There is no legal requirement to participate in the field tests.  The best response is a police "no thank you" to the officer asking you to perform them.  

1. Exigent circumstances that would prevent the camera from being turned on.
2. When in-car video is capturing the incident.
3. When the officer is inside a correctional facility with a functioning camera system.
4. When engaged in a community caretaking function.

Cameras Must be turned off:

1. When a victim of a crime requests it.
2. a witness to a crime requests anonymity.
3. the officer is interacting with a confidential informant.
4. an Officer of the Dept. of Revenue enters a DOR facility.

The officer shall not have access to the body cam recording prior to completion of incident reports when he/she has been involved in or witness to an officer' involved shooting; or if they are asked to write a report regarding officer misconduct. 

Recordings must be maintained at least 90 days.  

Surprisingly the act did not state that any incident where body cam footage is not made in compliance with the act is suppressed from evidence in court.  The whole purpose of the act is to mandate compliance by officers.  The result should be suppression of evidence if they don't comply with the act.  But the legislators decided to not make that a part of this law. 

I have already viewed body cam footage that has has the audio cut out or the lens blocked by officers to conceal their statements.  This seems to be a clear violation of the statute.  But as of this date no suppression of that content has been ordered by the court. 

The problems I see with this system are that many persons who are charged with firearm offenses and some Domestic/Battery charges are being detained whereas in the past they would have posted cash and been released.  In the past when these persons were released on cash bail it was rare that they would commit new crimes while on release.  It did happen occasionally, but it was not common.  The SAFE-T Act was designed to release as many people pending trial as could be.  The application of this act has resulted in many defendants being detained when they would have been released with cash bail prior to the act.

Another problem is that the different counties apply the law differently to similarly charged defendants.  Smaller counties have a greater tendency to detain a person charged with a serious felony where in other larger counties that person would be released from custody with conditions.  

The appellate courts have essentially concluded that whatever the trial court rules, they won't disturb the finding and detention orders.  This is unfortunate as there remain in jail defendants who would have been released on bail prior to the act.  

Another change that has taken effect on January 1, 2024 is now DOC prisoners can get credit for all their program participation.  Even in 100% cases.  For instance, a convicted murderer was sentenced to 80 years in the 1990s when that was still a 50% offense.  So simple math would estimate the prisoner would need to serve 40 years.  Not true.  He only had to serve 30 years and was released this year after the new law took effect.  This was a shock to the general public and made the news.  Again, none of these portions of the law was put before the public for discussions before its passage and implementation. 

Appeals of pretrial detainees require the usage of a special notice of appeal that is much longer than a normal notice of appeal.  Failure to use that form has already resulted in the denial of at least one appeal.  The law seems to be settling with regards to appeals from detention orders.  The appellate courts are for the most part upholding the circuit court judge's rulings.  There still are the odd reversal but mainly that occurs only when procedure has not been complied with by the trial court. 

One of the largest impacts this law has had on the criminal defense bar is that there are no longer bond assignments.  This means, practically speaking, that many clients who in the past could pay their attorney with all or a part of their bonds are in a position that they are unable to afford private criminal defense attorneys.  That is unfortunate for two reasons.  The public defender's caseloads have skyrocketed, leaving them with even less time to spend on each individual client's case.  And the second is that many potential clients who could have obtained private counsel in the past will no longer be able to secure them for new cases.  Private counsel almost always is better equipped to handle felony cases due to the ability to expend more time on the individual case.

It will be interesting to see if the statute is changed in the future or even repealed.  I doubt it will be repealed due to the Democrat's control on the Illinois legislature.  But with enough public outcry it could occur.

1.  Cash bail is abolished.  This means that only the most serious cases will require cash bail.  There will still be a risk assessment.  A new addition is that all persons held on a warrant for a new charge must have a hearing with counsel within a short period of time.  This will result in Saturday hearings for persons in jail.  Persons who fail to appear in court after being released on recognizance will have a petition for rule to show cause issued - not an arrest warrant. 

2.  Police will have to wear body cams. 

The general belief regarding cash bail is that all persons who are being held on bail for all but the most serious of offenses will be released.  Whether this translates into reality will be revealed when the law takes effect.  I assume we will know for certain if most defendants will be released the first week or so into Janary, 2023. 

If quite a few defendants do just this it will result in the State having to make decisions whether to offer a better resolution to the case or to devote its time to conducting the jury trial.  I believe if defendants begin to announce it will result in better results for all defendants in this county.  

