Archive for August, 2009

Class X Drug Case Dismissed

Wednesday, August 12th, 2009

In Kane County, with my Aurora, Illinois, client charged with a Class X drug case (cocaine), possession with intent to deliver, the prosecution dismissed the charges this week of August 10, 2009, and my client will see the light of day again. While the prosecution didn’t outright say why it dismissed the case, my drug defense investigation and that of my hired investigator, Ed Herdrich Investigations and Consulting, revealed some troublesome facts about what the police had claimed.

This is the sort of situation that proves again that it is the investigation work done that helps the client, often more so than the trial lawyering itself. Drug defense work often needs this sort of dedication to reach a successful result for the client. Expertise and trial lawyer abilities offer very little without dedication to work the streets and challenge the evidence.

It is my policy to actually look at the evidence, go to the scene and interview the witnesses. In the above case, we found witnesses left out of the police report. I am grateful once again to the dedicated, dogged efforts of Ed Herdrich, who went with me, eagerly, on a Sunday, and out on his own in the evenings, to find witnesses and evidence issues that may very well have made the difference.

Drug Possession v. Intent To Deliver – a world of difference

Monday, August 10th, 2009

In drug cases, for any drug defense lawyer working in Kane County, as well as DuPage, DeKalb, and Kendall Counties, what’s the difference between a finding of guilty for possession of drugs versus a finding of guilty for intent to deliver? Often the differences mean the world to a person. As a drug defense lawyer I know that it’s basic that being found guilty of possession and not guilty of intent to deliver may allow you the ability to receive a form of supervision, depending on your criminal history. And it doesn’t matter if you’re from Aurora, Elgin, or DeKalb, to Elburn, Naperville, Sycamore, Batavia, Geneva or Cortland. Any town, large or small. More importantly, it can mean the difference between getting the treatment you need on probation versus going to an over-crowded prison with little chance of drug counseling.

As a new attorney back in 1987, it became apparent right away to me that the police would often testify that something meant intent to deliver if it were a “fact” in the case. For example, if cocaine were found in one bundle, an officer would testify for the state that cocaine in one bundle meant intent to deliver. If another case had the cocaine in small separate baggies, then the separation of drugs into small packets would mean intent to deliver. Can both of these claims be true? Of course not.

Obviously people who buy drugs for personal use buy whatever is available from the seller, no different than buying a legal product from a grocery store. If a seller sells in one bundle, that’s what is bought. If a seller sells in small packets, then that is what is bought. It’s as true for buying toilet paper as it is true for buying cocaine.

Police officers would routinely testify under oath about something called “economic feasibility” but could only define that term according to what poor people would do when buying drugs. The prejudice, of course, is inherent. It assumes that only poor people buy and use drugs.

Whenever I have a case in which the issue is not guilt – my guy in fact possessed an illegal drug – but what the intent of the possession was, personal use or for sale, at trial, there’s always a police officer willing to testify that whatever my client had, it meant intent to deliver. Which, if believed by the trial judge, often meant no probation and no treatment for the addicted client. It’s been like this when I first started out in 1987, and it’s still this way in 2009.

To combat this problem, I began collecting transcripts from such so-called police expert testimony on intent to deliver. The reason was obvious – the police experts, from transcript to transcript, changed their tune on what proof of intent to deliver means to match the facts of the case at hand. Then for me, armed with these transcripts, it became easy to confront any police expert with what another officer said the month before under oath. And, of course, the officer of the day was not about to criticize any other fellow officer.

My next approach was to do an exhaustive research of all the Illinois Appellate and Supreme Court decisions on intent to deliver cases. These published cases contained testimony from police officers on intent to deliver that was even more amazingly inconsistent than the inconsistent testimony I gathered in transcripts of so-called police experts. The variation on what was intent to deliver became astounding, with a few judicial opinons taking note of what I had gathered – that there is no consistency from one police expert to the next.

Finally, I have been honored to have clients who have turned their lives around, several becoming drug counselors themselves. I began using them as experts in my trials on behalf of clients. These folks were incredible. Judges, and rightfully so, appreciated that these folks had actually been there and done that in terms of drug addiction. They lived the drug-addicted lifestyle, paid the prison-price for it, fought back and achieved recovery, and had much more street-cred. than a police officer who had never been there or done that, but came only from a law enforcement perspective – and wanted to justify their or their fellow officer’s arrests on intent to deliver.

