Deferred Prosecution vs. Court Supervision vs. Conviction

Many clients have asked me what the difference is between a deferred prosecution agreement, court supervision, and a conviction. To make matters worse, there is a difference between a deferred prosecution agreement of a local city ordinance violations and a deferred prosecution agreement of a felony. There are also alternative dispositions such as TASC probation, adjudications and First Offender Probation. Further, there are differences between how the State and the Federal government handle dispositions. The basic question is, “How is my case going to turn out for my record?”

Most dispositions (case results) can be broken down into several groups: (1) A negotiated disposition prior to entry of any plea of guilty; (2) A disposition after a plea of guilty but before a judgment of conviction enters; (3) A disposition that involves a judgment of conviction subject to being vacated; and (4) Dispositions involving actual convictions.

Dispositions Prior to the Entry of Any Plea of Guilty

This category covers cases which were dismissed prior to any plea of guilty. It includes cases which the State has requested to nolle prosequi (declined to prosecute further), Stricken on Leave (AKA SOL, same effect as nolle prosequi, but is essentially unique to Cook County and without a true statutory basis), or dismissed by the Court. It also covers some ordinance violation dispositions agreed upon by your local prosecuting agency, such as the City of Naperville. In such situations, a private agreement is made between the local prosecuting agency and the Defendant, which does not involve a plea of guilty to the Court. It also does not result in a conviction under local Illinois law or Federal law.

Under Federal law, a “conviction” means,

    With respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where – (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

8 U.S.C. § 1101 (a)(48)

Therefore, there is no conviction under State or Federal law. because no plea of guilty is ever entered. The most common question here is, “Will this be on my record?” The answer is actually YES, as an “Arrest”. For the purposes of Illinois, it is taken off your record by expunging it. There is no statutory waiting period for expunging these cases, and the expungement will have the general effect of deleting the offense off your criminal history. However, until an expungement order has been entered, the case will still show in the local circuit clerk’s office and on detailed criminal histories.

Disposition After a Plea of Guilty but Before a Judgment of Conviction Enters

This category covers cases where there was a plea of guilty, but the Court deferred imposing a conviction. Technically, the charge is dismissed. In DuPage County, the most common type of disposition in this category is “Court Supervision”. Court Supervision is defined in 730 ILCS 5/5-1-21 as,

A disposition of conditional and revocable release without probationary supervision, but under such conditions and reporting requirements as are imposed by the court, at the successful conclusion of which disposition the defendant is discharged and a judgment dismissing the charges is entered.

Also included in this section is “Section 10″ probation” (720 ILCS 550/10) of the Illinois Cannabis Control Act, “Section 410″ probation” (720 ILCS 570/410) of the Illinois Controlled Substance Act,  “First Offender Probation” (730 ILCS 5/5-6-3.3),  and “Second Chance Probation”. (730 ILCS 5/5-6-3.4).

The important distinction here is this reuslt does not count as a conviction for Illinois purposes, but does count as a conviction for Federal purposes. (See: United States Citizenship and Immigration Services).

When an (Illinois) employer in this situation asks, “Have you ever been convicted of a misdemeanor or felony”, the technical answer is “no”, because you have not been convicted if you have been placed upon court supervision.

However, for the question, “Will this show up on my record?”, a good check will still answer “yes”. It will show up as a “Court Supervision”. This is contrary to the assertion of some attorneys who say it will automatically be off the Defendant’s record in X years. Law enforcement keeps track of court supervisions because they want to know when you are not a first time offender.

The typical expungement waiting period to clear your record for this situation is two years from the date the case is formally dismissed.

Disposition that Involve a Judgment of Conviction Subject to Being Vacated

This category includes TASC probation (20 ILCS 301/40-10(e)). Here, a conviction is formally entered on your record. It can be vacated after the probationary period has expired if the attorney files the proper paperwork ahead of time. It does initially count as a conviction for both State and Illinois purposes, but will not count as a conviction for the purposes of enhancing a penalty based upon prior offenses if the probationary period is successfully completed. It typically has special requirements for expungement.

Dispositions Involving Actual Convictions

This category includes “straight convictions”. It also includes sentences of “probation” and “conditional discharge”. It is the automatic result of most felony dispositions. When most people ask whether  a case will be on their record, this is one of the types that will officially be considered a conviction. The important parts are the “plea of guilty” and the “entry of a judgment of conviction”. This also includes most “Alford pleas”, or pleas of “Nolo Contendere” under North Carolina v. Alford, 400 US 25 (1970). These cases are frequently not eligible for expungement. However, such convictions can sometimes be sealed in certain circumstances.