However, in Illinois, defendants have been deprived of their statutory speedy trial rights not by an act of legislature, but instead by an act of the judicial branch.   The Illinois Supreme Court has issued an administrative order that gives carte blanche to the individual county judges to decline to follow the speedy trial act's limitations.  Madison and St. Clair counties are two examples wherein the chief judge has determined that the pandemic results in no defendant having a speedy trial right any longer, until such time as the chief judge allows those rights to continue.  

This seems to be a glaring overreach by the judicial branch into established law.  It simply seems to be violative of the separation of powers.  

Procedurally this issue becomes more complex.  Should a defendant try to challenge the administrative order by the judges they would file a motion in the trial court to dismiss their cases for speedy trial violations.  Most certainly the judge would deny the motion.  The defendant would then appeal the issue to the district court.  They, in turn, would most certainly deny the appeal.  The last step would be to fille a petition for leave to appeal to the Illinois Supreme Court.  Again, that court would deny their appeal based upon its administrative order.  Theoretically, the defendant could then file a petition with the Supreme Court of the US.  However, the problem is that the court has the power to determine whether their own administrative order is legitimate.  I really don't see the courts overruling their own actions.  

The correct way for a person's speedy trial right to be altered would be for the state legislature to enact another law stating just that.  But that didn't occur.  

I know it is very frustrating for many clients, especially those in custody, to grasp why filing a motion to dismiss is fruitless in this instance.  I believe soon that the Illinois Supreme Court will end their administrative order and restore speedy trial rights to all defendants.  But until that happens a defendant's case could be continued.  

The legal possession amount will be up to 30 grams (plant).  Up to 5 grams of concentrate, edibles 500 mg of THC.  Visitors to the state will be allowed to possess half of these limits.  

People can consume cannabis in their homes and in businesses that are allowed to do so.  Limits can be placed against cannabis usage just as firearms can be prohibited in the same settings.  No use can occur on public places, in any vehicle, on school grounds, near someone under the age 21, near an on-duty police officer, firefighter, corrections officer, or school bus driver.  Illinois universities will be allowed to ban usage.  

Non medical marijuana medical card holders cannot grow their own cannabis.

One interesting fact about the new law is that automatic pardons will occur via a governor's pardon for all persons convicted of possession of 30 grams or less, unless connected to a violent offense.   A person who qualifies as stated above can also file a petition to expunge with the local circuit court.  Local municipalities may still enact laws limiting cannabis businesses within their confines.  But they may not prohibit the use.

This change in the law will have an increase on the amount of people charged with DUI based upon drug use.  The current legal level is 5 nanograms of THC.  Currently the police don't have the ability to test one's body fluids to a scientific measurement of such specificity.  The current testing only reveals the presence of THC or its metabolites.  This will create further problems until the testing methods become scientifically accurate to commensurate with the current law.  

One interesting question of how this law plays out will be its effect upon neighboring states where use of cannabis is not legal.  Although out of state residents may use legally in Illinois, they cannot bring back any to their state if its prohibited by law in that state.  Users who still have THC in their system and drive within their states risk prosecution for DUI offenses.  

Also, for those convicted of prior misdemeanor cannabis possession charges of 30 grams or less - the arrest and charge will be automatically expunged beginning on January 1, 2020.  Others who were charged with possession of more than 30 grams may petition the state for expungement. 

In Illinois there are no cases that have developed the law from Riley other than to simply restate a search warrant is required prior to a search.  Other issues have been developed in the 9th, 2nd, and DC circuits that are trending towards requiring law enforcement to limit the scope of the search of a device to avoid seizing irrelevant data.  There are softwares that allow for particularized capture of such data.  In my practice I have not yet seen law enforcement use such software however when analyzing a device.  

The manner in which a search warrant is typically obtained in Illinois is a complaint is submitted to the Court to establish probable cause.  The Court is supposed to carefully review the affidavit and make a ruling whether probable cause to issue the warrant exists.  If the Court decides probable cause exists it issues the warrant.  A specific date and time is placed on the warrant.  In Illinois a 96 hour for execution is established by statute.  After execution of the warrant a return is filled out describing what property was seized and it is filed with the court in a separate court file.

Issues that need to be addressed:

1.  Can police keep a device in the evidence locker outside the time necessary to analyze the data?

2. Can police reanalyze the device at a later date should improved software be developed?

3. Must police conduct the analysis with specific protocols in place to avoid searching irrelevant data?

4. If police seize irrelevant information what steps will they take to destroy it?

5. Must a search warrant be specific and particular enough to describe only the data it requests seizure thereof?

The circuits identified above are working on case precedent to answer the above questions.  Unfortunately for us in Illinois our courts are very slow to develop similar precedent.  Even though this aspect of a criminal investigation has become very common and needs answers, I anticipate we will not have answers for many years in Illinois.  

