If you had to guess, what would you say is the most common criminal offense in the state of Illinois?

Most people would say theft, or maybe burglary, but they are mistaken.

The most common criminal offense in Illinois is domestic battery. And it's not even close.

Domestic battery is charged so frequently that nearly every courthouse in the state has a courtroom set aside exclusively for domestic violence cases.

In Chicago, the Circuit Court of Cook County has a building dedicated to domestic violence cases, 555 W. Harrison. Most collar counties, Lake, Will, and DuPage, for example, also have a courtroom which hears domestic violence cases exclusively.

The reason for the special assignment of courtrooms has as much to do with high caseloads as it does with security. Emotions run high in domestic violence courtrooms, and courtroom personnel have to take special measures to ensure safety.

Illinois Domestic Battery Law

Domestic battery is a Class A misdemeanor charge under Illinois law. The possible sentence for any Class A misdemeanor in Illinois is up to one year in jail and a fine of $2,500.

The statute provides the following:

Sec. 12-3.2. Domestic Battery.
(a) A person commits domestic battery if he intentionally or knowingly without legal justification by any means:
(1) Causes bodily harm to any family or household member as defined in subsection (3) of Section 112A-3 of the Code of Criminal Procedure of 1963, as amended;
(2) Makes physical contact of an insulting or provoking nature with any family or household member as defined in subsection (3) of Section 112A-3 of the Code of Criminal Procedure of 1963, as amended.

For background, Illinois law makes a distinction between assault and battery. A battery takes place where a person makes physical contact with another in any way that is unwanted. In almost every case, punching someone is a battery. However, a battery can occur with any physical contact, such as throwing a bucket of foul water on someone.

Meanwhile, an assault takes place where a person causes another to believe he or she is about to be the victim of a battery (for example, holding one's fist out and threatening to punch somebody).

Domestic Relationship

Basically, the prosecution needs to prove two things in a domestic violence case: first, a battery, and second, a domestic relationship.

Anyone who is a family or household member falls into the category of a domestic relationship.

The law says:

"Family or household members" include spouses, former spouses, parents, children, stepchildren and other persons related by blood or by present or prior marriage, persons who share or formerly shared a common dwelling, persons who have or allegedly have a child in common, persons who share or allegedly share a blood relationship through a child, persons who have or have had a dating or engagement relationship, persons with disabilities and their personal assistants, and caregivers as defined in paragraph (3) of subsection (b) of Section 12-21 of the Criminal Code of 1961. See 750 ILCS 60/103(6).

As you can see, almost anyone with a connection is considered a family or household member.

Brother of an ex-girlfriend you dated 20 years ago? Still a domestic relationship.

Fraternity brother in the same frat house? Domestic relationship because you share a dwelling.

The fact that the complaining witness is a family or household member triggers special penalties for domestic battery.

Mandatory Minimum Sentence

Domestic battery is an offense with a mandatory minimum sentence. A mandatory minimum means the court cannot deviate from the sentence prescribed by the legislature.

For domestic battery, the minimum sentence is conviction. A conviction cannot be expunged or sealed. Ever.

In almost all other misdemeanor cases, a first offender is eligible for a special sentence of supervision. Court supervision is a period of probation in which the court "supervises" the defendant and, provided he complies with the rules of probation, the charge is dismissed. In this way, supervision is like a deferred prosecution or continuance.

Because supervision does not end in a conviction, the record can be expunged.

Domestic battery, which results in a conviction, can never be expunged or sealed. It is a permanent criminal record.

Defenses to a Charge of Domestic Battery

Self-defense is available to a person who is accused of domestic battery. The law in the state of Illinois makes no distinction between a man or woman using self-defense. That is, a man can use self-defense, even if violent, against a woman, and vice-versa.

The critical issue in the case is that the force used to defend one's self must be reasonable.

There are no hard and fast rules for what is and what is not reasonable. The rule is, it depends. It is for the jury to decide if a person reacted properly to the situation.

For example, slapping a person who is slapping you is arguably proper self-defense. Punching and kicking may not be reasonable if the person did not already do the same.

One interesting fact is that the law in Illinois does not say you have to wait for another to strike first. There is no duty of retreat in Illinois and you can strike first if you are not the aggressor.

Parent-Child Discipline

Parents can be charged with domestic battery for corporal punishment. Nonetheless, the law recognizes another defense to domestic battery in the context of a parent-child relationship.

If the parent uses corporal punishment as a reasonable discipline, then they can be acquitted of domestic battery. Again, the law provides no clear cut lines defining what is reasonable.

No law in Illinois says a parent cannot use a belt on a child.

A parent can slap his or her child, and it is not against the law provided it is reasonable.

Enhanced Penalties

Domestic battery differs from battery in another important respect. A second offense of domestic battery is a Class 4 felony offense with a penalty of 1-3 years in prison (Illinois Department of Corrections). If the defendant has a prior conviction for violating an order of protection with respect to the victim, then a first domestic battery offense is also a Class 4 felony.

