent offense of aggravated criminal sexual assault is a Class X felony. However, the offender would be sentenced to natural life in prison with no possibility of parole.

The defendant is guilty if he commits criminal sexual assault plus any one of the following aggravating factors:

• Commission of the crime with a dangerous weapon.
• Infliction of bodily harm.
• Threatening the life of the victim or another person.
• Commission of another felony.
• The victim was 60 years old or older.
• The victim was physically handicapped.
• The defendant drugged the victim by delivering a controlled substance to the victim.
• The defendant discharged a firearm during the commission of the offense.
• The accused discharged a firearm during the offense and caused great bodily harm or death to another person.

A person may be guilty of aggravated criminal sexual assault under a different factual scenario, as well. Under the following circumstances, a defendant is guilty of aggravated criminal sexual assault due to the difference in age between the victim and the offender:

• Sexual penetration where the victim was 8 years old or younger, and the accused was 16 years old or younger.
• Sexual penetration where the victim was age 9 through 12, if force or threat of force was used.
• The victim was severely profoundly mentally retarded, regardless of the age of the accused.

Predatory Criminal Sexual Assault

Illinois law provides that a person who commits predatory criminal sexual assault is guilty of a Class X felony with no possibility of probation. The charge of predatory criminal sexual assault is located in the criminal code at 720 ILCS 5/12-14.1. The statute provides that an offender must be sentenced to prison from 6 to 30 years. If the offender uses a firearm in the commission of the offense, an extended term of 15, 20, or 50 years may be added. The offender may also be sentenced to natural life. A second offense of predatory criminal sexual assault has a mandatory life sentence.

Predatory criminal sexual assault consists of the following elements:

• Sexual penetration where the accused was 17 years of age or older and the victim was 12 years of age or younger. This is the minimum 6 to 30 years prison Class X felony of predatory criminal sexual assault.

The crime of predatory criminal sexual assault also occurs where there was sexual penetration and the accused was 17 years of age or older, and the victim was 12 years of age or younger and, in addition, the defendant carried a firearm, discharged a firearm, or caused great bodily harm to the victim that resulted in permanent disability or life threatening injury, or delivered a controlled substance to the victim.

Criminal Sexual Abuse

Criminal sexual abuse is the only sex crime on the books in Illinois for which the offense can be a Class A misdemeanor. The way it is written, the crime of criminal sexual abuse can be either a felony or a misdemeanor, depending on the circumstances. But even where the offender is found guilty of a misdemeanor, he will still be required to register as a sex offender if found guilty.

Criminal sexual abuse is established in the criminal code at 720 ILCS 5/12-15. The statute provides that a person is guilty of a Class 4 felony where he commits sexual conduct in conjunction with either one of the following: a) force or threat of force; or b) the victim was unable to understand the nature of the act or to give knowing consent.

A Class 4 felony has a sentencing range of 1 to 3 years in the Illinois Department of Corrections. A Class 4 felony is probationable. Therefore, the judge is authorized to sentence the defendant to probation as opposed to incarceration in either the county jail or state prison system.

A second or subsequent offense of criminal sexual abuse under the scenarios described previously is a Class 2 felony with a potential penalty of 3 to 7 years prison. A second or subsequent offense with those facts is also probationable.

A person is guilty of a misdemeanor offense of criminal sexual abuse where the person commits sexual conduct or penetration under any one of the following scenarios:

• The victim was age 9 through 16, and the accused was under 17 years of age.
• The victim was age 13 through 16, and the accused was 17 years of age or older, but not 5 years older than the victim.

The maximum penalty for a misdemeanor offense in Illinois is up to one year in jail. That time would be subject to reduction for good behavior (50 percent).

It is a defense to the crime of criminal sexual abuse that the offender reasonably believed the victim was at least 17 years old.

Recently, the state legislature considered a bill which would provide an exception to the sex offender registration requirement for people who are convicted of criminal sexual abuse and later marry the victim. This law, called the Romeo and Juliet law, would have exempted defendants who were found guilty of criminal sexual abuse where they later married the victim of the crime. The bill was defeated in the legislature, and as of 2012, Illinois has no Romeo and Juliet law.

