Everything You Need to Know About Felony Charges in the State of Illinois. Attorneys Steve Waterkotte and Joshua Boardman from Combs Waterkotte discuss everything you need to know about Illinois felony criminal charges, including DUI, drug charges, sex crimes, conspiracy, violent crimes, gun charges, Class X felonies, Class 1 felonies, Class 2 felonies, and more.
Combs Waterkotte is a leading criminal defense law firm serving Illinois and Missouri. Our Illinois defense attorneys will fight for your freedom and rights. If you are facing charges in Chicago, Cook County, or anywhere in Illinois, we can help. Call us at (312) 500-HELP 24 hours a day, 7 days a week.
Interview Transcript
Scott Michael Dunn: Welcome back to Hexxen Studios. I’m Scott Dunn, and I’m here with Combs Waterkotte. With managing partner Steven Waterkotte and Josh Boardman is here, serving Illinois. Today we’re gonna get into a few subjects, some important subjects that provide clarity and what to do in certain situations, when you’re dealing with legal problems. And we’ll start with felony charges. If that’s alright with you guys. So Josh, what is a felony?
Joshua Boardman: A felony is a classification of offense in the state of Illinois. So they’ve got traffic crimes, they’ve got misdemeanors, and all of these are statutorily defined based on the type of behavior. If you’re driving while suspended, that’s probably gonna fall into a traffic or misdemeanor-type classification. Felonies tend to be more, let’s call them severe, or more serious types of charges. Robbery, burglary, theft, sex crimes, and violent crimes are all gonna fall within that felony classification.
Dunn: So what are the different felony classes in Illinois?
Boardman: They’ve got five. So they have Class X, Class 1, Class 2, Class 3, and Class 4. And depending on the type of offense depends on what classification or definition of statute it goes into. Class X being the most serious. Let’s kind of think of first degree murder homicides. They are gonna fall within that Class X. For Class 4, it can be your, what I would call, lower level felonies, evading law enforcement, possessing a firearm without a valid FOID card, things of that nature.
Dunn: So what’s the difference between a misdemeanor and a felony in Illinois?
Boardman: One of the differences is the type of offense. That’s going to be one of the general lines of demarcation between the two in the statute. But it also goes to the potential punishments or sentencing that can occur with the different charges. On misdemeanors, you’re going to have county jail time potentially, shorter terms of probation, lower fine amounts associated with misdemeanors. With felonies, you can potentially be looking at Illinois Department of Corrections time. The fine amounts associated with those charges are much higher, and then also any terms of probation are going to be longer.
Steve Waterkotte: If I may chime in, the misdemeanor is punishable by less than 1 year, and so that is the major defining threshold number on the sentence. So on a misdemeanor, the maximum’s 364 days. On a felony, it could be one year all the way up to life. Correct.
Dunn: Or death.
Waterkotte: Correct.
Dunn: Wow. So, what is a Class X felony in Illinois?
Boardman: A Class X felony is going to have a minimum of 6 years in the Illinois Department of Corrections, and then that range can go up. With it being the most serious, there’s different enhancements that the court can impose that range it anywhere from 6 years to life. But whenever you think of a Class X felony, you need to be thinking of your homicide-style, significant sex crimes, different charges like that.
Dunn: So, what is a Class 1 felony in Illinois?
Boardman: Class 1 felony would be the classification below that. Obviously, you’re not going to have life parameters, or life extensions, or enhancements to that. Just think of your charges that, for example, maybe there’s an involuntary manslaughter type of charge, where you don’t have that knowing or that intent element that a Class X felony is going to have.
Dunn: Ah. And then they obviously differentiate.
Boardman: They’re different.
Dunn: So now we’ve got Class 2. What is a Class 2 felony and how’s it different in Illinois than 1?
Boardman: Certainly. So, it once again shrinks the amount of time that one could potentially serve in the Department of Corrections. With Class 2 felonies, they will typically associate that with significant crimes like drug trafficking and different actions like that.
Dunn: And how is that different (from) or what is a Class 3 felony in Illinois?
Boardman: Once again, as you move from Class X to Class 4, the types of charges that fit into these different classes is what the general assembly in Illinois has deemed perhaps lesser offenses. I mean, they’re still serious offenses because they rise to that felony classification, but they’re lesser as far as the different types of penalties. So, with a Class 3, you’re looking at potentially domestic violence style charges.
And then whenever you move to Class 4 felonies, it’s the lowest classification. So I mean, someone can receive a Class 4 felony for not stopping quickly enough after they are aware of law enforcement trying to pull them over and it leads to innovating or eluding. If you get a certain number of driving while suspended or driving while revoked, even those are driving violations, they can still give rise to a felony classification which would be the Class 4.