 

Ultimately, the real questions being asked are:
(1) Is this a conviction? (It depends on your disposition)
(2) Is this a conviction for immigration purposes? (Yes, almost always if you plead guilty or entered a plea of nolo contendere).
(3) Will this show up on my criminal history or background check? (Yes, almost always unless it is expunged).


Ordinance Violation Fines and the Decriminalization of Paraphernalia/Cannabis

I have received several questions regarding the relationship between local city ordinances and the decriminalization of cannabis. For example, why can the City of Naperville charge $750 for an unlawful possession of drug paraphernalia ordinance violation, but the new law says the maximum fee is $200?

The standard defense lies in SB2228, now known as Public Act 099-0697.

(720 ILCS 550/17.5 new)

Sec. 17.5. Local ordinances.

The provisions of any ordinance enacted by any municipality or unit of local government which imposes a fine upon cannabis other than as defined in this Act are not invalidated or affected by this Act.

This is commonly cited as the provision by which all ordinance violations are unaffected. For example, Jeff Hall’s blog reads, “The provisions of any ordinance enacted by any municipality or unit of local government which imposes a fine upon cannabis other than as defined in this Act are not invalidated or affected by this Act. (emphasis Jeff’s)”. Indeed, even I have cited the exact same provision for the exact same proposition at Illinois Case Law Updates.

However, a close reading of PA 099-0697 is that this provision only saves fines which were imposed upon cannabis. Paraphernalia is not cannabis, and therefore 720 ILCS 550/17.5 does not apply to possession of drug paraphernalia. Does that mean the mandatory minimum fine is not $750?

I propose an alternative defense which begins with the question, from where does the local municipality derive its authority?

From 65 ILCS 5/1-2-1.1, which reads:

Sec. 1-2-1.1. The corporate authorities of each municipality may pass ordinances, not inconsistent with the criminal laws of this State, to regulate any matter expressly within the authorized powers of the municipality, or incidental thereto, making violation thereof a misdemeanor punishable by incarceration in a penal institution other than the penitentiary not to exceed 6 months. The municipality is authorized to prosecute violations of penal ordinances enacted under this Section as criminal offenses by its corporate attorney in the circuit court by an information, or complaint sworn to, charging such offense.

Here is the legal question – If a person is arrested with a low level amount of cannabis and drug paraphernalia, what is the maximum punishment the city can impose? Under 720 ILCS 550/17.5, the answer is $200. However, under 65 ILCS 5/1-2-1.1, the answer is the penalty set by the city ordinance. In Naperville’s case, the penalty is $750. (City of Naperville Code)

This is because the ordinance passed by Naperville is not “inconsistent with the criminal laws of this State”. It is merely inconsistent with the civil laws of this state, because paraphernalia found with cannabis is a civil law violation. Therefore, the penalty for ordinance violations of marijuana and drug paraphernalia is still appropriate when set by the local municipality. In other words, the authority to charge more for a drug paraphernalia or cannabis case is from the inherent power of the City to make its own ordinances.

As a practical matter, so long as it is a deferred prosecution agreement, you are not directly going through the court system and can thus “agree” to a fine of $750. Since deferred prosecution is better than any plea of guilty, criminal defense attorneys should leave this provision alone rather than argue that the provisions regarding the $200 maximum fine are part of the Illinois Criminal code.


Why Are Lawyers Sending Me Junk Mail After I’ve Been Arrested?

Hypothetical situation: You are cited for some offense such as underage drinking, unlawful possession of cannabis/paraphernalia, or retail theft by a local city prosecutor such as the City of Naperville. It could be an ordinance violation, misdemeanor, or felony.  Before the court date on your ticket for the Dupage County Courthouse located in Wheaton, your home address is suddenly flooded with junk mail from attorneys. The advertisements often display fearful language such as “jail” or “lose your driver’s license”. Worse yet, perhaps the mail landed in the mailbox of someone you would prefer to keep in the dark about your secret, such as your parents. Sound familiar?

You’ve just been the victim of “arrest mail spam”. Some of the spam is gentle. Some of the spam is designed to provoke fear. However, the goal for all of the spam is to turn you into another case for them.

 

How did they get my information?