Aggravated Criminal Sexual Abuse

Whereas criminal sexual abuse can be a Class A misdemeanor offense under certain circumstances, aggravated criminal sexual abuse is a felony. The law says that a a defendant would be guilty of a Class 2 felony and faces 3 to 7 years in the Illinois Department of Corrections. The offense is codified at 720 ILCS 5/12-16.

The statute provides that a person is guilty of aggravated criminal sexual abuse if he commits criminal sexual abuse and any one of the following circumstances is present:

• The defendant used a dangerous weapon.
• The defendant caused bodily harm.
• The victim was 60 years old or older.
• The victim was physically handicapped.
• The defendant threatened the life of the victim or another person.
• The defendant committed another felony.
• The accused drug the victim with any controlled substance.

A person would be guilty of aggravated criminal sexual abuse if he commits sexual conduct and any one of the following scenarios is present:

• The victim was 17 years of age or under, and the accused was a family member. (Note that this is the only scenario in which the age of consent is higher than normal.) For all other sex acts in Illinois, the age of consent is 17 years old. But where sexual conduct occurs between family members, the age of consent is 18 years old. Also note that the Code of Corrections provides a special sentencing provision for these cases. In these cases, the defendant must pay for counseling for the victim. The law defines a ‘family member’ as a parent, grandparent, step-parent, step-grandparent, child, step-child, aunt, uncle, great aunt, great uncle, or someone who lives with the family for 6 months.)
• The victim was 12 years old or younger and the accused was 17 years old or older.
• The victim was 13 through 16 years old, and the defendant, age 17, used force or threat of force.
• The victim was 8 years of age or younger, and the defendant was 17 years old or older.
• The victim was age 9 through 16 and the accused was 17 years old and used force or threat of force.
• The victim was severely or profoundly mentally retarded, and the defendant was any age.
• The victim was age 13 to 17 and the offender was 17 years old or older and held a position of trust, authority, or supervision in relation to the victim.

A person is guilty of aggravated criminal sexual abuse under one last scenario, where he or she commits an act of sexual penetration with the victim who is age 13 through 17 and the offender is 5 years older than the victim. Compare this to that misdemeanor offense of criminal sexual abuse, in which it would be a misdemeanor if the defendant were less than 5 years older.

It is an affirmative defense to the crime of aggravated criminal sexual abuse where the defendant reasonably believed that the victim was 17 years old.

And so, the foregoing is an overview of Illinois sex laws. As said, the constitutional protections for the defendant include the presumption of innocence, the prosecution’s burden of proving the case beyond a reasonable doubt, the right to confront the accuser, the privilege against self-incrimination, and the right to a jury which must render a unanimous verdict. All these safeguards make every sex case winnable.

Many people would be surprised to know that possessing a fake ID in the state of Illinois can result in felony charges. While it has been a right of passage for young people to use fake IDs to buy alcohol and get admitted to over-21 establishments, the law in Illinois punishes this practice severely.

The stiff penalty established by lawmakers in Springfield can be attributed to the state’s campaign against underage drinking, and also to a policy of prosecuting illegal immigrants who use fraudulent IDs such as driver’s licenses and social security cards for employment in the United States. Each problem has identifiable victims, lawmakers have said. Underage drinking results in fatal DUI accidents and undocumented immigrants steal people’s identities. And so, the Illinois legislature has made it a felony to possess a fake ID regardless of the circumstances.

Possession of a fraudulent identification card is a Class 4 felony offense. The statute that establishes the penalties for this crime is 15 ILCS 335/14B.

The statute says that a person is guilty if he knowingly possesses, displays, or causes to be displayed any fraudulent identification card. 15 ILCS 325/14B(b)(1).

As a Class 4 felony, the potential punishment for this offense includes 1 to 3 years in the Illinois Department of Corrections. However, the offense is probationable. Thus, the judge can sentence the offender to probation as opposed to a term of imprisonment.

Illinois law says that a felony offense has a mandatory minimum penalty of conviction. A conviction is a permanent record. It can never be expunged or sealed.

Even on the offender’s first arrest, if he is found guilty, the court cannot sentence him to supervision. Supervision is not available for felonies. Therefore, even a first offender would receive a permanent record for a fake ID.

