Korematsu and its Progeny

Justice Scalia’s favorite opinion was the dissent in Korematsu by Justice Robert Jackson. Justice Jackson wrote regarding Korematsu:

[O]nce a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens . . . The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.

Justice Antonin Scalia acknowledged that Korematsu was wrongly decided, and yet he also believed that the Korematsu decision could realistically be upheld in the future. He noted that, “In times of war, the laws fall silent.” It was an acknowledgement that the law is an ideal which bends at the behest of reality.

Justice Scalia also believed that the phrase “Such-and-such case and its progeny” was once a wonderfully vivid description which had become overused and cliché. However, consistent with the Japanese culture of adoption, Korematsu may have adopted a logical progeny in Trump v. Hawaii.

The Supreme Court wrote that, “[The law] exudes deference to the President in every clause.” The Court asserted, “Any rule of constitutional law that would inhibit the flexibility […] of the President to respond to changing world conditions should be adopted only with the greatest caution…and our inquiry into matters of entry and national security is highly constrained.”  [emphasis added] The conventional review would only look to see if any proposed law was facially legitimate and bona fide, and yet the Court also considered whether the policy was plausibly related to the Government’s stated objective to protect the country. It noted that a law would only be struck down if the laws at issue “lack any other purpose other than a bare desire to harm a politically unpopular group.”

In contrast to the Masterpiece Cakeshop decision, the Court declined to truly search for any animus and truthfully only looked at the face of the executive order.  Going further, Justice Kennedy wrote in his concurrence, “There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention.” Yet, the full context of his concurrence echoes the dissent of Justice Jackson:

If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history

Hence, Justices are ostensibly willing to look beneath the bare face of an order, but are unwilling to see what was truly lurking beneath.

Here, the Court disclaimed the holding of Korematsu while simultaneously adopting the deferential reasoning which underpinned Korematsu. The majority wrote:

Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and –to be clear- has no place in law under the Constitution.

Yet Justice Scalia would have astutely held that conservative judicial philosophy requires holding that Korematsu is not before the Court and therefore the Korematsu disclaimer is of no import. The actual holding would have been the same rationale which Korematsu was based on – The eyes of the law may be blindfolded by the cloth of national security. Any cloth is acceptable, including whole cloth.

This is an example of many eyes looking, but few eyes truly seeing. Rot can begin on the inside and crumble even the strongest of foundations while concealed from sight by the thin veneer of political due process.

Perhaps there is no longer any place in this country for substantive due process.  Yet, for the Lady of Justice to truly measure a society on the scales of principle, she must first be willing to take off her blindfold and see with caring eyes. If she is unwilling to take off her blindfold then she will rule by the sword and not by the scale.

Only take heed to thyself, and keep thy soul diligently, lest thou forget the things which thine eyes have seen.

-Deuteronomy 4:9 (Ironic)

Our eyes have never seen it. We are unwilling to believe it until we see it. And by then, our eyes will deceive us.


UUW/Aggravated UUW Gun Laws Unconstitutional Again

On February 2, 2018, I predicted the Illinois Supreme Court holding for People v. Chairez would cause trouble for the unlawful use of a weapon/aggravated unlawful use of weapon (UUW/AUUW) laws regarding firearms in close proximity to special locations.

People v. Chairez struck down the portion of the unlawful use of a weapon statute which prohibited firearms within 1000 feet of a public park. It appeared that the UUW/AUUW law which prohibited firearms within 1000 feet of a public school was indistinguishable from the law which prohibited firearms within 1000 feet of a public park.

On June 14, 2018 in People v. Green, the 1st District Illinois Appellate Court struck down the prior unlawful use of a weapon statute as unconstitutional based on the logic of Chairez. The Illinois Appellate Court used “elevated intermediate scrutiny” for their standard of review, which required the State to show a “very strong” public-interest justification for the regulation and a close fit between the law’s means and its ends. The elevated standard of review was used because firearm regulation implicates core 2nd Amendment rights. The State was unable to meet their burden by merely showing evidence of firearm violence inside of schools. The Court required the State to produce specific evidence which showed that a 1000 foot zone of safety was effective prior to striking down the statute. Ironically, such evidence would be extremely difficult, if not impossible, to produce without a law prohibiting firearms within 1000 feet of a protected location. Future enactments of the same statute would likely need to rely on research from other jurisdictions.

