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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.

Thanksgiving Day Massacre: If Turkeys Had Legal Rights

Web Admin - Friday, November 21, 2014
turkey Thanksgiving criminal charges, Schaumburg personal injury lawyer

Thanksgiving is just around the corner now, so it seems like a good time to engage in an educational hypothetical: “what if turkeys had legal rights?” Suppose Chris Carver is just about to start preparing Tom Turkey for Thanksgiving dinner, when Governor Rauner, taking his cue from the annual presidential turkey pardon, decrees that all turkeys are protected and have the same rights as people. The police break down Chris's door, taking him away in handcuffs and saving Tom. This leads to two questions: “what, undoubtedly delicious, crimes could Chris be charged with?” and “what civil claims could Tom bring against him?"

Criminal Charges

There are a variety of crimes that Chris may be guilty of. The two major ones are kidnapping and attempted murder. Kidnapping is defined under Illinois law as “secretly confining someone against their will.” Chris was clearly confining Tom. Assuming it was done secretly, Chris may actually be guilty of aggravated kidnapping, a more serious version of the crime, because he had a carving knife, which would be a deadly weapon for purposes of the law. Aggravated kidnapping is a Class X felony in Illinois, which carries a sentence of between six and 30 years in prison.

However, Chris was doing more than just confining the turkey; he was preparing to cook him, which would be first-degree murder in Illinois. The different degrees of murder in Illinois are based on what the offender was attempting to do. Chris's qualifies for first-degree, the most serious, because he was intentionally trying to kill Tom. The fact that Chris did not succeed in killing Tom Turkey does not matter because he took a “substantial step” towards the murder when he kidnapped Tom. This means that the state could still charge him with attempted first-degree murder, also a Class X felony.

Civil Claims

While the criminal charges would take care of punishing Chris for his crimes, they do not provide Tom with any restitution for his ordeal. Fortunately, Tom can also sue Chris in civil court for several different claims. For instance, Tom can sue Chris for false imprisonment, the civil version of kidnapping, because he held Tom against his will. Tom could also sue Chris for assaulting him, since Chris intentionally acted in a way that put Tom in fear of an immediate harmful contact. Assuming Tom succeeds on these claims he can recover a variety of damages including payment of any medical bills, any wages he lost from his job during his confinement and recover, and compensation for the emotional pain and suffering of almost becoming Thanksgiving dinner.

If you believe you have been a victim of harms like Tom's, or you want to learn more about your criminal rights if you have been charged, contact the Schaumburg personal injury and criminal attorneys at Drost, Gilbert, Andrew & Apicella, LLC today. We assist clients in Rolling Meadows, Buffalo Grove, Barrington, and throughout the Chicago suburbs. Call 847-934-6000 for a free consultation.

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.

What Happens if I Get Caught Driving Without a License in Illinois?

Web Admin - Friday, December 13, 2013

By Colin H. Gilbert 

cgilbert@dgaalaw.com

http://www.dgaalaw.com/colin-gilbert.html

The State of Illinois takes driving without a license very seriously. The law does not view this like a mere speeding ticket or red light violation. Instead, the Illinois Vehicle Code allows the state to pursue criminal charges against drivers who get on the road without a license.

The law breaks down the seriousness of getting caught driving without a license into three separate categories depending on a variety of factors. These factors include whether or not the reason the person has a license, whether the person ever had a license, and the person’s age.

Driving without a license starts off as a petty offense. The law considers it a petty offense if the person had a license at one point in the past year, and merely let it lapse. In these cases the law limits the punishment to a $500 fine. If the person’s license expired more than a year ago, or if the driver in question is below the age to get a driver’s license then the law upgrades the crime to a class B misdemeanor. 

Class B misdemeanors can trigger punishments of up to $1,500 in fines, and 180 days in prison. However, jail time for unlicensed driving in this case is uncommon, and judges are allowed to sentence offenders to probation or community service instead. The law may also punish driving without a license as a Class A misdemeanor in the event that the driver committed the offense after the Secretary of State suspended or revoked their license. In these cases, the court may sentence the offender to up to a year in prison, along with $2,500 dollars in fines.

Additionally, people caught driving without a license face more than just criminal sanctions. The Secretary of State will also get involved by suspending their license. License suspensions can last anywhere from two months to a year depending on the number of convictions for driving without a license that a person has received. Also, license suspension affects even those people who never received a driver’s license, since they will be unable to get one for the length of their suspension. Furthermore, after a person’s fifth conviction, the Secretary of State can revoke a person’s driving privileges. In this instance, the state will not allow the person to drive until they have recovered their privileges in a formal hearing.

 

If you face criminal charges for driving without a license, you do not have to go through the process alone. Contact a Schaumburg criminal defense lawyer today. We serve many northwest suburban areas including Rolling Meadows, Arlington Heights, Barrington, and other nearby communities.


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