Author Archives: Ken Wang

The Law of Unintended Consequences and SB3164

On August 19, 2016, Governor Bruce Rauner signed SB3164 into law.  The interesting part for me is the provision which amends 730 ILCS 5/5/-4-1 by adding section (b-1). It reads:

 (b-1) In imposing a sentence of imprisonment or periodic imprisonment for a Class 3 or Class 4 felony for which a sentence of probation or conditional discharge is an available sentence, if the defendant has no prior sentence of probation or conditional discharge and no prior conviction for a violent crime, the defendant shall not be sentenced to imprisonment before review and consideration of a presentence report and determination and explanation of why the particular evidence, information, factor in aggravation, factual finding, or other  reasons support a sentencing determination that one or more of the factors under subsection (a) of Section 5-6-1 of this Code apply and that probation or conditional discharge is not an appropriate sentence.

On its face, this is a bill which aids in criminal justice reform.  Class 3 and 4 felonies are extremely common offenses charged.  The intent is basically to say, “First time offenders shouldn’t get jail unless the Court reads a report”.  However, as I closely examine the wording of the statute, some interesting thoughts have come to mind.

First, if we can consider the words,

“[I]f the defendant has no prior sentence of probation or conditional discharge and no prior conviction for a violent crime[. . .]”

As a practical matter, that wording automatically excludes a large amount of felony Defendants.  Many have priors for “something”, be it disorderly conduct or driving while license suspended.  Just about the only thing that excludes is “straight convictions” on generally minor offenses.  The vast majority of Defendants who are not given Court Supervision are given either probation or conditional discharge.  The added wording, “no prior conviction for a violent crime” is as a practical matter nearly redundant.  With the exception of special circumstances (410 probation comes to mind)  Defendants who have been sentenced to probation or conditional discharge are by law adjudicated as convicted of the offense charged.  Thus, the only thing added for violent offenses is “straight convictions” for violent offenses, which is not is a very large group of potential Defendants.

The real problem is this section:

“[T]he defendant shall not be sentenced to imprisonment before review and consideration of a presentence report […]”

On its face, that is also a reasonable statute.  However, the reality is that there is a large group of defendants who are held in custody prior to sentence.  They are the Defendants who are indigent/poor.  For example, the Chicago Daily Law Bulletin published a criticism by Justice Anne Burke of the Illinois Supreme Court on December 11, 2015 about the mechanical way bond is decided in Cook County.  The Daily Herald also published a second criticism by Justice Anne Burke on August 22, 2016.  All those words can be condensed into this simple mental heuristic:  If it is a Class 4 Felony with no priors, bond is X.  If it is a Class 3 Felony with no priors, bond is Y.  Almost every Courtroom mentally applies the same thing and does not take into consideration the Defendant’s ability to pay.  DuPage County is much the same way as Cook County.  Such Defendants are essentially held in custody until a plea to “time served”.  How does that reality alter the intent of this statute?  There are two ways this could go:

Option 1:  Eligible in-custody Defendant pleads guilty and is not sentenced to incarceration, despite being in custody.  Therefore, they are not legally given their credit for time served (and the accompanying minor $5 per day financial credit towards fines owed).

Option 2:  Eligible in-custody Defendant pleads guilty, but must wait until a Pre-Sentence Investigation report (PSI) is completed prior to getting out.

If Option 1 is the legal route the Courts choose to take, then almost certainly the indigent Defendant is losing out on any credit for time served, and any financial reduction in terms of fines owed.

Perversely, if Option 2 is the legal route, the Defendant is held in custody for longer than if this statute did not exist, under the guise of helping him.  We call this the law of unintended consequences.

In other words, this statute does not do much because most Defendants are not qualified for it.  Those Defendants who are qualified typically would have gotten a sentence of conditional discharge or probation and community service work the first time around.  Perhaps Sheriff’s Work Alternative Program (SWAP).  On the other hand, those Defendants who are indigent but qualified are actually somewhat stinted.