Importantly, the logic of People v. Green was the previously predicted simple extension of the logic in People v. Chairez, namely:

While a gun owner can simply choose not to enter locations deemed sensitive, it is manifestly more difficult to avoid areas within 1000 feet of those locations, particularly given that there is no notification where the restriction zone begins or ends. Indeed, the ban at issue here, just as the ban 1000 feet around public parks at issue in Chairez, effectively operates as a total ban on the carriage of weapons for self-defense outside the home in Chicago.

People v. Green, 2018 IL App (1st) 143874.

Perhaps most importantly, the Illinois Supreme Court striking down the unlawful use of a weapon/aggravated unlawful use of a weapon statutes on constitutional grounds means that prior convictions for the same may be subject to a motion to vacate – clearing the name of many current criminals. Much like other statutes that have been struck down on constitutional grounds, there are many people who have been convicted under the unlawful use of a weapon/aggravated unlawful use of a weapon statute which may qualify to have their convictions be undone by the filing of a proper motion.

Guns within 1000 ft of public park law ruled unconstitutional

Defendants who have been charged or convicted of unlawful use of weapons charges involving firearms within 1000 feet of a public park (and potentially some other locations) could have their cases overturned or dismissed based upon the new Illinois Supreme Court ruling in People v. Chairez, 2018 IL 121417.

The Illinois Supreme Court held in People v. Aguilar, 2013 IL 112116 that portions of the law concerning unlawful use of weapons, 720 ILCS 5/24-1, were unconstitutional. In legal terms, sections of Unlawful Use of Weapons/Aggravated Unlawful Use of Weapons law were declared v”oid ab initio”. The Aguilar decision was followed by People v. Mosley, 2015 IL 115872.

According to 725 ILCS 5/24-1(c)(1.5),

A person who [commits the offense of unlawful use of weapons] on any public way (road) within 1000 feet of real property comprising any school, public park, courthouse, public transportation facility, or residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development commits a Class 3 felony.

Chairez specifically held that possessing a firearm within 1000 feet of a public park was unconstitutional based upon intermediate scrutiny. The Illinois Supreme Court held that Chairez was a facial challenge to the statute, and that the statute violated a Defendant’s core 2nd Amendment right to possess a firearm with respect to parks, but reserved ruling on the other locations. However, the logic of Chairez can be easily extended. One of the primary issues is that there is no notice for what is a public park. Similarly, 1000 feet is a substantial distance for schools, public transportation facilities, and public housing agencies in an urban location. I suspect a map with overlapping circles in Chicago would cause almost every area to be within 1000 feet of a school, courthouse, public transportation facility, or public housing agency property. After all, a “public transportation facility” could potentially include every subway station in Chicago. That would prevent any meaningful exercise of a Defendant’s Second Amendment rights.

Here is a freehand drawn map of only the first page of Chicago schools listed on Google. There are many more pages of schools. As you can see from the number of schools, it would be nearly impossible to move in Chicago without violating the law in some manner.

Areas within 1000 feet of Chicago Schools

A similar map appears if you draw a 1000 foot circle around every “M” public transportation facility. Urban density makes it impossible for the Second Amendment rights to be exercised.

Locations where I suspect there is a stronger probability that it is still permissible to restrict firearms include near courthouses. Comparatively speaking, it is less likely that the prohibition against firearms at public transportation facilities or public housing agency property  will survive a direct challenge.

As when Aguilar and Mosley were decided, it seems likely that future post-conviction petitions alleging the unlawful use of weapons/aggravated unlawful use of weapons (UUW/AGG UUW) statute as applied to parks is unconstitutional will be successful. People who have been convicted of the charge in Kane, Kendall, Will or DuPage Counties should highly consider retaining an attorney to vacate their previous convictions by contacting us.


