Facing criminal charges in the state of Illinois? Attorney Andrew Russek and Josh Boardman from Combs Waterkotte discuss everything you need to know about Illinois criminal charges, including DUI, drug charges, sex crimes, conspiracy, violent crimes, gun charges, and more.
Interview Transcript
Scott Michael Dunn: Welcome back to Hexxen Studios. I’ve got Andrew Russek and Josh Boardman here from Combs Waterkotte, the leading criminal defense firm in Missouri and Illinois. Now today we’re going to talk about general criminal defense in the state of Illinois.
How’s that sound to you, Josh? The general criminal defense in Illinois?
Josh Boardman: As a criminal defense attorney, whether it’s Illinois or Missouri or what have you, it’s having the training and understanding that when a client calls, whether it’s a criminal charge related to traffic, whether it’s a criminal charge that gives rise to felony levels or what have you, misdemeanors, having the ability to understand the nature of the statutes, the process of the court proceedings, and being able to represent what could happen, what will likely happen to the clients, and educate them on the process.
Dunn: This is a certain concern of comfort, for those that may be in a difficult situation.
Boardman: Yeah, and oftentimes it’s not as though people are used to being in those situations. There’s a tremendous number of statute violations in the state of Illinois that you would consider yourself a non-criminal person and could still violate.
Dunn: So Andrew, what should I do if I’m arrested in Illinois?
Andrew Russek: The first thing to do would be to reach out to an attorney. Depending on what you’re arrested for, there’s a lot of things that can happen quickly. Arrested is not the same as being charged. Arrested means that a police officer is essentially accusing you of a crime. They still have to take that down and get a prosecutor to agree or to issue some kind of charge. So early on, an attorney can help you maybe talk with the prosecutor, talk with the police officer, clear things up, mitigate some of those consequences. Or if you’re arrested and there’s a warrant out for you, you know, time is of the essence in getting that warrant addressed or getting you a bond hearing. So with anything, with our investigation, fighting the charges, time is of the essence.
Dunn: And you mentioned there’s a difference between arrested and charged. So what should I do if I’m charged with a crime in Illinois?
Boardman: If you’re charged with a crime in Illinois, there’s several things you want to be aware of. First, when’s your court date? Have an understanding of what you’ve been charged with. Seek out the counsel of a criminal defense attorney who can start to research what charges you’ve allegedly violated or committed. They can start by entering their appearance into the case, requesting discovery, things of that nature.
Dunn: What are my rights if I am arrested in Illinois?
Boardman: In Illinois, the constitutional rights mirror the constitutional rights of the United States. So you’re going to think of the sort of the catch-all. You’ve got the right to remain silent and not incriminate yourself. You’ve got the right to have an attorney representing you. You’ve got search-and-seizure rights under the Fourth Amendment. So anything, presumably, that you would be protected by constitutionally speaking, whether it’s nationally, that would be applicable in the state of Illinois as well.
Dunn: Speaking of the right to remain silent, how important is it to be silent? I mean, what should I say to the police if I’m arrested in Illinois?
Russek: Normally… the general rule is to remain silent because you never know if something you’re saying is going to be taken out of context, whether deliberately or not. Sometimes, we’ve seen cases where a large portion of the case is the fact that you admitted to being at the scene or that you admitted in a self-defense case to hitting or shooting the person. Even if there’s clear self-defense, you just gave them half of what a police officer or prosecutor needs, where if you remain silent, your version of events can still come out someday, but you can make sure it’s necessary and that no one’s going to use it against you or misrepresent it. So there’s very rarely a chance to, or very rarely is it advantageous to speak to the police, at least not without a lawyer going through your options and helping you make that decision.
Boardman: And it’s counterintuitive for a lot of people because if you’re not the type of person that has frequent run-ins with law enforcement or you firmly believe that you did not do anything wrong, I think our natural instinct is to explain, hey, I didn’t do anything, you know, I didn’t mean that, that’s not what occurred. But like Andrew said, in reality you can, to some extent, dig your own grave trying to assert your innocence from the get-go.
Dunn: You know, it doesn’t matter what you know or what they think or how that works, it’s very specific to just keep your mouth shut and call an attorney. Now, can they legally search me or my possessions when I’m arrested in Illinois?
Boardman: So there would need to be established some form of probable cause to search. You can obviously, they’ll ask you if they can search, they’ll ask for a consented search. Traditionally, the advice would be no, but they would need some form of probable cause which can be established by contraband in plain sight, different exigent circumstances, things like that. But legally they can, but there are constitutional protections that outline under what circumstances they can search you. And keep in mind, though, they’re always going to ask for your consent, and so if you consent, a lot of those protections, you’ve waived those or those have gone by the wayside.
