Have Questions About Your Case? Check Out Some of Our Law Firm's FAQs
Dealing with any kind of legal matter inevitably leads to a number of questions. We have created a list of some of the questions we hear the most in our Edwardsville law office, but please give us a call if you have a question that is not answered here.
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What changes are going to be implemented with the new SAFE-T Act?
Quite a few changes regarding bail will take effect on January 1, 2023. Last July the bail standards were changed. That change required a pretrial screening be conducted on every person seeking a bail reduction. Factors the screen looked at were seriousness of the offense, flight risk, and history of the offender. Personal recognizance was presumed in all but the most serious of offenses. However, even those changes resulted in very high bonds established on Class 1 and Class X offenses. Bonds of $100,000 to $2,000,000 are common. 10% of that amount must be posted per statute. Many clients have a difficult time accruing that much money to post as bond and remain in jail for extended periods of time until their family posts. Some clients are unable to post bond and stay in the jail the entirety of their cases. I recently tried a murder case where my client couldn't post $200,000 so he stayed in jail for 671 days before the jury found him not guilty.
Beginning January 1, 2023 the law regarding bail changes substantially. Most every offender will be released on personal recognizance. The state will be required to provide each defendant a hearing within 48 hours to determine if they will be released. The defendants are entitled to have an attorney at that stage of the proceedings. That means that the public defenders office will need to have an attorney attend the weekend settings on bail. Even if the defendant desires to retain private counsel they still have a right to be represented at the initial hearing. Defendants will be entitled to make at least 3 phone calls within 3 hours of being detained.
If a person who is out on bond fails to appear in court a warrant cannot be automatically issued. The court must ask that a petition for rule to show cause be issued. Then the defendant must be personally served with the petition. The petition will be set for hearing and the defendant must attend. If they fail to appear for that hearing the judge may then issue an arrest warrant. Practically this process will create an enormous amount of backlog for fugitive cases. I'm not sure what logic, if any, was used in creating this change to the law. If someone fails to appear in court and a warrant is issued they simply contact their attorney and obtain an order quashing the warrant and reset the case to the next available docket. By adding a contempt requirement all that will occur is adding an unncessary step that requires court resources and time for both the state and defense.
Body cams will be mandated by 2026 depending on the size of each police force's municipality. Currently, we only have a few departments that use body cams. I believe it is helpful in resolving most cases. Dash cams only capture a portion of the events. Body cams capture much more. The body cam footage is easy to review, although time consuming. I welcome this change and believe it will assist both the state and the defense in disposing of cases.
Use of force by officers will change drastically. New standards and reporting requirements take effect January 1, 2023. There will also be an officer decertification process that will be mandated. This new law was added to prevent problem officers from resigning or being terminated for their actions at one department only to move to a neighboring police force. Officers will be required to release misdemeanor and some felony offenders on a notice to appear.
Driver's license suspensions will not be imposed for failure to attend court on traffic matters. No suspensions will occur for red light camera violations.
There is already discussions about repealing the law. Law enforcement is very dissatisfied with the changes and argue that it will increase the number of violent offenders being released pretrial and reoffending while out on bond. They are also not satisifed with the decertification procedures that will result in some officers being removed from their positions.
Illinois has Enacted a New Body Cam Video Preservation Law 2016
January 1, 2016 Illinois enacted the Law Enforcement Officer - Worn Body Camera Act (50 ILCS 706/10-1, Et. Seq.) The law does not mandate usage of body cams. It does however define what duties departments utilizing cams must follow. The law does not provide a specific penalty for the departments' failure to comply with the Act. However, it does state that such failure may give the defendant the remedy of mentioning same to a finder of fact when determining what amount of consideration may be afforded that period of time and its events.
I believe the law fails in two major respects. First, the Act should have mandated all departments adopt immediate usage of body cams. Secondly, the Act should have included sanctions such as stated in People v. Kladis being applicable specifically in situations where the Act is not complied with.
In Madison County as of 4/22/16 there are only three (3) departments currently using body cameras. The departments are three of the smaller departments. If the intent of the Act is to provide video for police / citizen interactions it does not cause the vast majority of departments to record the events.
I've Been Charged with a Retail Theft Charge. How Can I keep it from my Record?
Retail theft is a misdemeanor in Illinois for first offenders (unless the value of the property allegedly taken exceeds $300). It is a common charge among the general public. College students, spouses, retired persons and professionals have all been charged with the offense. Usually the person charged feels very embarassed worries about publicity they may face if their arrest is published in the news be it online or printed. Aside from embarassment many persons worry about the impact it could have on their college career or profession. A retail theft client is normally arrested, issued a citation, ordered to appear in court to answer the charge, and posts a small bond or is given a notice to appear. It is at that time they need to determine which attorney they will retain to fight the charge.