Crime-Fraud Exception and the Illinois Mental Health Confidentiality Act

Under the Illinois Mental Health and Developmental Disabilities Confidentiality Act, 740 ILCS 11/3 (et seq.),

All records and communications shall be confidential and shall not be disclosed except as provided in this Act. Unless otherwise expressly provided for in this Act, records and communications made or created in the course of providing mental health or developmental disabilities services shall be protected from disclosure regardless of whether the records and communications are made or created in the course of a therapeutic relationship.

Further, under section (10)(a),

[E]xcept as provided herein, in any civil, criminal, administrative, or legislative proceeding . . . a therapist on behalf and in the interest of a recipient, has the privilege to refuse to disclose and to prevent the disclosure of the recipient’s record or communication.

At first glance, the Illinois Mental Health and Developmental Disabilities Confidentiality Act acts as an absolute statutory privilege for mental health care professionals. The privilege can be asserted by the therapist, and act to prevent the disclosure of records. There are some statutory exceptions to the Act. However, it is more interesting to consider a potential non-statutory exception to the act. The common law Crime-Fraud exception. What happens when the therapist has been personally accused of a crime involving their patients?

Historically speaking, the Crime-Fraud exception has only been applied to attorney client confidentiality. One situation it can be applied in is when the attorney has been personally accused of a crime. The Crime-Fraud exception has been used to permit searches of attorney law offices, so long as certain procedures are followed (which will not be discussed here). Historically speaking, the Crime-Fraud exception has deep roots in cases such as Clark v. United States, 289 U.S. 1 (1933), which held that the Crime-Fraud exception applies to jurors as well as attorneys.  More important than the specific holding of Clark though, is the rationale of Clark, as well as many other Federal and Illinois State cases.

Assuming there is a privilege [. . . ], we think the privilege does not apply where the relation giving birth to it has been fraudulently begun or fraudulently continued. [ . . .] The privilege takes as its postulate a genuine relation, honestly created and honestly maintained. If that condition is not satisfied, if the relation is merely a sham and a pretense, the juror may not invoke a relation dishonestly assumed as a cover and cloak for the concealment of the truth.

Clark continues,

We turn to the precedents in the search of an analogy, and the search is not in vain. There is a privilege protecting communications between attorney and client. The privilege takes flight if the relation is abused. A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law.

This rationale is continued in the recent Illinois Supreme Court case of People v. Radojcic, 2013 IL 114197 (2013). In Radojcic,

“The rationale underlying the Crime-Fraud exception is intimately connected to the nature of the attorney-client relationship. [ . . . ] in seeking legal counsel to further a crime or fraud, the client does not seek advice from an attorney in his professional capacity.

In other words, the fatal crack in the armor to the defenses provided by the Illinois Mental Health and Developmental Disabilities Confidentiality Act may be the same crack for juror confidentiality and attorney-client confidentiality. In seeking counsel to further a crime or fraud, the client does not seek advice from a service provider in their professional capacity.

When viewed in this light, there may be a crime-fraud exception to the Illinois Mental Health and Developmental Disabilities Confidentiality Act. As we examine section (3) more closely, we see that records and communications made or created in the course of providing mental health or developmental disabilities services shall be protected from disclosure. Hence, records may not be protected if the assertion is that the records or communications were not made in the course of providing mental health treatment, but were in fact made in the course of committing a crime. Similarly, “Record” is defined in the code as being kept in the course of providing mental health services.

Therefore, the trick to getting around the juror privilege and the attorney-client privilege could potentially also be used to get around the confidentiality provisions of the Illinois Mental Health and Developmental Disabilities Confidentiality Act.

Phrased another way, records which are made in furtherance of crime may not be records made or created in the course of providing mental health or developmental disabilities services. The confidentiality act does not apply because the therapist is not truly acting in their professional capacity.

Can the common law Crime-Fraud exception negate the privilege provided by the Illinois Mental Health and Developmental Disabilities Confidentiality Act? Only time will tell. It does not seem there is any published opinion regarding the Crime-Fraud exception and the Illinois Mental Health Confidentiality Act. Therefore, the brief argument here may be a case of first impression one day in the future!