The statute requires the court to impose a minimum fine of $500 or 50 hours of community service, preferably at an alcohol abuse prevention program on conviction. See 15 ILCS 325/14B(c)(1). This directive shows the legislature’s intent to address the social ill of underage drinking during sentencing.

In the case of a fake ID, the punishment does not fit the crime. A felony is too harsh. But the law is the law.

The law distinguishes a fraudulent ID from a fictitious or altered ID. A fraudulent ID is a fake ID in the truest sense. It was not issued by any government entity, and it does not belong to any individual.

A fictitious or altered ID, by comparison, is an ID that was issued by the government and belongs to someone but has been altered in some respect, such as a change in the date of birth or other information.

The definition of a fraudulent identification card, basically, is any identification card which purports to be or resembles an official identification card.

The penalties for a fraudulent ID increase under certain circumstances. For example, any person who knowingly possesses a fraudulent ID will be guilty of a Class 3 felony under the following circumstances:

• Where the purpose is obtaining any account, credit, credit card or debit card from a bank, financial institution or retail mercantile establishment.
• With intent to commit a theft, deception or credit or debit card fraud.
• With intent to commit a felony.
• While simultaneously possessing any document, instrument or device capable of defrauding another.
• With the intent to use the identification card to acquire any other identification document.

See 15 ILCS 335/14B(b)(2)-(6) and for sentencing, 14D(c)(2). (Where the defendant has a prior, the penalty is enhanced to a Class 2 felony.)

The Illinois legislature has also made it a felony to make fake IDs. The statute provides that it is a Class 3 felony to knowingly duplicate, manufacture, sell or transfer any fraudulent identification card or possess any implement that enables a person to make fake IDs. 15 ILCS 335/14B(b)(7)-(9).

It is a Class A misdemeanor offense to advertise or distribute any material that promotes the selling, giving, or furnishing of fraudulent identification cards. 15 ILCS 335/14B(c)(3). The Secretary of State can seek an injunction in court against anyone engaged in such a practice. See 335/14B(e).

Despite the harsh laws, cases such as these can be won. In all possession-type cases, the legal issue is whether the police had probable cause. If the police had no probable cause to detain or search the person, then the attorney should pursue a motion to quash and suppress. This is a 4th Amendment issue. If the defendant prevails at hearing, the evidence would be excluded and the prosecution would have no case. Qualified counsel should be consulted immediately.

Illinois lawmakers made a significant change to the vehicle code that is effective in 2012. Starting January 1, 2012, anyone who drives or rides in a motor vehicle in the state of Illinois will be required to wear a seat belt.

This was not always the law. Prior to 2012, a backseat passenger in Illinois was not required to wear a safety belt. Instead, only the driver and front seat passengers, and all other passengers under age 19 were required to wear a seat belt.

But under the new section 12-603.1, now everyone must wear a safety belt inside the vehicle. 625 ILCS 5/12-603.1.

The change to the statute is important because it raises an important issue for law enforcement. A police officer has probable cause to stop a vehicle where he sees a violation of any provision of the vehicle code. Judges and lawyers should take notice that this new law allows police officers to curb a vehicle if they see any passenger without a seat belt. In cases where the driver or passenger has a warrant, or is engaged in some other criminal conduct, an ordinary traffic stop has the potential to turn into a full vehicle search and arrest. With this new law in effect, the police have yet another reason why they can stop the vehicle.

At the present time, the Illinois Court of Appeals has allowed police officers to stop vehicles based on pretext. That is, the appeals court has said that a police officer can pull over a vehicle for any reason, including a hunch, as long as he has some other, objective reason for the traffic stop such as a violation of the vehicle code. Often times, the police officer will see a vehicle in a high crime area late at night and want to stop the vehicle just to check it out. The officer may believe that the driver or the passengers seem out of place, and pursue a traffic stop for that reason. While this may seem like a violation of civil rights, Illinois courts have approved this practice under one condition.

The appeals court has said that the police can do this as long as they have some violation of the vehicle code, the matter how minor or trivial. For example, many defendants have challenged probable cause for a traffic stop where the police pulled them over for having an obstruction hanging from the front windshield mirror.

State law is vague on the issue of what constitutes an obstruction:

No person shall drive a motor vehicle with any objects placed or suspended between the driver and the front windshield, rear window, side wings or side windows immediately adjacent to each side of the driver which materially obstructs the driver’s view.