If the victim suffers great bodily harm, then the offense is a Class 2 felony punishable by 3-7 years imprisonment. Even where the defendant gets probation, the mandatory minimum sentence for great bodily harm in domestic battery is 60 days jail.

Choking or Strangulation

In 2010, state lawmakers made a new offense of aggravated domestic battery involving choking or strangulation. Even if it is a first offense, a domestic battery involving choking is a Class 2 felony, which has a sentencing range of 3-7 years incarceration.

The significance of this development is that probably 35-50 percent of cases involving domestic battery have some instance where the offender placed his hands around the woman's neck. It remains to be seen how these cases will play out.

Witness Who Does Not Appear

Often a person charged with domestic battery will talk to the alleged victim during the case in an attempt to persuade her (or him) not to show up in court. It is believed that this assures the charge will be dismissed.

Other times, the defendant will ask the complaining witness to ask the State's Attorney to drop the charges.

If only it were that easy.

The reality is that once the police have been called, it is out of the victim's hands. The State's Attorney's has the authority whether to proceed with prosecution or drop the charges.

The State's Attorney most likely will proceed with prosecution against the desires of the victim.

The State typically prosecutes every domestic battery case to the fullest extent. The rationale is that they know the victim usually goes back to the offender and continues in the abusive relationship, and they want to be on record as fighting the vicious cycle of domestic violence.

Firearms Possession

A conviction for the offense of domestic battery will cause the Illinois State Police to revoke that person's Firearm Owner's Identification Card (FOID). Further, federal law also forbids a person with a conviction for domestic battery from legally owning or possession any firearms.

A charge for domestic battery can threaten your ability to work in security, law enforcement, and the military.

Preventing a 911 Call

Frequently a domestic case will have a charge for interfering with the reporting of domestic violence. Where the offender takes away the woman's cell phone, this may constitute a separate crime.

Interfering with the reporting of domestic violence is a Class A misdemeanor (up to one year in jail).

Lewis Gainor, the author of this blog, is a lawyer whose law practice is dedicated exclusively to criminal defense. He has written extensively about Illinois domestic battery. He is a member of the prestigious federal trial bar, and has been able to have domestic violence charges dismissed for over a hundred clients. If you have been arrested for domestic battery in the Chicago area, call him today for a free, confidential review of your legal situation: (224) 688-9118.

To say you have to make a decision whether to take the breathalyzer test during a DUI arrest is misleading.

It's misleading because making a "decision" implies you actually have control over what's going to happen. In a DUI arrest, nothing is under your control.

You may have been driving fine, but the cop pulled you over anyway.

You passed the field sobriety tests, but the cop arrested you anyway.

You may be innocent, but you're going to be found guilty anyway.

Welcome to the big business that is Illinois DUI enforcement. Police departments across the state have a financial incentive to make DUI arrests.

Small towns and big cities across the state make money from DUIs. The police department gets paid. The tow company gets paid. And so on.

Who is going to argue against this? Politicians aren't stumping on the campaign trail AGAINST arresting drunk drivers. No one wants a reputation of being soft on drunk driving. And so the laws against DUI in Illinois get more severe and punitive every year. Innocent people, like you, may have to pay the price.

Which leads us back to you, looking at flashing lights and wondering:

Is it better to refuse the breath test or blow?

The answer is, it depends. (Truth be told, there is a definitive answer, but that's for later.)

Let's look at the rules first. On a first DUI, the penalties for the breathalyzer are as follows:

• For refusing, your license will be suspended for 12 months.
• If you blow into the breathalyzer and the result is 0.08 or more, then your license is suspended for 6 months.

The legislature drafted the law so that you may want to blow to avoid the more serious suspension of your driver's license. But in blowing into the breathalyzer, you are providing evidence that can be used to prove you guilty of DUI. The offense of DUI is a Class A misdemeanor for which the sentence can be up to one year in jail and a fine of $2,500.00. Moreover, a sentence of conviction will cause the Secretary of State to revoke your driver's license.

It's a tough choice. This dilemma is made more complicated when it's your second DUI offense. In that case, the rules are the following:

• If you blow 0.08 or more, then your license is suspended for one year.
• But if you refuse the breathalyzer, then you license is suspended for three years.

Confused yet? The answer is coming. But before we get to that...

There is one consideration that may cause some people to decide it is actually better to provide a breath sample on the second DUI. On the second offense, the defendant is not eligible for supervision, which is the typical sentence handed out in traffic court for moving violations. Supervision is not a conviction and does not cause the Secretary of State to revoke your driver's license. This sentence of supervision is key in a first DUI offense because it will save your license.

On the second offense, no one can get supervision. That means the minimum sentence is a conviction, which results in a revoked license.

