The Law Office of Brian J. Mirandola

CALL FOR A FREE CONSULTATION

47 DuPage Court, Elgin, IL 60120

847-488-0889
Subscribe to this list via RSS Blog posts tagged in criminal law

Posted on in Criminal Defense

rights, Elgin criminal defense attorneyCrime-related procedural television dramas often share many similarities. Among them is a scene in virtually every episode where a suspect is placed under arrest and taken into police custody. As the officer begins to put the handcuffs on, he or she usually starts to recite a few lines, beginning with, "You have the right to remain silent." Thanks to such depictions, most Americans are aware that these statements—called Miranda warnings—are an important part of the criminal justice process. A much smaller percentage of people, however, understand what the warnings actually mean and when they apply.

Miranda Rights vs. Miranda Warnings

There are two primary components of the Miranda warnings—the right to remain silent and the right to an attorney. Both of these elements have their basis in the Fifth Amendment to the U.S. Constitution, which guarantees a criminal suspect rights regarding self-incrimination. The Sixth Amendment also guarantees the right to an attorney, but the warnings are focused on confessions and self-incrimination.

In short, the rights addressed by the Miranda warnings have been in place for more than 200 years, but the warnings themselves are the product of a 1966 U.S. Supreme Court ruling. In that case, Miranda v. Arizona, the Supreme Court determined that because the police did not remind a suspect of his rights to remain silent and to have an attorney present, the man’s subsequent confession was not admissible as evidence. From then on, Miranda warnings—a restatement of existing rights—have remained a crucial element of the arrest and interrogation processes.

Common Misconceptions

The exact wording of the recitation of Miranda warnings may differ slightly among arresting officers, but it will always be something similar to, "You have the right to remain silent. If you give up that right, anything you say can and will be you used against you in court. You have the right to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you."

The Miranda warnings are not required to be given at the time of arrest necessarily, but they must be given before the suspect is questioned. If, for example, a suspect is arrested and not "read his Miranda rights," any spontaneous or voluntary comments or excuses he makes are admissible in court, even without a lawyer present. If the officer begins questioning the suspect before reading the warnings, however, any resulting information or confession is not admissible.

Once the Miranda warnings have been given, it is then up to the suspect to exercise his or rights. Any criminal suspect placed under arrest should refuse to answer any questions until an attorney can be present. It may be difficult and could even require an extra day or two in jail, but the risks of being tricked or pressured into self-incrimination are too great.

Charged With a Crime?

If you or a loved one has been arrested and charged a crime, it is imperative to seek legal help immediately. An experienced Kane County criminal defense attorney will work to protect your rights and ensure that law enforcement and prosecutors are held to the highest standards. Call 847-488-0889 for a free consultation at The The Law Office of Brian J. Mirandola today.

Sources:

http://www.mirandarights.org/

https://www.pbs.org/wnet/supremecourt/rights/landmark_miranda.html

Last modified on

Posted on in Traffic violations

fleeing, Elgin criminal defense attorneyFleeing from a police officer is one of the most serious traffic offenses in Illinois. If a police officer tries to pull you over but you do not cooperate, you could face jail time and suspension of your driver’s license, as well as a permanent mark on your criminal record.

Fleeing and Eluding

To convict a person of fleeing or attempting to elude a peace officer, the prosecution must show three things:

  • That the offender was driving a motor vehicle;
  • That the police officer gave the driver a visual or audible signal to bring the vehicle to a stop; and
  • That the driver willfully failed to stop, increased speed, extinguished the car’s lights, or otherwise fled.

Willfully means that the prosecution must show that the fleeing was purposeful. If the driver fled or eluded the officer unintentionally, he or she cannot be convicted.

Additionally, the police officer must be in uniform. If the office is in a vehicle—marked or unmarked—he or she must use the oscillating lights and, if appropriate, the siren, because drivers sometimes may not always see the police car behind them.

Fleeing and eluding is a Class A misdemeanor, punishable by up to one year in prison, up to two years of probation, and a fine of up to $2,500. Additionally, the Secretary of State will suspend an offender’s driver’s license for up to six months. For a second offense, the license will be suspended for up to one year.

A third conviction for fleeing and eluding is a Class 4 felony, carrying penalties of one to three years in prison, up to 30 months of probation, and fine of up to $25,000.

