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drugs, Kane County drug crimes attorneyAs per the Fourth Amendment to the United States Constitution, police cannot search a person’s private residence without a search warrant issued by a judge. So, if police believe you have illegal items in your home, that suspicion alone is usually not enough to merit a legal search. However, the laws which protect citizens’ privacy are quite different when it comes to motor vehicles. Because we operate vehicles on public roads, police have much more freedom when it comes to searching a person’s car or truck. If police have searched your vehicle and discovered marijuana, amphetamines, opioids, or other illegal drugs, you may be facing harsh criminal consequences.

When Can Police Legally Search a Vehicle?

Although police have more authority to search motor vehicles than homes, they are still required to follow certain rules regarding vehicle searches. An officer cannot stop and search a vehicle without a reasonable cause for doing so.

There are five main ways a police officer is authorized to search someone’s vehicle. Firstly, if the driver of the vehicle gives the officer consent, the officer may search the vehicle. It is important to always politely decline police vehicle searches if given the chance. A search is also permitted If the officer has probable cause to believe evidence of criminal activity such as stolen items, drugs, or illegal weapons is in the car. Furthermore, police may search a car if they believe doing so is necessary for their own protection. For example, if police have stopped a vehicle but worry the drivers are armed and dangerous, they may be permitted to search the car for weapons. Police may also search a vehicle after a person is arrested. Lastly, police can search a vehicle if they have a search warrant.

Unwarranted Searches Can Result in Dropped Charges

If police searched your vehicle and discovered illegal drugs in it, make sure to discuss the legality of the search with a qualified criminal attorney. If it can be demonstrated that police did not have a valid reason to search the car, truck, motorcycle, or other vehicle, the evidence obtained from that search can be thrown out. If the evidence against you is dismissed, the criminal charges will most likely be dropped.

Do Not Face Drug Charges Alone

Illinois law says that those found transporting drugs in their car may face fines, probation, loss of driving privileges, and jail time. Possession of small amounts of marijuana has been decriminalized in Illinois, but possessing more than 10 grams of cannabis or having drugs like heroin, cocaine, morphine, amphetamine, and barbituric acid/salts can result in much more severe criminal penalties.

If you have been arrested on drug charges, speak to an experienced Kane County criminal defense attorney as soon as possible. Call 847-488-0889 today to schedule your free initial consultation at The The Law Office of Brian J. Mirandola.

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=1941&ChapterID=53

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1937&ChapterID=53

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Posted on in Weapons Charges

gun, Kane County criminal defense lawyersOver the last several years, there has been no shortage of tragedies involving gun violence. Mass shootings in Connecticut, Colorado, Florida, and Nevada have raised the public consciousness regarding the availability of firearms and the associated rights promised by the Second Amendment to the U.S. Constitution.

In the wake of these terrible events, many states have passed so-called "red flag" laws that allow authorities to temporarily seize guns from individuals whom the courts have determined pose a threat to themselves or others. Earlier this month, Illinois became the 13th state to pass such a measure as Governor Bruce Rauner signed House Bill 2353 into law.

Firearms Restraining Order Act

The new law is called the Firearms Restraining Order Act, and it created a new type of specific restraining order for preventing a person from possessing, purchasing, or handling a firearm. The law also established a process for those who fear that a loved one may present a danger to themselves or others to take action.

Under the new law, a family member of the individual in question may file a petition to confiscate weapons the person due to a perceived danger. A police officer can also file the petition. A circuit court judge must hold a hearing to review the evidence and decide whether to issue a firearms restraining order. If the situation is severe enough, the hearing may be considered an emergency and be held on the day of the filing without notice to the subject. The subject has the right to a hearing within two weeks if the order was issued on an emergency basis.

If an order is issued, the subject will be not be permitted to own, possess, receive, buy, or control a firearm for a period of six months. Their Firearms Owner Identification (FOID) card will be suspended as well. The subject of a firearms restraining order can request one hearing to terminate the order, and he or she must prove that he or she no longer poses a threat. As the end date approaches, the person who filed the original petition may request a renewal and must show that the subject still presents a danger.