But the revocation lasts for one year. Immediately afterward, the driver can apply to the Secretary of State for reinstatement. A driver who is serving a three-year summary suspension, on the other hand, has to wait an additional two years to drive again legally.

Some may say, first or second DUI arrest, it is better to blow and avoid the longer driver's license suspension.

But not this lawyer.

There is a guiding principle that says, all other things being equal, it is better to refuse the breathalyzer.

There are TWO breathalyzer tests. One matters, but the other doesn't.

You can refuse one test and lose your driver's license, but refusing the other has no consequences.

The first test is the portable breath test, known as the PBT. The PBT is a hand-held device that the police officer uses during the roadside testing for a preliminary reading of a driver's blood alcohol content.

There is no penalty for refusing this test, or blowing 0.08 or more. The result is inadmissible in trial for a DUI offense. The result could be 0.08 or even 0.24, but it cannot be used against you in the criminal prosecution. Likewise, it cannot be used against you to suspend your driver's license. The PBT has no consequences.

The second test is the breathalyzer machine in the police station. This is a different scenario. The breathalyzer machine is typically located in the station's booking room on a table. It is a large, stationary instrument about the size of a desktop computer like an Intoxilyzer. This is the only test that will result in a suspension of your driver's license.

So the general rule is, take your chances on the PBT. It's irrelevant. It doesn't matter.

If you're under 0.08, arguably the police officer has to let you go. If the cop arrests you anyway and you are SURE that your blood alcohol content will be lower in the police station, you may decide to take a calculated risk and blow into the breathalyzer at the station. If your gamble was right and the result is less than 0.08, you may have just proven your innocence. But remember, this is a gigantic gamble.

If you blow over the legal limit on the PBT, don't beat yourself up over the decision to take the PBT. Realistically, the police officer had already decided to arrest you. The PBT was just his or her way of trying to make the best case for probable cause.

But when you get to the station, that breath test is a different story, with much greater consequences.

If you know you already blew over 0.08, then the "decision" whether to take the breath test is much simpler.

Lewis Gainor, the author of this blog, is an attorney in Chicago who dedicates his practice to Illinois DUI law. If you are facing DUI charges, you need an attorney who concentrates in the area. Call Lewis Gainor right now for a free consultation: (224) 688-9118. Click here to read more from him on the subject of breathalyzers.

Teenage romance. Sex offender registration. What is the connection?

Seventeen years old is the age of consent in Illinois. That's the law. Consensual sex between two persons who are under 17 years of age is a criminal offense. Look it up at 720 ILCS 5/12-15.

Consensual sex between two minors, boy and girl, or two minors of the same gender, is criminal sexual abuse. Criminal sexual abuse is a Class A misdemeanor offense that is punishable by up to one year imprisonment and a fine of $2,500.00. During sentencing, the judge is authorized to sentence the accused to probation as opposed to incarceration.

But it's just a misdemeanor, right?

Wrong.

The offense of criminal sexual abuse is a very serious matter for one simple reason: a finding of guilt requires the defendant to register as a sex offender.

Sex offender registration lasts for a minimum period of 10 years. That means the offender's face will be published online in the sex offender registry and the State will impose conditions as to where the offender may live and work, and so on. And once a person is registered as a sex offender, it is almost impossible to comply with the law. This results in the 10-year period for registration getting extended over and over again.

Teenage love doesn't seem so innocent anymore, does it?

Let's look at the statute. What is criminal sexual abuse?

By definition, it is not abuse as most people know it.

Although criminal sexual abuse charges can be filed for non-consensual sex acts with a minor, the offense is far more commonly charged for consensual sex.

Criminal sexual abuse is sexual penetration (sex organs, fingers, tongue, etc. put on or into a body orifice), or sexual conduct (touching or fondling of private parts) between two persons who are both under 17 years old. The victim must be at least 9 years of age, or the charge becomes a felony.

State lawmakers knew of the prevalence of relationships between teenage girls and older boys (or men, depending on the circumstances), and they wrote in an exception to the law.

Sort of.

If the victim is at least 13 years old but less than 17 and has consensual sex, it is still only a misdemeanor as long as the perpetrator was less than 5 years older. 

So, for a 20 year old to have sex with a 16 year old, it is a misdemeanor, not a felony offense. But if the offender is 21 years old, then the sex becomes a felony.

Now, to be clear, all of the above presumes that the two persons involved are not family members. If that is the case, then the age of consent is 18 years old, not 17. But a family member can consent only to sexual conduct (touching or fondling) but not intercourse, because that would be incest. Incest is called sexual relations with families under Illinois law and is a Class 3 felony punishable by 2-5 years imprisonment.

If the accused is 5 years older than the victim (who is under 17) and they have sex, it is called aggravated criminal sexual abuse. This is a Class 2 felony, which has a sentencing range of 3-7 years in prison and a fine of $25,000. Although the judge can give the defendant probation, the defendant must first submit to a sex offender evaluation.