First Time Weapon Offender Program

On January 1, 2018 the Illinois Code of Criminal Procedure will have a new first offender program to deal with young Defendants who are charged with Unlawful Use of Weapons (UUW) or Aggravated Unlawful Use of a Weapon (Agg UUW). Under the new First Time Weapon Offender Program, 730 ILCS 5/5-6-3.6, the Court may defer the proceedings against an offender for 18 to 24 months. If the Defendant complies with all requirements, the Court may then discharge and dismiss the proceedings against the person. This is a form of deferred sentencing scheme similar to First Offender Probation, along with Section 410/Section 10 probations.

 Under the law, the Defendant will NOT qualify for the First Time Weapon Offender Program if:

(1) The offense is a Class 3 felony or greater; or

(2) The offense was committed during the commission of a violent offense (Defined as: Any offense in which bodily harm was inflicted or force was used against any person or threatened against any person; any offense involving the possession of a firearm or dangerous weapon; any offense involving sexual conduct, sexual penetration, or sexual exploitation; violation of an order of protection, stalking, hate crime, domestic battery, or any offense of domestic violence.) ; or

(3) He or she has had a prior successful completion of the First Time Weapon Offender Program; or

(4) He or she has previously been adjudicated a delinquent minor for the commission of a violent offense; or

(5) He or she is 21 years of age or older; or

(6) He or she has an existing order of protection issued against him or her; or

(7) The State’s Attorney does not consent to the placement to the Defendant in the program.

If the Defendant is placed within the program, he or she will be required to fulfill conditions in order to successfully complete the First Offender Program. The conditions of the First Time Weapon Offender Program shall be that the defendant:

(1) not violate any criminal statute of this State or any other jurisdiction; and

(2) refrain from possessing a firearm or other dangerous weapon; and

(3) obtain or attempt to obtain employment; and

(4) attend educational courses designed to prepare the defendant for obtaining a high school diploma or to work toward passing high school equivalency testing or to work toward completing a vocational training program; and

(5) refrain from having in his or her body the presence of any illicit drug prohibited by the Methamphetamine Control and Community Protection Act, the Cannabis Control Act, or the Illinois Controlled Substances Act, unless prescribed by a physician, and submit samples of his or her blood or urine or both for tests to determine the presence of any illicit drug; and

(6) perform a minimum of 50 hours of community service; and

(7) attend and participate in any Program activities deemed required by the Program administrator, including but not limited to: counseling sessions, in-person and over the phone check-ins, and educational classes; and

(8) pay all fines, assessments, fees, and costs.

The Program may, in addition to other conditions, require that the defendant:

(1) wear an ankle bracelet with GPS tracking; or

(2) undergo medical or psychiatric treatment, or treatment or rehabilitation approved by the Department of Human Services; or

(3) attend or reside in a facility established for the instruction or residence of defendants on probation.

Finally, there may only be one discharge and dismissal under this program. If the Defendant is convicted of any offense which occurs within five years subsequent to the discharge and dismissal, the discharge and dismissal shall be admissible in the sentencing proceeding for that conviction as evidence in aggravation.

These are some additional issues to consider which occurred to me as this article was being written:

(1) Although the age range of this program is essentially from 18 to 21, the educational requirement is that the Defendant complete high school, GED, or a vocational program. If the Defendant has already completed high school though, the only remaining condition option is that the Defendant shall attend educational courses to work towards completing a vocational program. That condition appears to specifically exclude a non-vocational college education. In other words, under the current law, a Defendant with a high school degree must attend a vocational training program, even if they have no intention to attend a vocational training program or are college bound. I look forward to determining how the DuPage County State’s Attorney’s Office and the Dupage County Court handles the Defendant who have graduated high school. I suspect the Court may simply accept proof of college attendance as “working towards completing a vocational training program”.

(2) Although the evidence of First Offender Weapon Probation may be considered “admissible” in subsequent proceedings, it may be insufficient to trigger additional sentencing scheme penalties which depend upon a prior conviction, such as extended term sentencing schemes, or the subsequent cannabis offense enhancements.


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.