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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.

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.

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.

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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