In the grand scheme of things, I rate this new statute as not moving the needle of criminal justice reform very far in either way.  It looks great on paper, but it won’t do much in courthouse of reality.  If anything, it may discourage the State from amending Class 1’s and 2’s down to Class 3’s and 4’s for first time offenders, because the State would be prohibited from seeking jail time as part of the bargain.

How many Defense Attorneys have heard, “I’ll amend it down to a Class 4 if they take 14 days in jail” before?

Despite 730 ILCS 5/5-3-1 reading:

A defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court.

The proper response from the experienced Criminal Defense lawyer to that statute, and this new statute is, “We will waive the PSI, Your Honor.”  The cold reality is that adding more procedures does not automatically mean adding to procedural due process.

Driving Under the Influence of Cannabis

I have had a chance to consider the new DUI Cannabis statute.    There appears to be several flaws which should be corrected.  The flaws are revealed when a real-life example of “What if?” is used.

As described in my DUI section, under the old Illinois Supreme Court case of People v. Martin, 2011 IL 109102 (2011), any amount of THC in the system was enough to prove a DUI.  The State did not have to prove impairment at all.  The old (a)(6) DUI citations were a statutory per-se bar against driving while any amount of cannabis was in the system.  Under the new (a)(7) provision, the State must now show that the concentration of THC in the whole blood of a driver was equal to or over 5 ng/ml within two hours of driving.  The per-se bar has been moved upwards from “0” to “5” ng/ml under the new statute.

Hypothetically speaking, suppose a driver is under the influence of marijuana in Naperville, Illinois.  The local Naperville Police Department stops the driver on Ogden Avenue and believes there is probable cause to perform a forced blood draw.  The police diligently read the new Warning to Motorist to the allegedly intoxicated driver.  The driver slowly considers (due to recently consuming pot) his options and eventually decides to refuse permission for the police to put a needle in his arm.  The Naperville City prosecutor duly prepares a warrant and wakes up the on-call Dupage County Judge for a signature.  The Court finds there is probable cause to believe a warrant should issue.  The police then transport the Defendant to the local Edwards Hospital.  Everybody waits for a licensed phlebotomist to be available.  Eventually, a person qualified to perform blood draws becomes available and a test is administered.  The total time that has elapsed since the Defendant last drove is two hours and one minute.  The Defendant tests positive, with 15 ng/ml in his whole blood.  The City charges the Defendant with the (a)(7) DUI ticket.  The Defendant hires an attorney.  What happens?

The new DUI cannabis provision reads:

625 ILCS 5/11-501(a) A person shall not drive or be in actual physical control of any vehicle ithin this State while:  (7) the person has, within 2 hours of driving or being in actual physical control of a vehicle, a tetrohydrocannabinol concentration in the person’s whole blood or other bodily substance as defined in paragraph 6 of subsection (a) of Section 11-501.2 of this Code. Subject to all other requirements and provisions under this Section, this paragraph (7) does not apply to the lawful consumption of cannabis by a qualifying patient licensed under the Compassionate Use of Medical Cannabis Pilot Program Act who is in possession of a valid registry card issued under that Act, unless that person is impaired by the use of cannabis. (Emphasis added)

The new Section 11-501.2 provision now reads:

6. Tetrahydrocannabinol (THC) concentration means either 5 nanograms or more of delta-9-tetrahydrocannabinol per milliliter of whole blood or 10 nanograms or more of delta-9-tetrahydrocannabinol per milliliter of other bodily substance.

Under this scenario, the City of Naperville is unable to prove the (a)(7) DUI violation because it took longer than two hours to administer the drug test.  The law requires the test to have been administered within two hours of the driving.  The City’s only way to prosecute is to show impairment under the old (a)(4) provision.  In other words, it actually benefits certain DUI drivers to refuse, hold out, and be marginally obstructive because the prosecution only has two hours to get a search warrant for blood.  A search warrant for blood is required under the U.S. Supreme Court Opinion of Birchfield v. North Dakota.  Under the Birchfield opinion, the Supreme Court held that the State could not criminalize the refusal to give blood because a blood test was more intrusive than a breath test.  Phrased differently, Illinois cannot criminalize the refusal to give blood.