And, you know, if you get stopped over in Illinois and you possess a firearm and they locate that firearm and you don’t have valid registration or a FOID card, even that mishap by not having valid registration with you at that time or not having any at all, can be a Class 4 felony.
Dunn: Wow. What crimes are Class X felonies in Illinois?
Boardman: Your significant violent crimes. You know, your homicides, crimes like that. Also, sex crimes can fall within that category. Your very serious, your aggravated sexual abuse, aggravated sexual assault, those types of crimes can fit into that Class X category.
Dunn: What makes a felony aggravated in Illinois?
Boardman: Extenuating circumstances around the actions. For example, was there a firearm involved? Was there complete disregard for human life or something like that? Does the alleged victim fall within a special classification, for example, a minor or a disabled person? So they’ve got carve-outs in the statutes that if not only did the felonious action take place, but it was also associated with these enhancing or extenuating circumstances.>
Dunn: Can felony charges be reduced in Cook County, Illinois?
Waterkotte: Yes. Felony charges are always able to be reduced, and that would be through the plea negotiation process. And so when we get on a case, of course, after we start reviewing the discovery, filing various motions, many times if what we think is the case is weak or could be circumstantial, that is always going to be part of plea negotiations when we’re discussing potential resolutions with the prosecutor. Or as we’re leading up to a trial, certainly at that time, it’s not uncommon for prosecutors to extend plea offers where they will reduce a charge to a lesser charge. Maybe it falls from a Class 1 to a Class 3 and things like that. So it would reduce it, which accordingly would reduce the sentence that would go along with that. And so certainly, charges can be reduced, and they frequently are, and that’s part of plea negotiations as we prepare for trial.
Dunn: Now, as we’ve talked about, felony charges can be reduced, but can felony charges be dismissed in Cook County, Illinois?
Waterkotte: They can. They can. And again, it goes to the strength of the case. You know, when we get on a case and we start reviewing discovery, and filing necessary motions where we can uncover weaknesses in their case, and maybe weaknesses with their witnesses, you know, the credibility of the witness, or the complaining witness, or the alleged victim, it’s not uncommon for that to happen. I mean, prosecutors aren’t just routinely handing out dismissals, make no mistake about it. But it’s our job as defense lawyers to uncover the weaknesses of that case, and perhaps it’s you’re attacking the credibility of the complaining witness or the victim in the case. And so, cases do fall apart. Again, it’s not common, but it does happen.
Dunn: Let’s get into the arrest process, booking, and police investigations in Cook County, Illinois. What happens after a felony arrest in Illinois?
Waterkotte: So after a felony arrest, they’ll take the individual into custody and then they will bring that individual before a judge or magistrate within 48 hours, and that is considered the detention hearing. And so at a detention hearing, the court is evaluating and assessing whether they’re going to release the individual out on pretrial release, out on bond, while the case is pending. And so, courts will typically look at two major factors when determining if somebody’s gonna be released pending trial, and those two factors are, is this person a danger to the public, to society?
Additionally, they’ll look at, is this person a flight risk? And then there’s various things that fall under that. So of course, they’re gonna look at a person’s criminal history. You know, is this a one-off kind of anomaly? Or does this person have a lengthy criminal history? In which case, that’s gonna probably skew towards more of keeping this individual incarcerated, pending trial. You know, again, if a person has no prior criminal history, that’ll certainly help, and that’s probably one of the major factors. Of course, the higher you go, Class X, 1, violent crimes, sex crimes, you’re gonna have a bigger hurdle to overcome to get that person out. But we routinely do. And it’s our job, that’s kind of our first step in this process is visiting the client in the jail, preparing ourselves for the detention hearing so we can put together the most compelling argument possible, to secure our client’s release while awaiting trial.
Dunn: Will I go to jail after I’m charged with a felony in Cook County?
Waterkotte: Yes, in many cases. Not all. They can issue what’s called a summons on a felony case. Those are generally gonna be reserved for your lower level felonies, your non-violent felonies. Let’s think stealing offenses or possession of drugs, of controlled substances. On your violent crimes, your sex crimes, you almost always will go to jail initially while then waiting for your detention hearing, and that would be the hearing to try to secure our client’s release.
Dunn: Can the police arrest me for a felony without a warrant in Cook County, Illinois?
Waterkotte: They can. And then they go apply for the warrant after the arrest, and there’s a timeframe to do that. So, for instance, if you were observed making a drug sale or purchase on the side of the street, of course a police officer has the right to arrest you at that point. There’s probable cause. Then they’d have to apply for the warrant.
Boardman: And I’ll say that that is when a lot of our calls or our hires occur, is after an arrest. They’ve got 48 hours. And when I say they, a determination of charging has to occur within that 48-hour period. And so, sometimes the state’s attorney still needs facts or evidence to develop their case. You may have an idea of what you were arrested for, but there haven’t been formal charges filed. So many times we’ll get a call, “Hey, I just did 48 hours. I anticipate that I am going to be charged.” And it could very well just be the state’s attorney is still developing everything that they need to fully charge the case.
