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Clearing a Criminal Record in Illinois

Web Admin - Tuesday, March 10, 2015

criminal records in Illinois, Arlington Heights criminal defense attorneyPeople who think about the consequences of being caught committing a crime often focus on the penalties that the government imposes after convicting someone, things like prison sentences or fines. Yet, another major consequence is the criminal record that can follow a person through life. Records of arrests, supervisions, or convictions can make it difficult to get a job, a business license, or even an apartment. Fortunately, Illinois law provides a variety of ways for people to clear their criminal records, including expungement, sealing, and other options. However, each of these methods have different effects and different people qualify for them.

Expungements

The most effective method of clearing a person's criminal record is by expunging it. However, it is also the hardest process for which a person can qualify. A person's criminal record is stored in multiple places, such as in the courthouse and at the arresting authority. An expungement instructs these places to physically destroy the copies of the person's criminal record, and to forward clean records to the FBI. This will prevent any background checks from showing the offenses. There are however some limited exceptions to this destruction. For instance, if a person receives supervision for criminal sexual assault, then law enforcement agencies can still access that record for five years after the expungement.

In order to qualify for an expungement, a person must meet several criteria. First, the person can never have been convicted of a criminal offense, the violation of a municipal ordinance, or a serious traffic offense. This means that expungements can only be used to clear things like arrests and supervisions from a record, not convictions. Additionally, depending on the way the case ends, the petitioner may need to wait before filing an expungement. For example, if a person's case is “stricken off with leave to reinstate,” meaning that the prosecution dropped the case but has the option to bring it again, then they must wait three to four months before filing.

Sealing

Sealing a criminal record is a less drastic option for cleaning someone's history. Sealing is different from expungement in that law enforcement agencies can still see the criminal record. However, sealing still hides the record from most employers. Sealing is also easier to qualify for.

Unlike expungement, people can have their records sealed if they were convicted of a crime. However, not all convictions qualify for sealing. A person may only have their record sealed if they were convicted of a misdemeanor. Additionally, there is a waiting period of four years after the conviction before the record may be sealed.

People who do not qualify for sealing may also have other options, such as executive clemency or Certificates of Good Conduct. If you have questions about any of these options, contact an experienced Illinois criminal defense attorney today. Our office serves clients in many different northwest suburbs, such as Rolling Meadows, Arlington Heights, and Barrington. Call Drost, Gilbert, Andrew & Apicella, LLC, at 847-934-6000 today.

About the Author: Founding partner of Drost, Gilbert, Andrew & Apicella, LLC, Colin Gilbert, received his J.D. from Chicago-Kent College of law in 2005. Colin argues cases across many practice areas including criminal defense, collections, civil litigation, real estate law, and corporate law. Colin is an active member of the Board of Governors of the Northwest Suburban Bar Association and the Illinois Creditors Bar Association. He is currently Vice President of the Arlington Heights Chamber of Commerce, and is a Commissioner for the Village of Arlington Heights. Colin has a 10.0 Attorney rating on Avvo, and was named one of the 2014 “Top 40 Under 40” Trial Lawyers in Illinois by the National Trial Lawyers Association.

Illinois' New Revenge Porn Law

Web Admin - Friday, January 30, 2015

Illinois revenge porn law, Crystal Lake criminal defense lawyerOne of Former Governor Quinn's last acts during his time in office was to sign a new bill into law criminalizing the act of disseminating private nude photos of someone, commonly referred to as revenge porn. Until recently, revenge porn has been something of a grey area in the legal world. There were certain laws that might have been violated by the act of posting these sorts of images online, such as stalking or harassment, the intentional infliction of emotional distress, and even copyright law. Yet, these laws were often not well-suited to the situation. This new law, which goes into effect on June 1st, changes that, providing a clear criminal offense for posting revenge porn.

How the Law Works

Illinois' new revenge porn law makes it a class 4 felony to disseminate private sexual images of a person. In order to violate the law, the person's act must fulfill a variety of criteria.

  • - The person must purposefully disseminate an image of a person;
  • The person in the picture must be nude or engaged in some sort of sex act;
  • The person in the photo must be identifiable either from the photo or from other information accompanying the photo;        
  • - The circumstances surrounding the photo must have been such that a reasonable person would have known it was meant to be private; and
  • - The person in the photo must not have consented to its posting.

If a person posts an image that meets these criteria, then they can be sentenced to up to three years in prison along with a possible $25,000 fine.