Dunn: As soon as you consent, that’s it. They can search everything and on your person or your property as soon as you give them consent to do that.
Boardman: Yeah, and they’ll ask you, can we search your person, can we search the vehicle, etc.
Dunn: Do I need a lawyer if I’m innocent in Illinois?
Russek: You do. I’d say it’s almost more important to have a lawyer if you’re innocent, but still important to have one even if you’re not. But again, your story, your defenses need to be properly crafted. You know, you can think of how many cases you’ve heard of people found not guilty or charges dismissed. Inherently, those were innocent individuals that for whatever reason, false accusations, a cop making a mistake, misapplication of the law, those are all things that can result in you having charges against you. You’re in a courtroom, judge sees you have an indictment or a charge, that case is headed for trial. You need an expert to navigate and prepare that entire case for you.
Dunn: What are the most common criminal charges in Illinois?
Russek: I’d say DUIs. Our firm handles a lot of DUIs. Possession of controlled substances, domestic assault, assault, crimes that can cross all walks of life. Murder, robberies, those things happen in certain areas obviously, but everywhere, every community, you’re having DUIs, possessions, domestic assaults, and those are maybe lower level cases in the scheme of things, but they can have extreme consequences and they can be complex.
Dunn: What’s the difference between a misdemeanor and a felony in Illinois?
Boardman: Generally speaking, it has to do with the actions involved, has to do with the severity of those actions, it has to do whether any sort of aggravating or extenuating circumstances apply, but then also under Illinois’s sentencing statutes, different penalties. Obviously with the greater severity of a felony, the more likely it is that you’re going to be facing higher prison ranges or higher fines, so it is a bifurcation of not only the types of activities, but also the types of sentencing as well.
Dunn: So what kind of penalties would I face in Illinois? Is there a difference?
Boardman: If you start with misdemeanors, you can, for example, on Class A misdemeanor, you can serve up to a year in jail, you could pay fines up to $2,500. However, if you transition over to felonies and to different classifications of felonies, you’re looking at felonies that may require three to seven years in prison, or if you get into, you know, different felonies like Class 1 felonies or Class X felonies, they’ll be associated with mandatory minimums as well, or mandatory 85% serving percentages once you do get sentenced to the Department of Corrections.
Dunn: Can criminal charges be dismissed or reduced in Illinois?
Russek: They most certainly can. I mean, part of that is up to the prosecutor to a degree, and that’s part of negotiating or working out a deal mitigation, or sometimes it’s coming to a prosecutor and saying, hey, this is our investigation, this is our legal analysis, if we go to trial we’re gonna be successful, and it’s essentially showing the prosecutor the light. Your cop got it wrong, your cop’s not being truthful here, you’re misapplying the law, things like that can also lead to dismissals, but sometimes it’s worked out as part of a deal, right? My client maybe did do the crime, but here’s everything that we’ve done since then to show you that they’re not a concern to the community, you know, let’s reduce the charges or dismiss them entirely.
Dunn: That’s like bargaining, right? So how does a plea bargaining work?
Boardman: A plea bargain is a memorialization of a lot of conversations and a lot of negotiation that has happened before you actually show up in court and represent to the judge that you are going to be entering into agreement with the state as to the disposition of the case with your client. But, to the specific question, how a plea bargain works, it’s defense counsel and it’s the state’s attorney reaching an agreement as to what’s going to happen. That’ll be acknowledged or implemented by the court, and that can be sometimes a plea bargain is reached because your client has very little criminal history. Sometimes a plea bargain is reached because the state has gotten into the case and realized that actually it’s not as strong or they’re unlikely to meet certain elements of the charge. There can be plea bargains based on diversion programs. For example, can the client be admitted into some sort of inpatient treatment? But a plea bargain, there’s a lot of roads to a plea bargain, so it allows the attorneys to get creative and advocate for their client based on the facts, based on their criminal history, and based on the circumstances.
Dunn: A lot of things come into play.
Boardman: A tremendous amount of details are discussed. Like I said, criminal history is a huge one. The facts of the case, sometimes it can come down to certain state’s attorneys or certain prosecutors feel more strongly about certain types of charges. Sometimes if a case has been lingering for a while, it tends to find its way to a lower portion of the case load on a state’s attorney’s desk. So a plea bargain can be a cocktail of all those different things.
Dunn: Yeah, a cocktail of convenience. A criminal charge, does it just sit on my record and my criminal record forever?
Russek: There are opportunities, if you already passed the level of conviction, there are opportunities, I’ll let Josh speak about it more, for expungement or for otherwise removing them from your record.
