Monday, May 16, 2016

Domestic Battery in Illinois

An Introduction to Domestic Battery in Illinois

A criminal charge of Domestic Battery is a very serious offense in Illinois.  In recent years, public attention has been focused on Domestic Violence.  I noticed the increased attention on Domestic Violence after the infamous OJ Simpson case.  State legislatures throughout the United States have passed laws which seek to punish crimes like this more severely and to try to put an end to this crime. This is true in Illinois as well.  Laws have been changed to make it easier for a spouse to obtain an Order of Protection.  Laws have been enacted to require the placement of GPS tracking devices on people have been ordered to stay away from victims, penalties for people convicted of Domestic Battery have been stiffened to impose harsher penalties on people convicted of Domestic Battery. Local prosecutors offices have established units within their offices that specialize in prosecuting domestic battery crimes and specific courtrooms have been established in most counties that only handle cases like this.  

This article will discuss what the crime of Domestic Battery involves and the possible penalties. 

What is Domestic Battery in Illinois

Generally, a Domestic Battery happens when you make contact of a physical or provoking nature with any family or household member.  Family or household members are defined as spouses, parents, children and stepchildren.  Of course you can be guilty of a Domestic Battery by causing physical harm to a family or household member but can also be guilty of a Domestic Battery if the contact was of a physical or provoking nature even if it didn't cause physical harm.  

Most Domestic Batteries are Misdemeanors

The majority of Domestic Batteries are Class A misdemeanors.  The maximum punishment for a Class A misdemeanor is up to one year in county jail and a maximum fine of up to $2,500.  But what is significant about a misdemeanor conviction for domestic battery is that the charge can never be sealed or expunged.  A conviction for Domestic Battery can never be removed from your record and will follow you around for the rest of your life.  It can be viewed by the public, employers, credit agencies, schools, government, landlords, etc.  

When Can a Domestic Battery be a Felony?

A Domestic Battery can be a Class 4 felony if you have been previously convicted of a Domestic Battery or violated an Order of Protection at the time of the Domestic Battery.  A Class 4 felony conviction for Domestic Battery can carry a possible prison sentence of 1 to 4 years in jail.  However, Probation, or Conditional Discharge are alternatives to jail.

What is Aggravated Domestic Battery?

You can be charged with Aggravated Domestic Battery in 2 ways.  First is if great bodily harm or permanent disability or disfigurement is caused by the Domestic Battery.  A second way you can be charged with Aggravated Domestic Battery if you "strangle" someone during the Domestic Battery. "Strangle" is defined as intentionally impeding the normal breathing or circulation of the blood of an individual by applying pressure on the throat or neck of that individual or by blocking the nose or mouth of that individual. 

What is the Sentence for Aggravated Domestic Battery?

Aggravated Domestic Battery is a Class 2 felony which carries a possible prison sentence of between 3 to 7 years.  Probation is possible for an Aggravated Domestic Battery, however, in addition to any sentence imposed by the Court, if you are convicted of an Aggravated Domestic Battery you must serve a minimum of 60 continuous days in jail.  If this is your second or subsequent conviction for Aggravated Domestic Battery, you will not be eligible for probation and must serve between 3 to 7 years in prison.  Aggravated Domestic Battery is a very serious charge because a conviction for this offense carries a mandatory minimum prison sentence of 60 continuous days. 

Conclusion

The Domestic Battery laws in Illinois are pretty straightforward but require that any attorney handling such cases understands what they are doing.  The litigation involved in such cases can be tricky and requires not just an understanding of the various statutes cited above, but of the psychology surrounding these types of cases.  These offenses carry serious consequences.  Unlike most misdemeanors court supervision is not an option in Domestic Battery cases.  This takes away some negotiating options and applies serious consequences that cannot be bargained away.  Some of the felonies carry mandatory prison sentences.  It is critical that you hire an experienced attorney who knows what they are doing.

For more information about the Chicago criminal defense attorneys at Legal Defenders, P.C., visit us at www.legaldefenderspc.com or call us anytime at 1-800-228-7295.  