In certain circumstances, the entire process to perform a DUI test, including the refusal, will be so inefficient and lengthy that the new (a)(7) cannabis prosecution will be impossible.  The hypothetical intoxicated driver will not be the first person left waiting to see a health care professional at the hospital, and they will not be the last person left waiting.  Two hours is not a particularly lenient amount of time to initiate a traffic stop, perform standardized field sobriety testing, read the warning to motorist and be refused, seek a search warrant, get the search warrant granted, transport a driver to the hospital, find a licensed health care provider who can draw blood, and actually test the blood.  The traffic stop alone, and the performance of SFST’s usually takes at least 30 to 45 minutes.

A second loophole appears to be a drafting oddity.  The key words to focus on are, “Within two hours of driving”.   As a hypothetical, suppose a local Naperville driver is driving along Rt-59.  Rt-59 has one of the highest rates of accidents in Illinois.  The not-impaired driver’s car crashes into the pedestrian, killing said pedestrian.  In a panic, not-impaired-driver races home and smokes a bowl of weed to settle down.  The DuPage County Sheriff’s Department arrives, arrests the driver, and tests the driver within the two hour time limit.  The driver tests positive because cannabis metabolizes into THC very quickly.  The Sheriff’s Department issues the driver the (a)(7) citation.  What then?

Experienced lawyers will recognize this as the classic and not uncommon DUI-alcohol defense where the defense is that the alcohol was consumed after the driving.  Using such a defense, the State must prove the Defendant was drunk at the time he was driving.  However, the new wrinkle is that it appears to be possible to prosecute a new DUI cannabis charge by first driving while sober, then smoking cannabis, and then later testing positive.  The new statute only seems to require the driving to have occurred within two hours of the positive drug test, not that there was cannabis in the Defendant’s system while driving.  Phrased another way, the State does not have to prove the Defendant was under the influence of cannabis at the time of driving, they must only show the Defendant had a positive blood test within two hours of driving.  The Defendant could have been completely sober while driving and still be legally and legitimately given a DUI ticket.

In such a situation, the proper course of action for the experienced criminal defense lawyer may be to file a motion challenging the constitutionality of the new DUI law.  The challenge would be an “as applied” challenge, and not a facial challenge to the statute.  The standard of proof would probably be the rational basis test.  Ultimately, it would have to be established that there is a rational relationship between using cannabis two hours after driving, and the safety of citizens on the road.

That may be extremely difficult to show.

Illinois Decriminalizes Minor Amounts of Marijuana

Earlier today, July 29, 2016, Governor Bruce Rauner of Illinois signed Senate Bill 2228 into law.

There are several main provisions to which particular attention should be paid to:

#1.  Under Section 99 of SB2228, the Act takes effect upon becoming law, which means it is effective immediately.

#2.  The Illinois Cannabis Control Act (720 ILCS 550/4) was amended to provide the following:

  • Unlawful Possession of Cannabis less than 2.5 grams became a civil law violation with a mandatory minimum fine of $100, and a maximum fine of $200. (Changed from <2.5 grams is a Class C Misdemeanor).
  • Unlawful Possession of Cannabis less than or equal to 10 grams became a civil law violation with a mandatory minimum fine of $100, and a maximum fine of $200. (Changed from 2.5 grams to 10 grams being a Class B Misdemeanor).
  • Unlawful Possession of Cannabis more than 10 grams but not more than 30 grams became a Class B Misdemeanor (Changed from 10 grams to 30 grams being a Class A Misdemeanor).
  • Unlawful Possession of Cannabis more than 30 grams but not more than 100 grams became a Class A Misdemeanor (Changed from 30 grams to 500 grams being a Class 4 Felony).
  • Unlawful Possession of Cannabis more than 100 grams but not more than 500 grams became a Class 4 Felony (Changed from 30 grams to 500 grams being a Class 4 Felony).