Boardman: Yeah, so in the state of Illinois, my general advice is that felonies are often not expungeable. Now you can pursue avenues to explore sealing records. There are felonies relating to cannabis possession and things like that. As the legislation has become more, let’s call it marijuana friendly, charges for felony charges for marijuana are selected into categories that are expungeable. But one of the big distinctions in the state of Illinois is once it’s reached that post conviction versus what happened to a case prior, was it dismissed? If so, perhaps you could expunge the arrest record. Obviously, if the case is gone, you don’t have an arrest record. but it’s still important to be aware of arrest records that are out there in the event that you have a, you’re deeply scrutinized for your employment or things like that. So there are opportunities for expungement in the state of Illinois for a certain number of misdemeanors and then also felonies that have been dismissed and you want to get rid of arrest records.
Dunn: So, just for the sake of clarity, I can clear, seal, or expunge my criminal record in Illinois?
Boardman: The truthful answer on this is you should contact a criminal defense attorney because under the expungement or sealing statutes in Illinois, my process is someone will come to me and say hey I was convicted of this crime and then what I’ll do is I’ll go to the statute and see is it eligible. Was it a violent crime? If so, it’s likely precluded from ever being eligible from expungement. You’ve got to go, you try to get it, have it removed perhaps through a governor’s pardon or something like that. So to say generally that I have a criminal record but I can either seal or expunge it, that’s not always the case. It’s important to find somebody that can walk through the categories or classifications of what’s eligible and what’s not.
Dunn: What happens if I violate probation in Illinois?
Boardman: So what the state’s attorney will do is file what’s called a petition to revoke. If you’re placed on probation then a lot of times the state’s attorney or the court is going to implement conditions of that probation. Do you have to take anger management courses? Do you have to do community service? Do you have to go to a treatment facility? Different things like that. You have to pay fines. And if you violate those, then the state’s attorney has the ability or if you don’t comply, the state’s attorney has the ability to file a petition to revoke probation where they are going to be seeking to remove that case from probation status and implement some other type of sentencing under the statute. And obviously as a defense counsel you want to be able to explain perhaps it was an innocent mistake, why perhaps it was a procedural issue or a technical violation or perhaps the defendant received new charges that you didn’t want to negotiate as part of a global resolution for all the cases. But it’s really the state’s attorney’s desire to pull that defendant from probation and exercise usually more significant penalties under the statute.
Dunn: Let’s talk about DUI defense. What are the penalties for a DUI in Illinois?
Boardman: Classic lawyer answer—it depends. Is it your first DUI? Is it your second DUI? But generally speaking, you’ve got first-time DUIs. You’ll have county jail up to a year and pay fines up to $2,500. Illinois also has, they have court supervision which would be, could be for 12 months, could be for 24 months. Essentially it allows for you to plead guilty but a conviction does not go on your record. So as long as you do not have any new laws violations and you comply with whatever terms of court supervision that was implemented, then you don’t have any conviction on your record.
For subsequent DUIs, the penalties increase. It can involve mandatory minimums as far as county jail time, mandatory requirements for community services, the fines get higher, and if you continue to rack them up or you get into aggravated DUI territory, then you’re actually looking at the possibility of prison time under a class 4 felony.
Dunn: That brings it to a good question. What is an aggravated DUI?
Boardman: Aggravated DUI has several classifications. Was there serious bodily injury? You’ve got allegations of actions in school zones or with minors in the vehicle, different things like that. Basically extenuating circumstances that are going to take it from driving under the influence to behaviors that could impact or harm a number of people.
Dunn: How long does a DUI stay on your record? Is there a difference in Illinois?
Boardman: If you’re convicted of a DUI, then presently there are not mechanisms to have that removed from your record, which means a conviction would stay on your record. Like I said previously, if a DUI is dismissed or nollied by the state’s attorney is sort of the colloquial term, but if it’s dismissed, then you still can expunge those arrest records or investigation records or what have you.
Dunn: Can I refuse a breathalyzer or a field sobriety test? Is there a difference between Missouri and Illinois?
Boardman: The difference in Missouri is it operates under the Department of Revenue. The state of Illinois operates through Secretary of State’s office. So if you refuse a breathalyzer or some sort of sobriety test whenever you’re being detained, then what occurs is a 12-month suspension of your license. Now you can file a petition to rescind that statutory summary suspension and you have to have a hearing within 90 days, but if you refuse, then you do lose your driving privileges. Over in Missouri, you’ve got a similar process to where if you refuse, then you can have a chemical verification for up to a year.
Dunn: You talked about losing your license. So how does a DUI affect your driver’s license in Illinois?
Boardman: If you receive that conviction and if you receive the conviction and the state pursues the statutory summary suspension, then you will lose your driving privileges.
Dunn: But can a DUI be reduced or dismissed? Is that possible?
