YOUR RIGHT TO COMMUNICATE WHILE IN POLICE CUSTODY IN ILLINOIS

 

Under 725 ILCS 5/103-3.5, you have the right to communicate free of charge with an attorney of your choice and members of your family as soon as possible upon being taken into police custody, but no later than 3 hours after arrival at the first place of detention. You must be given access to a telephone to make 3 calls. If you are moved to a new place of detention, your right to make 3 calls within 3 hours of arrival is renewed.

If police violate these rights, your statements to them are presumed inadmissible as evidence. However, the state may overcome this presumption by showing that your statement was voluntarily given and is reliable based on the totality of the circumstances.

The 3-hour rule does not apply if you are asleep, unconscious or otherwise incapacitated or if an exigent circumstance prevents the officers from complying. The police report must then document the exigent circumstance. Once the exigent circumstance ends, the right to make 3 phone calls within 3 hours resumes.

The police must display a notice of your right to the 3 calls and may also have to display the phone number of the public defender, where available.  Police must maintain records of the number of calls you made, when you made them, and the reason why if you did not make calls.

Before this law took effect on 1/1/22, police could hold you a “reasonable time” before allowing you to make phone calls.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email  matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

 

Posted in Uncategorized | Comments Off on YOUR RIGHT TO COMMUNICATE WHILE IN POLICE CUSTODY IN ILLINOIS

CAN I BE CONVICTED OF DUI IF I DIDN’T TAKE ANY FIELD SOBRIETY TESTS?

The answer depends on your specific circumstances.

Did your driving show impairment?  Did you behave in a calm and controlled manner with police?  Were you stumbling to get out of the car?  Is your voice slurred on the evidence video?

On or about your first court date, your attorney will request any evidence that the state may have on you.  The evidence will likely include a video of your arrest.  The video should show what happened during the police stop and may even show your driving.  After viewing the video, your attorney can better assess if the state will be able to prove all the elements of the DUI beyond a reasonable doubt.  If not, you may want to take your case to trial.

Bear in mind  if the police later obtain a blood or breath test showing you were above the .08 limit, the lack of field sobriety tests might not matter. However, an attorney can also evaluate whether police had probable cause to stop or arrest you.  If not, the attorney can bring a motion to suppress the evidence from your stop, which, under limited circumstances, may result in the judge dismissing your case.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email  matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

 

Posted in Uncategorized | Comments Off on CAN I BE CONVICTED OF DUI IF I DIDN’T TAKE ANY FIELD SOBRIETY TESTS?

IS MY DUI COURT HEARING ON ZOOM?

Zoom Court was first initiated in response to the COVID-19 pandemic.  Court business could thus continue, while keeping everybody safe.  Now, effective New Years Day, 2023, the Illinois Supreme Court has made remote hearings permanent.  Revised Illinois Supreme Court Rule 45 governs the use of Zoom going forward.

For criminal or traffic matters that do not involve the possibility of jail or prison time, you may be able to attend all court hearings on zoom, except for: (i) evidentiary hearings, other than ex parte evidentiary hearings (such as emergency order of protection hearings); (ii) settlement conferences; (iii) bench trials; (iv) jury trials; and (v) any type of case or proceeding exempted from remote participation.

In criminal cases (including DUI) involving the possibility of jail or prison time or juvenile delinquency, you may appear by zoom without advance court approval for: (i) initial appearances; (ii) initial or subsequent appearances in juvenile delinquency matters at which continued detention of a minor will be determined; (iii) status hearings; (iv) waiver of a preliminary hearing; (v) arraignments on an information or indictment at which a plea of not guilty will be entered; (vi) presentation of a jury waiver; (vii) non-evidentiary hearings; and (viii) hearings conducted under the Sexually Violent Persons Commitment Act (725 ILCS 207/1 et seq.) at which no witness testimony will be taken.”

In criminal cases involving the possibility of jail/prison time or juvenile delinquency, you must appear in person unless the judge approves otherwise for:  “(i) Negotiated pleas; (ii) Evidentiary hearings; (iii) Sentencing hearings; (iv) Probation revocation hearings; (v) Arraignments or other proceedings or appearances at which a plea of guilty will be entered; (vi) Hearings conducted under the Sexually Dangerous Persons Act (725 ILCS 205/0.01 et seq.); (vii) Bench trials or stipulated bench trials; and (viii) Any case type or proceeding type exempted from remote participation in accordance with paragraphs (b)(2) and (b)(7).”