In the practice of law it is a good thing to know what legal standards apply to this offense.  As a defense attorney I can raise this issue effectively before a jury and put forth my client's best option to win the case if the State is unable to prove what amount of THC is in the client's body.  Currently when a bodily fluid is taken as evidence the substance is packaged and sent to the forensic laboratory for analysis.  Most times the blood or urine test will return with simply a "THC Metabolite Detected" finding.  This scientific conclusion does not establish the 5 nanograms of THC per milliliter presumption as there is no numeric finding.  The mere fact that THC is detected does not raise the presumption stated in the DUI statute.  As of the date of this posting it is my understanding that the Illinois State Police cannot perform testing to a nanogram measurement due to funding issues.  Sample must be sent out to laboratories for subsequent analysis should the State seek to obtain such measurement. 

Because of the above-stated problem the State will have to use a considerable amount of time to send the substance to a second lab should desire to obtain a scientific measurement of a bodily fluid in a DUI case.  In Illinois all persons charged with DUI have the right to a jury trial within 160 days under the Speedy Trial Act.  I recommend announcing ready in any case where your client has been charged with a THC based DUI and the State has only received the "THC Metabolite Detected" report from the ISP lab.  By announcing ready you have cause your client's speedy trial clock to begin ticking.  Of course, a written demand must be made to avail your client of this right.  But assuming you have filed the necessary pleading, the clock begins the 160 day countdown. 

I have success resolving DUI cases in this situation by announcing ready for trial.  Some prosecutors don't understand that the simple THC Metabolite detection is legally insufficient to convict in a DUI case. 

The changed law will make a significant impact when fighting against a forfeiture action brought by the State.  I have multiple forfeiture cases that I am defending wherein the facts are that drugs were found in the back seat of a vehicle.  Now, the claimant can avoid the presumption that he/she as the owner of the car knew drugs were inside the vehicle.  Without direct knowledge and without the presumption it will be much more difficult for the State to convince a judge that the driver knew the drugs were inside and that the vehicle was used to facilitate possession of the drugs.

This change of law is exciting and I will update this blog once we get the final form of law signed by Governor Rauner.

UPDATE: 9 21 17

Governor Rauner signed the bill.  The changes as outlined above are now in effect.  The important changes from previous forfeiture law are the reversal of the presumption and the change to the burden of proof.  This will drastically change the way forfeitures are decided.  One point that is still being sought is to deprive each municipality of a certain direct percentage of the forfeiture proceeds.  In other words, if $10,000 is forfeited, the old manner of distribution would result in 35% going directly to the police department.  If the disbursement change is enacted the money simply goes to a general fund.  This would disincentivize police from aggressively pursing many forfeitures.  I imagine the effort to forfeit motor vehicles worth very little would come to an end.

This change in expungement law practically opens the door to many persons who would not have been able to do so in the past.  I anticiapte the number of petitioners seeking relief will snowball.  I wish anyone seeking this relief the best of luck.  I also encourage all petitioners to seek the assistance of legal counsel to assist them in this regard.

Upon being retained I begin to work on reducing the bond to an amount that is lower and hopefully one that the client's family and friends can post.  Many times i can obtain an agreement from the State reducing bond to between $5,000 to $9,000.  Not all cases will obtain reduced bond amounts.  In cases where the State will not agree to such a reduction, a bond reduction motion must be attempted.  The ultimate call in those situations whether to reduce the bond and to what amount is completely up to the judge.  Most times the judge will look to the defendant's past criminal history, status as a citizen, state of residence, whether any aggravating facts are relevant (i.e. possession of a firearm), and other work and eduction related factors.  After argument is presented from both sides the judge creates an order either granting or denying the motion. 

An attorney in county who the judge is familiar with has a far greater chance of reducing bond as that attorney knows exactly what facts the individual judge wants to address during the hearing.  As an example, our judges entertain these types of motions from out of county attorneys who don't routinely practice befor them.  Those attorneys oftentimes take too aggressive of an approach with the judges in the mistaken belief that their demeanor will favorably influence the judge.  Most times they fail.  I believe that my experience before each judge has created the idea that I will not present facts that I believe to be untrue to them.  This translates into a higher percentage of bond reductions.

If you are charged with cannabis trafficking contact a qualified and experienced attorney immediately.