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.

Everyone has seen it on TV. When a person gets arrested, the police read him his rights. Only a rule this simple could cause so much confusion among people who have been arrested.

The rights everyone is referring to are those provided by the Supreme Court in the Miranda decision. Miranda was a defendant in Arizona who gave a confession and was later convicted of the rape and kidnapping of an 18-year old girl. The Supreme Court threw out the conviction and established a rule that a suspect must be warned of his right to remain silent and his right to an attorney.

…a suspect must be warned of his right to remain silent and his right to an attorney.

Illinois courts are bound by the Miranda decision, and so, police officers must warn the defendant of his right to remain silent and his right to an attorney. Police, judges, and lawyers refer to this as Miranda warnings.

But there is an exception to this rule, and this exception is the cause of confusion.

The police do not always have to give a suspect Miranda warnings. They have to read him his rights only if they want to ask him questions. If the police are not going to ask him questions, then they do not have to read him his rights.

Miranda warnings apply only where the police are trying to interrogate the defendant and use his answers against him in court. When the police make an arrest but do not ask the defendant any incriminating questions, then they do not have to read him his rights.

It is perfectly legal for the police to handcuff a suspect, put him in the squad, drive him to the station and hold him in a cell without ever reading him his rights. However, if the police want to get him to admit to a crime or sign a written confession, then they have to read him his rights (eg, Miranda warnings).

The rationale for the rule is that the constitution gives a suspect the right to remain silent and also the right to an attorney. This is the 5th Amendment privilege against self-incrimination and 6th Amendment right to counsel. If a person confesses to a crime without knowing that he can remain silent or consult with an attorney, then his confession is not considered to be voluntary. Basically, the confession is not voluntary because the defendant was not fully informed.

Any statement made by a defendant that is not voluntary is inadmissible. It cannot be used as evidence against him in court.

In any case where the defendant made an admission, the attorney needs to determine whether he was Mirandized. If it is shown that he was not told he could remain silent or consult with an attorney, then the statement can be suppressed. The practical effect of suppressing a statement cannot be overstated. Before, the case against the client consisted of circumstantial evidence and a confession, but now the case consists only of circumstantial evidence. And this means the judge or jury can find reasonable doubt.

Illinois law enforcement officers usually read a suspect Miranda warnings in this manner:

You have the right to remain silent. Anything you say or do can and will be held against you in a court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights as they have been read to you?

If the above rights are not read, any statements made by the person arrested should be thrown out.

The potential penalties for a Class A misdemeanor offense include up to one year in the county jail and a maximum fine of $2500. Technically, a sentence of incarceration can last for only 364 days. A jail sentence of 365 days or more is only permissible for a felony offense. Additionally, any sentence lasting one year or longer must be served in the state penitentiary system, the Illinois Department of Corrections. Misdemeanor sentences of incarceration are served in jail, whereas felony sentences are served in prison.

County jail facilities house inmates who are waiting for trial, or serving a sentence for a misdemeanor offense. The only exception would be defendants who have pled guilty to a felony offense and receive a sentence of periodic imprisonment (also called work release) where they serve their periodic incarceration in the county jail facility. A sentence of periodic imprisonment would be served along with probation. (Note that the Illinois Department of Corrections at the present time has a program for work release, and is increasing the number of inmates who are assigned to this program. But that applies to prison sentences.)

Every defendant who is sentenced to jail for a misdemeanor offense is entitled to receive day for day credit. This credit reduces a sentence to half of what is dictated by the sentencing order (e.g., 50 percent). However, certain misdemeanor offenses are disqualified from this credit. For example, any offense for which there is a mandatory minimum penalty or any offense involving bodily harm would disqualify the defendant from receiving day for day credit.

If the defendant served any time in custody prior to the guilty plea or the finding of guilt, he is entitled to credit for everyday spent in pretrial custody.

The pretrial custody credit applies if there is a violation of any sentence. If a person is sentenced to jail for a violation of a misdemeanor sentence, the jail sentence must be reduced by any time spent in custody prior to trial. It is a common mistake in many courtrooms where the prosecutor seeks to resentence the defendant for violating probation, but does not give him or her credit for time in pretrial custody. The defendant is always entitled to credit for pretrial custody.

If the defendant is sentenced to supervision, the judge cannot sentence him to jail. A jail sentence is only possible under a conviction. Supervision is not a conviction, and therefore, a sentence of imprisonment is not authorized by law.

Besides supervision, the only other sentences that can be imposed for a misdemeanor are conditional discharge and probation. Conditional discharge is basically non-reporting probation. The court enters a conviction against the defendant, but generally he is not required to report to a probation officer during the term of the sentence. A probationary sentence, however, requires the defendant to report. Like conditional discharge, probation involves the court entering a conviction against the defendant.