Jury trials must also be in person, except witnesses in certain situations may be allowed to testify on zoom.

The chief judge of your county may exempt particular types of cases from zoom court as he or she deems necessary.  A judge may also require you to appear in person for reasons special to your case.  The judge must then inform you on the record that you are required to do so.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

 

Posted in Uncategorized | Comments Off on IS MY DUI COURT HEARING ON ZOOM?

DID POLICE HAVE PROBABLE CAUSE BEFORE YOUR ARREST?

Before you can be arrested for DUI, police must have probable cause.  But at what point are you considered under arrest?

In Illinois, you are under arrest when your freedom of movement has been restrained by means of physical force or a show of authority. To determine when that happened, a court looks at: (1) the officer’s intent to make the arrest, and (2) your understanding, based on an objective standard of reasonableness, that you were under arrest. Probable cause cannot be justified by the evidence found after your arrest.

For example, in People v. Workheiser, the defendant took one field sobriety test but refused others, at which point, the officer handcuffed him and told him he was under arrest.  The defendant then agreed to perform the other tests. The court held that the results of testing after the arrest could not be used to determine probable cause.  Unfortunately for the defendant, the court still found probable cause for the arrest based on his poor driving, slurred speech, admission of drinking and fumbling and dropping his wallet.

If you have been charged with DUI or similar offense, contact an experienced attorney immediately.  An attorney can review your case for your best possible defense.  Did police follow procedure during your arrest?  If not, an attorney can bring a motion to suppress the results of an illegal arrest. If successful, the court could, in limited circumstances, dismiss your DUI.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

 

Posted in Uncategorized | Comments Off on DID POLICE HAVE PROBABLE CAUSE BEFORE YOUR ARREST?

CAN POLICE SEARCH MY CAR BECAUSE I’M NERVOUS?

Without more, the answer is probably not.  Under Illinios law, nervousness by itself does not give an officer probable cause for the search.

While most police searches require a warrant, there is an exception for automobiles. Under that exception, law enforcement officers may perform a warrantless search if there is probable cause to believe that the automobile contains evidence of criminal activity that the officers are entitled to seize.  The fact you may have made furtive movements is not enough by itself to provide probable cause.

Your furtive movements may have an innocent explanation, such as that you were trying to reach the glove compartment for your car’s registration or you wanted to turn the radio down. To constitute probable cause, a “furtive gesture” must be “invested with guilty significance” either because the officer knows specific information or the officer has observed additional suspicious circumstances.

In  People v. Randall, the defendant showed both furtive movements and nervous behavior: Defendant had entered an intersection with a red light, his front passenger tire went up on the curb as he pulled over and he began to exit the vehicle before placing it in park. The court did not find the defendant’s nervousness to be significant.  Such nervousness, the court said, would be expected of any citizen who was pulled over for a minor traffic infraction, removed from the car, handcuffed and patted down within less than 1 1/2 minutes of the stop.  However, the court did not ultimately conclude as to whether probable cause existed for the initial search of a vehicle.

If you have been charged with a criminal or traffic offense, contact an experienced attorney immediately.  Was the search of you or your automobile legal?  Determining probable cause is a highly fact-based inquiry, and different judges may view the same facts differently.  An attorney who is familiar with your courthouse may be able to present your facts to your particular judge in their most favorable light.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

 

Posted in Uncategorized | Tagged , , | Comments Off on CAN POLICE SEARCH MY CAR BECAUSE I’M NERVOUS?

CAN POLICE SEARCH MY HOSPITAL ROOM WITHOUT A WARRANT? PART II

In our April 20, 2021 post, we discussed People v. Pearson in which the court held that police could not search a defendant’s hospital room without a warrant because the defendant had a reasonable expectation of privacy in his hospital room.  (Can Police Search My Hospital Room Without a Warrant?)

But a later Illinois Appellate case shows how specific facts viewed by a particular judge can reach a different outcome.  This is why it is important to hire an experienced attorney who is familiar with your courthouse and can present your facts in their best possible light to your specific judge.

In  People v. Turner, after discussing the Pearson case, the court concluded that defendant Turner did not have a reasonable expectation of privacy in his hospital trauma room. Thus, police could seize any evidence in plain view without a warrant.

The Turner court looked at many of the same factors set out in our April 20 post. But in this case, the court decided that while defendant was legitimately present in the trauma room to seek medical treatment, none of the other factors weighed in his favor.  The defendant did not own or have a possessory interest in or have prior use of the trauma room.  The hospital, rather than the defendant, had control over the room and the ability to exclude others from it.  Defendant was in the trauma room for two hours to be medically assessed. All told, this did not establish a legitimate expectation of privacy.