Many commentators have remarked that this law is a particularly aggressive revenge porn law, citing two main aspects of the law's definition of revenge porn. First, many revenge porn laws require a person to post the image in an effort to harass or humiliate the person in the picture. Illinois' law does not have that same requirement. Second, many revenge porn laws are limited to the initial poster of the picture. Illinois' law covers anyone who posts the picture knowing it was supposed to be private.

The Law's Controversy

The law has met with some pushback, particularly from groups concerned about the free speech implications of the law. American law values freedom of expression highly, and safeguards it above almost any other right. The U.S. Constitution often protects speech from government intervention, especially in cases like this where the restriction on the speech is based on the speech's content. However, since the law has yet to go into effect, no one has challenged it on these grounds.

Criminal law is constantly changing to keep up with offenses related to new technologies. If you have been charged with a crime like this, contact a Crystal Lake criminal defense attorney today. Our firm assists accused clients in many different northwest suburban towns, such as Barrington, Rolling Meadows, and Inverness.

About the Author: Founding partner of Drost, Gilbert, Andrew & Apicella, LLC, Colin Gilbert, received his J.D. from Chicago-Kent College of law in 2005. Colin argues cases across many practice areas including criminal defense, collections, civil litigation, real estate law, and corporate law. Colin is an active member of the Board of Governors of the Northwest Suburban Bar Association and the Illinois Creditors Bar Association. He is currently Vice President of the Arlington Heights Chamber of Commerce, and is a Commissioner for the Village of Arlington Heights. Colin has a 10.0 Attorney rating on Avvo, and was named one of the 2014 “Top 40 Under 40” Trial Lawyers in Illinois by the National Trial Lawyers Association.

The Status of Medical Marijuana in Illinois

Web Admin - Thursday, January 15, 2015

medical marijuana in Illinois, Arlington Heights drug defense lawyerOne of the most controversial issues currently facing politics is the legalization of marijuana. Some states have gone so far as to completely legalize it, allowing recreational use of the drug. Other states, along with the federal government, have left it totally illegal. Illinois has chosen the middle ground of allowing the use of marijuana to treat certain medical conditions. Illinois' medical marijuana law was signed in 2013, and it creates a framework for how to regulate the use of marijuana. However, there have recently been delays in the implementation of that framework, meaning that even though medical marijuana is technically legal, it is still inaccessible to Illinois residents.

General Rules

The Illinois medical marijuana law sets up both a legal framework for patients who possess marijuana, as well as for growers and distributors. Patients may apply for a medical marijuana card if they have one of almost 40 qualifying illnesses, including Parkinson's, cancer, and glaucoma. In order to get a medical marijuana card, people must also be residents of Illinois who are over the age of 18 and who do not have a criminal record.

As far as a growth and distribution framework, the law allows for 22 businesses to receive licenses to actually grow marijuana. One of these businesses will be located in each state police district. The law also authorizes a set of 60 licenses for distributors who will purchase the marijuana from the growers and sell it throughout the state. Additionally, the law creates a new 16 member board for the addition of new qualifying illnesses to the list of diseases that would allow someone to receive medical marijuana.

Recent Delays

Despite the fact that the law went into effect at the beginning of 2014, it has been plagued with implementation delays. According to a report by the Chicago Tribune, state agencies spent almost a full year just developing the regulations to manage this program. So far, only 650 patients have been given their medical marijuana cards, and the numbers on the business side are even less encouraging.

Many people were hoping that Governor Quinn would award the licenses for the growers and distributors before he left office. However, that did not happen. That means that it will be up to Governor Rauner to make the decision about future licensing. Governor Quinn did make some appointments to the board that will decide about adding new illnesses before he left office, but he also left some spaces open for Governor Rauner to make more appointments.

Illinois's medical marijuana law creates a complex legal framework, and running afoul if it can result in criminal drug charges. If you have recently been charged with a drug crime, contact an Illinois criminal defense attorney. Drost, Gilbert, Andrew & Apicella, LLC represents the accused in towns across the northwest suburbs, including in Rolling Meadows, Schaumburg, and Arlington Heights.

