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Did you know that chasing a person in your car can get you arrested for aggravated assault in Illinois? Two Chicago-area residents recently learned this the hard way when they were arrested and charged with felony aggravated assault.

A Wilmette man was charged for allegedly trying to run over a man who chased after his vehicle. And a Hazel Crest woman was charged in downtown Chicago after an alleged attempt to slam her car into a bicycle police officer. A conviction on felony aggravated assault charges carries prison time and hefty fines, so it is important that you contact an experienced Chicago aggravated assault attorney to help build your defense.

In Illinois a person commits simple assault when he puts another person in fear of receicar-chase-937355-mving a battery. No actual harm or physical contact is required – it is enough that the other person was afraid of being harmed or touched.

Like simple assault, aggravated assault does not require physical contact between you and the alleged victim. The “aggravated” element can come in to play if a weapon was used during the assault. In Illinois, the definition of weapon includes a vehicle, if it was used in a manner that threatened to harm another person – and attempting to run somebody over is enough for the police to make an arrest, as the two individuals in the news stories above learned.

The penalties for a conviction are steep and include minimum prison terms. Felony aggravated assault with a vehicle is a Class 4 felony punishable by one to three years in prison. If the assault is against a police officer, it is a Class 3 felony, and is punishable by three to five years in prison. Both also carry the possibility of up to a $25,000 fine.

Defending Against Aggravated Assault with a Vehicle

In a case involving assault charges, the first step would be to determine whether an assault actually occurred. If the alleged victim’s fear of injury was not reasonable, then no assault occurred, and the charges might be dismissed. If the assault did occur, then the defense attorney must determine whether the aggravating factors were actually present. If they weren’t, then the charges could be reduced to simple assault.

In the case of the Wilmette man, who allegedly tried to back over the other person, an experienced criminal defense attorney would look at whether the driver could actually see the other person in his rear view mirror. If the driver did not know the man was back there, then he cannot be considered to have “used” a vehicle to threaten harm. Likewise, if there was a mechanical failure with the car that the driver was unaware of, such as faulty brakes, the driver could not be considered to have “used” the car to threaten harm, since he had no control over it backing up.  There is an intent component with regard to assault charges.

In the case of the Hazel Crest woman, the criminal defense attorney would need to determine whether she knew the officer was a peace officer. If he was a plainclothes officer who had not identified himself as the police, the charges might be dropped to a Class 4 felony. And when the driver turned and allegedly tried to run him over, did she actually know he was there, or was he in a blind spot or appear from nowhere? A person on a bicycle has more maneuverability on a city street than a car, so there is an argument to be made that the bicyclist could have quickly positioned himself in a spot where he wasn’t easily visible to the driver. Continue reading

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 Illinois’ concealed carry law, which passed the state legislature in July 2013, officially went into effect when the state police began sending out its first round of permits in late February. As of March 1, 2014, 5,000 license applications had been approved and were processed for mailing, and 46,000 applications had been received so far overall.

Illinois’ domestic violence laws prohibit an individual who is the subject of an order of protection (a restraining order) from possessing or acquiring a gun. The new concealed carry law prohibits those convicted of domestic violence – whether domestic battery, aggravated domestic battery or similar offense in another jurisdiction – from obtaining a concealed gun permit. But domestic violence advocates are worried that it doesn’t do enough to keep firearms out of the hands of perpetrators.

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Section 15 of the concealed carry law allows police to object to the granting of a permit if the applicant has been arrested for any reason five or more times in the seven-year period preceding the application. An objection postpones the decision of whether to grant a permit for 90 days. During that time the police forward all prior arrest information to the Board, which will then decide whether or not to issue the permit.

Because those charged with domestic violence are often repeat offenders with a pattern of escalating abuse, advocates are concerned that the “five arrests in seven years” prohibition is insufficient to protect victims.  Many domestic violence victims file for restraining orders but then drop them out of fear, or don’t take the next step of pressing criminal charges. In other cases, perpetrators are never prosecuted, even when an arrest is made because the victim ultimately refuses to cooperate out of fear. This “loophole,” then, would allow otherwise violent perpetrators to get their hands on a concealed carry permit.

Objections to the Applications

Since the law went into effect, sheriff’s departments in Cook and Lake Counties had opposed 237 out of 14,369 concealed carry permit applications because of domestic violence and orders of protection. The Chicago Police Department objected to 86 out of 3,186 applications. They did not say if all of the objections based on domestic violence and orders of protection exceeded the five times in seven years threshold. An objection does not guarantee that the concealed carry permit will be denied.

But proponents of concealed carry believe the law is fair, arguing that an arrest isn’t the same as a conviction. Prosecutors may choose not to press charges, and jurors may acquit a defendant, because they believe the claim of domestic violence was false. Punishing an individual because he was falsely accused would be unfair and a violation of his or her rights.

