Articles Posted in Criminal defense

clem-onojeghuo-173534-copy-300x205Shoplifting is classified under the theft statutes. The key provisions are contained in statutory instrument number 720 ILCS 5/16-1. It is at the lower end of the crimes of dishonesty but can still be prosecuted and lead to terms of imprisonment. Over the years, there have been many changes that were designed to reform the regime. For example, there are some new sophisticated techniques for shoplifting that may not have been covered by the original statutes in Chicago. That is why defense attorneys have to ensure that they are up to date with the latest versions of the law. This is one of the most prosecuted crimes not because of its seriousness but rather its frequency of occurrence. Shoplifting is an occupational hazard for marketplaces because there are always people who want to take things without paying for them.

Contrary to popular belief, this is not a crime that is consigned to the lower orders of society. Rather, it cuts across, and there have been instances of perfectly wealthy people who have been caught shoplifting. Sometimes, it is a case of temporary economic deprivation; other times, the defendant may be suffering from psychosocial problems such as kleptomania. It is imperative that the defense attorney explores all the possible explanations before the client is either found guilty or sentenced. The existence of a recognized condition might be a mitigating factor in such cases. It is also important to advise the client not to accept higher charges in order to avoid appearing in court because the resultant criminal record can become a hazard.

Protections for the Defendants

wil-stewart-24563-copy-300x200Public consumption is a controlled activity. The laws relating to public intoxication in Chicago are designed for the express purpose of protecting the public from the effects of alcohol and other drugs. In any case, anyone that is caught with a DUI and a blood alcohol level that exceeds 0.08 is immediately liable for prosecution. The open container laws mean that you can be charged even if you did not consume the product. The implicit assumption is that there is no other legitimate reason for opening a container of alcohol unless you intend to consume it. Clever defending attorneys may try to play about with the syntax of the statute but the spirit of the law is clear.

The statute states that it is illegal to transport, carry or possess any container with alcohol when they are within a passenger area of a car whilst on a highway. Those who are still opening cans of beer and placing them in the cup holder as they drive are actually committing an offense, even if they can prove to the court that they never actually drank the alcohol. Even more heinous is the idea of holding the can in one hand whilst driving. Not only does that break the rules on public consumption of alcohol, but it is also potentially dangerous driving, which is taken seriously by the courts.

A Complex Law that Captures Both Drivers and Passengers

patrick-schopflin-38860-copy-300x200Chicago has instituted a number of stringent requirements for children or minors being in possession of alcohol. The Minor in Possession (MIP) laws are unique in they focus on the one with parental or supervisory responsibility as being an exception clause. For teenagers, the MIP laws tend to capture those who are drinking and driving whilst under age. The penalties will typically also include the suspension of the driver’s license in order to reflect the specific circumstances in which this crime is committed. The law is written in such a way that you can be charged with Minor in Possession infringements even if you were not drinking at the time. The key constituent elements of the crime are all about carrying alcohol rather than just consuming it.

There has been some discussion as to whether the law has a built-in privacy provision that would protect dwelling places from prosecution. This is in addition to the usual political process of legislating. In reality, most of the enforcement takes place on the road or in bars/public drinking places. Unless the information about the crime was discovered during an alternative investigation, it is not a given that the law enforcement agencies will invade the privacy of your home in order to assess whether you are in contravention of the Minor in Possession laws. The specific wording of the law says that the law is intended to capture those who have alcohol on them in a public place or a place that is open to the public when they are not 21 years of age.

Possible Penalties and Sanctions

aaron-burden-149693-copy-300x225Although Chicago would like to make itself a friendly place for businesses, there are some types of businesses that will never be welcomed here. One of them is telemarketing fraud, an infringement on consumer protection laws. This offense has gotten the attention of legislative bodies and the wider legal community because it affects communities in a big way. A particularly resourceful criminal can defraud a whole segment of the community and leave them in difficult circumstances. It is for this reason that the offense is recognized as being serious and attracts prosecutorial interest whenever the facts are proven. Underpinning the law is the expectation that businesses will follow a code of ethics. Unfortunately, there are some industries that do not abide by such a code.

The self-regulation model has failed in a world of cutthroat competition. Those who play by the rules end up being priced out of the market whilst those who are taking consumers for a ride are given an expressway to seemingly insurmountable success. The law is clear about the obligations to sell in an honest manner, regardless of the temptation to take competition to its zenith. The victims are typically trusting and vulnerable. These have always been aggravating features in virtually any crime that you can think of in Chicago. The courts have continued the tradition of punishing those offenders who target the most vulnerable.

Reporting and Gathering Evidence

markus-spiske-153537-200x300The internet is a mixed blessing from a legal point of view. On one hand, it can open up opportunities for trade beyond anything that we have ever seen. On the other hand, it opens up the possibility for some modern crimes such as wire fraud in Chicago. It is important to note that this is a federal offense, even if the local law enforcement agencies in Chicago may be involved in the prosecution process. A conviction can lead to significant fines and a long term of imprisonment (see the Alan Gold case). The courts respond to public outcries about white collar crime defendants who are able to get away with large scale offenses and yet the judges are limited by sentencing guidelines from imposing the harshest terms of imprisonment.

Special circumstances apply if the crime is committed against a financial institution, thereby denting public confidence in the system. In such cases, the defendant may be sent to jail for up to 30 years. The lengthy investigative process has sometimes been associated with an enhanced flight risk. Therefore; the defending attorney will have to address issues of bail quite early on. Then comes the long investigative process during which the facts themselves might appear to be overwhelming the case. The prosecutor will be able to ask for a number of documents and witness statements under court order. The defense will also ask for documents to examine substantive and procedural defects in the prosecution’s case.

