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Driver’s License Suspension

Web Admin - Thursday, December 03, 2015

driver’s license suspension, Crystal Lake Criminal Defense AttorneyFor many people, the ability to drive is very important. It allows individuals to travel easily to important places, like work or school, as well as to places for recreation or other leisure activities. Unfortunately, the right to drive can be taken away. When an individual has his or her license suspended, he or she may be tempted to continue to drive anyway, which can lead to significant consequences. 

Reasons for Suspension 

The Secretary of State (SOS) can suspend a person’s driver’s license for numerous reasons, including, but not limited to, the following: 

1. Three or more moving violations within a 12-month period;

2. Failure to appear in court for a traffic violation;

3. Ten or more unpaid parking violations;

4. Five or more unpaid automated traffic violations (being photographed for running a red light);

5. Failure to pay child support;

6. Failure to pay fines for five or more toll violations;

7. Causing an accident while driving without car insurance; or

8. Driving under the influence (DUI) of alcohol, an illegal substance, or prescription medication. 

The SOS notifies an individual of a pending license suspension by mail, sent to the last address on file at the SOS. As a result, it is important to update the SOS when a change of address occurs. 

Penalties for Driving 

An individual that chooses to drive while his or her license is suspended can be subjected to various penalties, including: 

1. The suspension period being extended for the same length as was originally imposed;

2. Possible license revocation;

3. Jail time;

4. Seizure of the car’s license plates; or

5. Immobilization of the person’s vehicle. 

Under Illinois law, driving on a suspended license is a Class A misdemeanor. The length of any jail sentence or amount of community service ordered depends on the reason why the license was suspended. For example, a person who drives after he or she had their license suspended for DUI can be sentenced to imprisonment for up to 10 consecutive days or 30 days of community service. 

Importantly, a second or subsequent violation becomes a Class 4 felony if the person is the proximate cause of an accident that results in personal injury or death to another person. A personal injury includes a Type A injury, which is defined as severe bleeding, distorted extremities, and any injuries that are require the person to be carried from the scene. A Class 4 felony is punishable by imprisonment of up to three years, with a minimum sentence of one year. 

It is important that you do not drive while your license is suspended—doing so can lead to serious penalties. Yet, this may be difficult, as our reliance on being able to drive our own vehicles is so strong. If you are facing charges of driving on a suspended license, please contact an experienced Crystal Lake criminal defense attorney today. Our firm provides help for individuals located in Crystal Lake, Schaumburg, Palatine, Des Plaines, Rolling Meadows, Buffalo Grove, Barrington, Arlington Heights, Inverness, and Deer Park.  

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.

Source:  

http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=062500050K6-303


Fleeing or Eluding a Police Officer

Web Admin - Friday, November 06, 2015

eluding a police officer, Crystal Lake criminal defense attorneyUnder most circumstances, an individual readily complies when he or she sees a police officer signal for him or her to pull over and stop. However, in cases where a driver attempts to flee or elude an officer, there are potentially significant consequences. 

Fleeing or Eluding 

Under Illinois law, a driver of a vehicle commits a Class A misdemeanor if he or she intentionally fails or refuses to obey an officer’s visual or audible signal or direction to bring the vehicle to a stop. This violation includes if the driver increases the speed he or she is traveling, turns off his or her lights, or otherwise flees or attempts to elude the officer. 

A signal given by an officer can occur in a variety of ways. However, an officer must be in uniform and, if the officer is driving, he or she must show illuminated red or blue lights which indicate that the vehicle is a police vehicle when used along with an audible siren. 

A Class A misdemeanor is punishable by a jail sentence of up to one year, with a fine of up to $2,500. The Secretary of State will suspend an individual’s driver’s license upon receipt of the notice of a conviction. A suspension lasts for a period of up to six months for a first conviction and up to 12 months for a second conviction. If an individual has committed three or more violations of fleeing or eluding an officer, the offense is a Class 4 felony, and is punishable by not less than one year in jail, with a maximum sentence of up to three years. 

Aggravated Fleeing or Eluding 

A similar, yet more serious offense is aggravated fleeing or eluding an officer. This offense occurs if all of the requirements of fleeing or eluding are satisfied and, while that offense is committed, the driver: 

1. Commits two or more moving violations (such as failing to stop at a red light);

2. Exceeds the speed limit by 20 miles per hour or more;

3. Causes physical harm another person;

4. Causes property damage greater than $300; or

5. Conceals or alters the vehicle’s registration plate. 

Due to the nature of most fleeing or eluding attempts, one of the above actions can easily occur during the attempt to escape the police. For example, it is likely that a person fleeing will drive at a high rate of speed or ignore traffic signals and signs. If one of the above occurs, the penalties for the attempt at fleeing or eluding increase significantly. 

Aggravated fleeing or eluding is a Class 4 felony, with a second or subsequent offense becoming a Class 3 felony. Further, the Secretary of State will revoke the driver’s license of a convicted individual and the motor vehicle used in the fleeing or eluding is subject to a seizure and forfeiture. 