Boardman: It can. So speaking to dismissal first, that can be dismissed for poor investigation by law enforcement or they didn’t follow proper procedures as they were undergoing the stop. You can have equipment malfunctions. You can have other lacking areas of evidence, and so the state’s attorney can ultimately decide to dismiss a case. Illinois also, and this is primarily by negotiation, but Illinois has slang they’ll call basically wet reckless, which means that if you do not have a DUI on your record or your BAC is just barely over the legal limit, sometimes depending on a number of circumstances, a state’s attorney can amend the charge from a DUI charge to a reckless driving charge. And basically where you have acted in a willful and wanton manner, but you don’t necessarily have to admit any liability for operating a vehicle under the influence. That should not be expected, but it certainly can be amended down to that.
Dunn: Which is a part of some kind of defense strategy. So what are the potential defenses against a DUI charge in Illinois?
Boardman: You want to start at the beginning. Was there reasons for the stop? Was there proper investigation done by the law enforcement officer? Was all equipment calibrated? Were they properly trained on it? Are there any extenuating circumstances as far as justifications for performing poorly on a field sobriety test? Different things like that.
Dunn: What should I do if I’m pulled over for a DUI in Illinois?
Boardman: First and foremost, don’t freak out. Don’t create more havoc around the scene than what’s already likely presented, especially if you haven’t been in that situation before. You want to give truthful answers as to the very basic information. But beyond that, you don’t want to be spilling your guts and explaining where you’ve been and what you’ve been doing and how much you’ve had to drink, because rest assured, anything that you say at that point in time is going to go into a law enforcement officer’s report and is going to end up being part of the case later on.
You have the right to refuse the field sobriety test. You’ve got the right to refuse the breathalyzer test. If you refuse those, it obviously precludes them from having your BAC at that point in time based on the refusal and then also the circumstantial evidence of the field sobriety test. It eliminates that. Now, understanding that you will likely get arrested and your license can be suspended for up to a year in the state of Illinois, but it does not manufacture any evidence that can be used against you. Lastly, but most importantly, after the incident, immediately contact an attorney to proceed with your rights once the report formally is received by the state’s attorney’s office and then they charge the DUI.
Dunn: What would you say is specifically the limited information? What is that? I mean, what do you recommend they actually say? Name, type, social security, you know what I mean?
Boardman: Yeah, name, any sort of identifying information, but beyond that, you get a question from law enforcement, where are you headed, or especially, where are you coming from? A lot of times if you are coming from a restaurant or a bar or a concert or something, they’re going to utilize that to form their next questions, which have you been drinking, how much have you had tonight? So once it does start progressing into those types of questions, assert your right to remain silent, assert your right to an attorney, and just remain calm, remain respectful, but remain calm. That way you don’t say anything that could potentially jeopardize the case later on.
Russek: You have a general duty to identify yourself, identify that you’re a valid driver, that your car is insured, that your car is properly registered. Beyond that, you can tell them, hey, I don’t answer questions, essentially run my name and give me a ticket if you’re gonna give me a ticket. You don’t have to tell them where you’re coming from, where you’re going, what you were up to that night, what your plans are for the rest of the night. All that is them attempting to create fodder to say, well, he was at a bar, what does that mean? Well, it could mean nothing, but they could use it to mean something. So why give it to them?
Dunn: I mean, wouldn’t you say it’s their goal, when they pull you over, to find a way to arrest you?
Russek: Even if it’s not their goal, they’re hammers. You don’t want to give them the nail to try and make a DUI out of nothing. You have to prove that you’re a valid driver and that all that’s up to code and that’s it.
Dunn: Now, that’s drinking based, right? But can you get a DUI for marijuana in Illinois?
Boardman: You sure can. The way the statute is written, under the influence element, that can be alcohol, that can be prescription drugs, that can be marijuana. It goes to the level of impairment, which is a thing that many people don’t think of. You think of a DUI, you think of drinking and driving, but you can be impaired within any of those categories of substances that I just mentioned.
Russek: What that means is you can, and we’ve seen cases where people are given DUIs for medication that they are prescribed from a doctor, taking dosages that they’re prescribed by the doctor, and then potentially driving too soon after, before the effects have worn off, or you take an Ambien, but also have a glass of alcohol. Either of those separately are perfectly fine, but now all of a sudden you’re impaired, or at least a cop’s gonna claim you’re impaired, and you find yourself with the DUI.
Dunn: Is this like the only way they would know that, is if you gave them that information?
Russek: There are other ways that they can determine it, but…
Dunn: They do blood alcohol content, right?
Russek: The two strongest things are gonna be blood alcohol content and the own statements, your own statements you may give to nail you. You know, the amount of times we’ve seen them say, well do you think maybe you shouldn’t have had that many drinks? You say, maybe I shouldn’t have, and then all of a sudden you’ve just essentially admitted to at least feeling a little intoxicated, and they can run with that for a mile.