Lawyers regularly pay third party services to obtain information from local police bookings, such as your name and registered address. They also search the public records of the Circuit Clerk’s office to see the most recent filings. Frequently, this information is published in the newspapers as part of a “Police Blotter”. It may look something like this:

 

 

Monday, April 10

Driving under the influence 

Addison Westmont, 27, of the 4000 block of Saratoga Avenue in Downers Grove, was arrested at 1:24 a.m. in the 1700 block of Naper Blvd. in Naperville, police said. She was charged with driving under the influence of alcohol, unlawful consumption of alcohol by a minor, and speeding. Her bail was $3,000.

 

From there, Ms. Westmont will receive arrest mail spam from lawyers advertising services for DUI. The advertisements may talk about saving her driver’s license or stopping her from going to jail. It may end up being seen by people such as her roommates, friends, or parents.

 

Is there anything I can do to stop them?

Unfortunately, much like the rest of junk mail, there is no easy way to stop the other attorneys from sending you the advertisements. The arrest mail spam will generally taper off in a few weeks. The reason every lawyer is sending you an advertisement is because attorneys have decided that arrest mail spam works. The only way to stop arrest mail spam is to make lawyers realize that they are spending too much money on junk mail and not getting enough clients from it.

This is a world where people prefer to avoid broadcasting the fact that they have been arrested. Attorneys should have their client’s best interest in mind. Therefore, attorneys who mail criminal law advertisements may jeopardize the privacy of any potential client, and also risk showing that they are more interested in getting a new client than treating their client’s concerns as #1.

Please feel free to contact us if you require legal assistance. We won’t contact you first.


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 Google.com 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.


Illinois Tobacco Products Tax Act and Micjo

This is an article which examines the Illinois Tobacco Products Tax Act of 1995 and Micjo v. Department of Business and Regulation, 78 So. 3d 124 (FL. 2nd Dist. 2012).  This is a situation where the Illinois Tobacco Products Tax Act and the Illinois Administrative Code interpretation conflict with each other as to the proper definition of “Wholesale Price”.

Applicable Rules

            35 ILCS 143/10-10 dictates that 36% of the “wholesale price of tobacco products sold” is the proper taxation rate.  “Wholesale Price” is defined according to 35 ILCS 143/10-5 as “[T]he established list price for which a manufacturer sells tobacco products to a distributor, before the allowance of any discount, trade allowance, rebate, or other reduction. In the absence of such an established list price, the manufacturer’s invoice price at which the manufacturer sells the tobacco product to unaffiliated distributors, before any discounts, trade allowances, rebates, or other reductions, shall be presumed to be the wholesale price.”  However, such tax “[I]s not imposed upon any activity in that business in interstate commerce or otherwise, to the extent to which the activity may not, under the Constitution and the Statutes of the United States, be made the subject of taxation by this State.”  35 ILCS 143/10-5 (2014).  (Emphasis added)

            86 Il. Admin. Code 660.5 (a) states that “[T]he Tobacco Products Tax is imposed upon the last distributor [. . . ] at a rate of 18% of the wholesale price of Tobacco products sold or otherwise disposed of in this state. (eff. 2010).  18% is the previous statutory tax rate prior to the amount increasing in July of 2012 to 36%, and the reference represents a non-updated administrative code provision.

            86 Il. Admin. Code 660.5 (d)(1) states that “[T]he Wholesale price for purposes of imposing the Tobacco Products Tax on the last distributor is the invoice price at which products are sold by the last distributor, before the allowance of any discounts, trade allowances, rebates, or other reductions.  Surcharges added by distributors are considered part of the wholesale price subject to tax. (Emphasis added)

Analysis

Under 86 Il. Admin. Code 660.5 (d)(1), the “Wholesale Price” is the invoice price, including any surcharges added by the distributor.  However, under 35 ILCS 143/10-10, the “Wholesale Price” is the list price, and does not make reference to any surcharges added by distributors.

            Although the Illinois Tobacco Products Tax act does not make any reference to any “surcharges” being included as part of the “Wholesale Price”, the Illinois Administrative Code purports to include all “surcharges added by the distributors.” A “surcharge” is defined as “to charge an extra fee.” (Webster 2014).  The Federal Tax appears to be a “surcharge” that has been added by a distributor on behalf of the Federal government.

            “List Price” is defined by Webster as “The basic price of an item as published in a catalog, price list, or advertisement before any discounts are taken.”