Individuals whose applications are denied have the right to appeal to the Board and, if the permit is still denied, then to the courts. Because some believe the law offers a loophole that will put firearms in the hands of those they believe are dangerous, the area is rife with the possibility of denials based on less than that threshold, in the hopes that the applicant will not file an appeal if the Board denies the application.

The appeal process will no doubt involve rehashing and dissecting those prior arrests, with the police arguing that your arrest history marks you as a violent repeat offender, and that allowing you a concealed carry permit would be dangerous to the public. Continue reading

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It’s a hot Chicago night, and you and some friends are outside, laughing and joking in an attempt to beat the summer heat. Two police officers approach and ask what’s going on. Not wanting trouble, you and your buddies turn and walk away. The officer repeats his question, a bit louder now, and the officers quickens their pace. Scared, you and your friends begin to run. The cops quickly follow, and when you’re detained they frisk everybody and find marijuana in your back pocket. Suddenly, what started as a fun night with friends ends with you in the back of a police cruiser, charged with possession of marijuana. chicago-police-176193-m

Unfortunately these types of stop and frisks are all too common, especially in Chicago’s high crime areas. If you’re arrested following a stop and frisk, you need an experienced criminal defense attorney to closely examine your case to determine whether the police’s actions were lawful.

Police Right to Stop and Frisk in Chicago

Police officers have the right to stop and question any person they encounter, provided they have a reasonable suspicion that the individual was engaged in criminal activity. This means the officer must be able to clearly explain why he believed criminal activity was happening; he cannot simply make a stop based on a hunch or intuition. These are known as Terry stops, after the United States Supreme Court case that authorized these investigatory stops.

The officer may perform a frisk (or protective pat down) only if he has reasonable grounds to believe the individual is armed. Even then, the pat down can only be of those areas on the body where a weapon could be hidden.

Just hanging out on the street corner is not generally enough to authorize the police to stop and question you. But in 2000 the U.S. Supreme Court ruled in Illinois v. Wardlow that the police can consider the individual’s behavior in context of the location when deciding whether there is reasonable suspicion to make a Terry stop. Suddenly, hanging out on the street in a known drug area became suspicious – bad news for the many law-abiding Chicago residents living in such areas.

Defending Against Chicago Stop and Frisk Arrest

There are many considerations that come in to play if you are arrested following a stop and frisk. Were you doing anything that could give rise to a reasonable suspicion that you were engaged in criminal activity? Were you in an area known for high criminal activity? Were you acting in a manner that made it appear you were engaged in criminal activity – pacing back and forth, looking at your watch repeatedly, or staying in the same location for a lengthy period of time?

Your behavior on the night of the arrest, as well as the location where it occurred, must be examined closely to determine if either of them could have given the police reasonable suspicion that you were committing – or about to commit – a crime. If the police lacked reasonable suspicion to stop you, the criminal case can be dismissed.

If the stop did rise to the level of reasonable suspicion (and even if it did not), the resulting frisk must also be closely examined to determine whether it exceeded the police’s authority. The police may only frisk on top of clothing, and they cannot pull out or manipulate anything they feel during the pat down unless it is reasonably clear from feel that it was a weapon or drugs. It would be hard for police to determine through a pat down that the small lump they felt in your pants pocket was marijuana. If we can show that the police’s discovery of evidence during a pat down exceeded their authority, the criminal case can be dismissed. Continue reading

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Order of Protection – DISMISSED!

I am a criminal defense attorney, as you are most likely aware.  There is a subset of criminal law that melds into civil work – Petitions for an Order of Protection.  I used to shy away from these but over the past few years I’ve taken on many of these cases.

These cases are a different animal in many respects.  There are no State’s Attorneys, most of the Petitioners and Respondents are pro se, and the rules of evidence are loose and fast.  And the parties are almost always extremely emotional and demanding.

That having been said, I represented the Respondent last Monday in defense of a Petition.  The basic facts are that she dated the Petitioner for over a year, they planned to marry and for whatever reason, the wedding was cancelled by the Petitioner.  Then things fell apart disastrously.  Emails and texts were sent, police reports were filed, my client was arrested on more than one occasion as a result of the Petitioner’s false accusations.  She actually ended up with a misdemeanor criminal trespass to property!  That case went to trial and she was found not guilty.

I cannot tell you how much work went into this case.  My client was hysterical with how she was treated by the Petitioner and how much strife he caused in her life.  And truthfully, it was almost impossible for me to represent her as she was very demanding (understandably) with what she expected of my legal services.  I had to explain that it was a somewhat simple matter of defending the allegations in the Petition and that it wasn’t necessary to bring up other issues that weren’t related to those specific allegations.