About the Author: Founding partner of Drost, Gilbert, Andrew & Apicella, LLC, Colin Gilbert, received his J.D. from Chicago-Kent College of law in 2005. Colin argues cases across many practice areas including criminal defense, collections, civil litigation, real estate law, and corporate law. Colin is an active member of the Board of Governors of the Northwest Suburban Bar Association and the Illinois Creditors Bar Association. He is currently Vice President of the Arlington Heights Chamber of Commerce, and is a Commissioner for the Village of Arlington Heights. Colin has a 10.0 Attorney rating on Avvo, and was named one of the 2014 “Top 40 Under 40” Trial Lawyers in Illinois by the National Trial Lawyers Association.

Protecting Your Rights During a DUI Stop

Web Admin - Tuesday, June 24, 2014

palatine illinois dui lawyerThe Fourth of July is fast approaching, and like many major holidays it is one of the busiest days of the year for police conducting DUI traffic stops. This heavy police presence makes sense since the Insurance Institute for Highway Safety analyzed federal crash report data and discovered that the Fourth of July is often the deadliest traffic day of the year. In fact, the report reveals a nearly 40 percent increase in traffic deaths during the Fourth of July over the daily average. Given the seriousness with which police view this holiday, it is important for people to be aware of their rights during a DUI stop. People have two main rights that are pertinent to traffic stops: the right to remain silent and the right not to consent to a search.

The Right to Remain Silent

A person’s right to remain silent allows them to refuse to answer police questions during a traffic stop. This means that when the officer asks if the driver has been drinking or where the driver is coming from, the driver is not under any obligation to answer. However, invoking this right involves practical issues. Refusing to cooperate with the officer is technically allowed, but may make the traffic stop more difficult. Consequently, a driver’s being polite and courteous is key, when exercising these rights.

This right extends to refusing field sobriety tests as well. Police will often request that people perform some sort of physical challenge or coordination test to determine if they are sober. While refusing these tests will likely result in a longer traffic stop, it makes it more difficult for the state to pursue a DUI conviction.

Importantly, the right to remain silent is not the same as the right to lie. While the driver does not need to answer the officer’s questions, the information they do choose to provide must be truthful. Further, the right to remain silent also has an exception. The law requires drivers to produce their driver’s license, a copy of their registration, and proof of insurance upon an officer’s request.

The Right Not to Consent to a Search

In addition to the right to remain silent, drivers also have the right to refuse to give the officer permission to search their vehicle. This is not the same as a right not to have the vehicle searched. The officer may still search the car if they have probable cause to suspect something illegal, but evidence from unconsented searches is harder for the state to use at trial.

This right not to consent to a search also affects whether a person must submit to a Breathalyzer test. People do have the right to refuse such a test, however, Illinois has an “implied consent” law, which means such a refusal could result in a driver’s license suspension. Still, that may be preferable to a DUI conviction.

If you were stopped for a DUI this holiday, seek counsel from an Illinois criminal defense attorney. Our skilled team of lawyers defends clients in many northwest suburban towns like Rolling Meadows, Palatine, and Schaumburg.

About the Author: Founding partner of Drost, Gilbert, Andrew & Apicella, LLC, Colin Gilbert, received his J.D. from Chicago-Kent College of law in 2005. Colin argues cases across many practice areas including criminal defense, collections, civil litigation, real estate law, and corporate law. Colin is an active member of the Board of Governors of the Northwest Suburban Bar Association and the Illinois Creditors Bar Association. He is currently Vice President of the Arlington Heights Chamber of Commerce, and is a Commissioner for the Village of Arlington Heights. Colin has a 10.0 Attorney rating on Avvo, and was named one of the 2014 “Top 40 Under 40” Trial Lawyers in Illinois by the National Trial Lawyers Association.

Department of Justice Expands Clemency Opportunities

Web Admin - Thursday, May 01, 2014

The Department of Justice (DOJ) recently released changes to the rules that govern which offenders are eligible for clemency. The changes are targeted at federal drug offenders who may have received particularly harsh sentences based on mandatory minimum sentences or other sentencing procedures that are now deemed unfair. The changes affect the 216,000 inmates currently in federal prisons, though preliminary estimates suggest that only approximately 2,000 inmates would be eligible for clemency under the new rules.

What Is Clemency?

Clemency is a power granted to the President under the Constitution that allows him to affect the sentences of federal inmates. Ordinarily, the Office of the Pardon Attorney, a branch of the DOJ, examines the applications initially, and makes a recommendation to the Deputy Attorney General. The Deputy Attorney General then passes their own recommendation on to the President who makes the final decision.

