CAN I BE ARRESTED FOR SOMETHING FOUND UNDER THE PASSENGER SEAT OF MY CAR?

Posted on October 16, 2020 by admin

You were driving around town with your friend. You stepped a little too heavy on the gas, so the police stopped you for speeding. At first, you weren’t too concerned, but then the officer pulled a plastic baggie out from under your friend’s seat. Can you be arrested for that?

The answer depends on whether the state can prove the contraband was yours. Possession can be actual or constructive. Actual possession means you basically had the item on your person. Constructive possession means you knew the drugs or weapons were present, and you exercised immediate and exclusive control over the area in which they were found.

If the baggie was under your seat or you were the only person with access to the car, the state may prove constructive possession. If instead the baggie was hidden from you and out of your reach but not your friend’s, you may be able to raise a reasonable doubt that the item was yours.

If you have been charged with a criminal offense, contact an experienced criminal law attorney immediately. As with most criminal offenses, the state must prove all the elements of the offense beyond a reasonable doubt. An experienced attorney can probe for weaknesses in the state’s case.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

Reference: People v. Thomas.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

Posted in Uncategorized | Leave a comment

WHAT IS “LEGAL INSANITY” UNDER ILLINOIS CRIMINAL LAW?

Posted on October 8, 2020 by admin

Under Illinois law, you may be legally insane if, at the time you committed a crime, you suffered from a mental disease or defect such that you lacked the substantial capacity to appreciate the criminality of your conduct. (See 720 ILCS 5/6-2(a)). Generally that means you didn’t understand you were doing something wrong. As such, efforts to cover up your crime may undermine an insanity defense.

If you raise the defense, you have the burden of proving insanity by clear and convincing evidence. The state need not put on expert testimony to prove you are sane, but may rely on existing evidence to counter your case. The state must still prove you guilty of the crime itself beyond a reasonable doubt.

Mental illness, bizarre behavior or delusional behavior do not necessarily mean legal insanity but may be factors to consider in determining your capacity to appreciate the criminality of your conduct.

For example, in People v. Plackowska, the defendant stabbed two children and two dogs to death. The court found that while defendant had a mental illness, her efforts to put the knife down the garbage disposal, discard her cell phone and make up a story about an intruder proved that she knew she was committing a crime.

If you have been charged with a criminal offense, contact an experienced criminal law attorney immediately. If your sanity may be at issue, an attorney can help select and prepare any mental health experts on your behalf.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

Posted in insanity defense, legal insanity | Leave a comment

CAN I BE ARRESTED WHEN GETTING HELP FOR A DRUG OVERDOSE?

Posted on September 28, 2020 by admin

With some exceptions, the answer is generally no.

Illinois law grants limited immunity from prosecution for drugs found where the evidence against you was discovered because you sought emergency help in good faith, and the amount of the substance was within certain limits (See 720 ILCS 570/414 for limits.) Police may not arrest you based on evidence obtained as a direct result of getting help. Therefore, if someone is having an overdose, you generally need not fear calling 911.

In People v. Markham, the defendant’s companion called 911 when defendant was having an overdose. Before leaving for the hospital, defendant asked for his wallet and house keys. A rolled up dollar bill containing heroin was sticking out of his wallet. Because the heroin was found as a result of the emergency help, the court said the defendant was immune from prosecution: “We hold that the Act provides broad and unconditional protection from the prying eyes of law enforcement present at the scene of an overdose, regardless of whether that location is a personal residence, a business, a vehicle, and so on.”

The police may still search or arrest you if they have a reasonable suspicion based on information that they obtained independently or prior to your call. For example, the state could prosecute a woman that officers found sleeping in a car as she had not called for help and the officers noticed drug paraphernalia before they realized she was suffering from an overdose.

If you have been charged with a crime, contact an experienced criminal law attorney immediately. An attorney can review your case for your best possible defense. Were you seeking emergency help? Do the police have a separate basis from the emergency for charging you with a crime? If not, an attorney may be able to petition the court to suppress the evidence stemming from your emergency call.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

Posted in emergency drug help immunity | Leave a comment

WHAT IS ‘INTERFERING WITH PERSONAL LIBERTY’ UNDER ILLINOIS DOMESTIC VIOLENCE LAW?

Posted on September 12, 2020 by admin

You have just been charged with domestic violence based on interfering with your ex’s personal liberty. What does that mean? What can you do about it?

Under the Illinois Domestic Violence Act, “‘interference with personal liberty’ means committing or threatening physical abuse, harassment, intimidation or willful deprivation so as to compel another to engage in conduct from which she or he has a right to abstain or to refrain from conduct in which she or he has a right to engage.”

In a 1994 Illinois case, In re Marriage of Healy, the court declined to find interference with personal liberty where the complainant believed the respondent had an alcohol problem, he had muttered swear words under his breath, and he had awakened the children early in the morning to go on a trip on which the complainant feared they might have an accident.