The court is also authorized to sentence a defendant to straight time. This term, “straight time,” refers to a jail sentence which is not followed by any probationary sentence. In these situations, the court sentences the defendant to a conviction and jail. On the term date of the jail sentence, the case is closed. A defendant in a case such as this would not be required to report to a probation officer after discharge from the county jail facility. A sentence of straight time is common in Cook County, but in other counties such as DuPage, Kane, and Lake, straight time is rare. In those collar counties, judges typically sentence the defendant to some type of probation sentence following time in custody.

The maximum time span allowable for a sentence of supervision, conditional discharge, or probation is two years. The court is not authorized to sentence a person to any type of sentence for a misdemeanor in excess of this time constraint. The court would be without jurisdiction after the two-year limit.

The judge is authorized by law to sentence the defendant to a combination of jail and conditional discharge for probation. However, the maximum sentence of conditional discharge or probation combined with time in custody is 2 years and 180 days jail. The court cannot sentence the defendant to more jail time than 180 days if he also serves two years of conditional discharge or probation.

The maximum jail sentence for each class of misdemeanor is indicated below:

• Class A – 364 days.
• Class B – 180 days.
• Class C – 30 days.

The law in the state of Illinois says that is a criminal offense to expose oneself in public. The crime is called public indecency. The penalties for this offense can include up to one year in jail and a maximum fine of $2500.

But most importantly, the crime of public indecency is classified as a sex offense. This means that the defendant may have to register as sex offender if found guilty.

Public indecency is found in the criminal code at 720 ILCS 5/11-9. The statute provides that the crime of public indecency applies people who are 17 years old and above. Any person who is 16 years old or younger cannot be prosecuted for public indecency. However, the courts have allowed the State to prosecute minors for disorderly conduct (720 ILCS 5/26-1) based on the same type of behavior for which an adult would be charged with public indecency.

A person who is 17 years of age or older will be charged with public indecency under either of the following circumstances:

• He or she forms an act of sexual penetration or sexual conduct in public.
• He or she exposes the body in a lewd manner with intent to arouse or to satisfy sexual desire in a public.

And so, a person does not have to be naked in public to be charged with public indecency. In fact, he or she can be fully clothed and still be guilty. Basically, public indecency occurs in two ways: nudity in public with sexual intent or engaging in a sex act (clothed or unclothed) in public.

In every prosecution for public indecency, the State must prove beyond a reasonable doubt that the conduct occurred in a public place. A public place is defined as any place where the conduct may reasonably be expected to be viewed by others.

When state legislators drafted the statute that makes it a crime to expose oneself, they made an exemption. Breast feeding an infant is not public indecency. However, it remains debatable whether breast feeding a young child in public would constitute public indecency.

In any event, an act of sexual penetration or sexual conduct in public constitutes public indecency. These terms are defined by 720 ILCS 5/12-12. Sexual conduct includes touching or fondling on top of clothing. Sexual penetration can also include any touching between the sex organs and an object or the mouth.

Public indecency is a Class A misdemeanor offense. If convicted, the defendant can be sentenced to jail. However, probably the more likely outcome would be a sex offender evaluation and treatment through the probation department.

Although public indecency may seem like a minor offense, the consequences can be very serious. Generally, any offense that is sexual in nature will draw attention from prosecutors and judges. These offenses are reported by the media and they can be very politically charged.

The court may be inclined to order the defendant to undergo a sex offender evaluation and treatment, regardless of whether this type of sentence is appropriate. If the offender cannot complete the sex offender evaluation and the recommended treatment, then the court can re-sentence him to jail.

A conviction for the offense of public indecency cannot be expunged or sealed. It would be a criminal record lasting permanently.

If the defendant has two prior offenses of public indecency, the third offense is a Class 4 felony. In these cases, the potential penalties include 1 to 3 years in the Illinois Department of Corrections.

In my opinion, every charge that is sexual in nature should be fought in court. I would not recommend a plea of guilty to this offense. The damage caused by record for a sex offense is immeasurable. Therefore, the defendant should be careful and choose an attorney who is willing to go to trial.

Each year, the Office of the State Appellate Defender publishes an instruction guide for expunging criminal records. The attorneys with that office provide a valuable service to Illinois and should receive more recognition for their efforts.

The latest release from the appellate public defender’s is available here for download.

The legislature changes the expungement statute each year, and if you have a record to be expunged, you should read the public defender’s instruction packet.

The public defender has a very informative site and I recommend it. They also provide a list of attorneys who provide assistance with expungement.

The state of Illinois has some of the nation’s toughest laws on firearms. It is tragic because Chicago is one of the most violent places in America. If there is any place in America where a person would need a firearm for protection, it would be Chicago.