Aggravated Fleeing and Eluding

Aggravated fleeing and eluding is a felony offense. It is committed when a driver commits fleeing and eluding, plus:

  • The driver is going at least 21 miles per hour over the posted speed limit;
  • The driver causes bodily injury to any person;
  • The driver causes over $300 in property damage;
  • The offense involves disobeying two or more official traffic control devices (e.g. a stop light or stop sign); or
  • The offense involves concealment or alteration of the vehicle’s license plate.

Aggravated fleeing is a Class 4 felony, and the offender’s license will be revoked. Additionally, a conviction may result in the forfeiture of the vehicle used in the offense. A second or subsequent offense is a Class 3 felony, which substantially increases the possible penalties.

If you have been charged with fleeing and eluding or any other traffic violation, contact an experienced Elgin criminal defense attorney right away. Call The The Law Office of Brian J. Mirandola at 847-488-0889 for a free consultation today.

Sources:

http://www.illinoiscourts.gov/CircuitCourt/CriminalJuryInstructions/CRIM%2023.00.pdf

http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=062500050K11-204

http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=062500050K11-204.1

Last modified on

bail, Kane County criminal defense attorneyWhen someone is arrested on criminal charges, it can take months (or longer) before their case goes to trial. This does not necessarily mean that the individual has to wait in jail. Some situations may permit for a bail – a monetary payment – to be posted, giving the accused a chance to wait for their trial outside of police custody. If you or someone you love has been arrested and is facing charges, learn how bail bonds work in Illinois, and what it means for the accused, and the payer of the bond.

How Bail Works

At its core, bail is a pledge to return to court for all scheduled hearings. It might be a pledge of personal property, or even a personal promise from the accused. However, bail is generally a monetary sum of money. As long as the accused follows through, the bail is returned upon the defendant’s exoneration. Alternatively, if the accused is convicted, the funds are put toward their court fines. When a defendant fails to attend their scheduled hearings, the bail is forfeited and a warrant is issued for their arrest.

Who is Eligible for Bail in Illinois?

Theoretically, anyone who has been arrested may be eligible for release on bail, but reality is often a different story. If an accused is considered to be a danger to the community or are thought to be at risk of fleeing, they are unlikely to receive the option of bail. Furthermore, defendants who are being charged with serious and/or violent crimes, certain drug-related crimes, are facing possible life in prison, or are considered a repeat felony offender are often held without bail. Alternatively, the judge may set an extraordinarily high bail amount – one well above what most people can afford – in order to keep someone in jail until trial. In these instances, an experienced criminal defense attorney may be able to help.

Paying Bail in Illinois

While some states permit the use of bail bondsmen (a third party that promises to pay the full amount of the bail if the accused fails to meet the terms of their release), they are banned in the state of Illinois. However, there are provisions for families in Illinois that wish to post bail but cannot afford the full amount. The defendant might be able to pursue a release on one’s own recognizance (known as O.R.) which may be offered to those considered "trustworthy" to return to court without the assurance of a financial bail. Alternatively, families may be offered the opportunity to post a surety on the bond (generally 10 percent of the full bail amount).

Facing Criminal Charges? We Can Help

Whatever charges you may be facing, whatever the evidence may be against you, an experienced Kane County criminal defense attorney can help. Dedicated to your best interest, and your future, we aggressively defend your rights. We fight to achieve the most favorable outcome for your unique situation and, in some cases, may even be able to have your charges dropped. To learn more, contact our office by calling 847-488-08890 for a free consultation.

Source:

http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=072500050K110-7

Last modified on

decriminalization, Kane County criminal defense attorneyFor the second time in two years, Illinois Governor Bruce Rauner will have to decide whether or not to approve legislation that would make low-level possession of marijuana a civil offense rather than a crime. Last summer, the Republican governor used his amendatory veto authority to rewrite the proposed decriminalization measure, reducing the amount of marijuana to be considered low-level and increasing the punitive fines. Last year’s bill eventually stalled before making it back to the governor’s desk, but this year’s version also includes the changes Rauner made a year ago.

Current Legal Guidelines

Under existing Illinois law, if you possess or use marijuana, you are subject to criminal prosecution unless you have been formally approved for participation in the state’s medical cannabis pilot program. While many people may not think of marijuana possession as a serious crime, possession of up to 2.5 grams is a Class C misdemeanor, and up to 10 grams constitutes a Class B misdemeanor. Anything more than 10 grams is a may be prosecuted as a felony depending upon your conviction history, and potential penalties are increased if you are found to have intent to deliver.