Boardman: And it’s not always crystal clear what their intent is. I’ve had, in reviewing body cam footage, I’ve had officers, are you a little sleepy? You cross the line there, and then sure enough a defendant’s gonna go, well you know, I took a sleeping pill, but I had to run to the grocery store, and there you go.
Dunn: That’s scary. In any of those situations it’s scary, but I guess, what’s the most important thing to focus on when you get pulled over for a DUI, or driving in any impaired, any level of impairment?
Boardman: I think what we’ve stated previously, which would be, understand what your rights are, which is the right to remain silent, the right to an attorney, not divulge any information beyond the obligations that you have to identify yourself, your status as a driver, details like that. Don’t attempt to evade or be untruthful. Just rely on the protections that are provided to you in that moment. You’ll likely get a ticket, you can even tell them, I understand that I may get a ticket out of this, but I’m still not going to necessarily answer those questions, and then contact an attorney to receive the discovery in the police report, and start to work up your case after that incident.
Dunn: Yeah, it sounds like it’s important to understand confidently that you have those rights. And then the officer that’s probing, that’s his sole goal, right? He’s probing for an opportunity, he keeps hunting and hunting and hunting.
Boardman: It may feel counterintuitive, because a lot of folks will want to cooperate with law enforcement, as you know, whether that’s out of a traditional view of law enforcement, or whether they are trying to mitigate whatever damage they think could be occurring, or whether they are trying to assert their innocence, let an attorney do that.
Dunn: Let’s talk about sex crimes and sexual assault. What should I do if I’m accused of sexual assault in Illinois?
Boardman: Well, if you’re just accused, and it has not reached beyond an accusation, let’s call it period, then chances are the law enforcement officer, or whomever received the report or the statements by the alleged victim, is going to want to contact you and get your side of the story. It’s important that you, at that stage, and you may think, well why would I need an attorney at that stage? I’m going to go in, tell them what happened, try to absolve myself, or defend myself against these allegations or accusations. But that conversation itself, even at the accusation period, can result in charges being filed later on. So it’s important to contact an attorney, have that attorney go with you, even if you’re just accused.
Dunn: Can I be arrested for sexual assault without any evidence?
Boardman: Let’s step back and think about what evidence in a sexual assault case is. It would be the statements by the alleged victim. So if that alleged victim goes in and speaks with law enforcement and they take down a report, and that is then given to the state’s attorney, the state’s attorney can absolutely file a charge for sexual assault simply based on the testimony of the alleged victim. And, once a charge is filed, you can be arrested.
Dunn: So it’s important to understand what evidence means in a sexual assault case?
Boardman: Correct. And in some of these cases there is no DNA evidence, there’s no evidence beyond the witness statements.
Russek: That’s what happens sometimes in these sex crimes. You have an individual say something was rape or some kind of sexual assault, you go in without an attorney thinking, well, I’ll admit to being at the party or I’ll admit to having had sex with her but it wasn’t forceful or it didn’t happen at all. Well, you’ve just again given them half of the case. By admitting to having sex, now that witness’s testimony seems a little more believable and then the case becomes, well, we just have to show a jury someday that is was forceable. Or you admit to being at the party where she’s claiming she was assaulted. So that’s why you need to know what your statements, even if they seem benign, may do in a wider scale of a criminal investigation.
Dunn: What are the penalties for sexual assault in Illinois?
Boardman: Criminal sexual assault in the state of Illinois is a felony offense. So, for your first charge of criminal sexual assault, you’re looking at penalties of 1 to 3 years prison time, you’re looking at the possibility of fines. But, as you receive more charges, or if there are aggravating circumstances or escalating circumstances — for example, the age of the individual, was there a weapon involved, different facts like that — those charges can then be escalated to higher classifications of felonies which naturally arrive at higher sentences.
Dunn: But how do I prove my innocence if I’m accused of sexual assault in Illinois?
Boardman: Remember, you don’t have to prove anything. It’s the burden of the State to prove that you committed the acts you are charged. But, it’s important that you understand your ability to create a defense that’s going to prevent the State from, whether it’s in front of a judge or jury, meeting that burden of proof, which is beyond a reasonable doubt. You want to attack the credibility, you want to, if there are alibis, if you have defenses of consent, if there’s any opportunity throughout the case to cast any doubt on the testimony, or cast any doubt on any of the evidence that the state’s going to try to use against you, then that’s what you can do to avoid the charge. But, once again, you don’t have to prove anything. It is the sole responsibility of the State to prove. But it’s your job to create the doubt through your defenses.