            Therefore, under the definition of “wholesale price” as provided for under the Illinois Administrative Code, the Wholesale Price is the total invoice price which includes the surcharge of Federal taxation.  Under the definition of “wholesale price” as provided for under the Illinois Tobacco Products Tax Act, the wholesale price is the established list price, prior to the addition of any surcharges.

            There do not appear to be any decisions or rulings from the Illinois Department of Revenue that explicitly answer what the proper calculation of “wholesale price” should be.  Although not directly on point, a supportive previous Illinois Department of Revenue private letter ruling on March 11, 2009  indicates that the proper tax base for the Tobacco Products Tax  should be the “established list price” equal to the actual invoice price.

            I believe the Florida Micjo decision is the correct structural analysis framework for interpreting the different definition of “wholesale price”.  In addition to the administrative code contravening the express statement of the statute, the administrative code interpretation includes as part of the “cost of pipe tobacco” federal taxation, resulting in a state tax levied upon a federal tax which bears no actual relation to the actual cost of the good sold.

The proper interpretation of “wholesale price” by the Illinois Department of Revenue should be as provided for by statute: “The established list price.”  The Administrative Code provision defaulting “wholesale price” to the “invoice price” should be overruled.

*Note – Article written in 2014.  This is the response from the Illinois Department of Revenue.


The interaction between 725 ILCS 5/112A-11.1, 725 ILCS 5/112A-11.2, and 18 U.S.C. 922 (g) (9)

This is an article which examines the interaction between 725 ILCS 5/112A-11.1, 725 ILCS 5/112A-11.2, and 18 U.S.C.  922 (g) (9).  It also highlights potential areas of concern in the interaction between the statutes.

725 ILCS 5/112A-11.1 states that,

  • “When a defendant has been charged with a violation of Section 12-1, 12-2, 12-3, 12-3.2, 12-3.4, or 12-3.5 of the Criminal Code of 1961 or the Criminal Code of 2012, the State may, at arraignment or no later than 45 days after arraignment, for the purpose of notification to the Department of State Police Firearm Owner’s Identification Card Office, serve on the defendant and file with the court a notice alleging that conviction of the offense would subject the defendant to the prohibitions of 18 U.S.C. 922(g)(9) because of the relationship between the defendant and the alleged victim and the nature of the alleged offense.” 725 ILCS 5/112A-11.1(a) (Emphasis Added)

  • “The notice shall include the name of the person alleged to be the victim of the crime and shall specify the nature of the alleged relationship as set forth in 18 U.S.C. 921(a)(33)(A)(ii). It shall also specify the element of the charged offense which requires the use or attempted use of physical force, or the threatened use of a deadly weapon, as set forth 18 U.S.C. 921(a)(33)(A)(ii). It shall also include notice that the defendant is entitled to a hearing on the allegation contained in the notice and that if the allegation is sustained, that determination and conviction shall be reported to the Department of State Police Firearm Owner’s Identification Card Office.” 725 ILCS 5/112A-11.1(b). (Emphasis Added)

  • After having been notified as provided in subsection (b) of this Section, the defendant may stipulate or admit, orally on the record or in writing, that conviction of the offense would subject the defendant to the prohibitions of 18 U.S.C. 922(g)(9). In that case, the applicability of 18 U.S.C. 922(g)(9) shall be deemed established for purposes of Section 112A-11.2. If the defendant denies the applicability of 18 U.S.C. 922(g)(9) as alleged in the notice served by the State, or stands mute with respect to that allegation, then the State shall bear the burden to prove beyond a reasonable doubt that the offense is one to which the prohibitions of 18 U.S.C. 922(g)(9) apply. The court may consider reliable hearsay evidence submitted by either party provided that it is relevant to the determination of the allegation. Facts previously proven at trial or elicited at the time of entry of a plea of guilty shall be deemed established beyond a reasonable doubt and shall not be relitigated. At the conclusion of the hearing, or upon a stipulation or admission, as applicable, the court shall make a specific written determination with respect to the allegation. 725 ILCS 5/112A-11.1 (Emphasis Added)

18 U.S.C. 922 (g) (9) states that,

“[It shall be unlawful for any person] who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”  18 U.S.C. 922 (g) (9)

Misdemeanor crime of domestic violence is defined in 18 U.S.C. 921 (a)(33)(A) as,

“Except as provided in subparagraph (C), the term “misdemeanor crime of domestic violence” means an offense that—