#3.  The Drug Paraphernalia Control Act (720 ILCS 600/3.5) was amended to provide that any paraphernalia seized along with a civil law amount of cannabis (less than or equal to 10 grams) also became a civil law violation with a minimum fine of $100 and a maximum fine of $200 (Changed from a Class A Misdemeanor with a minimum fine of $750 and a maximum fine of $2,500 along with the potential for 12 months imprisonment).  Paraphernalia which is seized along with a misdemeanor amount of cannabis (More than 10 grams) remains a Class A Misdemeanor.  *Interestingly enough, that means if you have paraphernalia on you, it is better to have 10 grams or less of cannabis on you too in case you get caught, because you will only face a civil ordinance violation.  If you have paraphernalia and no cannabis with you, it appears to still be a Class A Misdemeanor.  It is somewhat anomalous that a person possessing a pipe and a minor amount of cannabis is punished less than a person possessing the a pipe alone.

#4.  The Criminal Identification Act (20 ILCS 2630/5.2) was amended to provide that all civil law violations for the Cannabis Control Act or the Drug Paraphernalia Control Act are to be automatically expunged on January 1 and July 1 of each year starting 180 days from today (July 29, 2016).

#5.  Most Driving Under the Influence (625 ILCS 5/11-501) charges now have some additional minimum limitation on the usage of Cannabis.   For example, the previous statutory bar on driving while Cannabis is present within the system has been amended to testing positive for tetrahdydrocannabinol concentration of either 5 nanograms or more of delta-9-tetrahydrocannabinol per milliliter of whole blood, or 10 nanograms or more of delta -9-tetrahydrocannabinol per milliliter of other bodily substance.  The test must be conducted within 2 hours of the Defendant driving.  This could potentially lead to an odd result, because a person who takes the test 3 hours from driving and still over the limit would theoretically not be chargeable under the new DUI section.

#6.  CDL holders are still barred from having any amount of THC in their system.

#7.  Civil law ordinance violations for cannabis now have a lower burden of proof which admits cannabis into evidence based upon a properly administered field test or opinion testimony of a properly qualified peace officer (725 ILCS 5/115-23).

#8.  The Juvenile Court Act (705 ILCS 405/5-125) is amended to provide that records pertaining to municipal or County ordinance violations, is to be kept confidential.  There are quite a few “OV” cases where the Defendant was under the age of 18 that are currently openly displayed online.  If this act is to take effect immediately, than it appears any Circuit Clerk that keeps violations online may be in jeopardy of violating the Juvenile Court Act confidentiality provisions.

These are some of the main changes that SB2228 has implemented.  There are a few other changes that have not been mentioned in this post.  Attorneys who represent clients with pending cannabis or paraphernalia related charges should consult SB2228 carefully.

The next question is what effect on pending/previous charges does the new statute have?  Taking into consideration the holding of People v. Glisson, 782 N.E. 2d 251 (2002), section 4 of the Statute on Statutes probably saves DUI (a)(6) prosecutions because the (a)(6) prosecution is a vested right and the repeal of the section is substantive in nature.  However, the sentencing range for cannabis and paraphernalia charges is now likely in the civil violation range.

*Edit (8/19/2016):  Special thanks to Jeff Hall over at Hall, Rustom & Fritz and Sam Partida over at Illinois Case Law Updates for being the best people to work together through the implications of the new statute.  Jeff has a fantastic and detailed write-up of the new statute, and Sam has a great podcast that has a guest star of yours truly.*

People v. Minnis, 730 ILCS 150/3(a), and the Facially Unconstitutional Challenge

I attended the oral arguments for the criminal law case of People v. Minnis, number 119563, today before the Illinois Supreme Court.  The oral arguments were held at Benedictine University, in Lisle, Illinois.