Dunn: So, what should I do if I’m accused of sexual assault?
Russek: Given how serious those allegations can be, reaching out to an attorney is an important avenue. Depending on what you mean by accused — you’re just hearing the rumor mill that someone’s saying it, or you hear they actually went to the police, or they’re just posting about it online — these can move very quick. Because if you’re a prosecutor or a police officer and you hear someone saying they were assaulted or raped, that they’re going to take that seriously. It’s almost akin to murder for some people. So, you need to start potentially having an attorney walk you through your options. If you are going to go an alibi defense as we talked earlier, you may need to start documenting your social media and reminding friends. Because if you hear you’re being accused of rape six months prior, it’s going to be more difficult to find friends, find proof, find text messages to show that I wasn’t even there that night or this is actually how it went down. So, that’s one big thing is to start preserving and creating your investigation early, but then also having an attorney potentially reach out to law enforcement, get an idea of what’s going on, and how can we potentially put an end to this when it’s just allegations.
Dunn: And that’s near the beginning. But what are some effective defense strategies against being accused of a sexual crime?
Boardman: One that immediately comes to mind if the alleged victim is also an adult is the defense of consent. If that is going to be the defense in the case, you may have had sexual intercourse with the witness or alleged victim, but you’re asserting that there was consent for that sexual conduct. To prove that up — did the text messages or social media posts or things… was there a trail of conversations that would cast any doubt or affect the credibility of someone claiming that you participated in this type of action. Also, did the alleged victim contact you afterwards with any sort of language and text messages or pictures or videos or anything like that, that would demonstrate that maybe this circumstances claimed really did not occur. So you want to be thinking what can. What can the accused do? What can the defendant do to create doubt and attack the credibility of the person that’s telling their story to the judge or the jury?
Russek: There, there could be an alibi. I wasn’t even there. And in that situation, often we see these cases where they did have, there was sexual interaction of some sort. So, maybe looking at the motive for why the individual would later be claiming it was rape, whether it’s a social or a financial motive. We see that a lot, potentially other witnesses who were maybe at the party and saw a certain interaction that makes it more questionable if it was rape or maybe it was consent. I mean, these cases can be very complex and very sensitive because of your inherently talking about an intimate thing, whether it was true or not.
Dunn: How important is it to contact an attorney?
Boardman: Incredibly important. That should be one of the very first things that you do. Because they’ll have an understanding of crafting defenses and what types of information or details you need to be providing or going back and searching to build those defenses. Like Andrew said, talking to eyewitnesses if that’s applicable, looking into your text messages or social media, if that’s applicable. But it’s critical that you immediately contact an attorney even if you’re accused or you catch wind of someone wanting to talk to you about events that may have occurred.
Dunn: Let’s talk about drug crimes in Illinois. What happens if I get caught with drugs in Illinois? Is there a difference?
Boardman: Well, it depends on the circumstances in which you were caught with drugs. Were drugs found on your person as a result of a consent to search? Were drugs found under the passenger seat of a vehicle that you happen to be driving? Depending on the different circumstances in which the drugs were located, dictates how your response should be. First and foremost, if you’ve been charged or if you’ve been caught that will likely lead to a charge for possession, you want to contact an attorney. But the underlying principles when confronted with law enforcement in these situations are exactly the same. You do not want to be making statements basically copping to it or admitting to possession or ownership of the drugs. You do not want to be consenting to searches. You do not want to be trying to explain, oh, they’re for somebody else. I know they’re in my car, but they’re for somebody else. Or I was just holding these for somebody. You want to assert your rights to an attorney. You want to keep your mouth shut and not give law enforcement any additional fodder for later on in the case. And then seek out an attorney right away.
Russek: Seeking out an attorney can be good, not just for your defense, but whether it’s a case where you think you may be charged and they weren’t your drugs, or we do get a lot of cases where our clients did do the crime they’re accused of and the evidence is there. Drug mitigation is huge. So, getting an attorney to say, hey, the drugs were sent out to the lab, I’m expecting I’m gonna be charged with a felony four months from now. Well, that’s the time to start treatment. That’s the time to start documenting your success. Because maybe we can stop the prosecutor from even charging you, or we can get in right away and show everything you’ve done since then. So sometimes these are proactive, not in terms of just beating the charges, but damage control, especially in drug cases.
Dunn: That’s interesting. What are the most common drug crimes in Illinois?
Boardman: The most common would be the unlawful possession of a controlled substance. Secondarily to those, you’ve got the delivering style charges, manufacturing style charges. Where there is possession, oftentimes you’re gonna have possession of paraphernalia coupled with that. But, I would say far and away, the largest number of drug crimes that I’ve experienced have to do with possession of unlawful substances.