Hopefully this will not sound like arrogance, or a jinx, but I have had countless trials – usually bench trials – using such experts, and I have never lost at such a trial on intent to deliver cases. It’s not legal expertise on my part, but rather it’s the common sense and reality these experts bring to a judge at a bench trial. My blessing was to have thought of the approaches described in this blog.

Whether your case or your loved one’s case arises from Elgin, Aurora, South Elgin, Batavia, Geneva, St. Charles, Yorkville, Elburn, DeKalb, Sycamore, Naperville, Wheaton, and all places in between – if you’re arrested on a drug case, charged with intent to deliver, please consider what I’ve put in this blog. Perhaps I can win a motion to quash arrest for you, or establish that you didn’t possess the drugs at all. But if that isn’t possible, consider the importance of getting a not guilty on intent to deliver.

As I wrote when I started this blog, it means the world because it means getting you or a loved one a chance at treatment, so that another life can get back on track, and you will never need a criminal defense lawyer’s help ever again.

The Aurora Police and Trespass Agreements

Friday, August 7th, 2009

It is vital for any criminal defense lawyer to know, especially drug defense attorneys that work in Kane, Kendall, DeKalb, and DuPage Counties, that many police departments, from Elgin to Aurora, and from Naperville to DeKalb, have used something called Trespass Agreements to justify stopping people simply because a police officer didn’t recognize somebody. These agreements usually consist of one page in which the police department will offer closer patrol if the landlord of an apartment complex signs the agreement and sets up something called a ban list.

The problems with this should be obvious. First, why does a police department need an agreement to patrol an area or apartment complex? Isn’t this their job anyway? Will they ignore a problem crime area if the landlord won’t make such an agreement? Even worse – how can the police department and a private person or business such as a landlord or apartment complex agree to do away with the constitution? The answer is – they can’t.

I had the pleasure of arguing and prevailing on such a case, in the trial court in Kane County, and then on appeal, against the Aurora Police Department’s continued use of these trespass agreements. The case is called People v. Beverly and was decided in 2006. In the Beverly case, the police and the  prosecution argued that the no-trespassing signs gave them authority to stop someone for suspected trespass. But the problem is – how do such signs give any evidence to any police officer that any person isn’t a tenant, invited guest, or someone soliciting for votes in an upcoming election? Of course the answer is that they don’t.

Sadly, even though the law was made, once again, clear, in the case of People v. Beverly, decided by the Appellate Court in 2006, the Aurora police have continued to use these trespass agreements to justify full arrests for trespass even if they have no idea whether someone was even on a ban list! In order for a trespass agreement to be valid, it has to be in the lease that the apartment dwellers sign. Also, a published ban list has to be readily available and a banned person has to be notified first prior to any stop or arrest that he or she is on the list. Last, while the police may suggest someone to the landlord to be placed on the ban list, the police, as a matter of statutory and constitutional law, do not get to decide as they please who to stop even if there is a Trespass Agreement.

Sadly, these rules have been around since a case from the mid-1970s – a decision called Karow v. Illini Student Inn, and then again by the Illinois Supreme Court in Williams v. Nagel decided in the mid-1990s. The case I worked on, People v. Beverly, should have been unnecessary, but so it goes. Should a police officer in Aurora or anywhere ever stop you based on trespass because of one of these trespass agreements, never ever fight with the officer, and do not run. Simply ask whether you are free to walk away, and politely persist with that question until the officer answers you. If the offcier says you are free to walk away – walk away. If the officer says you are not free to walk away or demands that you produce ID, do not resist.  You certainly may stand your polite ground and use the information in this blog entry to object to the stop.

Feel free to contact me if you have any questions or concerns about what I’ve written here on my Kane County Lawyer blog. While police officers have a tough and respectful job fighting crime, it must not be done at the expense of something so basic as your right to go to your home, a friend’s home, or a relative’s home undisturbed.