A person charged with aggravated criminal sexual abuse will be held on bond until the trial date. The typical bond for these offenses can be, on the very low end, $50,000, and on the high end, $1,000,000. The defendant will need 10% in order to get released from jail.

Although probation is possible, it is not likely. This is not an offense for which the defendant wants to sit through a sentencing hearing. When the victim and victim's mother testify, that's when the defendant should start praying for probation, because it will be terribly emotional for the victim. The accused is likely to see many years in prison.

And it happens that very few sex offenders cop a plea. Most want to go to trial, so these cases are all or nothing affairs. Either the defendant gets acquitted or he does a lot of time. That being said, there are many people who are arrested for sex offenses who are innocent, and they should demand trial.

Are there any defenses to criminal sexual abuse?

Yes.

It is a defense that the accused thought the victim was 17. But, the belief that the person was 17 years old must be a reasonable belief. The question of what constitutes a reasonable belief is for the jury to decide. Juries can be very unpredictable, but it would stand to reason that if the perpetrator checked the victim's ID beforehand, that is probably a reasonable belief. Anything other than that, and the defendant has to take his (or her) chances.

It is irrelevant whether the boy and girl are in a relationship or plan to marry. The two could be high school sweethearts, but the law is the law.

These cases come up frequently in teenage pregnancy. Typically, it is the boy that is arrested. Whether it's a good idea to make a child's father a sex offender for life because the child was conceived during the mom's teenage years is up for debate. But no state lawmaker is going to campaign on a promise to reform sex offenses.

So, I'll finish by answering the one question that so many people want to know.

How many cases are there for criminal sexual abuse?

More than you would ever believe.

Lewis Gainor, the author of this blog, is a lawyer in Chicago who dedicates his practice to defending clients accused of serious sex offenses. He is a member of the exclusive federal trial bar. If you have been charged with criminal sexual abuse, you need qualified counsel. Call Lewis Gainor right now at (224) 688-9118.

Possession of marijuana is a criminal offense in the state of Illinois. Despite the rising popularity of the legalization and decriminalization movements in California and elsewhere in the United States, marijuana is still a criminal offense.

Possession of marijuana is classified as a misdemeanor offense in Illinois as long as the total weight is 30 grams or less. 30 grams is equal to about one ounce (oz).

The legal term in Illinois for the narcotic is cannabis, as opposed to marijuana or weed, pot, dope, grass, kind, etc. Illinois law treats all different types of cannabis the same (e.g., cannabis grown in a laboratory to maximize its potency is still legally ordinary cannabis).

Misdemeanor offenses have a maximum sentence of up to one year in jail and a fine of $2,500. The judge is allowed to sentence the defendant to probation instead of jail, substance abuse counseling, random testing for alcohol and illegal drugs, and community service.

Because it is a misdemeanor offense, possession of cannabis does not result in a sentence of imprisonment in the Illinois Department of Corrections (IDOC). IDOC is the state penal system in which felons serve their sentences.

Misdemeanor jail sentences are served in the county jail, such as the Cook County Department of Corrections.

Possession of cannabis is classified as follows:

• Up to 2.5 grams is a Class C misdemeanor. The punishment for a Class C misdemeanor is up to 30 days jail and a fine of $1,500.0
• 2.5 to 10 grams of cannabis is a Class B misdemeanor offense, which has a possible penalty of 180 days jail and a fine of $1,500.
• 10 grams to 30 grams of cannabis is a Class A misdemeanor. The possible sentence for a Class A misdemeanor under state law is up to one year in jail and a fine of $2,500.

There is a mandatory fine of $200 for a Class B and C misdemeanor cannabis charge, and a fine of $300 for a Class A misdemeanor.

How serious is a charge for possession of marijuana? The answer is, it depends where you get busted.

In Cook County, a cannabis charge is serious, but you can avoid jail with an attorney who knows what to do. The number of arrests for possession of cannabis in Chicago makes it necessary for the court system to provide alternatives to jail. If every person with a bag of weed went to jail in Chicago, the jail would have bodies stacked to the ceiling.

So, Chicago courts offer a deferred prosecution to drug offenders called Drug School. The program is run by the Cook County State's Attorney and requires 10 to 20 hours of drug education. The law establishing Drug School was written specifically for the Cook County State's Attorney because of the high volume of cases.

The state legislature estimated that Drug School would save $17 million over traditional prosecution.

If the defendant completes Drug School, the case will be dismissed. The record of arrest and the case number can also be expunged at a later date.

If an individual is certified by the State's Attorney that he or she has successfully completed the terms of the drug school, the State's Attorney shall waive prosecution for the immediate offense and discharge the case. See 55 ILCS 130/30.

But there is still reason to worry about a cannabis charge in Chicago: Drug School only takes place where the prosecution agrees to it.