The issue raised in Minnis was “[W]hether the First Amendment is violated by 730 ILCS 150/3(a), which requires that a registered sex offender report all “Internet communications identities” and URL’s which he or she uses or plans to use and all blogs or other sites which the registrant maintains or to which he or she has uploaded any content or posted information, because the statute chills expressive activity that is protected by the First Amendment and is not limited to communications which concern the legitimate State interest of protecting the public and minors.”  In Minnis, a juvenile who was originally adjudicated delinquent for a class A misdemeanor offense and required to register under the criminal sex offender registration law subsequently failed to register his Facebook account several days after uploading a new profile picture.  The juvenile had provided the information in previous registrations but forgot to list Facebook in his most recent registration.  The Defendant was later charged with a class 3 felony in McLean County, Illinois.  The trial court found the statute unconstitutional. The challenge to the statute was two-fold, unconstitutional as applied and facially unconstitutional.  For the purposes of this article, I am going to disregard the unconstitutional as applied argument and focus on the facial challenge.

A facial challenge is a challenge to a statute in which the plaintiff alleges that the legislation is always unconstitutional.  The best argument which immediately struck me upon listening to oral arguments was not raised before the Court in oral arguments.  I have not had a chance to go through the briefs to determine whether it was raised in any brief.  However, it is a relatively clear challenge.

Under 730 ILCS 150/3(a),

             “A sex offender […] shall […] register in person and provide accurate information as required by the Department of State Police.  Such information shall include […] all e-mail addresses, instant messaging identities, chat room identities, and other Internet communications identities that the sex offender uses or plans to use, all Uniform Resource Locators (URLs) registered or used by the sex offender, all blogs and other internet sites maintained by the sex offender or to which the sex offender has uploaded any content or posted any messages or information.

In oral arguments today, there was a brief mention about jurisdiction and whether the Court lacked jurisdiction to address the section regarding e-mail addresses, instant messaging identities, chat room identities, and other Internet communications identities that the sex offender uses or plans to use, or the URL’s section.  The sole argued challenge referencing unconstitutionality as applied was with respect to the requirement that the Defendant register all blogs or other internet sites to which the sex offender has uploaded any content.  Setting aside jurisdictional issues, the first step in the analysis is to determine whether the First Amendment is implicated.

Under prior case law, anonymity and posts are considered protected speech.  Therefore, the statute, at the very least, does implicate protected speech rights.  The next step in the analysis is to determine whether the statute is content neutral.  The statute does appear to be content neutral, because it does not control what speech was made, it merely requires notification of where the speech was made.  Because the statute implicates the First Amendment, the most favorable potential standard of review for the State in this case is probably intermediate scrutiny, which would require the statute to further an important governmental interest, and the means used to regulate the speech must be substantially related to the interest. Under the Defendant’s claim of strict scrutiny, the State would be required to show a compelling governmental interest, the law is narrowly tailored to achieve the goal or interest, and that the means used is the least restrictive means available.

However, It is my belief that the sex offender registration requirement law fails even under rational basis review, which merely requires a law to be rationally related to a legitimate governmental interest.  In this case, the oral argument appeared to mix the facial challenge via the “overbreadth doctrine” of First Amendment jurisprudence, as described in People v. Clark, and the “as applied” challenge of future chilling of free speech by this Defendant.  Under the overbreadth doctrine, a law may be invalidated as unconstitutional if a substantial number of its applications are unconstitutional.

In the facially unconstitutional challenge that I raise, all first time registrants must provide the following information:

“All Uniform Resource Locators (URLs) registered or used by the sex offender, all blogs and other internet sites maintained by the sex offender or to which the sex offender has uploaded any content or posted any messages or information.”

  The phrase, “All blogs and other internet sites which the sex offender has uploaded any content or posted any messages or information” is almost completely a subset of the phrase, “All Uniform Resource Locators used by the sex offender”, with the exception certain specialized internet applications such as FTP. Most importantly, there is no limitation on how far back in time a registrant must provide information.  As compared to the phrase “uses or plans to use” as written earlier in the law, the phrase “used” is in the past tense.  “Used” requires the registrant to provide all websites the registrant has historically used.

In legal terms, the statute strips the anonymity of speech which was protected and made prior to conviction, and also requires a registrant to provide every website that they have ever visited prior to being legally required to keep track of their internet browsing history.  The failure to do so subjects every single registrant to a class 3 felony.