A slight change in the facts or a different judge hearing the same facts might have come to a different conclusion.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

 

Posted in Uncategorized | Comments Off on CAN POLICE SEARCH MY HOSPITAL ROOM WITHOUT A WARRANT? PART II

CAN AN OFFICER SEARCH YOUR CAR BECAUSE OF SOMETHING THAT IS IN PLAIN VIEW?

You were driving to a friend’s one night when police pulled you over for a broken headlight.  Noticing a bag of white powder on the floor, the officer suspected you had illegal narcotics.  She searched your car, taking the baggie.  You then were arrested for a narcotics offense.

Can police search your car without a warrant?  What can you do?

Under Illinois law, an officer who lawfully stops your vehicle and has probable cause to believe you have contraband may lawfully search any closed containers within your car that might reasonably contain that contraband. An officer may properly seize evidence without a warrant if: (1) the officer was lawfully in a position to view the evidence, (2) the evidence’s incriminating character was immediately apparent, and (3) the officer had a lawful right of access to the object itself.

For example in People v. Villareal, police stopped a car in which defendant was a passenger over a missing front license plate.  The officer smelled cannabis, and another passengers gave the officer two full bags.  The officer searched the defendant’s purse, found her fake ID and arrested her for a series of related offenses.

The state argued the search was legal because the purse was a closed container that could have reasonably contained the cannabis. During the search, the fake ID entered plain view.  The legality of the search came down to whether the officer recognized the ID’s incriminating character before or after he removed it from the purse.  The officer testified he could tell it was fake as soon as he saw it.  Based on that, the court upheld the search.

If you are charged with a crime or traffic offense, contact an experienced attorney immediately.  An attorney can review your case for your best possible defense.  Did the officers have probable cause to stop the car?  Could the container reasonably contain the suspected contraband?  For example, an officer searching for a gun cannot look inside a tiny box.  Was the incriminating nature of the evidence immediately apparent?  If there is white powder on the passenger seat, is it obviously cocaine or could it be powdered sugar from a donut?

The legality of a search is a highly fact specific question.  Different judges can view those facts very differently.  An attorney who is familiar with your courthouse may be in a better position to judge how to present those facts to your particular judge.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

 

Posted in probable cause | Tagged | Comments Off on CAN AN OFFICER SEARCH YOUR CAR BECAUSE OF SOMETHING THAT IS IN PLAIN VIEW?

WHAT IS AGGRAVATED FLEEING OR ATTEMPTING TO ELUDE A POLICE OFFICER?  

In Illinois, fleeing and eluding a peace officer means that the officer signaled you to stop and you willfully failed to obey, increased your speed, extinguished your lights or otherwise fled or attempted to elude the officer.  The officer must be in uniform, and if the officer is driving, his or her vehicle must flash its lights when used with a horn or siren.  (See 625 ILCS 5/11-204).

Your offense becomes aggravated if you do any of the following when trying to escape:

  • drive speeding more than 21 miles over the limit,
  • you commit more than $300 in property damage,
  • you cause bodily injury,
  • you disobey more than two traffic control devices, or
  • you conceal or alter your vehicle’s registration.

(See 625 ILCS 5/11-204.1).

Fleeing and eluding becomes a Class 4 felony on your third or later offense. However, aggravated fleeing and eluding is a Class 4 felony on a first offense.  For both offenses, the Secretary of State can revoke your driver’s license, and the police may seize your car.

If you are charged with aggravated fleeing and eluding or a similar offense, contact an experienced criminal or traffic law attorney immediately.  An attorney can review your case for your best possible defense.  As with most crimes, the state must prove you guilty of all the elements of the offense beyond a reasonable doubt.  Was the officer in uniform?  Did the officer display the proper signals?  Was your failure to obey willful or was there a legitimate reason you failed to stop?  Did you really try to get away or were you looking for a safe place to pull over? Can the state prove you caused the damage and that the damage exceeded $300?  Or that you altered the vehicle’s registration?

Even if the evidence against you is overwhelming, an attorney who is respected in the courthouse may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

 

Posted in violation | Tagged , | Comments Off on WHAT IS AGGRAVATED FLEEING OR ATTEMPTING TO ELUDE A POLICE OFFICER?  

CAN AN OFFICER SEARCH MY CAR BASED ON THE SMELL OF MARIJUANA?