Since Anita Alvarez was elected as the State's Attorney, Chicago prosecutors are taking all cases seriously. Alvarez campaigned on a promise to be tough on crime, and most lawyers would agree that the court system has changed in Cook County.

Now that Cook County prosecutors are taking these cases seriously, a cannabis charge in Chicago is similar to the cases in DuPage County. In DuPage, State's Attorney Joseph Birkett's office has a policy of not offering the minimum sentence for first-time offenders. The point of view in DuPage apparently is, even if this is the only arrest in your life, you should get a permanent criminal record.

In other collar counties, such as Will, Kane, Kendall, Lake and McHenry, these cases can be dangerous, too. The outcome of each cannabis case depends on the defendant's history and the nature of the present case. And often, it depends on the presiding judge.

One consequence of a cannabis charge is that it can cost you your federal financial aid. Federal law provides that a student who is found guilty of possessing cannabis will lose financial aid for one year on the first offense, and two years on the second offense. A third offense will disqualify the student for life.

According to the National Organization for Reform of Marijuana Laws (NORML), about one percent of students receiving federal financial aid lose their student loans because of a cannabis case.

So don't presume it's no big deal. Getting arrested for cannabis is a serious issue.

Lewis Gainor, the author of this blog, is a criminal defense attorney based in Chicago. His law practice is dedicated exclusively to criminal defense. He is a member of the prestigious federal trial bar. If you are facing cannabis charges, call him immediately at (224) 688-9118 for a free, confidential review of your cannabis charges.

Traffic tickets can suspend your driver's license.

Have you been pulled over? Did the police officer write you a ticket for speeding?

If so, that ticket may cost you your driver's license.

Contrary to what many people believe, the points on your driver's license don't matter.  It's the number of tickets you've had that determines whether your license is suspended.

In Illinois, 3 moving violations within 12 months will result in a suspended license. For drivers who are younger than 21 years of age, 2 moving violations in 24 months will cause a driver's license suspension.

The points on your license come into play when you've had too many tickets in a year. The reason is, the number of points on your license determines how long your suspension will be.

The Secretary of State will suspend your license using the following schedule:

• 15 through 44 points: 2 month suspension.
• 45 through 74 points: 3 month suspension.
• 75 through 89 points: 6 month suspension.
• 90 through 99 points: 9 month suspension.
• 100 through 109 points: 12 month suspension.
• 110 or more points: Your license isn't suspended. It's revoked, which means you'll have to appear before Secretary of State hearing officer in order to be reinstated. And that's not a sure thing.

The points on your driver's license can add up very quickly:

• Speeding 1-10 mph over the limit counts for 5 points.
• Speeding 11-14 mph over the limit. That's 15 points.
• Speeding 15-25 mph over the limit counts for 25 points.
• Speeding 26-29 mph over the limit is good for 50 points.
• Speeding 30 mph over the limit counts for 50 points.
• Speeding in a school zone? 20 points.
• Speeding in a work zone. That's 20 points.

As you can see from the above, a few tickets in a short amount of time and your license is suspended.

The critical issue is that if you are caught driving during a suspension, it's a criminal offense.

Driving while suspended is a Class A misdemeanor offense. The sentence for a Class A misdemeanor can be up to one year in jail and a fine of $2,500. The judge is also authorized to impose a punishment of community service.

But the most serious consequence from a ticket for driving while suspended is that it will cause the Secretary of State to re-suspend your driver's license for the same period of suspension as before.

In effect, a ticket for driving while license suspended doubles your suspension.

On the second offense of driving while suspended, the minimum sentence by law is 100 community service hours.

Your third offense of driving during a suspension results in a minimum 30 days of jail or 300 community service hours.

And on your fourth offense, the State of Illinois can have your vehicle immobilized.

Many people believe a ticket for driving while suspended in Chicago won't result in jail time. But the Tribune runs a story about suspended drivers getting arrested as they drive away from traffic court at the Daley Center usually once a year. And believe it, these people are going inside.

In the collar counties, DuPage, Kane, Lake, McHenry, Will, etc., these offenses are far more serious, and jail is a possibility early.

Lewis Gainor is the author of this blog and maintains a special law practice dedicated to criminal, DUI, and vehicle code offenses. If you were ticketed for speeding and believe you may lose your driver's license, call him today at (224) 688-9118 for a free consultation.

So you got a DUI. Now what?

Driving under the influence of alcohol or drugs in Illinois is a Class A misdemeanor on the first offense. The punishment for a Class A misdemeanor can be a sentence of up to one year in jail and a fine of $2,500. However, the court is permitted to sentence you to probation instead of jail.

Illinois DUI is a distinct offense in that there a number of mandatory minimum requirements in sentencing. For example, all DUI offenders are required to submit to a substance abuse evaluation performed according to standards set by the Illinois Department on Alcoholism & Substance Abuse (DASA). All DUI evaluations are the same, statewide. The court will order you to participate in whatever counseling is recommended.