Friday, May 13, 2016

Illinois Court of Appeals Upholds 4th Amendment Warrant Requirement

Last week the Illinois Court of Appeals held that in order to enter a residence without a warrant, the police need consent or demonstrate that an exception exists.  The case is People v. Swanson, 2016 IllApp (2d) 150340.  On the evening of January 7, 2015, Scott Swanson met a friend at a bar in Hinckley, Illinois.  Swanson drank about 3 beers at the bar and left in his vehicle to go home.  It was icy outside with snow patches.  When he was roughly 2 miles from his home his car slid into a ditch, hit a stop sign, the airbags deployed and he cut his finger.  His vehicle could not start so he tried to call home but was unsuccessful.  It was below zero outside so he locked his vehicle and set out on foot to go home.  About a mile from the incident, he came upon the home of the Thompson family and knocked on the door.  The occupants answered the door but would not let him in.  At some point a resident in the home pulled a gun and Swanson set out on foot to go home.  About a half a mile down the road Swanson encountered another home, but nobody answered the door so he set out to get to his house.  A DeKalb County Sheriff's Deputy was dispatched to the Thompson home for a report of a disoriented person.  On his way to the Thompson home the deputy encountered Swanson's disabled vehicle.  He noticed the damage to the vehicle, the deployed airbag and an open beer can on the passenger side floor.  He did not notice any blood in the vehicle.  Once it was determined that the vehicle belonged to the Swansons' another officer went to the Swanson home and spoke to Swanson's wife.  The officer informed Swanson's wife that her husband had been involved in an accident and could not be found and left his card with her and requested that she call him if he came home.  Shortly after the officer left the Swanson home, Scott Swanson arrived at the house.  His wife noticed that he was freezing cold, covered in snow, and his finger was bleeding.  Swanson's wife went upstairs and drew a warm bath.  When she went upstairs she noticed a glass of vodka and orange juice.  Swanson told her that he had poured the glass to warm up.  While Swanson's wife dressed the wound he drank the glass of vodka.  After she drew the bath, Swanson's wife called the officer and let the dispatcher who answered the call know that he was safe, he did not need any medical attention and that she would arrange to have the vehicle removed from the ditch.  According to Swanson's wife, an officer broke in on the phone conversation and told her that the police had to see Swanson to make sure he was ok.  She insisted that he was fine  and that the police did not have to come to the house and if they did she would not let them in.  Shortly after that phone call the police arrived at the Swanson home.  There was conflicting testimony at the hearing about exactly what happened.  Swanson's wife insisted that she did not allow the police to enter the home while the police officers testified that she had given some form of consent to enter the home.  But at some point the police entered the home and placed Scott Swanson under arrest.  He was charged with Driving Under the Influence of Alcohol (DUI), Leaving the Scene of a Property Damage Accident, Illegal Transportation of Alcohol, Failure to Reduce Speed to Avoid an Accident and Improper Lane Usage.  Swanson filed a Motion to Suppress Evidence and a Petition to Rescind Statutory Summary Suspension.  After hearing the evidence, the Court granted the Petition to Rescind the Statutory Summary Suspension by finding that there was no probable cause to believe that the defendant was under the influence of alcohol at the time of the accident and granted the Motion to Suppress by finding that Swanson's wife was credible and that his wife did not invite the police into her home and that there were no exigent circumstances present to justify the police entering the home and suppressed everything that happened after the police entered the home.

On Appeal the State argued that the trial court erred in granting the motion because there was consent to enter the home  and the need for emergency medical attention.  The State argued that the trial court erred in granting the Petition to Rescind because there was probable cause to believe that Swanson had been under the influence of alcohol at the time of the accident.  

With regards to the issue of consent, the Court refused to overturn the trial court's determination that Swanson's wife was more credible than the officers.  The Court held that they will not disturb the trial courts findings of fact absent a finding that it was against the manifest weight of the evidence.  

Next, the Court held that a warrant-less entry into a home is presumed to be unreasonable.  An exception to this is if the state is able to establish consent.  But since the trial court believed the wife over the police, the court was unwilling to disturb the trial court's find of fact and held that there was no consent.  

Next the Court looked at whether an exception to the warrant requirement existed.  The need to provide emergency medical attention has been recognized to be an exception to the warrant requirement in Illinois.  In order for the exception to exist the police officer must have reasonable cause to believe that an emergency is at hand and have some reasonable basis, approaching probable cause, to connect the medical emergency to the area entered.  An assessment of the reasonable basis will depend on what the officer knew at the time.  In reviewing the evidence, the court found that there was no reasonable basis to assume that this was a need to provide emergency medical treatment to Swanson.  Thus, since no recognized exception to the requirement of a warrant to enter a home, the court upheld the granting of the motion to suppress.