Phrased in plain English, all sex offenders must remember and register every single website they have ever visited since they were born.  Every webpage that they have ever typed a single word into must be revealed.  The failure to register any website means they could go to the Illinois Department of Corrections for up to five years.

Under such a reading of the statute, it seems a stretch for the State to even satisfy a rational basis standard of review. The information sought, being an entire lifetime’s worth of internet surfing, is so minimally related to the harm sought to be protected against, being the dual prongs of community safety and assisting officers in their investigations.  If we look at recent Supreme Court holdings, the Court has been slowly recognizing that a tremendous portion of a person’s life can be accessed through their electronic data.  See: Riley v. California.  It is hard to see how registration of every website a Defendant visited twenty years ago is rationally related to a legitimate government interest.   

The statute has problems even if we  only look specifically at the section of the statute which Minnis challenged – All blogs and other internet sites which the sex offender has uploaded any content or posted any messages or information.  Under this requirement, the State argued that “content” meant only other images or other files.  However, “content” is not defined in the statute.  “Content”, in fact, is every bit of information entered.  For example, if I visit and I type in “Baseball”, I have uploaded the search string, “Baseball”, as content to a search engine, which will then return my results.  Thus, I must list Google as a website I have uploaded content to.  That applies to every website I have input information to.  For example, if a Defendant were to personally donate to the NRA, under the “Money is speech” analysis, the entering of any credit card information is also speech which requires reporting.

To cast this matter in a different light, if the statute is designed to safeguard over the “internet community” a defendant frequents, then the statute fails as overbroad because it watches over every single location a defendant has ever visited in their entire lifetime.  The real world equivalent to that would be for the Defendant to be required to remember and report each and every single word they have ever spoken or place they have gone to, including instances which occurred prior to them being placed on the Sex Offender Registry.

We can examine this case at the limits of prosecutorial discretion by considering a hypothetical.  The offense is committed at the time of the failure to register, not the time of the internet usage.  In other words, suppose a Defendant used two webpages in their past and has never visited them again.  It does not matter which two.  The Defendant fails to register either webpage.  The State later obtains a copy of the computer the Defendant used pursuant to the terms of probation and discovers the failure to register.  The State duly charges the Defendant with a class 3 felony for failing to register the first webpage, and the Defendant is later convicted of the same.  At the next registration period, the Defendant fails to register the second webpage.  The failure to register the second webpage constitutes a new offense which was committed subsequent to the first offense, subjecting the Defendant to an extended term eligible ten years in the Illinois Department of Corrections.  I believe it was brought up in oral arguments that the Defendant could be required to register up to four times in one year.  Therefore, the Defendant can be convicted of up to four felonies per year for the rest of their life.

I sincerely hope this argument was raised in the briefs presented to the Court.

10/21/2016 Update:

The arguments presented above were not contained within the briefs.  The Illinois Supreme Court issued their opinion today.  People v. Minnis Opinion.  The basic analysis follows my analysis exactly, up to the decision that content neutral intermediate scrutiny was appropriate.  From there, it diverges because the argument presented to the Court was only that the previous years information required reporting, instead of the argument that all information without limitation to time was subjected to reporting.  It is unfortunate that none of the arguments above were presented to the Illinois Supreme Court, because they would have substantially broadened the “class” of innocent conduct which was required instead of being limited to only one year.  However, that is one of the basic aspects of the legal system – The Court only issues an opinion based on the arguments before them, not what the arguments could have been.

6/19/17 Update:

The U.S. Supreme Court has come down with its decision of a similar issue in Packingham v. North Carolina. The issue in Packingham was based upon the same type of challenge. The distinguishing factor between Packingham and Minnis is that Packingham was prohibited from even visiting social media websites, whereas Minnis requires registration from each website visited. At first, that would appear to be quite the distinguishing factor. However, I think it makes the Minnis case a much closer decision because Packingham essentially states there is not enough purpose to ban people from social media websites. If that is the case, and the speech is neutral and permitted in value, what is the purpose of making each Defendant, especially a juvenile, register their internet usage? At the very least, it seems to provide a small leg for those challenging Minnis to stand on.