Posted on November 25, 2014 in Criminal Defense

A centerpiece of many national political candidates’ platforms included some discussion about gun rights and gun laws in the United States. In the wake of various school shootings in the past few years and countless violent crimes committed daily, it is only natural that the country engages in a conversation about what regulations and laws are necessary to eliminate these tragic occurrences. Usually the conversation turns to a discussion of what federal gun laws are already “on the books,” including laws such as 18 USC Sec. 922(g) and (n). Under this law, which prohibits the possession of a firearm or ammunition by certain individuals, even first-time offenders face severe consequences.

Federal Statutes Prohibiting Possession of Firearms and Ammunition

 The federal statute prohibiting possession of a firearm or ammunition is found at 18 USC Sec. 922(g) and (n). Under this statute, certain groups of people are prohibited from possessing, receiving, shipping, transporting, or otherwise affecting interstate or foreign commerce with firearms and ammunition. The groups of people that are prohibited from doing so include:

Continue Reading ››

 Posted on November 20, 2014 in Criminal Defense

Even after you have been found guilty of an Illinois crime, as a criminal defendant you still have certain rights. These rights include the right to appeal your conviction and/or sentence and have an appellate court review your case. An appellate court can either affirm your conviction (meaning that you remain convicted of the crime), reverse your conviction (meaning that your conviction is vacated and you are no longer convicted of the crime), or remand your cases (meaning that there were some errors in your trial and/or sentencing that require the trial and/or sentencing hearing to be conducted again).

An Appeal is a Distinct Type of Proceeding

Some criminal defendants assume that their trial attorney can also function as their appellate attorney; however, there are important differences between court hearings in front of a trial court and the appeals process. Criminal defendants should make sure they hire competent appellate counsel who understand and appreciate these important differences:

Continue Reading ››

 Posted on November 18, 2014 in Uncategorized

Criminal law is constantly changing, especially with regard to the constitutional rights of criminal defendants. The U.S. Supreme Court can issue a decision that impacts the application of the law in Illinois and other states. When the law changes though, it may not change for everybody. That was the unfortunate lesson one defendant learned in a recent decision by the Chicago-based U.S. 7th Circuit Court of Appeals.

USA v. Gutierrez

In late 2012, the Drug Enforcement Agency and police in Indianapolis received a tip regarding alleged drug trafficking at a local residence. Police went to the residence and used a drug-sniffing dog (or K-9 unit) to identify the presence of illegal narcotics. The dog sniffed the door of the residence and alerted the officers to the presence of drugs. Police then obtained a warrant and entered the residence, leading to the defendant's arrest for illegal possession of methamphetamine.

Continue Reading ››

 Posted on November 13, 2014 in Criminal Defense

While medical marijuana is now legal in Illinois for patients who comply with state law, it is still illegal for anyone to drive under the influence of marijuana. Not many people understand, however, the far reaching impact of Illinois’ strict per se drugged driving law. The law forbids people from operating a motor vehicle if they have any detectable level of marijuana present in body fluids.

Strict Standards & Punishments

Opponents of per se legislation argue that just the presence of cannabinoids from marijuana in the bloodstream does not adequately measure impairment. Although ingestion of THC only has an immediate, measurable deleterious effect on performance for up to three hours after use, it stays in the body as a metabolized non-active and detectable substance far longer. Because cannabinoids remain present in both blood and urine for up to 30 days, it is theoretically possible to be charged with a per se marijuana DUI for a joint smoked a month ago (even if done so legitimately under the state’s medical marijuana program).

Continue Reading ››

 Posted on November 12, 2014 in Criminal Defense

If you are a parent who has been linked to a case involving underage drinking or underage drinking and driving, it’s imperative that you seek out an attorney today. Being connected to such a case can have risky consequences for you and your child.

If your child has been accused of underage drinking , then both you and your child will need an attorney to face these charges in court. Individuals under the age of 21 in Illinois can be convicted for violating the Liquor Control Act for the receipt, possession, purchase, or consumption of alcohol, leading to suspension of driving privileges for six months on first convictions. Subsequent convictions will lead to additional consequences.