625 ILCS 5/12-503(c).

In some cases, judges have found that an air freshener dangling from the rear view mirror is an obstruction and therefore, a violation of the vehicle code allowing the police to stop the vehicle.

Once a person is pulled over for a minor traffic violation, aggressive police questioning can lead to a search and arrest.

Section 12-603.1 is yet another reason why the police can pull over a vehicle based on pretext. The statute is clear:

Each driver and passenger of a motor vehicle operated on a street or highway in this State shall wear a properly adjusted and fastened seat safety belt.

625 ILCS 5/12-603.1(a).

The requirement to wear a safety belt for passengers does not apply to people writing in the back seat of a taxi.

State lawmakers apparently were aware of the practice of stopping vehicles based on pretext. The legislators added a provision to the statute that prohibits searching a vehicle or its occupants based on violation of this section.

The provision says the following:

A law enforcement officer may not search or inspect a motor vehicle, its contents, the driver, or a passenger solely because of a violation of this Section.

625 ILCS 5/12-603.1(f).

While that directive may seem clear and unambiguous, I expect that it will cause many problems in court. A police officer can easily justify his decision to search by stating that he smelled drugs or, after searching and finding something illegal, lie about it after the fact and say that it was in plain view.

It remains to be seen how Illinois judges will handle this new statute. State lawmakers probably had their heart in the right place, because the statute seeks to protect the health and safety of people on the roadway. But history teaches us a lesson, that some police officers have used statutes like these to target minority groups.

Illinois law provides that any person who is found guilty of a sex offense must register as a sex offender pursuant to the Sex Offender Registration Act. See 730 ILCS 150/1.

A person who is required to register will have his identity made part of the public registry managed by the Illinois State Police. The registry allows users to search for specific individuals as well as search for sex offenders nearby their location on a map.

Sex offender registration in Illinois lasts for a minimum period of 10 years. See 730 ILCS 150/7. The 10-year time span begins to run when the person is released from custody, not from the date of conviction. See id.

A conviction for any of the following offenses, or for an attempt to commit one of these offenses, requires registration as a sex offender:

A person shall also be required to register for any of these offenses where the victim is a person under 18 years of age, the defendant is not a parent of the victim, and the offense was sexually motivated:

• Kidnapping, 720 ILCS 5/10-1
• Aggravated Kidnapping, 720 ILCS 5/10-2
• Unlawful Restraint, 720 ILCS 5/10-3
• Aggravated Unlawful Restraint,  720 ILCS 5/10-3.1

A person who is found guilty of First Degree Murder, 720 ILCS 5/9-1, must also register when the victim was a person under 18 years of age and the defendant was at least 17 years of age at the time of the commission of the offense, and the offense was sexually motivated.

A person shall be required to register if found guilty of Child Abduction, 720 ILCS 5/10-5, when the crime is committed by luring or attempting to lure a child under the age of 16 into a motor vehicle, building, house trailer, or dwelling place without the consent of the parent or lawful custodian of the child for other than a lawful purpose.

A person shall be required to register if found guilty of Forcible Detention, 720 ILCS 5/10-4, if the victim is under 18 years of age and the offense was sexually motivated. This an overview of the offenses that mandate sex offender registration.

If accused of a sex offense, generally the best course is to fight the case at trial rather than plead guilty and suffer the consequences of registration.

]]> http://www.criminallawyerillinois.com/2012/01/22/offenses-that-mandate-sex-offender-registration-in-illinois/feed/ 0 http://www.criminallawyerillinois.com/2012/01/16/illinois-law-changes-definition-of-forgery-in-2012/ http://www.criminallawyerillinois.com/2012/01/16/illinois-law-changes-definition-of-forgery-in-2012/#comments Mon, 16 Jan 2012 17:27:27 +0000 Lewis Gainor http://www.criminallawyerillinois.com/?p=2063

State lawmakers made several changes to the Criminal Code in 2012. New crimes have been established and penalties for old crimes have been increased.

One of the most important changes in Illinois law concerns forgery. This offense is a Class 3 felony which is punishable by 2-5 years in prison. The maximum fine for such an offense is $25,000, but the court can also order the defendant to pay restitution, which is unlimited.