Moving to Discovery

benjamin-voros-160962-300x200One of the current and most insidious forms of harassment is cyber bullying. It is now recognized as a serious crime in Chicago and prosecutors are highly motivated to go for those that continue doing it under the auspices of instrument number 720 Ill. Comp. Stat. § 5/12-7.5. The problem with such cases is the degree of difficulty in actually proving that everything happened as the victim described. Institutions such as schools have come up with bespoke policies that are designed to manage the risks. Some local ordinances demand such measures as a prerequisite to being licensed.

Some defense attorneys have expressed concern that the zeal to prosecute may lead to a violation of the defendant’s civil liberties. What was once accepted as normal conflict between and amongst teenagers is now a crime that can land someone in jail. Others point out that the resultant criminal record is an overly excessive punishment for the crime. On the other hand, it is noted that cyber bullying can lead to serious consequences for the victim including self-harm and even suicide on some occasions.

Key Ingredients of the Crime

jack-young-143113-300x200Making terrorist threats is a serious crime that can lead to significant terms of custody. This is particularly true in this age of international terrorism, which has the capability of harming thousands of people. The global definitions hold sway. Interestingly, the law is rarely used in Chicago, not least because the controls put in place make it difficult for people who are that way inclined to hurt the rest of the population. There are instances in which the law has been used to suppress free speech and protest. For example; there was some public outcry when people who had been protesting against NATO were prosecuted. Other defense attorneys have argued that the law may be written in such a vague way that it opens the way for eventual abuse.

This is a law of which the public at large is critical. Terrorism causes terror and that is the beginning point of the prosecution. This criterion is also being modified in order to reflect the realities of a crime that is still in its development stages. For example, a threat made in jest whilst on a plane is bound to cause significant stress nonetheless. Therefore, the prosecutor will be given leeway to prosecute based on the reasonable expectations and anticipations of the people that are on the airplane. Indeed, it would be advisable not to make any threats at all because they could fall under other criminal laws.

Credibility of the Threat

w33-zg-dnl4-rami-al-zayat-300x200Revenge porn is a crime that is gaining prominence in the age of social media. The law in Chicago took some time to catch up with the reality that some victims were being exposed to serious danger. By 2015, the state legislature had decided to write a law that set out the parameters for an effective prosecution. The leading instrument is 720 ILCS 5/11-46. At the moment revenge porn is considered to be a felony offense. In actuality, Chicago is in the minority when it comes to jurisdictions that have finally started criminalizing this type of behavior. Illinois is noted as the state with the strictest laws in this category. The crux of the offense is sharing nude or compromising images and videos of a person without his or her consent. One must have the unequivocal consent of a person in intimate images before those images can be shared.

It is entirely possible that images which are not extremely explicit can be considered to be part of a revenge porn offense. The charge can stick even if the person had originally consented to the recording of the image but was then unaware that the image was going to be distributed. Defense lawyers have argued that the definition is too wide and gives the court way too much discretion in determining what constitutes revenge porn. Chicago has different from other states in important ways as follows:

  • The intention to cause harm is not necessary for the charge to stick. All that is required is that the images or videos were distributed. Malicious intent can be an aggravating factor but its absence does not remove the charge.

ben-white-194220-copy-300x200The state will always interfere in domestic relationships if there is a threat of harm or actual harm to one of the parties. The most common trigger for a prosecution is physical violence. However, lately there has been some consideration of what other forms of abuse might mean for legislation in Chicago. Currently there are some civic domestic violence laws that are focused on both physical and non-physical forms of abuse. Sexual abuse between domestic partners is normally handled under the legislation covering sexual assault and rape.

Most members of the public will first hear about a domestic violence case by way of an order of protection, which is sometimes accompanied by relevant restraining orders. It is important to note that these orders can be issued by the criminal courts as well as the civil courts. The Illinois Domestic Violence Act is the leading piece of legislation covering this area. The act is known for covering many relationship types beyond marriage including but not restricted to:

  • Former spouses

Hilulaohaio-225x300Chicago has sought to deal with the increasing problem of hate crime using legislative means. The provisions of the Illinois Hate Crime Act (IHCA), 720 ILCS 5/12-7.1, are the leading authority on the management of the criminal process. The act creates an imperative on the state to prosecute but does not explicitly remove the opportunity for private civil cases to take place. Many victims take the opportunity to sue for damages, even when the aggressor is a public authority or their representatives. The range of options for the court includes actual damages, punitive damages, and additional costs, including attorney fees. At other times, the court may offer injunctive relief in order to stop the offending behavior from happening.

The criteria for what constitutes a hate crime can be fluid and those who offend have often used the ambiguity of definitions in order to attempt a get-out-clause for their behavior. Typically, they will claim that this is a case of freedom of speech, which is constitutionally guaranteed. For those who actually go on to commit acts of violence, the case is much simpler since the prosecutor can go for the assault line of questioning and later prove that hate-inspired motives were at play. A crime becomes a hate crime when it is motivated by perceived creed, race, color, gender, ancestry, religion, sexual orientation, disability, nationality and even membership of a particular group. Bigotry is at the heart of this crime and will be part of the Mens Rea during the prosecution.

The Importance of the Motivating Factors