Category Archives: Criminal Law

Illinois Informant Testimony

Illinois will have a new rule of criminal procedure effective January 1, 2019. The statute is 725 ILCS 5/115-21. It is not retroactively effective (21(g)) The rule of criminal procedure deals with informant testimony, otherwise known as “snitch testimony”. When capital punishment existed in Illinois, this statute protected Defendants by providing for a hearing to determine the reliability of the informant testimony because the informant may be testifying for improper reasons. The Illinois legislature has now amended the law so that it applies to non-capital cases. A breakdown of the major issues is as follows:

This rule only applies to “informant” testimony, which means it must be (1) an admission; (2) made by the accused to the informant; (3) while the informant is detained or incarcerated; (4) in a penal institution contemporaneously. (21(a))

Although there may be some dispute as to the meaning of the word “penal institution”, it is probable that the provided definition will control in general circumstances unless overridden in the section specific statute (See: 720 ILCS 5/2-14 including jails compared to 720 ILCS 5/24-1.1 (b) , 720 ILCS 5/31A-1.1(g), and 720 ILCS 5/11-9.2(g)(1) implying penal institution is Department of Corrections). Therefore, the informant must be incarcerated at the same time as the Defendant and does not apply if the informant was free at the time of the statement.

The rule only applies to a limited number of offenses, namely: 720 ILCS 5/9-1 (First Degree Murder), 1.2 (Intentional Homicide of an Unborn Child), 2 (Second Degree Murder), 2.1 (Voluntary Manslaughter of an Unborn Child), 3 (Involuntary Manslaughter and Reckless Homicide), 3.2 (Involuntary Manslaughter and Reckless Homicide of an Unborn Child), 3.3 (Drug Induced Homicide), 11-1.30 (Aggravated Criminal Sexual Assault), 1.4 (Predatory Criminal Sexual Assault of a Child), and 20-1.1 (Aggravated Arson. (21(b))
The rule requires disclosure at least 30 days prior to a relevant evidentiary hearing or trial
(1) The complete criminal history of the informant;
(2) Any deal, promise, inducement, or benefit that the offering party has made or will make in the future to the informant;
(3) The statements made by the accused;
(4) The time and place of the statements, the time and place of their disclosure to law enforcement officials, and the name of all persons who were present when the statements were made;
(5) Whether at any time the informant recanted that testimony or statement and, if so, the time and place of the recantation, the nature of the recantation, and the names of the persons who were present at the recantation;
(6) Other cases in which the informant testified, providing that the existence of such testimony can be ascertained through reasonable inquiry and whether the informant received any promise, inducement, or benefit in exchange for or subsequent to that testimony or statement; and
(7) Any other information relevant to the informant’s testimony. (21(c))

Further, the burden is on the prosecution to disclose 30 days before any relevant evidentiary hearing or trial and have the Court conduct a hearing to determine whether the informant is reliable. According to section (d), the burden is on the state to show by a preponderance of the evidence that the informant’s testimony is reliable. (21(d))

In addition, the Court is permitted to toll a Defendant’s speedy trial period upon good cause show if informant testimony was not well known prior to the 30 day notice period in order to set a reasonable notice period. (21(d-5))

Finally, if there is a lawful recording of the incriminating statement made by the accused, OR of a statement from an informant to law enforcement or the prosecution, including any deal or other benefit offered to the informant, the accused is permitted to request a reliability hearing (21(e)).

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.

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.

6/19/17 Update:

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