If someone is seeking an order of protection against you or you have been accused of violating an order of protection, contact an experienced criminal law attorney immediately. Do not try to talk your way out of your situation. What you may think is a reasonable explanation may give the state the ammunition they need to enforce an order against you. An attorney can help present your situation to the court in its most favorable light.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

Posted in domestic violence, Illinois Domestic Violence Act | Leave a comment

WILL I HAVE TO TESTIFY IN MY DCFS APPEAL?

Posted on September 1, 2020 by admin

You have been indicated for child abuse from the Department of Child and Family Services (DCFS). You want to appeal but you recall from TV that criminal defendants usually don’t take the stand. You are afraid you could say the wrong thing out of sheer anxiety and confusion.

Do you have to testify before the DCFS? Under certain circumstances, the hearing officer could compel you.

Under DCFS rules, the agency has the burden of showing by a preponderance of evidence that you are guilty of the offense charged by a preponderance of the evidence. (This is a dramatically lighter burden than the one used in criminal cases, which is “beyond a reasonable doubt.”) In all cases, a hearing officer—-there is no right to a jury–will judge whether DCFS has met its burden of proof against you.

At the hearing, DCFS may call you to testify on the record. Your attorney may object, but there is a good chance the testimony will come in regardless. Testifying, however, can be a double-edged sword.

On one hand, you might inadvertently corroborate some of the evidence against you. But, you might also cast doubt on other aspects of the case. For example, are you able to offer an alternate explanation for any marks on the victim’s body? Can you explain any apparent inconsistencies in your statement to DCFS? Do you have an alibi? How did DCFS learn about the allegations? Through a vengeful ex-paramour? An experienced defense attorney can be critical in preparing you to testify.

If you have questions about a DCFS matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

Posted in DCFS, DCFS Appeal, DCFS Indicated Finding | Leave a comment

CAN POLICE SEARCH MY MOUTH DURING A STOP?

Posted on August 22, 2020 by admin

According to Illinois law, the answer is probably not–especially if the police used force.

In People v. Augusta, defendant was stopped for failure to signal when turning. The officer asked defendant if he had something in his mouth, which defendant denied. The officer ordered defendant to open his mouth, but then began to choke him. Defendant had in fact been concealing bags of drugs.

The trial judge denied defendant’s motion to suppress the drug evidence, stating that the officer had probable cause to believe the contraband was in defendant’s mouth.

The appellate court disagreed. The court found that the officer’s actions violated a law barring a peace officer from using a chokehold, or any lesser contact with the throat or neck area of another, in order to prevent ingesting the evidence. (See Prohibited Use of Force by A Peace Officer). A chokehold is defined as any direct pressure intended to reduce or prevent the intake of air. The officer’s conduct met the definition of “lesser contact.”

The court further held that the drugs were not in plain view. An officer may seize an object without a warrant if it is in plain view as long as: (1) the officers are lawfully in a position from which they can view the object, (2) the incriminating character of the object is immediately apparent, and (3) the officers have a lawful right of access to the object. The court stated that the incriminating nature of the object was not immediately apparent as the officers only saw a piece of plastic and a bulge in defendant’s cheek. While plastic in the mouth is unusual, the court did not find it was inherently incriminating.

If you have been charged with a crime, contact an experienced criminal law attorney immediately. Was the police stop and search legal? If not, an attorney may be able to bring a motion asking the judge to suppress the evidence. Bear in mind that different judges weigh the facts quite differently. Therefore, an attorney who is familiar with the courthouse may best present your particular situation in its most favorable light.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

Posted in 4th Amendment, probable cause, search and seizure | Leave a comment

ILLINOIS CRIMINALIZES ATTACKING MERCHANTS WHO ENFORCE COVID-RELATED SAFETY RULES

Posted on August 12, 2020 by admin

As of August 7, 2020, Illinois has made it a Class 3 felony to attack any merchant who attempts to enforce COVID-related safety guidelines.

The new law amends the aggravated battery statute. Section (720 ILCS 5/12-3.05(d)(12)) applies when you commit battery (other than with a firearm) against a merchant who is performing his or her duties, including relaying government or employer-related health/safety guidelines, during and for six months after a government-declared state of disaster due to a public health emergency.

If you are charged with aggravated battery or a similar offense, contact an experienced criminal law attorney immediately. As with most criminal offenses, the state must still prove all the elements of the offense beyond a reasonable doubt. Under Illinois law, battery is defined as knowingly and without legal justification causing bodily harm or making physical contact of an insulting or provoking nature. Did you make physical contact or were you simply arguing? Was the merchant performing his or her duties? Even if you clearly went off the rails, an attorney who is respected in the courthouse may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

Posted in aggravated battery, battery, Corona Virus, COVID | Leave a comment

HOW WILL MY BAIL BE DETERMINED?