Proposed Changes

Despite the inclusion of provisions suggested by the governor himself, there is no guarantee that Rauner will sign the measure this time around. Should he decide to do so, however, possession of up to 10 grams of marijuana would no longer be prosecutable as a crime. Instead, it would be considered a civil offense, similar in nature to a traffic ticket. Individuals guilty of low-level possession would be ordered to pay a fine of at least $100 and as much as $200. The new law would also require the circuit court overseeing the jurisdiction issuing the fine to expunge all low-level possession records twice per year, once on January 1 and again on July 1.

Opportunity for Progress

Many around the state see the decriminalization of minor marijuana possession as a clear step in the right direction. They believe that zealous prosecution of non-violent drug crimes—especially those involving marijuana—tend to waste municipal and state resources. From a policy perspective, the measure would also contribute to Governor Rauner’s stated goals of significantly reducing the population of the Illinois prison system.

If you have been charged with possession of illegal drugs, including marijuana, cocaine, or heroin, you need an attorney who will fight to protect your rights. Contact an experienced criminal defense lawyer in Elgin, Illinois today. Call 847-488-0889 to schedule your free confidential consultation at The The Law Office of Brian J. Mirandola.

Sources:

http://www.chicagotribune.com/news/local/politics/ct-marijuana-decriminalization-legislation-0519-20160518-story.html

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1937&

http://www.ilga.gov/legislation/99/SB/PDF/09900SB2228lv.pdf

Last modified on

juvenile, Elgin criminal defense attorneyIn 2012, the U.S. Supreme Court found that giving a life sentence to a juvenile with no possibility of parole violated the juvenile’s Constitutional rights. Specifically, the justices found that such a sentence was barred by the "cruel and unusual punishment" clause of the Eighth Amendment to the Constitution. However, after that decision there was some confusion about if the ban only applied to new sentences, or if it applied to older cases as well.

Decision Retroactive

In January of 2016 the Court held that its 2012 decision in the case Miller v. Alabama should be applied retroactively. This means that every juvenile in the country who was given a life sentence without the possibility of parole prior to the 2012 decision is entitled to a resentencing hearing. At the time of the decision, Illinois had some 100 inmates who would require resentencing. Some of the inmates had served decades in prison.

What Happens at a Resentencing Hearing

The juveniles that qualify for a resentencing hearing will not automatically be released. Likely, many will continue to serve lengthy sentences, but will have the terms of the sentence modified.

During a resentencing hearing the court will need to take into account what the U.S. Supreme Court called the inmates’ "transitory immaturity" when imposing a sentence. All of the inmates will have to be given the chance to apply for parole at some future date. The prosecution will be able to present evidence as to why leniency in a given case is not appropriate. The inmates will have the chance to present evidence about mitigating factors and why the court should impose a more lenient sentence. However, lengthy, decades-long sentences may still be imposed if the court decides the crimes and the circumstances warrant it.

 This most recent decision does not mean the end of litigation over sentences for juvenile offenders. Any juveniles who are resentenced to lengthy prison terms may seek to appeal the resentencing as either not in keeping with the guidelines issued by the Supreme Court or on some other ground.

It is also expected that lawyers for inmates convicted as juveniles that are given lengthy sentences will continue to try limit the length of a sentence imposed by arguing that if a life sentence without possibility of parole is cruel and unusual, a sentence that only releases a juvenile as an old man or woman is also cruel and unusual and therefore unconstitutional.

If you have been charged with a crime or have questions about pursuing a resentencing hearing, contact an experienced Elgin criminal defense attorney. We are equipped to help you understand the law and your available options to ensure you are treated appropriately throughout every step of the process. Call 847-488-0889 to schedule a free consultation at the The Law Office of Brian J. Mirandola today.

Source:

http://thesouthern.com/news/local/crime-and-courts/us-high-court-ruling-could-affect-illinois-inmates/article_916f0940-677b-5bc2-bc04-d10f620625e4.html

Last modified on
Avvo Illinois State Bar Association Kane COunty Bar Association
Waiting for Resize
Back to Top