In Illinois the statutes allow for dispositions that include conviction and probation. They also allow for what is termed "court supervision". Some counties also have ways to obtain a dismissal of the charge through diversion programs. St. Clair county has what is called Offender Accountability Programs. These diversion programs ultimately result in a dismissal after completion of some classes or other regularly scheduled meetings. Veterans Court and Mental Health Court are two additional options depending on which county the charge is filed. Not all counties have these alternative courts. Other cases can be outright dismissed through negotiations. Each case is of course fact dependent. Many major retailers have exceptionally high quality video that can track an offender from the time they pull onto the parking lot all the way through the premises. They use facial recognition software and can compile a video of the entire events. The videos are routinely used in prosecutions by the State. Lastly, even if there are strong facts against the client, the charge can be negotiated to a lesser offense so it appears more innocuous on background checks.
Aside from the criminal aspect to a charge of retail theft there is a possibility of civil damages as well. Oftentimes a major retailer will contract with law firms to seek out persons charged with the offense and seek civil reparation. Demand letters from law firms in both NY and FL are commonly received a short time after the charges are filed. The amounts sought are typically $250.00 or $500.00. The client should not pay the amounts. There has been zero civil claims filed against any of my firm's clients in over 20 years of practice. Some clients pay the fee prior to retaining us. The reality of the civil claims is that it is too cost prohibitive for the retailers to pursue such claims.
When making your decision for a legal representative you should seek a very experienced candidate for your attorney. Ask quesions such as how many cases similar to yours they have represented persons on. Ask whether alternative dispositions are available. Most of the time the client will not have to appear in court and many times the attorney can appear for all the settings without the necessity of the client. This varies from court to court.
I'm Facing a Methamphetamine Charge. What Should I do?
Methamphetamine possession charges are common. They typically start with a vehicle stop that turns into a full scale search of the car. Sometimes an officer will knock on one's door with a search warrant. Whatever the manner in which the police first have contact, the fact is, if methamphetamine is discovered, a serious felony charge and high bond will be placed against you.
Your best actions in these cases can be broken down by the stage of proceedings you are in:
INITIAL CONTACT WITH INVESTIGATORS: Your best advice is to NOT speak with the police. Don't say anything to them other than you want your attorney and are not speaking with them. They may try to scare you by telling you that you are looking at prison time and the best thing you can do to help yourself is to tell them everything. They will most likely try to get you to do some controlled buys where you buy or deliver controlled substances to person they wish to arrest. Don't speak to them. The biggest mistake clients often make is talking with them believing that they won't be charged if they do. The police will tell them things like "You won't be arrested today", or "if you work for us you won't be charged." These are two of the most often told lies
IN CUSTODY BOND ISSUES: Bond must be posted when you are in custody on a new felony charge. If it is a relatively low level felony offense and you have no substantial criminal history you can qualify for a recognizance bond. In that case you post no money and are released from custody. Most serious drug charges carry very high bond amounts. Typically $100,000 or greater is ordered against a person charged with a distribution or intent to distribute charge. The bond can be modified. Oftentimes the bond can be dropped substantially in quick order. Have your attorney talk to the State's Attorney that is in charge of your case and get an informal reduction order in place. Turnaround in a day is not uncommon. Bail bondsmen are illegal in Illinois.
PRELIMINARY HEARING: Your first court appearance will be a preliminary hearing (unless you didn't post bond then its called a first appearance). You have a right to a prompt preliminary hearing. They are also known as probable cause hearings. Most of the time the preliminary hearing is waived. You retain all your rights to defend yourself against the charge up to an during trial. After the preliminary hearing the case is set on a trial docket.
PRETRIAL MOTIONS: The motion stage is where most cases are either won or lost. Drug cases are more focused on this step than other charges. The reason is that a host of Fourth and Fifth Amendment rights come into play during a drug case investigation. Traffic stops, Terry stops, interrogations, Miranda issues, mandatory videorecording (dash cam and interrogation) and other issues must be presented if they have infringed on the client's rights before trial occurs. Motions to suppress evidence and for sanctions are two of the most used method to curtail evidence from jury trial. If you win a motion to suppress in a drug charge case you probably will be in a much better position than had you not. Many times if you are successful you can completely keep all drug evidence out at trial. When that happens it means the State loses its case.
TRIAL: You have an absolute right to a jury trial for any criminal charge. This stage requires excellent advocacy skills and experience to prevail. There is no substitute for a quality experienced attorney working for you during trial. Trials depend greatly on the jurors selected to hear the case. Again, it takes many years of experience to rise to a level that allows you to pick your best jury.
SENTENCING: If the trial goes the wrong way or you plead guilty there will be a sentencing hearing. Such a hearing requires the judge to order a Presentence Investigation Report to be prepared by the probation department. At the hearing you present evidence in mitigation and the State counters with aggravating factors. All the factors are printed in the corrections portion of the Illinois Criminal Code. Prior criminal history is presented to the court and taken into consideration. Arguments are made and the judge takes presumptions into consideration when meting out the sentence. The sentencing judge has wide discretion as to what the setence will be. She or he is constrained only by what the minimum and maximum sentences are as defined by statute.
POST-CONVICTION AND APPEALS: After sentencing you have an option to file a post-conviction motion and an appeal. The issues are very limited in an appeal. Again, experienced counsel is necessary to succeed at this stage. All issues raised in either process must be preserved through objection and in writing after the trial.