As an adult, providing alcohol to someone under the age of 21 is a Class A misdemeanor. A parent who knowingly allows individuals under the age of 21 to consume alcoholic beverages inside a private home or other private property can also be found guilty of a Class A misdemeanor. However, do not assume explicit consent or provision of alcohol is all that is required to be found guilty. Adults who fail to control access in the residence where alcohol is consumed by individuals under the legal age where this activity results in bodily harm to someone can be found guilty of a Class 4 felony.

Continue Reading ››

 Posted on November 06, 2014 in Criminal Defense

In 1932, the abduction of Charles Augustus Lindbergh, Jr. became one of the most highly publicized crimes of the 20th century. It led to Congress passing the Federal Kidnapping Act, or the “Lindbergh Law,” which prohibits the illegal transport of babies over state lines.

Illinois Penalties and Statutes

According to Illinois statute, kidnapping occurs when a person knowingly and secretly confines another person against their will by using force, threats, deceit, or enticement. Kidnapping also includes the confinement of anyone who is mentally ill and a child of less than 13 years of age. The state imposes mandatory imprisonment for not less than six years and a fine of up to $25,000. Secret confinement is an essential element of kidnapping. Aggravated kidnapping is a Class X Felony.

Continue Reading ››

 Posted on November 04, 2014 in Criminal Defense

In certain circumstances, homicide is justified when it prevents greater harm to innocents. A homicide can only be justified if there is sufficient evidence to prove that the deceased, if not stopped, posed an imminent threat to the life of others.

For an act of murder to become a justifiable homicide, one must prove objectively to a judge, beyond all reasonable doubt, that the deceased intended imminent harm. In this instance, a homicide is blameless. It is also distinct from the much stricter criteria authorizing use of deadly force in a “stand your ground” defense.

Definitions of Justifiable Homicide

Homicide is only justified under the following conditions as decided by a court of law:

Continue Reading ››

 Posted on October 24, 2014 in Criminal Defense

As of July 9, 2013, Illinois residents must obtain a Concealed Carry License to carry a concealed firearm in the state. The Illinois State Police Department issues permits for the same. Under both federal and Illinois law, individuals are eligible to apply for concealed firearms permits if they are over 21 years of age, do not have a felony or other disqualifying issue on their record (such as being confined to a mental institution within the last five years), and pass a 16-hour training course.

Non-residents from most other states do not have reciprocity in Illinois. Concealed carry permits issued only by Hawaii, New Mexico, South Carolina, and Virginia currently qualify. Retired police officers who qualify annually under state guidelines are also allowed to carry concealed weapons.

The open carrying of firearms is almost entirely illegal in the state except when hunting, in a fixed place of business with the owner’s permission or in one’s own home. Without a concealed gun license, firearms must also be stored both unloaded and sealed in a case when transported.

Continue Reading ››

 Posted on October 22, 2014 in Criminal Defense

Recently, a judge in the federal district court covering northern California and centered in San Francisco delivered a ruling that will reverberate around the nation’s legal community for some time on the topic of warrantless drug-related searches.

While the decision came as part of a larger case involving medical marijuana patients in California, the implications, as well as the timing, send a message far beyond the circuit itself and, in fact, could be a well-timed legal dart into the overall federal discussion about not just drugs, but fundamental constitutional issues underlying current public policy nationally.

Mere Declaration of a Public Threat Does Not Make It So

The specifics of the decision, which is that warrantless police raids on private homes (for reasons a county had declared “a threat”) violate the Fourth Amendment, should come as no surprise to many.  The idea that United States law enforcement and prosecution has become overly draconian in regards to the domestic drug war is widespread.

Continue Reading ››

 Posted on October 17, 2014 in Criminal Defense

Gibbons v. Ogden, the 1824 ruling by the U.S. Supreme Court, is a decision from America’s storied legal past that has suddenly become a part of the national debate once again.  The precedent set by this case that has fundamentally shaped American jurisprudence ever since is the idea that federal law takes precedence over state in matters of commercial contracts and assignations, but how could that decision apply to medical marijuana operators?

As state markets claim where federal law will not tread this year, and three states plus the District of Columbia and Guam vote to legalize some type of marijuana reform in November, the questions about federal vs. state pre-eminence has also been a news subject and a topic of debate for both the public and the legal community alike in Illinois and across the country.

Does Ogden have Impact On In-State or Only Interstate Commerce?

Continue Reading ››