Based on the lack of probable cause the DUI arrest and the illegal entry into the Swanson home, the Court also upheld the granting of the Petition to Rescind the Statutory Summary Suspension.

This case reaffirms the basic fundamental 4th Amendment rules that we were taught in law school.  If there's a search without a warrant, the law presumes that it was unreasonable.  Once a defendant establishes that there was no warrant to search, the burden shifts to the state to show consent.  If there was no consent then the state has the burden of showing that a recognized exception existed to overcome the requirement of a warrant.  So as a practitioner, once you establish that there was no warrant, the burden shifts to the state to prove consent or an exception.  So let the state do their work.  Make them prove their case!

For more information about the Chicago criminal defense attorneys at Legal Defenders, P.C., visit us at www.legaldefenderspc.com or call us anytime at 1-800-228-7295.


Wednesday, May 4, 2016

Police Crackdown on Route 59 on May 9

Police Departments from Hoffman Estates in the north, to Shorewood in the south, will be conducting a police crackdown on Route 59 on May 9, 2016.  They are calling this initiative a "directed traffic safety initiative" to crackdown on traffic violations.  Route 59 is a major thoroughfare that goes through several towns. Because of the high amount of traffic, it is the busiest roadway for many of these small times and is thus, the biggest source of car accidents.  

Keep your eyes on the road, take your foot off the gas and put down that cell phone!

For more information about the Chicago criminal defense attorneys at Legal Defenders, P.C., visit us at www.legaldefenderspc.com or call us anytime at 1-800-228-7295.

Saturday, April 30, 2016

Supreme Court Approves Rule That Would Expand Computer Search Warrant Jurisdiction

On April 28, Chief Justice John Roberts sent Congress changes to the Federal Rules of Criminal Procedure which would significantly expand the power of Federal Judges to issue warrants to search computers.  Under the current rules, Federal Judges are restricted to issue search warrants for computers that are located within their jurisdiction.  The new rules would allow any judge in any jurisdiction to be able to issue a search warrant allowing federal agents to search the contents of computers.  This would apply to situations in which the location of the computer is unknown.  Federal agents have been seeking this authority since 2013 arguing that the law needs to adapt to changing technologies.  Civil liberty advocates argue that expanding the jurisdictional authority of courts will lead to mass hacks which would lead to unreasonable searches and seizures and significantly increase the FBI's hacking authority.  The FBI. could now obtain a single search warrant allowing them to access millions of computers.  Most of the computers would probably involve innocent victims thereby giving the FBI access to millions of computers of completely innocent people. 

This news has pretty much flown under the radar with the media and the public focusing on Apple's dispute with the FBI over the hacking of iPhones.  So while we focus on that case, which seems to have been resolved with the FBI hacking into the iPhone of the San Bernardino terrorists without Apple's assistance and cooperation, the Supreme Court approves a rule that would allow for the mass search of computers with a single warrant.  

The proposed change to the Rules of Criminal Procedure is set to take effect on December 1, 2016 unless the U.S. Congress takes action to stop it from happening.  But being that we are in an election year, it is highly unlikely that Congress would act to stop this rule from taking effect.

For more information about the Chicago criminal defense attorneys at Legal Defenders, P.C., visit us at www.legaldefenderspc.com or call us anytime at 1-800-228-7295. 

Friday, April 29, 2016

Supreme Court Allows Life Sentence for Marijuana Possession to Stand

Last week the United States Supreme Court rejected the appeal of a 76 year old Alabama man who had been sentenced to life in prison for possession of less than 3 pounds of marijuana that he had grown for personal use.  Lee Carroll Brooker had been convicted of possessing less than three pounds of marijuana that he had grown for personal use.  Brooker is a disabled veteran who claimed that he had grown the marijuana to treat chronic pain.  Police discovered the marijuana when they visited a home he shared with his son while they were searching for stolen property.  The police discovered 37 marijuana plants growing in the back yard but had no evidence that he was selling marijuana.  But because of an Alabama statute which allows him to be charged with trafficking if the weight of the marijuana is more than 2.2 pounds, he was convicted of trafficking.  The statute also provides for a mandatory life sentence for anyone convicted of this crime who has a prior criminal record.  Brooker was sentenced to life in prison.  The trial judge told Brooker that he would sentence him to a lesser sentence but that his hands were tied because of the mandatory sentencing provision of the statute.  The Alabama Supreme Court upheld the life sentence with a powerful dissenting opinion by the Chief Justice of the Alabama Supreme Court.  The Alabama Attorney General argued that the life sentence was also based on Carroll's background which includes convictions for Drug Smuggling and Armed Robbery.  Carroll appealed to the United States Supreme Court arguing that the life sentence for marijuana possession violated the Constitution's prohibition against Cruel and Unusual Punishment.  Last week, the Supreme Court rejected his appeal.  By rejecting his appeal, the Supreme Court allowed the Alabama Supreme Court decision stand which allows for a life sentence to be imposed on a man convicted of Marijuana Possession.

