DGAA bLAWg

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.

One 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 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.

The State of Illinois takes all instances of DUIs seriously, but it punishes people under the legal drinking age even more severely. This is because, according to statistics compiled by the National Highway Traffic Safety Administration, 25 percent of fatal car crashes involving teens include at least one underage drunk driver. 

In order to deal with this issue, the state imposes the standard DUI penalties on underage drivers, and it also tacks on extra zero tolerance penalties. These zero tolerance penalties involve suspensions of driving privileges in circumstances beyond those that would ordinarily qualify as a DUI, and may even involve penalties accruing to the parents of the driver as well.

Standard DUI Penalties

Underage drivers under the influence of alcohol are still subject to standard DUI penalties, but these penalties differ from the DUI penalties for people over the age of 21 in two important respects. First, these penalties are harsher than ordinary DUI penalties. The penalties include a possible $2,500 fine and a license revocation of at least two years, along with up to a year in prison. A second offense comes with the same penalties except that the minimum license revocation increases to five years. Second, these penalties are easier for underage drinkers to trigger. Ordinarily, a DUI charge requires a person to have a blood alcohol content (BAC) of greater than .08. This is still true for underage drinkers, unless there is other evidence proving they were impaired. If such evidence exists, the required BAC drops to .05.

Zero Tolerance Penalties

In addition to the above penalties for an actual DUI charge, underage drinkers can face a host of driving-related penalties. For instance, even if an underage driver registers below a .05, they may still face penalties under zero tolerance laws. Zero tolerance penalties apply to underage drivers who register more than a .00 BAC without triggering full DUI penalties. These zero tolerance penalties include a three-month suspension of driving privileges for a first offense, and a one year suspension for a second offense. Additionally, the law doubles these penalties if the young driver refuses to consent to the necessary testing.

The law also imposes extra penalties on the parents of underage drunk drivers in certain circumstances. If death or great bodily harm results from the parents knowingly allowing underage drinking in their home, then prosecutors may charge the parents with a class 4 felony, which comes with a prison sentence ranging from one to three years and a fine of up to $25,000. Additionally, the parents may be liable for any damage that occurs because of underage drinkers leaving the premises.

If you or your child has recently been charged with a DUI or similar crime, seek help from an Illinois DUI attorney. Our skilled team of lawyers serves clients across the northwest Chicago suburbs, including in Rolling Meadows, Schaumburg, 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.

A 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 18^th. 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.

The 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 4^th 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.

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.

Super 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.