The other very important distinction is that the Secretary of State will take action against your driver's license for a DUI offense. Your driver's license is priority number one in a DUI case.

An arrest for DUI will result in a statutory summary suspension of your driver's license. It is statutory because it is required by statute, and summary in the respect that it occurs automatically, without a hearing.

Your license will be suspended 46 days after the date of the arrest. The length of the suspension will be determined by whether you are a "first offender."

The issue is not whether you have had a prior DUI. To be a first offender for the summary suspension means you haven't had a DUI or summary suspension in the last five years.

The following rules apply to first offenders:

1. If you take the breath test and the result is 0.08 or more, your license is suspended for six months.
2. If you refuse the breath test, then your license will be suspended for 12 months.

You have a right to a hearing on the suspension. You must file a petition to rescind summary suspension in court. You are entitled to a hearing within 30 days, and failure to have a hearing for any reason results in a rescission of the suspension. So if the cop doesn't show up for court, you win just by filing early.

Generally, the grounds for challenging a suspension are the following:

1. No moving violation for the traffic stop.
2. No probable cause for the DUI arrest.
3. No reasonable grounds to believe you were driving under the influence.
4. The police officer didn't warn you that your license would be suspended.
5. You blood alcohol content wasn't 0.08 or more.
6. You are accused of refusing the breath test but you didn't refuse.

If you can prove any of the above, you get your license back.

The next issue in the DUI is the Class A misdemeanor aspect. If you forget everything you've read here, just don't forget this:

A conviction for the offense of driving under the influence will caused your driver's license to be revoked.

That is the rule that governs the case. You absolutely must avoid a conviction for DUI. A conviction will cause the Secretary of State to revoke your driver's license for a minimum period of one year.

But the revocation doesn't end at one year. When your license is suspended and you reach the term date of the suspension, you are reinstated upon payment of a reinstatement fee. A revoked license, on the other hand, requires you to appear before the Secretary of State for a formal hearing.

The Secretary of State has its own court system for formal hearings. You will have to submit  an application for hearing, a current substance abuse evaluation and proof of treatment, testify under oath, and prove that you should be reinstated.

Approximately 80% of people whose licenses are revoked are DENIED reinstatement at the formal hearing.

Until the Secretary says otherwise, you're revoked. That's why, at least in theory, a revoked license can last indefinitely.

How do you avoid conviction? Court supervision.

If you've ever had a traffic ticket and gotten court supervision, it's actually the same thing. Court supervision is a special sentence in Illinois that results in the dismissal of the charge without a conviction after a period of time. Court supervision is critical for first-time DUI offenders.

But it's not a given. It is a matter of discretion for the court. So don't think you have a right to supervision, because you don't.

In Cook County, supervision is reporting, which means you will have to report to a probation officer during the term of supervision. The typical supervision term in Cook County is 18-24 months.

In DuPage County, the State does not offer supervision on DUI offenses. Ouch. But there are ways to get it with the assistance of a lawyer.

Supervision in Kane County sometimes requires house arrest (wearing an ankle bracelet) for a few months.

Lake County supervision is non-reporting and lasts typically one year.

Court supervision may seem like a really good deal. In fact, there are a lot of lawyers who want your money and will tell you this.

Think again.

The risk with court supervision is that if you violate any of the conditions, you are subject to re-sentencing. The court will revoke your supervision and re-sentence you to a conviction. And then, bang. Your license is revoked.

If you think about it, that's 1-2 years in which you're always going to be looking over your shoulder, worrying about what if.

So, my advice to you is to pick the right lawyer. Whether it's me or somebody else, make sure you've got a lawyer who will actually fight for you. Any mope can walk into court, do little to no work for his client, take his client's money and plea him out.

But the lawyer isn't stuck with the consequences. You are.

Like a lot of things in life, you get what you pay for.

Lewis Gainor, the author of this blog, is a lawyer with a special practice dedicated to defending clients accused of DUI. If you were arrested for DUI, you need a skilled and knowledgeable attorney. Call Lewis Gainor right now at (224) 688-9118.

 

Possession of cocaine is a serious criminal offense in Illinois. Cocaine is not like marijuana, which is generally a misdemeanor offense.

It would take a lot of marijuana to get charged with a felony. Possession of 30 grams of marijuana or less is a misdemeanor offense, but anything more than that is a felony. 30 grams is equal to just over one ounce of pot.

But any amount of cocaine is a felony. There is no misdemeanor charge for possession of cocaine in Illinois, regardless of how small an amount.

Less than a gram? Felony. Residue? Felony.

This may seem disproportionate, like the punishment doesn't fit the crime. But state lawmakers won't be campaigning on a promise to reduce penalties for cocaine any time soon. Or, at least not until Illinois courts are completely taken over by possession of controlled substance cases. Some may say we are already there, but this is a debate for another time and place.