We finally had the hearing last Monday.  And this is what I tell every client, criminal or civil: be calm in court, do not make any gestures, do not make any comments unless you are being questioned, and just stand there next to me and look at the judge.  People and some attorneys don’t understand that a judge is actually watching everything that goes on in her courtroom.  She notices how you dress, how you compose yourself and what you say.  I’ve lost trials based on how my client comports herself in court.

My client at her hearing did well.  She didn’t do anything to offend the court.  On the other hand, opposing counsel started yelling at her at one point when she didn’t answer a question the way he expected her to.  The judge lit into him like I’ve never seen.  At the end of the day, the judge found the Petitioner to be wholly unbelievable in his allegations and my client now has a clean record.  Justice prevailed.

The end all be all of this blog is that as an attorney, I not only have to be concerned with the facts of a case and my defense, but also how I prepare my client for a trial or a hearing.  You can’t just go over the case with someone and expect that they’ll understand how to comport themselves in court.  A simple shake of the head or sudden outburst, no matter how honest, can be devastating for the defense.  I always explain to them that they are going to hear things that are hurtful and often untrue.  Their response is to do nothing, just stand calmly at my side and let me do my job.  9 times out of 10, it works out in our favor. Continue reading

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My client was charged with Aggravated Unlawful Use of a Weapon under 720 ILCS 5/24-1.6(a)(1) back in 2004 and was found guilty at trial in 2006.  Subsequently, in 2012, the Illinois Supreme Court, in People of the State of Illinois v. Aguilar, held that the Aggravated Unlawful Use of Weapons statute is unconstitutional.

In November of last year I filed a Motion to Vacate his 2006 conviction based on the Supreme Court’s decision arguing that since the statute has been declared unconstitutional it is void ab initio, meaning it is void at its inception and any conviction, regardless of when it was entered, should be vacated.

The State’s Attorney’s Office filed their response arguing that (a) the court has no jurisdiction to hear the matter as the motion was filed more than 30 days since the Court’s judgment and (b) that this is the incorrect venue for such a proceeding.  Argument was heard today and based on the correct motion having been filed by my office and the fact that the statute was declared unconstitutional, not only does the court have jurisdiction and venue is in fact proper, that my client’s conviction must be vacated.

Since my client has no other convictions on his record, his criminal background can now be expunged and is no longer a convicted felon!

But this is fast becoming a contested issue.  The general holding of the Aguilar decision is that the statute is unconstitutional.  Period.  The State’s Attorney’s office is now attempting to argue that the decision does NOT make the statute unconstitutional retroactively.  This makes no legal sense though.  The fact of the matter is, a law is either unconstitutional or it’s not.  It does not become unconstitutional at some point.  We have another motion pending in front of a different judge that is coming up in a few weeks.  I am expecting the State to make the argument regarding retroactivity, but am hoping it doesn’t come to that since I believe the judge may be leaning towards the State’s argument.

I would continue to advise those with prior convictions for Aggravated Unlawful Use of Weapons charges, assuming they had a valid FOID card at the time of the arrest, to contact us to file a Motion to Vacate the Conviction.  It certainly cannot hurt to try and if it is granted, it could clear your record and allow further employment advancement among other benefits. Continue reading

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My 22 year old client, with no criminal background, was charged with Armed Robbery and Aggravated Battery.  This case carried a mandatory 21 year sentence if convicted because there was an allegation that a firearm was used during the offense.

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My client was charged along with another co-defendant after they allegedly robbed a pizza delivery guy.  Even though my client did not possess the weapon, because he was “involved” the state’s attorney was attempting to use the law of accountability to charge him with the same crime as the co-defendant.  The law of accountability states that a defendant must engage in a common criminal design or agreement, any acts in furtherance of that common design committed by one party are considered to be the acts of all parties.

And I tell all of my clients, even if I believe they have a difficult case, you never know what will happen when an officer or civilian victim testifies.  In this case, the officer’s sworn report stated that my client actually took possession of the pizzas, after his co-defendant held a gun to the victim’s head, and ran into a neighboring house.  There were also allegations that not only was a gun held to the victim’s head, but that three other masked individuals were involved who attacked the victim, causing bodily harm.  At trial the victim made no mention of my client possessing a firearm or taking possession of the pizzas.  A motion was made after the state’s attorneys rested their case for a directed finding of not guilty.  The judge heard arguments from both sides and determined that my client could not be found guilty and found my client NOT GUILTY!  And my scared client did not even have to testify.  720 ILCS 5/18-2

Continue reading

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One of the worst crimes you can be charged with in Chicago is criminal sexual assault, or rape.  Not only does it create a stigma against the person charged, but often results in lengthy prison sentences and lifetime registration as a sex offender.

You may have read in the Chicago Sun Times about the case regarding Carl Chatman.   Mr. Chatman was charged with criminal sexual assault, or rape, by a woman in Chicago.  Mr. Chatman was not only convicted of the charges but sentenced to thirty years in the Illinois Department of Corrections as a result.  Another notable case regarding Edward Szymczak would have had a similar result if he had remained in Chicago for his trial.