Concerns of Possible Abuse

While the new law is intended to promote public safety, there are many in the community who are skeptical about how it will be applied. Some believe that these orders could be used to damage a person’s reputation unfairly and to simply take their guns away without sufficient justification. Others have expressed concern over the availability of orders without notice to the subject. To address such concerns, the new law includes provisions that allow petitioners who make false statements to be prosecuted for perjury.

We Can Help

If you have questions about how the new law could affect your rights to legally own a firearm, contact an experienced Elgin criminal defense attorney. Call 847-488-0889 for a free consultation at The The Law Office of Brian J. Mirandola today.

Sources:

http://www.chicagotribune.com/news/local/breaking/ct-met-illinois-gun-violence-laws-orders-of-protection-20180713-story.html#

http://www.ilga.gov/legislation/fulltext.asp?DocName=&SessionId=91&GA=100&DocTypeId=HB&DocNum=2354&GAID=14&LegID=102977&SpecSess=&Session=

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trial penalty, Elgin criminal defense attorneyNearly every person or entity involved with the American criminal justice system is aware of the existence of the so-called "trial penalty." This penalty refers to the harsher sentences imposed on criminal defendants who exercise their right to a trial compared to those who accept plea bargains. There is little question that some form of a trial penalty is acceptable, but a new report from a national organization of defense attorneys suggests that the differences in sentences have become so severe that the penalty is threatening the right to a trial guaranteed by the Constitution’s Sixth Amendment.

The Sixth Amendment

The Sixth Amendment to the U.S. Constitution promises, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury…" The amendment also guarantees a defendant the right to face the witnesses against him or her, as well that the right to legal counsel.

In any accepted plea bargain, a criminal suspect waives his or her right to a trial—often in exchange for reduced charges and a lesser sentence. How much the charges are reduced and how much of a lesser sentence have become serious concerns for defense lawyers and criminal defendants across the country.

A New Report

Earlier this month, the National Association of Criminal Defense Lawyers (NACDL) released a report called The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. The report was the result of more than two years of research that looked back on more than 50 years of case results in the United States. According the report, the rate of federal criminal cases that go to trial has been dropping for the last half-century. Less than 3 percent of such cases go to trial today at the federal level, and about 6 percent of state criminal cases do. About 20 percent of federal criminal cases went to trial just 30 years ago.

One of the most troubling practices that contributes to the severe trial penalty, according to the report, is that prosecutors tend to threaten charges that carry mandatory minimum sentences if a defendant does not accept a plea bargain. For example, most Class 1 felonies in Illinois carry a mandatory minimum prison sentence of at least four years. A prosecutor could threaten to charge a defendant with a Class 1 felony count of criminal sexual assault unless the suspect pleads guilty to a Class A misdemeanor for criminal sexual abuse. The disparity between the two charges—and their respective sentences—would make any defendant think about waiving the right to trial and pleading guilty, even if they did not commit the crime.

The report suggests that eliminating such threats would go a long way in making the trial penalty more reasonable. Other suggested ways to mitigate the problem include requiring full discovery before a guilty plea can be entered and including a judge in the plea negotiation process.

Call Us for Help

If you have been charged with a crime and you are being pressured to plead guilty, contact an experienced Kane County criminal defense attorney. Call 847-488-0889 for a free consultation at The The Law Office of Brian J. Mirandola today and get the guidance you need before you make any life-changing decisions.

Sources:

https://www.natlawreview.com/article/new-report-presents-crucial-findings-trial-penalty-imposed-against-defendants-who

https://www.nacdl.org/trialpenalty/

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Posted on in Felonies

hate crime, Elgin criminal defense attorneyThe phrase "hate crime" is often used by the media and in casual conversation about certain types of criminal acts. Under state and federal law, however, "hate crime" has a specific meaning. Hate crimes are unique in that punishment for the crimes may be enhanced as a direct result of perpetrator’s motives for committing the crime.

How Illinois Defines a "Hate Crime"

A person commits a hate crime in Illinois when he or she commit one of the specifically listed acts because of "an actual or perceived race, color, creed, religion, ancestry, gender, sexual orientation, physical or mental disability, or national origin of a person or group." This means that you can commit a hate crime even if you are mistaken about someone’s characteristics. It also means that not just any crime can be a hate crime. The crime must be one of the crimes listed in the law. For example, rape and murder are not listed as possible hate crimes in the Illinois statute.