Dunn: What’s the difference between a misdemeanor and a felony drug charge in Illinois?
Boardman: Illinois follows many other states in that the difference between the state’s attorney charging someone with a misdemeanor and felony in a drug case, it’s going to have to do with the actual substance itself. They can look at factors such as quantity. They can look at the schedule of the substance that was found. Basically at that point, whether you’re possessing a larger quantity or smaller quantity, or whether it’s heroin or whether it’s marijuana, it fits into the statutory classifications of what are misdemeanors and then what are felonies.
Dunn: What are drug schedules? What does that mean in Illinois?
Boardman: Different classifications of, or different levels of seriousness that go into the types of charges that can be brought. Schedules, one being without substances, without any sort of maybe clinical usage or medicinal usage or anything like that. And then, as you move into schedule two or schedule three, are there any justified purposes or usages or medical usages for those substances? It creates an algorithm of how the state’s attorney will charge that if those are located on your person or in your vehicle or what have you.
Dunn: Can I get in trouble for having prescription drugs on my person?
Russek: You could certainly potentially be arrested. Even if they’re prescribed drugs to you, I’ve seen cases before where I have three Xanax in my pocket I’m prescribed it, but I don’t have the proof on me. For whatever reason, the cop doesn’t believe me, and I suddenly have a charge and that’s for the attorney to go to the prosecutor with the prescription somehow explain that. Or sometimes you’ll see I’ll accidentally leave my prescription bottle in the car and it’s mine, but Josh is accused of it. And those are fights that have to be had. So, we do run into those a lot with prescription drugs being prosecuted.
Dunn: Wow. Well, what’s the difference between simple possession or possession with the intent to deliver?
Boardman: The phrase that I look to is personal use. Are the drugs that were located on your person reasonably associated with what would be a personal use or recreational use, or is it such a quantity where it’s unlikely or unreasonable that it would just be for one person? You can also look at what else is confiscated or located on the scene. Do you have, are there scales? Are there baggies? Just different circumstantial evidence, but you’ve got to look at the quantity. Certainly.
Dunn: I mean, and then what if you’re Snoop Dogg?
Boardman: I think he falls into his own category. It’s the Snoop Dogg carve out.
Dunn: Can I be charged if the drugs weren’t mine?
Boardman: Absolutely. There’s the legal terms are actual possession and constructive possession. So if you and I are in a vehicle and I pick you up, you’ve got a backpack, you’ve got some sort of unlawful substance in your backpack. I get pulled over for having a brake light out or a tail light out or whatever, and law enforcement either established or it is established that there needs to be any sort of reasoning for searching the vehicle, or probable cause, or anything like that. And subsequent to that search, they locate unlawful drugs in that backpack. I may have no idea that those drugs were in your backpack, but they were located in the vehicle that I am owning and operating. So actual possession is if law enforcement comes up to you and you’ve got a baggie of something in your pocket, but constructive possession is do you have the ability to exercise dominion or control over that space and the state’s attorney can rely on circumstantial evidence to file possession charges against you. That’s why it’s very important that you do not get into a finger pointing battle there at the scene and allow the defense attorney to really focus on that constructive possession element.
Dunn: Wow. That’s crazy. They just have it in their backpack and then I would get in trouble for it. Wow. Let’s talk about domestic violence, battery. What counts as domestic battery in Illinois?
Boardman: Actions against the person, without a legal justification, physical contact with persons that fall within the specific domestic battery definition. In order for the state’s attorney to charge domestic battery, oftentimes you have to think that there is some sort of familial or romantic relationship going on between the accuser and the accused. So you’ve got actions that are unwanted against someone in your household. Folks like that.
Russek: Essentially a way to think about it is it’s like battery or assault against a normal person, but because there’s that domestic relationship, the thresholds are lower. So what would maybe be a lower level misdemeanor or a lower level felony against a stranger, because it’s a domestic partner, it’s almost enhanced is a way to think about it. They come down harder on you for doing it to somebody who you’re supposed to be close to.
Dunn: But can I be arrested just for being accused of domestic violence in Illinois?
Russek: The testimony, which would be somebody accusing you, saying this person did that to me, is technically enough to support a charge which supports an arrest.
Boardman: And Andrew would probably second this but, oftentimes, there is no other evidence other than the statements of the accused.
Russek: These are the ultimate he said, she said cases.
Dunn: So, if that’s the case, then what is the evidence in a domestic battery case? What kind of evidence is there beyond that?