The difference between a felony and misdemeanor is the sentence. A misdemeanor charge has a maximum penalty of up to one year imprisonment. By comparison, felonies are criminal offenses for which the sentence is more than one year.

The other important distinction is where you would serve your sentence. All misdemeanor sentences are served in the county jail. Felony sentences are served in the Illinois Department of Corrections. Persons in custody in the county jail are generally serving a sentence for a misdemeanor offense or awaiting trial.

Possession of cocaine is generally a Class 4 felony. The legal term for the offense is possession of a controlled substance. In Chicago courts, the acronym is PCS (possession of a controlled substance). In other counties, the offense is called UPCS (unlawful possession of a controlled substance), but we're all talking about the same thing.

A Class 4 felony has a potential sentence of 1-3 years in the Department of Corrections. However, it is a probationable offense, meaning the court can sentence the defendant to probation rather than imprisonment.

The fine can be $25,000. However, I've never seen anyone get a fine of even $1,000 for this type of offense.

The minimum sentence for a felony is a conviction. A felony conviction cannot be expunged, and generally cannot be sealed, either. It is a permanent criminal record. Moreover, a felony conviction will disqualify all other offenses on your background from expungement.

There is a special type of probation that is available to first offenders. It is called 410 probation, or, 1410 probation. What everybody is referring to is the section of the Illinois Controlled Substances Act that allows for probation for first-timers.

If you've had no previous controlled substance cases, you're eligible for 410 probation.

410 probation is a 24-month sentence of probation that results in the dismissal of the charge without a conviction. 410 probation can be expunged.

The court can sentence a first offender to 410 probation regardless of whether the State objects. The sentence requires substance abuse treatment and 30 community service hours.

If the amount of cocaine was 15 grams or more, then you're looking at a different case. 15 grams or more of coke is a Class 1 felony, which is 4-15 years prison.

410 probation is available for this offense, but it is not a certainty.

Every arrest for cocaine will result in a bond hearing before a judge. The judge will set a bond amount that you'll need to post in order to get out of jail. If you're unable to post the money, then you'll be held in jail until your next court date.

The bond amount varies so much it is almost impossible to predict. In some counties, the bonds are set with jail overcrowding as the concern. That is, the bond will be low because there's no room in the jail.

Bond will always be 10% of a certain amount. A $15,000 cash bond requires $1,500 cash to walk. I would estimate that is a typical bond in the Chicago collar counties.

The next court date is a preliminary hearing. The purpose of the hearing is to determine whether there is probable cause to support the charge. The preliminary hearing is not about guilt or innocence - just probable cause.

You should get a lawyer as soon as possible because the preliminary hearing is a chance to win the case on a finding of no probable cause.

There is an urban legend that Cook County judges won't find probable cause for less than one gram of coke. Urban legends make people believe funny things.

So go get a lawyer on the phone. You're going to need one.

Lewis Gainor, the author of this blog, is a lawyer whose practice is devoted exclusively to criminal defense. If you have been charged with a felony offense in the Chicago area, call him immediately at (224) 688-9118 for a free, confidential review of your controlled substance case.

A DUI arrest results in a driver's license suspension and misdemeanor charge.

If you get arrested for driving under the influence in Illinois, you are looking at two separate and equally important issues:

1. Your driver's license will be suspended.
2. DUI is a misdemeanor offense.

Generally, you should tackle these problems in that order. Priority number one is your driver's license, and priority number two is the criminal offense.

The Secretary of State will impose a summary suspension of your driver's license after an arrest for DUI. The suspension is summary because it occurs without a hearing in court. Seems fair, right? That's the law. 

The police officer who made the arrest will send paperwork to the Secretary, and upon receiving it, the Secretary will automatically suspend your license and send you a notice in the mail.

For nearly all DUI arrests, the summary suspension takes effect 46 days after the arrest. However, under certain situations, it may be later.

The law says the summary suspension takes effect 46 days after the date that you received notice of the summary suspension (i.e., the paper that says Notice of Summary Suspension handed to you by the police officer). If you submitted to a blood or urine test and the results are not immediately available, the police officer will mail the Notice of Summary Suspension to you and the Secretary when the results come back. The summary suspension will start 46 days after that. This process can take months.

Nonetheless, most DUI arrests involve a breathalyzer test and the officer giving you the Notice of Summary Suspension at the station.

DUIs involving a substance other than alcohol (e.g., marijuana, cocaine, heroin, etc.) are rather rare. For purposes of this article, we'll assume a scenario involving alcohol.

The length of the summary suspension depends on two factors:

1. Whether you've had a DUI in the last five years.
2. Whether you submitted to testing or refused.

If you've had no prior DUIs or summary suspensions in the last five years, the law says you are a first offender for purposes of the summary suspension. This could be your second DUI arrest, but as long as it has been at least five years, you are a first offender.