Although the Second Amendment gives each person the right to bear arms, it is illegal to carry a loaded gun in Illinois. It is no small crime to carry a loaded gun. In Illinois, the offense is called aggravated unlawful use of a weapon. It is a felony for which the defendant can be sentenced to 1 to 3 years prison.

Time and time again, the Chicago Tribune runs a story about an out-of-state resident who comes to Illinois with a firearm for protection. Often the person is from Indiana, and he decided  to carry a loaded handgun while visiting Chicago.

It is a tragic story each time. The fact that the person was from out-of-state and possessed a valid out-of-state firearms license is not a defense. The fact that he was ignorant of the law is not a defense, either.

The criminal charge of aggravated unlawful use of a weapon is referred to by lawyers and judges as Agg UUW. The crime is found in the criminal code at 720 ILCS 5/24-1.6.

Aggravated unlawful use of a weapon is categorized as a Class 4 felony. If guilty, the defendant can be sentenced to 1 to 3 years in the Illinois Department of Corrections and may be fined up to $25,000. The law says that the judge is permitted to sentence the defendant to probation as opposed to time in custody.

However, the policy of the Cook County State’s Attorney is to seek a prison sentence in every case. Basically, the defendant is caught in a political debate in firearms cases.

The city of Chicago is stricken with a high crime rate and multiple shootings on a daily basis. In response the prosecution seeks the maximum penalty on every case. Even for a defendant with no criminal history whatsoever, the prosecution will seek a prison sentence.

Many people are confused about the name of the charge because they did not use the weapon. But it does not depend on firing the gun. Simply possessing a loaded gun is considered aggravated unlawful use of a weapon.

The elements of aggravated unlawful use of a weapon are the following:

1. Possessing a firearm either on your person or in your vehicle
2. When you are not on your land, your residence, or your fixed place of business

And any one of the following elements is present:

• The firearm possessed was uncased, loaded, and immediately accessible. 720 ILCS 5/24-1.6(1)-(3)(A).
• The firearm was uncased, unloaded, but the ammunition was immediately accessible. 720 ILCS 5/24-1.6(1)-(3)(B).
• Regardless of whether the firearm was loaded, the person possessing it did not have a Firearm Owner’s Identification Card (FOID). 720 ILCS 5/24-1.6(1)-(3)(C).

The statute provides additional elements which would subject a person to the charge of aggravated unlawful use of a weapon. For example, a person can be charged with the felony if he was engaged in the commission of a misdemeanor offense, or had an order of protection issued against him within the last two years, or he was possessing a handgun and not yet 21 years of age, etc. Aggravated UUW charges under these circumstances are less common.

A second or subsequent offense of aggravated unlawful use of a weapon is a Class 2 felony with a mandatory prison sentence ranging from 3 to 7 years. The court is not permitted to sentence the defendant on a second offense to probation. Rather, a second offense is non-probationable.

The primary means of defending a charge of aggravated UUW is to challenge the search that produced the weapon, or find reasonable doubt as to possession.

The questions that should be asked are,

• How did the police gain access to the firearm?
• Did the police have a search warrant?
• If not, did the police have probable cause to allow them to search the person or the vehicle?
• Did the defendant possess the gun, or someone else?

The answer to these questions depends on the facts of each case and a lawyer should be consulted.

The Illinois State Police are mandated by law to keep track of how many petitions to expunge or seal they receive each year, and what the outcome is. This is a new legal obligation. It became mandatory through the Expungement Backlog Accountability Law. 20 ILCS 2630/14.

In the past, the State Police were notorious for delay in processing the expungement of criminal records. In cases where judges ordered the State Police to expunge arrest records, the process would not be completed for months or longer. People who were granted an expungement were denied jobs because of the failure by the State Police to process the expungement.

The issue became acrimonious because some accused the State Police of deliberately stalling or refusing to comply with expungement orders. I remember hearing rumors that some judges were about to hold the State Police in contempt of court for disobeying expungement orders. I cannot recall that it ever happened, though.

State lawmakers decided that they would need to impose a duty on the State Police to process the expungements more efficiently. And to keep tabs on it, lawmakers established a system for keeping statistics.

Click here to download the Illinois State Police first report.

The results are interesting.

In one year, the State Police received 11,092 expungement petitions and 5,959 petitions to seal. It stands to reason that this is a good estimate for the number of petition to expunge and/or seal filed statewide because the State Police have to be notified on every petition.

The ISP objected to 1,474 petitions to expunge (about 13 percent), and 882 petitions to seal (14.8 percent).

The Department of State Police also collected $694,200.00 in fees related to processing expungements.

What happened to the petitions that were objected to? It is hard to tell from the statistics. By law, every petition that is objected to should receive a hearing. The judge would rule during the hearing whether to overrule the objection and grant expungement or sealing, or sustain the objection and deny the petition to expunge and/or seal.

And so it seems the outcome in each case depends on the facts of the case, the lawyers, and the judge.