The crimes that can be considered hate crimes include:

  • Assault;
  • Battery;
  • Aggravated assault;
  • Theft;
  • Criminal trespass to a residence;
  • Criminal trespass to real property;
  • Mob action;
  • Disorderly conduct; and
  • Harassment.

In January 2018, the Illinois legislature added several more offenses to the list of possible hate crimes. Stalking, cyberstalking, the transmission of obscene messages, and harassment through electronic communications can now be considered hate crimes depending on the perpetrator’s motivation.

Enhanced Penalties for Hate Crimes

The Illinois hate crime law increases the penalties for actions that are already against the law. In almost all cases a hate crime is a felony, even in cases where the "regular" crime is only a misdemeanor. This means that the maximum penalty for a hate crime could be anywhere between one to thirty years in prison, depending on the facts of the case.

Defenses to Hate Crime Allegations

If the prosecutor is going to charge a crime under the hate crime laws, the prosecutor will have an extra burden at trial. The prosecutor will need to show a judge or jury beyond a reasonable doubt that the person committed the crime and that the defendant was motivated by the one of the conditions listed in the statute.

A criminal defense lawyer may try to show that the suspect could not have committed the underlying crime. However, in some instances, the evidence is overwhelming that the defendant did commit the crime. In those cases the best defense may be to explain the motives of the defendant in committing the crime were not those covered by the hate crime law. A successful defense will create doubt in the minds of the jury about the motives of the defendant.

Contact Us for Help

If you have been charged with a crime, you need to speak with a tough and knowledgeable Kane County criminal defense attorney. Call 847-488-0889 to schedule a free consultation at The The Law Office of Brian J. Mirandola today. Do not speak to anyone about your case until you have talked to a lawyer.

Source:

http://www.ilga.gov/legislation/ilcs/documents/072000050K12-7.1.htm

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Posted on in Theft

burglary, Kane County criminal defense attorneyThe terms burglary, breaking and entering, robbery, and theft often get used interchangeably, and some confusion about the meaning of the terms exists. If you have been charged with burglary, you are probably unsure of what will happen next or what punitive consequences you may face. Read on to learn about burglary charges in Illinois and how a criminal defense attorney can help you fight these charges.

Burglary Occurs When Someone Trespasses with Intent to Commit a Crime

The Illinois Criminal Code provides the technical definition of burglary. "A person commits burglary when without authority he or she knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle, railroad car, or any part thereof, with intent to commit therein a felony or theft." Put simply, a person who enters or remains on another person’s property without permission and intends to steal something or commit another crime on that property is committing burglary. Someone who breaks into a property but does not attempt to steal something or has no other criminal intent will usually only be charged with trespassing or another lesser crime.

A Prosecutor Must Prove Awareness and Intent

In order for a defendant to be convicted of burglary, a state prosecutor must demonstrate that the defendant entered a property without permission or refused to leave the property after he or she no longer had permission to be there. Furthermore, the prosecutor must show that the defendant knowingly entered the property, meaning that he or she was aware of his or her actions and had intent to commit theft or another felonious crime on the property. Burglary of a non-residential building, boat, car, or aircraft is generally considered a Class 2 felony. Burglary of a residential home, school, church, or other place of worship is usually a Class 1 felony.

Penalties and Sentences

Someone convicted of burglary as a Class 2 Felony potentially faces imprisonment for three to seven years and a fine of up to $25,000. A person convicted of burglary as a Class 1 felony faces the same steep fine and may be imprisoned for four to fifteen years. Those defendants with a prior criminal history may face higher sentences. In some cases, a judge may find probation to be a more appropriate punishment than jail time.

If you have been accused of burglary, do not try to face the prosecution alone. For legal advice you can trust, contact one of the skilled Elgin criminal defense attorneys at The The Law Office of Brian J. Mirandola. Call 847-488-0889 today to schedule a free, confidential consultation of your case.

Source:

http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=072000050K19-1

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