Latest Victories in Kane County DUI Court

Wednesday, August 5th, 2009

A man walks into my office and tells me what happened with his arrest for DUI in July 2009 in the Aurora area. A woman does the same for her DUI arrest in late June 2009 in the western Kane County area.  And, again, yet another man in March 2009 out in Sugar Grove. In each instance, I knew what would happen – I would see to it that despite alcohol content tests exceeding the legal limit, or a breath test refusal, that there would be no suspension of their driving privileges. As you may have read on my blog or on my web page, an attorney should NEVER guarantee a result, and I did not guarantee a result to each of these clients. However, I knew what errors had been made by the police officers in each case. A destroyed tape recording of the arrest, errors in reporting a blood test (BAC) to the Secretary of State, and a violated procedure in taking a breath test. In each instance I contacted the State’s Attorney in person, because the State’s attorneys I dealt with understood the law and issues – and they agreed to the rescission (the undoing) of the impending suspensions in each case! Sure I could have done hearings in each case – and charged each client a lot of money for it. But by respecting the prosecutors and their understanding of the law, the agreements resulted in a quicker undoing of the drivers license suspensions, lower fees paid to me (for not having to do a hearing), and a savings exceeding over $1,000 because there was no need to pay a $260 fee to the Secretary of State to undo the suspension and there was no fee that can reach $900 for the BAIID (Breath Activated Ignition Interlocking Device). It’s all a matter of issue spotting and acting on these issues right away with the prosecutor.

What’s With All These DUIs?

Wednesday, August 5th, 2009

Is it strange for a criminal defense lawyer to ask, What’s with all these DUIs? The truth is that no lawyer doing DUI defense work is pro-DUI. Many of us have been victims of DUI-related accidents, ourselves or our families or friends. I lost my father to a reckless driver, but I am adamant about defending my clients, protecting constitutional rights, and doing what I can to have my client refer others to me, but to NOT have them come back with a new arrest-especially not another DUI arrest! After all this time, with Mother’s Against Drunk Driving (MADD) and Alliance Against Intoxicated Motorists (AAIM) doing all they can to raise awareness against DUI driving – which I absolutely agree with – as well as articles in the news about the latest horrible reckless homicides, and the increased punishments with repeat offenders, it’s amazing that any DUI still happens. Look, it’s absolutely true that many DUI arrests were not called for, that the arrestees are in fact innocent. There are examples of police officer over-zealousness or worse. However, the DUI statistics are still amazing, and it is especially disappointing when a police officer or lawyer or even a judge gets arrested for DUI – and refuses the breath test! Many lawyers advise people against taking the breath test. With historical problems involving the machines over time, the things that can go wrong with the machines, and their built-in inaccuracies, I often advise people not to take those tests, especially if you’re a first-timer. I wouldn’t personally take the breath test machine. But there is another approach to thinking about driving under the influence and that is the understanding of the cost of even a first-time DUI. The fines and costs for a DUI tend to be around $2,000. But then there is the attorney’s fee. Perhaps your car gets impounded- another $500. The victim impact panel is another $20 to $40. An alcohol evaluation (which is required for a plea) costs around $150. Plus another $400 to $2,000 for required counseling depending on the result of the evaluation. Then there is the $260 driving privileges reinstatement fee. And, as you can see, it would have been incredibly cheaper to hire a stretch limo with a whirlpool in back then to drive under the influence of drugs or alcohol! I am telling you – I will absolutely fight for you in all aspects if you have a DUI arrest. But I challenge all of you to put me out of the DUI defense business – as well as the police, prosecutors, all other DUI defense attorneys, as well as DUI court judges. Call that cab company or stretch limo. Treat yourself to that luxury. If you’re going to be faced with the officer’s question – “Will you take a breath test?” – make sure that your are in the position that even with the problems with the breath test machines that are built into them, that you will register a .025 or below. Have the habit that if you have one sip over one beer – call that limo company. Any mix drink, wine, or shot at all? -call that cab company. Treat yourself. I repeat – I will always defend you to the fullest, and another recent post shows three recent successful fights. But expect from me the talk – what it means to get another DUI. What it’s like to be someone charged with killing someone with a two-ton vehicle. The downward spiral of a driver’s license that goes from suspended to revoked. If I can cause DUI clients I have today to never become my or any other attorney’s DUI client again, what a blessing that would be. Hopefully you’ll refer others to me based upon my quality of work, but that you will call or write just to say how great things are going for yourself.