Posted on August 8, 2020 by admin

(UPDATED 1/16/24:  Cash bond in Illinois has been eliminated as of September 18, 2023.  However, the court may still decide to keep you in jail if the state can show certain criteria. See our post: What to Expect at Your Illinois Bond Hearing Now That Cash Bail is Abolished   and  What you should know about Illinois’s New Law Ending Cash Bail.)

If you are arrested for a criminal offense, you may be released from the police station on personal recognizance, that is, without paying bail. If not, however, you may appear before a judge who will set bail and/or determine any other conditions of your release that are necessary to reasonably assure 1) your appearance, 2) the safety of the community, and 3) the likelihood of compliance with all conditions of bail.

Based on available information, the court looks at

  1. The nature and circumstances of the offense charged,
  2. Whether the offense involved the use or threats of violence,
  3. The likelihood the state will upgrade the charges against you,
  4. The likelihood of conviction,
  5. The potential sentence upon conviction,
  6. The weight of the evidence against you,
  7. Whether you have the motivation or ability to flee,
  8. Your past conduct,
  9. Whether the evidence shows that you engaged in significant possession, manufacture or delivery of a controlled substance, either individually or with others, and
  10. Whether you were already on bond or pretrial release pending trial.

The court must use the least restrictive conditions of bond necessary to insure your appearance and protect the integrity of the judicial system from threats to third parties. Any conditions of release should be nonmonetary. The court must also consider your socio-economic circumstances.

Conditions can include electronic home monitoring, curfews, drug counseling, stay-away orders and in-person reporting.

If you have been charged with a crime, contact an experienced criminal law attorney immediately. An attorney may be able to bring favorable information to the judge’s attention in hopes of reducing your bail.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

See 725 ILCS 5/110-5.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

Posted in bail, bond | Leave a comment

AM I RESPONSIBLE FOR A CRIME IF I WAS UNDER THE INFLUENCE OF A PRESCRIPTION DRUG?

Posted on July 25, 2020 by admin

The answer is that you may have a diminished capacity defense if you were involuntarily intoxicated because you were not warned about the side effects of a prescription drug. Beyond that, diminished capacity and/or voluntary intoxication is not recognized as a defense in Illinois.

To prove diminished capacity, you must show: 1) that your conduct was involuntary because of the unwarned side effects of prescription medication; and 2) these side effects made you so intoxicated that you lacked substantial capacity either to appreciate that you were committing a crime or to conform your behavior to the requirements of the law. See 720 ILCS 5/6-3.

A defendant’s burden to prove diminished capacity is very high and mostly unsuccessful. For example, in People v. Taliani, the defendant argued that he had not been warned about the side effects of taking Buspar and Desyrel simultaneously. As such, he suffered from heightened irritability, confusion, altered consciousness and increased ideas of suicide, which he claimed led to killing his girlfriend and shooting her mother. The court found that while the defendant may have shown he suffered from involuntarily produced side effects, it was not apparent that those side effects deprived him of the substantial capacity to know that shooting the victims was a criminal act or to refrain from engaging in that conduct.

If you have been charged with a crime, contact an experienced criminal law attorney immediately. An attorney can review your case for its best possible defense. Do the police have probable cause to arrest you? Can the state prove all the elements of your offense beyond a reasonable doubt? Even if the police acted lawfully and the evidence against you is overwhelming, an attorney who is respected in the courthouse may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

Posted in diminished capacity | Leave a comment

WHAT IS CHILD PORNOGRAPHY UNDER ILLINOIS CRIMINAL LAW?

Posted on July 18, 2020 by admin

Under Illinois law, you may not photograph, film or depict any minor child in a pose involving a lewd exhibition of the child’s unclothed or transparently clothed private parts. You also may not possess such depictions of a child you know is under age 18.

But how do you know if the photo you have is pornography? A recent Illinois case reviewed that topic.

In People v. Van Syckle, the court used an objective standard in weighing the following six factors: 1) whether the focal point of the visual depiction is on the child’s genitals; (2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; (3) whether the child, considering its age, is depicted in an unnatural pose or in inappropriate attire; (4) whether the child is fully or partially clothed or nude; (5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; and (6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer. As to the sixth factor, the court looks at whether the image invites the viewer to perceive the image from some sexualized or deviant point of view.

In the above case, the defendant was a high school pool equipment manager who secretly videotaped a 14-year-old student as she was changing out of her swimsuit. The lower court dismissed the case finding that the images did not meet the definition of lewd. However, the appellate court said this issue needed to be reconsidered and sent the case back for further review.

If you have been charged with a crime, contact an experienced criminal law attorney immediately. An attorney can review your case for its best possible defense. Did the police search your computer and was that search legal? Can the state prove all the elements of your offense beyond a reasonable doubt? Whether a photo is seen as pornographic can depend somewhat on your particular judge or jury. Even if the evidence is clear, an attorney, who is respected in the court house may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

Posted in child pornography | Leave a comment