Fortunately the prosecutors eventually reviewed the evidence in Chatman’s case and his rape conviction was thrown out, and he was released from prison after 11 years in custody.  Eleven years in custody for a crime Chatman did not commit.  At the same time, prosecutors said they were reviewing the woman’s earlier allegations of rape against Szymczak but had not yet reached a conclusion.

These cases bring up the issue of the accusers and their statements.  How is it that someone can cry rape falsely, an innocent person is charged with a crime, his reputation is ruined and he is sent to prison?  All because someone made a false claim.  And nothing happens to the accuser.

It is an abomination of justice.  The State of Illinois is currently reviewing these practices and possibly deciding what, if anything, an accuser can face.  Many people believe that the accuser should face the same penalties as the accused.  If the accused is facing up to thirty years in prison, so should the accused, that is how serious this is. Continue reading

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Have you or someone you know been arrested in Chicago?  It doesn’t matter if it’s a simple battery charge or a more serious charge of first degree murder.

Getting arrested can affect you in more ways than you can imagine.  Apparently, there are a few websites, such as mugshots.com, that post your mug shot online upon arrest.

While this initially doesn’t seem like a big deal, it is.  Let’s say someone is arrested and later released without having charges filed against them.  Your mug shot is now all over the internet for anyone to see.

This article lays out the issue:  http://www.digitaltrends.com/social-media/online-mugshots/

And let’s then go with the scenario that someone is charged and goes to trial and is found not guilty. Guess what? His or her mug shot is STILL online for anyone to see.  So, these people who were either not charged or found not guilty go about their daily lives and decide to obtain employment.  As we all know, employers now go online to check out potential employees.  What are they going to find?  Probably your Facebook and Twitter posts, which may or may not be innocuous, but also your MUG SHOT!  How are you going to explain that one?

If you want to remove your mug shot, guess what now?  You have to pay upwards of $100 PER SITE to have it removed.  And how can you be sure that once you pay this fee, the site will actually remove it?  You can’t.

Again, you have to be careful in life on how you comport yourself.  There are consequences that can be long-lasting. Continue reading

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The Illinois Supreme Court has ruled in People v. Aguilar, 2013 IL 112116 that Illinois’ gun statute (UUW) 720 ILCS 5/24-1.6(A)(1) is unconstitutional in that it violates the right to keep and bear arms, as guaranteed by the second amendment to the United States Constitution.  As a result, the Cook County States Attorney’s Office is dismissing a number of these cases!  There is still the issue as to whether a FOID (firearm owners identification) card is a requirement for these dismissals. At the moment, the State is only dismissing cases where the defendant was in possession of a valid FOID card.  We are starting to argue that a FOID card is not necessary.  Waiting to see how that plays out.

Additionally, my office is actively combing through our old files to locate those who have been previously convicted of Aggravated UUW under this specific statute provision.  Once located, we will be filing motions to vacate these convictions as well.  The statute doesn’t “become” unconstitutional as a result of this new ruling.  The ruling states that the statue is unconstitutional on its face, meaning it was always unconstitutional from its inception. Continue reading

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By now most of you have heard of these Chicago sexual assault charge allegations regarding Maine West High School in Des Plaines, Illinois.

According to reports, during a September 2010 campus run for the soccer team, four soccer players have said that they were sexually assaulted during a hazing ritual.  As of August 26, 2013, a fifth member of that soccer team has now filed a lawsuit in the Cook County Circuit Court.  More lawsuits are expected.  images

According to ABC 7 News, the attorney for the latest victim, Tony Romanucci has stated:  “It’s unfortunate now that Maine West has become the national poster child for hazing, sexual abuse and scandal regarding sports in the United States.”

Romanucci says Maine Township administrators have known about hazing at Maine West for several years but did nothing to stop it. The lawsuit names the district, principal, and fired soccer coaches Michael Divincenzo and Emilio Rodriguez. Divincenzo faces criminal charges of battery, hazing and failure to report abuse.

“Had enforcement been completed and done in 2008, we wouldn’t be here today,” Romanucci said.

These allegations a reminiscent of the 2011 scandal and charges filed against longtime assistant coach Jerry Sandusky.  Sandusky was charged with criminal sexual assault of at least eight underage boys on or near university property, and alleged actions by some university officials to shove under the rug these incidents.

In each of these cases, the higher-ups within the school system knew or should have known of these alleged attacks but did nothing to thwart them.  The fact that hazing has occurred for a number of years and become part of the educational system does not make it right or status quo.  High schools and universities exist to nurture and educate the young members of our society.  Additionally, they are there to protect them, not to punish and humiliate them.  Continue reading

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