Russek: The evidence can just be somebody’s testimony. But, that’s why a way to attack it can be the lack of evidence sometimes. So that can be your defense or were there visible injuries? Is their story consistent? You know, the various times they told it to a police officer on a body cam. These are all things we look for. Is it realistic? A lot of times in these domestic cases, do we have a history of these people making these allegations and then not following through with them? Which inherently calls into question every allegation they’ve ever made. So, sometimes the lack of evidence can be concerning, because it means you got arrested just on somebody’s word, but it could also be a tool for us to show that you haven’t met the standard of probable cause.
Dunn: So what happens in a domestic violence case? I mean, obviously it starts somewhere being accused, but what happens?
Boardman: Let’s say the accusation has reached law enforcement. Which, then in turn, that report has reached a state’s attorney’s office, and they file charges against you. Then, you’ll have an obligation to attend court. And, if it’s your first charge for domestic battery in the state of Illinois, and there are not any aggravating circumstances—meaning that the state’s attorney did not feel like the evidence was beyond what we talked about before, which was the bodily contact with someone that would fall within the definition of the domestic battery statute, and it was unjustified or unwanted or what have you—then you’re gonna be scheduled for an arraignment. At the arraignment, you’re going to likely waive a formal reading of the charges because, at that point, you’ve hired an attorney and you understand what the charges being brought against you would be. You enter a plea of not guilty. Request discovery. The state’s got an obligation to then send you what evidence they may have at that time. And you’ll start evaluating any witness reports, alleged victim reports, body cam footage, communications between the parties, circumstantial evidence. After you’ve reached that point, at the misdemeanor level, you’re not gonna have a preliminary hearing or anything like that. So, it’ll continue until you’ve reached an evaluation period of the evidence, and the court’s gonna require you to either set it for trial or, perhaps given the circumstances or the facts, then you’ve reached a plea agreement.
Dunn: Can domestic violence charges be dropped?
Russek: They can. Like any case, you can convince a prosecutor to drop them. A lot of times in domestics, it’s working out one of three different ways is the most common you see a domestic case dropped. There’s obviously the victim. Sometimes there’s some ulterior motive here like a child paternity case, or a divorce, and then suddenly the victim doesn’t wanna stand by their allegations anymore, whether they were true or not. Then, they’re showing the prosecutor, Hey, you charged this out the gate, but the evidence isn’t there. They don’t have injuries. Their statements are inconsistent, kind of a pretrial not-guilty, when showing the prosecutor, this is just a bogus case. Or there’s mitigation. Sometimes you are able to resolve these cases— you and your spouse or your family member work it out and you’re able to show the court through your attorney that you’ve addressed anger management, that you’ve done some community service, that maybe there are some limitations on the kind of contact you’ll have with this person. Where we can convince the state, this doesn’t need to be a felony, this person doesn’t need to go to jail, because the issues that they are concerned about have been addressed.
Dunn: What if an alleged victim wants to drop charges of a domestic battery? Does the case live on its own or is it just over?
Russek: So, it can continue forward. People always say: the state brought it against me, not the person. Well, a person can’t bring criminal charges against you. It’s the state of Illinois, state of Missouri that brings the charges. Technically, the victim is just a witness, who happens to be a victim witness. So, while the state may call them and say, you know, we’re thinking of doing this or that as a plea deal, what do you think? They don’t have any say. They’re just a witness, just like a police officer’s a witness, just like I could be a witness to a car accident and be called to testify in a civil suit. So, while they may say to the prosecutor, I don’t want to participate, that can be fodder for us. That can help us show that maybe their credibility is called into question or maybe this isn’t something worth all these resources. But, technically the state can try and force the victim to come testify. I’ve done that before in violent crime cases when I was a prosecutor, where I had my police go pick up witnesses who were reluctant and make them take the stand and put them under oath. So, the case can still progress even without a non-cooperative or even with a non-cooperative victim. It’s the attorney’s job to use that as one of many tools in getting your case dismissed or getting you that best outcome.
Broadman: I think that’s probably one of the biggest misconceptions that I see with clients that have been charged with these types of charges. Is… oh my ex-girlfriend, or girlfriend, or wife, or whomever, texted me and said they went and contacted the state’s attorney that they don’t wanna press charges anymore. A lot of these state’s attorney’s offices have no-drop policies. So, like Andrew eloquently said, just because the alleged victim in the case contacts you or contacts—I’ve had them try to contact the attorney’s office or what have you—it doesn’t mean that the state’s attorney just suddenly goes, oh okay, well, that charge is now gone.
Dunn: I’m so grateful. I love these conversations. I feel like I walk out and I’ve just been fed information. And congratulations with being the leading criminal defense firm in both Illinois and Missouri. We’re grateful to have you guys. I think this is great information for any folks out there that are concerned about being caught up in any type of criminal proceeding. I’m grateful and thank you, and we’ll see you next time. Thanks for joining us at Hexxen Studios. We’ll see you next time. Thanks.