Help Defending Criminal Charges 

If you have been charged with the offenses of fleeing or eluding, you face potentially serious penalties. For more information about these charges and your defense rights, please contact an experienced Illinois criminal defense attorney today. Our firm proudly represents individuals throughout the northwest suburbs, in communities such as Crystal Lake, Deer Park, Schaumburg, Inverness, Palatine, Arlington Heights, Des Plaines, Barrington, Rolling Meadows, and Buffalo Grove.


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.

Source:  
http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=062500050K11-204


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.

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.

Palatine Punching Death Leads to Murder Charge

Web Admin - Wednesday, August 20, 2014

palatine criminal defense lawyerA recent death in Palatine, Illinois highlights the ease with which a person can find themselves charged with first degree murder. The incident in question relates to the punching death of a 26-year-old man on July 18th. According to police, another man confronted the victim out in front of a local bar. The assailant allegedly threw a single punch and knocked the victim to the ground. Upon falling, the victim struck his head on the sidewalk, and he was rushed to Lutheran General Hospital. The state initially charged the assailant with aggravated battery, but when the victim died, the charges were upgraded to first degree murder.

Understanding First Degree Murder

When people hear the charge of first degree murder they often focus on concepts like wantonness or premeditation, but in reality the requirements for first degree murder are much simpler. The Illinois criminal code states that a person commits first degree murder when they perform an act that causes a person’s death and they either intend to cause the person’s death or great bodily harm, or they know that their actions will cause the person’s death or great bodily harm, or they know that there is a high probability that their act will cause death or great bodily harm to another person. In this case, even the single punch thrown by the assailant could rise to the level of intent to cause great bodily harm.

However, simply having the intent to do great bodily harm does not necessarily, on its own, tell the full story. This is because the law also contains mitigating factors, circumstances that make the crime less serious because of their existence.

Possible Defenses

The law in Illinois codifies two specific circumstances that can reduce a first degree murder charge down to second degree murder. First, the charge can be reduced if the assailant, at the time of the killing, is “acting under a sudden and intense provocation” that was caused by the victim. Importantly, the provocation in such instances must be quite serious, and merely being insulted would not rise to the level of a mitigating factor. Instead, things like watching someone attack a loved one or being involved in a barroom brawl are often cited as possible scenarios that may count as provocation.

The other scenario that can result in a reduction to second degree murder is when a person commits first degree murder, but does so believing that they have a legal justification for doing so. For instance, if the person believes that they are acting in self-defense when they kill someone, but that belief is not reasonable, they still may have their first degree murder charge reduced to second degree murder.

If you or someone you love has been charged with a criminal offense, seek the help of an experienced Illinois criminal defense attorney today. Our firm can analyze your case, and help ensure that you and your interests are fairly represented in court. We represent clients in towns across the northwest suburbs including in Rolling Meadows, Schaumburg, and Palatine.

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.

How Lawyers Use Digital Evidence in Court

Web Admin - Tuesday, July 15, 2014

criminal defense digital evidenceThe advent of computer technology has reshaped the way that people communicate with each other, as well as how they treat information. This has created an interesting ripple effect in courts, which now have to deal with lawyers seeking to use digital evidence in court, which includes things like incriminating emails, computer files, and Facebook posts. 

The use of this sort of evidence comes with a variety of hurdles that an attorney must clear. The attorney must prove that the evidence is authentic and untampered with, as well as show that the records are acceptable as testimony. Prosecutors in a criminal case have a higher standard to meet, needing to show that their obtaining the evidence did not violate the defendant's privacy rights.

Hurdles to Using Digital Evidence

Lawyers face three hurdles in using digital evidence: authentication, hearsay, and privacy. Authentication refers to the need to demonstrate that the digital evidence is genuine and that no one fabricated or tampered with it. This is more difficult to show with things like emails than with physical letters because people can easily edit or alter the email's text to change the substance of the message. However, many courts still set a fairly low standard of authenticity for allowing the lawyers to present evidence to the jury; they leave the final determination of genuineness to the jury itself.

The next exception to the use of digital evidence is the rule forbidding “hearsay” testimony, which digital evidence often qualifies as. Hearsay is a statement made outside of a courtroom that the lawyer is attempting to use to prove the truth of whatever the statement is about. For instance, if a defendant is on trial for murder and one witness testifies that another witness told them they had seen the defendant commit the murder, that testimony would be hearsay since the testifying witness is just reciting an out-of-court statement.

Finally, in criminal cases, the prosecution must also show that the police obtained the evidence without violating a person's 4th Amendment rights. In many cases this means that the police must have received a warrant to perform the search, but there are exceptions to this. For instance, in the civil case of Largent v. Reed, the court determined that people do not have a “reasonable expectation of privacy” in regards to the things they post to Facebook, which would mean that a warrant would not be required to look through a person's Facebook profile.

How People Can Protect Themselves

Protecting online and digital information is a difficult prospect. Often, awareness of the public nature of things like Facebook posts, internet searches, and emails can help people stay alert to the fact that such things may be available as evidence in court. This can help modify people's behavior, and make them more careful about the sort of information that they make digitally available. Beyond that, there are some programs that can encrypt private data, but these can often be decrypted throughout the discovery process.

If you are concerned about the use of digital evidence against you in a trial, contact a Barrington criminal defense attorney today. Our firm represents clients across 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.

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.


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