UPDATED March 28, 2023

The legalization of recreational marijuana has caused some confusion regarding its effect on DUI laws.  Furthering the confusion, the different appellate courts appear to disagree.  The Fourth District Appellate Court in People v. Hall and People v. Molina maintains that the smell of marijuana by itself is enough to establish probable cause to search a vehicle. (The Fourth District is based in Springfield and covers 41 downstate counties.)  In contrast, the Third District Appellate Court (covering Bureau, DuPage, Grundy, Iroquois, Kankakee, LaSalle and Will counties) has held that smell without corroborating factors is not enough.  This decision is likely to be revisited as the issue remains a complex one.

Below we discuss a case out of the Third District.

Effective January 1, 2020,   410 ILCS 705/10-10  permits  Illinois residents 21 years or older to possess no more than 30 grams of cannabis, 500 milligrams of tetrahydrocannabinol (THC) in a cannabis-infused product, or 5 grams of cannabis concentrate. Possessing more than those amounts or delivering any amount remains illegal. You also may not possess cannabis in a vehicle unless it is in a “reasonably secured, sealed container and reasonably inaccessible while the vehicle is moving.”

In People v. Stribling, an officer stopped the defendant’s car for disobeying a traffic law.  Based on the strong odor of burnt cannabis and defendant’s statement that someone had smoked inside the vehicle “a long time ago,” the officer searched defendant’s car. The court held that the officer did not have probable cause for the search.  It was legal for the defendant to smoke cannabis and drive as long as the concentration in his blood or urine did not pass the threshold amount for DUI. The evidence did not show that the officer had any concerns with the defendant’s blood concentration or that there was any impaired driving.

With the changes brought about by the Cannabis Regulation and Tax Act, cases holding that the odor of burnt cannabis without other corroborating evidence is sufficient to
establish probable cause  are no longer applicable.  (See People v. Redmond.)

If you have been charged with DUI or a similar offense, contact an experienced attorney immediately.  An attorney can review your case for your best possible defense.  Did the officer have probable cause to stop or search you?  Can the state prove all the elements of the offense beyond a reasonable doubt?  Even if the search and stop were legal and the evidence against you is overwhelming, an attorney who is respected in the courthouse may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

Posted in Uncategorized | Tagged , , | Comments Off on CAN AN OFFICER SEARCH MY CAR BASED ON THE SMELL OF MARIJUANA?

WHAT IS THE CRIME OF “FICTITIOUS OR UNLAWFULLY ALTERED DRIVER’S LICENSE OR PEMIT” IN ILLINOIS?

There are a host of offenses that can be either a Class A Misdemeanor or a Class 4 felony if you knowingly possess or display a fictitious or unlawfully altered driver’s license or permit.  (See 625 ILCS 5/6-301.1).  Simply possessing such a license is a Class A Misdemeanor on a first offense and a Class 4 felony on a later offense.

It is also a Class 4 felony if you possess or display that altered license under any of the following circumstances:

  • You wanted to obtain an account, credit, credit or debit card from a bank, financial institution or retail store
  • You committed any other crime which can be sentenced to more than one year in prison.
  • You intended to commit a theft, deception, or credit or debit card fraud in violation of any law of this State or any law of any other jurisdiction;
  • You did so while in possession without authority of any document, instrument, or device capable of defrauding another;
  • You did so intending to acquire any other identification document;
  • to knowingly issue or assist in the issuance of any fictitious driver’s license or permit;
  • You knowingly alter or attempt to alter any driver’s license or permit;
  • You knowingly manufacture, possess, transfer, or provide any identification document whether real or fictitious for the purpose of obtaining a fictitious driver’s license or permit;
  • You purchase or attempt to purchase any ticket for a common carrier or to board or attempt to board any common carrier;
  • You have a license that is suspended or revoked.

Later violations of the above are a Class 3 felony.

If you are charged with a fictitious driver’s ID or similar offense, contact an experienced criminal law attorney immediately.  An attorney can review your case for your best possible defense.  As with most crimes, the state must prove you guilty of all elements of the offense beyond a reasonable doubt.  Was the search that uncovered the ID legal?  Did you commit the offense knowingly?  Even if the search was legal and the evidence against you was overwhelming, an attorney who is respected in the courthouse may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

 

Posted in Uncategorized | Comments Off on WHAT IS THE CRIME OF “FICTITIOUS OR UNLAWFULLY ALTERED DRIVER’S LICENSE OR PEMIT” IN ILLINOIS?