The minimum driver's license suspension for DUI in Illinois is as follows:

1. If you are a first offender and the breathalyzer result is 0.08 or more, your license is suspended for 6 months.
2. If you are a first offender and you refuse to take the breath test, the summary suspension lasts for 12 months.  

The summary suspension for a non-first offender is much more serious:

1. A test result showing a blood alcohol content of 0.08 or more results in a 12-month suspension.
2. Refusing to blow will result in a 36-month suspension.

So what can you do about it? Actually, a lot.

You have a right to challenge the suspension in court. On the back of your Notice of Summary Suspension are instructions on how to do so.

Most police departments use a standard Notice of Summary Suspension which says you can file a petition for judicial review in the county circuit court. Lawyers and judges call it a petition to rescind statutory summary suspension, but we're all talking about the same thing.

It's got to be filed in 90 days, but most importantly, once it is filed and a request for hearing is made, you have an absolute right to a hearing within 30 days.

Do the math. The 30 days comes before the 46th day on which the summary suspension goes into effect. Therefore it is imperative to file the petition to rescind as soon as possible.

If your court date is beyond 30 days from the date you file your petition to rescind, the law makes an exception and says you are not deprived of your right to a hearing if the hearing takes place on the first court date indicated on the ticket.

But if the officer is not present on that date for hearing, you win your license back just by showing up.

Also, supposing the officer does show up for court, you may not get your hearing because the court doesn't have time, or the paperwork is not in the court file. Either way, that's their problem. Not yours.

So go get that petition to rescind on file as soon as possible.

Attorney Lewis Gainor is the author of this blog. His law practice is dedicated almost exclusively to the defense of driving under the influence. If you were arrested for a DUI, call him immediately at (224) 688-9118 for a free consultation.

Telephone harassment is a Class B misdemeanor offense in Illinois. The sentence can be up to 180 days in jail and a fine of $1,500. Generally a judge would be reluctant to sentence a person to jail for making phone calls. However, if the judge is concerned about domestic violence, the court can require the defendant to complete counseling and probation.

The law on telephone harassment is 720 ILCS 135/1-1:

Sec. 1-1. Harassment by telephone. Harassment by telephone is use of telephone communication for any of the following purposes:

(1) Making any comment, request, suggestion or proposal which is obscene, lewd, lascivious, filthy or indecent with an intent to offend; or
(2) Making a telephone call, whether or not conversation ensues, with intent to abuse, threaten or harass any person at the called number.

The issue in a telephone harassment case is whether there was an intent to abuse or harass the other person. Making phone calls and using profanity is not a crime. The reason? Free speech.

The government can't prosecute people for using profanity because that is protected speech under the First Amendment. If you've ever heard someone say, "I can say what I want. It's a free country," that's actually true. But there is limit.

When someone uses language with an intent to abuse or harass someone, it is not protected by freedom of speech and can be the basis of criminal charges.

The first question a defense attorney asks in a case such as this is, will the alleged victim show up? In about 90% of domestic-related cases, the alleged victim refuses to cooperate with the prosecution. After the incident, the couple reconciles and there is an agreement that the victim will not appear in court.

Many people in domestic cases believe that they can choose to drop the charges. This is not true. It is the State's Attorney who decides whether to prosecute. The prosecution can go forward without the victim's consent.

But if the victim doesn't appear in court to testify against the defendant, the prosecution probably can't prove its case. The reason is, you have a right to confront your accusers in open court. That's the Confrontation Clause of the US Constitution. Unless someone is a witness to what happened, he or she can't testify. That person's testimony would be hearsay (e.g., "I heard from a lot of people that she did it.").

The prosecution may attempt to prove the case by circumstantial evidence, using phone records to show repeated calls and messages. I suppose the State could introduce the recorded messages and say, "These threatening voicemails speak for themselves." While this may be possible in theory, the jury may want to know, "If he doesn't care enough to show up for this case, then why should we care enough to find her guilty?" I also don't think a Cook County judge would be amused at a victim-less trial. The State would probably dismiss the charges rather than proceed to trial.

The defense should be prepare for the alleged victim to testify. If the complaining witness is in court to testify, he or she would have to say that the calls were abusive and harassing. The defendant would deny it, and then the case would be a contest of he said, she said.

In my experience, juries are very skeptical of any case that is he said, she said - especially when the people involved were in a relationship. Who is the one person who is most likely to lie under oath against you in court? Your ex.

But if there are voicemails that are damaging to the defense, the case will take on a different character. Then the defense may want to take this angle:

Ladies and gentlemen of the jury, you've heard voicemails in which my client said some terrible things. But let me ask you: who hasn't said things they regret in a breakup? Relationships can be ugly, and people say things they don't mean. If you've ever been so angry with someone that you said, "I could just KILL you," does that mean you were going to go through with it?

Lewis Gainor, the author of this blog, is a criminal defense attorney in Chicago. If you were arrested for a misdemeanor, call him immediately at (224) 688-9118 for a free consultation.