Clemency comes in two forms, a pardon or a commutation of a sentence. A pardon represents the President’s forgiveness of the offender for the crime, and often signifies reform or good behavior. This type of clemency will also remove many civil disabilities that come along with a conviction, such as loss of the right to vote or hold state office. Conversely, a commutation is a lesser type of clemency, which can reduce or eliminate a person’s sentence, but will not remove civil disabilities. Importantly, neither type of clemency reverses a conviction or in any way implies that the pardoned offender is innocent.

The New Rules

The new rules released by the DOJ do not replace the old clemency standards, but instead expand on them. They are mainly targeted at drug offenders, but could apply to any inmate with a conviction for any low-level nonviolent offense. The six criteria that the DOJ will examine are:

  • - The inmate must be serving a federal sentence that would be substantially lower if the inmate were convicted of that same offense today;
  • - The inmate must be a “non-violent, low-level” offender with no strong connections to serious criminal organizations, gangs, or cartels;
  • - The individual must have served at least 10 years of their term in prison;
  • - The inmate must not have a large history of criminal activity;
  • - The inmate must have had good behavior while incarcerated; and
  • - The inmate must not have a history of violence either prior to their incarceration or during it.

While meeting these criteria does not necessarily qualify an inmate for clemency, the DOJ has stated that they would “prioritize” clemency applications from people in these categories since they believe that they may be “especially meritorious.”

If you believe that you or a loved one could qualify under these new, expanded clemency standards, seek advice from a skilled Illinois criminal defense attorney. Our team has experience handling cases from across the northwest suburbs, including in Rolling Meadows, Palatine, and Schaumburg.

About the Author: Founding partner of Drost, Gilbert, Andrew & Apicella, LLC, Colin Gilbert, received his J.D. from Chicago-Kent College of law in 2005. Colin argues cases across many practice areas including criminal defense, collections, civil litigation, real estate law, and corporate law. Colin is an active member of the Board of Governors of the Northwest Suburban Bar Association and the Illinois Creditors Bar Association. He is currently Vice President of the Arlington Heights Chamber of Commerce, and is a Commissioner for the Village of Arlington Heights. Colin has a 10.0 Attorney rating on Avvo, and was named one of the 2014 “Top 40 Under 40” Trial Lawyers in Illinois by the National Trial Lawyers Association.

Murder in the Mushroom Kingdom: Is Mario a Knight in Shining Armor or a Dangerous Fugitive?

Web Admin - Tuesday, March 25, 2014

illinois criminal defense lawyer mario murderSuper Mario Bros. is one of the best-selling video games of all time, and its story presents an interesting issue of criminal law. In the game, Bowser invades the Mushroom Kingdom, turns all of its inhabitants into inanimate objects, and kidnaps the princess in order to prevent her from undoing the spell. Then, Mario sets off on his quest to free the princess and the kingdom. At the end of the game Mario confronts Bowser, pushing him into a pit of lava to free the princess. This raises the question of whether Mario’s killing of Bowser was a crime or whether it was done out of necessity or self-defense.

The Crimes

After killing Bowser, Mario would likely be charged with some form of homicide. Illinois law breaks homicide down into four categories: first-degree murder, second-degree murder, reckless homicide, and involuntary manslaughter. Of these types of killing, Bowser’s would probably fall into either first or second-degree murder. First-degree murder occurs when a person kills someone either with the intent to kill them or do them serious bodily harm, or when a person kills someone by taking some action that they know will kill or seriously injure the person. Second-degree murder is the same, except that the killing is mitigated by the fact that the killer is either acting under extreme emotional provocation or that the killer has an unreasonable but sincere belief that they have a legal justification for the killing, such as self-defense.

In Mario’s case, it seems most likely that he would be charged with second-degree murder since Bowser had just turned everyone he knew into inanimate objects, which would definitely fall into the serious provocation version of second-degree murder. Furthermore, Mario probably has a strong legal defense to the killing, which he no doubt sincerely believed.

The Defenses

Mario could raise two defenses in his case that would probably allow him to escape with a not guilty verdict: self-defense and necessity. Both of these are covered by the justifiable use of force section of the Illinois Criminal Code. For the purposes of self-defense, a person is allowed to use deadly force only if they reasonably believe it is necessary to prevent “imminent death or great bodily harm” to themselves or another person. Since Bowser had kidnapped the princess and stolen her kingdom that would probably be grounds for reasonable belief that he was going to kill or seriously harm her.