All the steps described above apply to every criminal case in Illinois. Methamphetamine cases are similar to many other charges. However, methamphetamine cases often carry much higher penalties due to the process of "shake and bake" or "red phosphorous" cooking methods that allow the State to weigh all liquids and include the gross weight in their charges. This results in very high gram weights which in turn equates to much high class felony offenses.
I've Just Been Arrested and Released for a Drug Crime. They Said I'm Going to Be Charged. What Can I Do?
Many drug offenses begin with interaction between my clients and the police. Oftentimes my clients are allowed to leave the scene and are advised they will be arrested when charged at a later date. They become fearful of being arrested and especially worry about being arrested at work. If the charge is sealed there is no way for an attorney to discover whether they have been charged and are awaiting arrest and processing. Most charges are not sealed. In those cases we can begin "precharge" representation of the client and typically contact the police requesting a "heads up" when the charge is filed. We also recommend records check with the county of origin on at least a weekly basis. We can assist you if you are in this situation.
Can I Expunge a Criminal Charge?
I am asked this quite a bit. The simple general answer is if the charge has been dismissed you may petition to expunge the arrest and charge. However, if you have been convicted of another criminal offense you are not eligible for an expungement. Most cases wherein you have plead guilty and successfully completed your term of supervision (NOT probation) you may petition after a certain number of years (usually two years after the last day of supervision). The process takes approximately 5 months to complete.
Procedurally the first step is filing then arguing the petition. During the hearing the judge typically wants to hear some form of remorse (even from those persons fully acquitted), how the charge either effected or could effect their professional status, and sometimes they want to hear the facts of the underlying charge as explained by both the defendant and the prosecutor. You would think that the judge would begin this type of hearing with the notion that a person who was acquitted cannot have the arrest held against them. For the most part that is true. However, there are judges who don't believe that for whatever reason. The legal tenet "innocent unless proven guilty" does not apply across the board.
Federal crimes cannot be expunged. This is due to an expungement being a state remedy, not a federal remedy. Currently there is no federal expungement or sealing statute that would allow the procedure.
There are a great number of exceptions included in the expungement statute that can affect your outcome.
Contact a qualified expungement attorney immediately for expungement assistance.
How to Reduce Bond in a Criminal Case
Normally, a judge in Illinois sets bond when a felony charge is issued. When the charge is a misdemeanor a police officer typically set the amount pursuant to Supreme Court Rule. For a DUI the bond amount is either $100.00 plus an Illinois Drivers License or $300.00 cash. A low level felony will typically range from $10,000 to $25,000 however only 10% of that amount need be posted to secure the release of a defendant. If the initial amount is too high there are two options. One is to file a motion to reduce bond. This type of motion is routinely heard by criminal court judges. The issues addressed during the hearing are the nature of the offense, prior criminal history, if the defendant has resided in county for a period of years, educational background, job history, whether the defendant cares for minors or other dependents, and how long the person has resided in jail. Health issues may also play a part of the judge's decision. The judge hears arguments from both the State and defense counsel. The judge decides whether to release a person on a reduced bail amount. Most times the court will at least partially grant the motions. The results are very fact specific and vary greatly depending on the charge.
The second option is to post a realty bond. In Illinois property posted as bond must be unemcumbered (no loans against it) and be valued at twice the full bond amount. So for instance, if bond is $50,000, the property would need to be appraised at $100,000. Property bonds are not commonly used in Illinois.
In the above option, if the defendant were unable to post a property bond they could instead post $5,000 cash.
Bond may be revoked should one out on bail be charged with another subsequent offense. Many times this is discretionary with the individual State's Attorney charging the new case. If bail is revoked the defendant may file to reinstate bond. The judge has full discretion whether to allow the motion. Bond may also be forfeited if a person fails to comply with terms of the bond such as not being charged with a new criminal offense.
If your bond is too high immediately contact a qualified attorney to file and argue the motion.
What are the differences between secured and unsecured bonds?
When a person is arrested, she may be temporarily relieved to find out she can post bond and go free until her court date. However, many questions soon arise about the situation:
- How am I going to pay such a large amount of money?
- Can I borrow money from someone else to post bond?
- What is the difference between bail and bond?
We understand that it can seem confusing, but here's what you need to know about secured bonds versus unsecured bonds:
A secured bond is the most common type of bond. With a secured bond, you pay cash or offer some type of property or real estate you own (or someone does this on your behalf) as collateral to assure that you will appear in court on your court date. If the amount is simply too much, a bail bondsman can post the bail on your behalf, for a fee. The bondsman will promise the court that they will pay the full amount of bail if you do not show up in court. The fee for a bond is typically about ten percent of the bail amount.
Unsecured bonds are less common, but may be available in situations where a fairly minor crime was committed and if you have little to no criminal history. With an unsecured bond, you can sign a written promise to appear in court; payment will only be required if you fail to appear in court on your assigned date. This bond is based purely on good faith.
Have a question about posting bond in the Edwardsville area? Fill out our simple online contact form and our criminal defense law firm will get right back to you!