The offense is found at section 720 ILCS 5/17-3. While many parts of the statute remain unchanged, the legislature broadened the definition of forgery. The effect of the new law is that more conduct would constitute a prosecutable offense under that section.

The offense of forgery is defined as the following:

A person commits forgery when, with intent to defraud, he or she knowingly makes a false document or alters any document to make it false and that document is apparently capable of defrauding another.

720 ILCS 5/17-3.

It is also forgery to issue or deliver such a document, or possess with intent to issue or deliver such a document, knowing it was thusly made. An example would be depositing a fraudulent check at a bank.

The new statute broadens the definition of forgery. Under the earlier law, the  document had to seem as though it was created by another person in order to be illegal. This new definition provides that a document can be a forgery even where it bears the name and signature of the person who actually made it. The identity of the maker does not matter.

720 ILCS 5/17-3 provides that a document is a forgery where two elements are present:

1. It is false.
2. The document is capable by its appearance of defrauding another.

This is a simpler definition of forgery because it removes the necessity of proving that the document purports to have been created by another. The State now has to prove only that it was false and capable of defrauding someone in order to obtain a guilty verdict.

The penalties for forgery remain the same. But one should know that in cases such as these, the court will always order restitution. This is the legal term for ‘restoring’ the victim by compensation. By statute, restitution can be no more than actual loss by the victim. Where the victim was reimbursed by an insurance policy, the defendant should only be liable for paying the deductible, because that would be the only loss.

As in the case of most Class 3 felonies, the defendant is eligible for probation as opposed to a term of imprisonment. Probation for a Class 3 felony can last as long as 30 months (2 and 1/2 years). During that time, the judge can order payment of restitution, and all other standard terms and conditions of probation such as counseling, community service, random testing for alcohol and drugs, etc.

If the defendant fails to complete all that is required of him by the probation department, the case will be referred to the State’s Attorney for filing of a Petition to Revoke (PTR). This petition, called a Violation of Probation in Cook County, asks the judge to re-sentence the defendant for failing to meet all his obligations under the sentencing order. If it is shown that the defendant violated his sentence, the court can sentence him to jail or even 2-5 years in the Illinois Department of Corrections (IDOC).

Note that the judge cannot re-sentence the defendant for failure to pay restitution unless the prosecution can prove that the non-payment was a willful refusal to pay. The principal here is the court should not punish people who do not have financial means. But just because the law says this does not mean the courts follow it. For example, many judges and defendants would disagree about how much income should go towards paying restitution. While a defendant may believe it would be unfair to have to work three jobs and live in the woods to save on rent, some judges would disagree.

And this is why a charge for forgery can be so dangerous. It is more than just a matter of paying someone back.

A conviction for forgery is a permanent record that can never be expunged or sealed. The Illinois State Police Bureau of Identification will transit a record of the conviction nationwide, to all employers.

Additionally, the order for restitution can last even after a period of probation. A person sentenced to IDOC can, as a condition of his parole, be required to pay restitution. And the money made while working in the prison facility (e.g., stamping license plates) can be confiscated for restitution.

While the above summarizes the potential penalties for forgery, it should be understood that these are defensible cases.

One of the most important issues in a forgery case is the mental state of the defendant. The question is whether the prosecution can prove that the defendant really intended to defraud anyone. Absent proof beyond a reasonable doubt, the defendant should be acquitted.

In cases where the defendant delivered a document that defrauded another, such as a fraudulent check, the issue is whether the defendant really knew it was a fraudulent check. It is fundamentally unfair to judge a defendant as though he or she is a banker. Checks and other deposit instruments come in all colors, shapes, and sizes. Some have a signature and others do not. No one can be expected to know the difference.

A person making a deposit should be afforded some protection by the court. It is unreasonable for a person to have to suspect every check he receives is fraudulent.

The same principal applies to legal documents. A jury should be sympathetic to a person who is not a lawyer having to rely on what appears to be a legal document.

One possible outcome in these cases is a reduction of the offense to a Class A misdemeanor. This outcome always depends on the offender’s background and the strength of the prosecution’s case. But most importantly, it depends on the willingness of the lawyer to fight for his client.