(i) is a misdemeanor under Federal, State, or Tribal law; and

(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim. “ 18 U.S.C. 921 (a) (33)  (Emphasis Added) [Note, there was no subparagraph (c) ever enacted]

I was doing a little bit more research on the interaction between 922 (g) (9) and 725 ILCS 5/112A-11.1 when I ran across U.S. v. Hayes, 555 U.S. 415 (2009)Hayes held that the existence of a domestic relationship, although it must be established beyond a reasonable doubt, need not be a defining element of the predicate offense to support a conviction for possession of a firearm by a person convicted of a misdemeanor crime of domestic violence.  Hayes instead held that the word “element” applied only to the phrase,  “use or attempted use of physical force”.  The entire U.S. v. Hayes opinion from the U.S. Supreme Court should be read, including Justice Robert’s dissent.  It actually surprised me that only Justices Roberts and Scalia dissented.

However, 725 ILCS 5/112-11.1 purports to apply when a defendant has been charged with a violation of Section 12-1, 12-2, 12-3, 12-3.2, 12-3.4, or 12-3.5 of the Criminal Code of 1961 or the Criminal Code of 2012, and that conviction of those offenses would subject the Defendant to the prohibitions of 18 U.S.C. 922 (g) (9).

720 ILCS 5/12-1 is the Illinois statutory citation for assault. 720 ILCS 5/12-2 is the Illinois statutory citation for aggravated assault. 720 ILCS 5/12-3 is the Illinois statutory citation for battery.  720 ILCS 5/12-3.2 is the Illinois statutory citation for domestic battery.  720 ILCS 5/12-3.4 is the Illinois statutory citation for violation of an order of protection.  720 ILCS 5/12-3.5 is the Illinois statutory citation for interference with the reporting of domestic violence.

An important factor to note is that no domestic relationship is an element to 720 ILCS 5/12-1, 12-2, or 12-3.  Indeed, the existence of a domestic relationship need not even be alleged.  Further, Sections 3.4 and 3.5 do not require as an element the use or threatened use of force.  By a narrow reading, even section 3.2 does not have as an element that the offense be committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim. Instead, section 3.2 only requires that the victim be a family or household member, which also includes relationships such as siblings, and dating and formerly dating relationships.  Although designated relationships of 18 U.S.C. 922 are a subset of the Illinois definition of family or household relationships, the Illinois family or household relationships are not a subset of 18 U.S.C. 922, and the burdens of complying with 18 U.S.C. 922 are higher than the burdens of complying with the Illinois statutes.

Therefore, 725 ILCS 5/112A-11 permits the State to file a notice with the Court an allegation that the provisions of 18 U.S.C. 922 would apply when the Defendant is charged with a variety of offenses, when only some situations contain sufficient elements such that 18 U.S.C. 922 is truly applicable.

In an attempt to harmonize the statutes, the Court may construe the statutes as permitting the State to file with the Court a notice that 18 U.S.C. 922 is applicable to a wide range of cases, but the State would be unable to prove that 18 U.S.C. 922 is applicable to any charge at the secondary hearing.  Alternatively, if the Court finds that the federal domestic relationship definition requires as an element a more narrow classification than the Illinois domestic relationship definition, and because only some Illinois domestic relationships satisfy the higher Federal burden instead of all Illinois domestic relationships, the statute is unsalvageable.

*Note – Article written in 2013.


Ground Rules

Hello. Welcome to my personal legal corner.  This is a section devoted to the discussion of legal issues. All content will be generated by me unless clearly marked otherwise.  All posts in this section are my own personal opinion. They should not be taken as legal advice.  No posts by me imply any creation of an attorney-client relationship.

Comments are welcome if they are constructive.  Unreasonable comments, as judged by me, will be deleted.

Most posts will only contain a partial analysis. They are not designed to be articles published for Law Review.  They will frequently require some background knowledge in the subject matter.  Other posts may merely attempt to examine common questions posed by legal practitioners or regular people.  Many posts may not reflect my personal opinion, and are instead positions taken as thought experiments or “devil’s advocate” positions.  All posts are “of their time”, and may not be updated to incorporate new legislation or case law.

With those disclaimers out of the way, I present an article I wrote in 2013 examining the interaction between 725 ILCS 5/112A-11.1, 725 ILCS 5/112A-11.2, and 18 U.S.C.  922 (g) (9).