This case is significant because it highlights the flaws inherent to mandatory sentencing statutes which take away the discretion from judges to do the right thing.

For more information about the Chicago criminal defense attorneys at Legal Defenders, P.C., visit us at www.legaldefenderspc.com or call us anytime at 1-800-228-7295.

Tuesday, April 19, 2016

In Surprise Decision Supreme Court Issues Sentencing Ruling

Last year, in Johnson v. United States, the United States Supreme Court ruled that the Armed Career Criminal Act was unconstitutional.  The Armed Career Criminal Act was the federal version of the "three strikes and you're out" state statutes.  The Federal Act added five years to the sentences of career criminals who had been convicted of at least four "violent felonies" or serious drug crimes.  In Johnson the Supreme Court found that the term "violent felonies" and the catch all phrase at the end of the statute was so vague that it was unconstitutional.  But the decision in Johnson did not apply retroactively.  On March 30, 1016, the Supreme Court heard oral arguments in Welch v. United States. Welch was seeking to apply the holding in Johnson retroactively.  Yesterday, in a 7 to 1 vote, the Supreme Court agreed with Welch and applied last year's ruling in Johnson retroactively thereby opening the door to anybody who had their sentence extended under the Armed Career Criminal Act to seek to have another sentencing hearing which would probably result in their sentence being reduced.  Not only is Welch significant for the legal ruling, but it is significant because of how quickly the Supreme Court released it's opinion.  The opinion was released about 3 weeks after the oral arguments and was released on a Monday.  It is very unusual for the Supreme Court to release an opinion on a Monday.

The majority opinion was written by Justice Anthony Kennedy and the only dissent was by Justice Clarence Thomas.

For more information about the Chicago criminal defense attorneys at Legal Defenders, P.C., visit us at www.legaldefenderspc.com or call us anytime at 1-800-228-7295. 

Friday, April 15, 2016

Illinois Supreme Court Rules Police Can Pull Over Car for Avoiding Roadblock

The Illinois Supreme Court has ruled that police can pull over vehicles just for trying to avoid a police roadblock.  Jacob Timmsen was driving down US Highway 31 when he saw bright orange signs warning him that he was about to enter a police checkpoint.  Timmsen activated his turn signal and made a U-turn at a railroad crossing about 50 feet away from the roadblock.  There was nothing improper about the maneuver.  Timmsen properly used his turn signal and made an otherwise legal and proper driving maneuver.  In spite of the legal driving, a county deputy working the police roadblock checkpoint pulled over Timmsen merely because he suspected that he was trying to avoid the police roadblock.  After he was detained and interrogated by the deputy, it was determined that he was driving on a suspended license and placed under arrest.  After he was arrested the deputy searched his vehicle and found less than a gram of marijuana.  Timmsen was subsequently convicted and sentenced to 90 days in County Jail.  Timmsen appealed his conviction and the Appellate Court ruled in his favor finding that the maneuver made by Timmsen did not provide reasonable articulable suspicion that Timmsen had committed any crime and that exercising one's constitutional rights should not be used as evidence against them in a criminal prosecution.

The State appealed to the Illinois Supreme Court and the Supreme Court overturned the ruling of the Appellate Court and  ruled that the deputy had reasonable suspicion to make the stop and upheld the conviction of Timmsen.  The Court looked at the totality of the circumstances, mainly that the maneuver occurred at 1:15 am on a Saturday morning 50 feet from a checkpoint roadblock indicates more a probability that the driver was operating his vehicle under the influence of alcohol and attempting to avoid detection by the police.

This was a 5 to 1 decision with only 1 Justice dissenting.

The case is Illinois v. Timmsen and can be found here.

For more information about the Chicago criminal defense attorneys at Legal Defenders, P.C., visit us at www.legaldefenderspc.com or call us anytime at 1-800-228-7295.