Mario could also use a defense of necessity for the murder, and it would probably succeed. The concept of necessity allows a person to do something that would be criminal if the harm that arises from it is less that the harm that they prevent with the act. Since Mario’s killing Bowser freed the kingdom, and there were no members of law enforcement left, a court would likely find what he did to be necessary.

If, like Mario, you have recently been the subject of criminal charges, seek help from a criminal defense lawyer in Illinois today. We represent accused citizens in the northwest suburban area, including in Rolling Meadows, Arlington Heights, and Schaumburg.

About the Author: Founding partner of Drost, Gilbert, Andrew & Apicella, LLC, Colin Gilbert, received his J.D. from Chicago-Kent College of law in 2005. Colin argues cases across many practice areas including criminal defense, collections, civil litigation, real estate law, and corporate law. Colin is an active member of the Board of Governors of the Northwest Suburban Bar Association and the Illinois Creditors Bar Association. He is currently Vice President of the Arlington Heights Chamber of Commerce, and is a Commissioner for the Village of Arlington Heights. Colin has a 10.0 Attorney rating on Avvo, and was named one of the 2014 “Top 40 Under 40” Trial Lawyers in Illinois by the National Trial Lawyers Association.

The Case of Bear v. Goldilocks

Web Admin - Thursday, February 27, 2014

illinois criminal civil lawyerWhile people often see the story of Goldilocks and the Three Bears as nothing more than a children’s story, it can also act as a simple overview of the legal system. After all, Goldilocks commits a variety of different offenses, both civil and criminal, throughout the story. 

The difference between a civil case and a criminal case is that a civil case involves a dispute between two private parties, the Bears and Goldilocks, while the criminal case involves the state pursuing Goldilocks for her illegal actions. Of course, many of Goldilocks’ actions can give rise to both civil liability and criminal charges.

The Civil Case: Bear v. Goldilocks

The Bears have three claims for which they may be able to sue Goldilocks: trespassing on their land, conversion of the porridge, and conversion of the chair. The Bears can easily show that Goldilocks trespassed on their land, but they will likely not receive any money for doing so, since her act of trespassing did not appear to cause any actual damage on its own. 

As for the claims of conversion, the Bears must show three things: that they owned the porridge and chair, that Goldilocks took some act inconsistent with that ownership, and that their property was damaged by Goldilocks’ acts. Since Goldilocks ate the porridge, and then sat in and broke the chair, the Bears can show that she converted those items and recover their value from Goldilocks.

The Criminal Case: The People v. Goldilocks

The state could also bring criminal charges against Goldilocks for all three of those same actions. These charges would be criminal trespass to land, petty theft of the porridge, and criminal damage to property for breaking the chair. However, the state would not have as easy a case as the Bears did suing for those same actions.

Trespassing is a crime in Illinois punishable by up to a $500 fine and six months in jail, but in order to be guilty of trespassing, a person must enter the land after being warned not to, or they must stay on the land after being told to leave. Unless the Bears had posted a sign warning trespassers, it would only be a civil offense. On the other hand, if Goldilocks had entered the house with a plan to commit a crime, she would be guilty of burglary, a class 2 felony punishable by up to 14 years in prison.

The petty theft of the porridge is an easier case. She clearly steals the porridge by eating it, and in Illinois the seriousness of the theft is determined by the value of the item. Since the porridge was probably worth less than $500, it would be petty theft, a class A misdemeanor punishable by up to a $2500 fine and one year in prison.

The state could also press charges against her for criminal damage to property for her breaking the chair, but this would likely fail. In Illinois, a person must knowingly damage the property to be guilty of the criminal offense. Because Goldilocks did not know she would break the chair if she sat in it, that charge would probably fail.

If you have recently found yourself involved with criminal charges or civil litigation, contact an attorney today. A Rolling Meadows criminal defense or civil litigation attorney can put their knowledge and legal experience to work for you. Our team serves clients across the northwest suburbs, in areas such as Schaumburg, Palatine, Barrington, and Inverness.

About the Author: Founding partner of Drost, Gilbert, Andrew & Apicella, LLC, Colin Gilbert, received his J.D. from Chicago-Kent College of law in 2005. Colin argues cases across many practice areas including criminal defense, collections, real estate law, and corporate law. He is involved in his local Illinois community as an active member of the DuPage County Bar Association, Northwest Suburban Bar Association, and the Arlington Heights Chamber of Commerce. In 2012, Colin was nominated for 2012 Business Leader of the Year by the Chamber.


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