Waterkotte: And there’s an important distinction, too, that many folks use the word arrest and charged interchangeably, and they are two distinct ideas here. Police make arrests. Prosecutors determine the charges and charge the individual. So, it’s important to understand that distinction. In Illinois, like any other state, the police make the arrest. They bring their information, their report, to a prosecutor, who then will determine, okay, with these sets of facts here, with this police report, having talked to this officer, we can charge this individual with whatever that may be. So again, it’s important to understand the distinction. I think a lot of folks use those words interchangeably, but it’s not technically correct, because I always say, you know, “Here’s the police arrest, prosecutor’s charge.”
Dunn: Should I talk to detectives if I’m accused of a felony in Illinois?
Waterkotte: Absolutely no. And that is an emphatic no. Nobody should ever talk to the police without an attorney present. Many folks who think, “Well, I didn’t do anything. I’m not guilty.” And I would argue to that person, it’s probably even more important then to get an attorney. “You know, well, I didn’t do anything. I’ll just talk to the police and tell them, and then I’ll be on my way.” And that’s not the case. If the police are talking to you and you’re not a witness, in a capacity of a suspect, they’re looking to get incriminating information. They’re trained to do that. And I always tell folks, “You can give some benign fact: ‘Hey, I was at this gas station at this time.’” Well, that’s when that robbery occurred. Now you just put yourself in the scene of the crime. Well, now they’re one step closer to having evidence that you may have done that, you know? So nobody should ever subject themselves to answering questions or an interrogation by any law enforcement officer without an attorney present. It’ll serve no purpose, and the common belief is that, “I’ll tell my story, and I’ll be on my way.” Generally, that does not happen. And they call us, and, “Well, I thought I was gonna, you know, just tell them, you know, I didn’t do this, and I’d be on my way,” and they find themselves in a bad predicament.
Dunn: Can the police lie in a felony investigation in Illinois?
Waterkotte: Absolutely, and they routinely do. You know, “Hey, we saw you at this location,” and yet they don’t possess that information or nobody has told them that information. They are allowed to lie, and they routinely do. That is an interrogation tactic to say, “Hey, we have evidence of you being involved in whatever crime it is they’re investigating, and so-and-so told us this.” Yet they don’t have that information because from a mental standpoint at that point, people say, “Well, man, they have me now. Let me go ahead and tell you the rest or make this easy.” And another thing that police routinely do. We’ve all probably seen this, is that they will say, “Just tell us, you know, we’re not…it’s gonna be all fine. We’ll let the prosecutor know or the DA know that, hey, you cooperated, and it’s just gonna make things easier,” right? That’s BS. At the end of the day, you just implicated yourself in a crime. They’re going to take that information to charge you. Again, if they’re talking to you as a suspect, they’re wanting to get incriminating information.
Dunn: Can the police search my phone during a felony investigation in Illinois?
Waterkotte: They would need a warrant for that. And so they would have to have a warrant for that. Traffic stops, for example, that’s kind of a common one in the phone sense. A police officer can’t just say, snatch your phone. Now, what they can do is they can ask the individual for consent. And that applies not only to the phone context, but your car, your home, anything, your pockets. “Hey, uh, can I search you?” And you wouldn’t believe how many times people consent to a search. I always tell folks, “Know your rights. Know that you do not have to consent.” And it’s intimidating. You have an officer who is uniformed or a detective asking to do something, and it’s, “Well, I don’t wanna look…” I said, “Who cares what it looks like? You have rights. And assert those rights.” So to search a phone, to search pockets, cars are another context, but a phone certainly would have to have a warrant.
Dunn: What happens during a felony booking in Cook County?
Waterkotte: So in Cook County, felony booking typically looks like an arrest, they’ll bring the person into custody. They’ll process them at the jail. They will fingerprint the individual. They will run the individual’s name, see if there’s any holds, any other warrants, any other jurisdictions that this person is wanted in. They’ll photograph them. They’ll book them into the jail, while that individual awaits his or her detention hearing.
Dunn: Will I be fingerprinted or photographed for a felony in Cook County?
Waterkotte: Yep. In Cook County or any other jurisdiction in Illinois, the typical process would be to process the individual into the jail, which will include booking, photographs, fingerprints, a check of that individual if there’s any holds, any immigration holds, any other jurisdiction that he or she is wanted in. So that’ll be part of the process.
Dunn: How long can the police hold me if charges are filed in Illinois?
Waterkotte: 48 hours is the timeframe that they can hold you, and at which point they would either charge you or release you.
Dunn: What happens if I’m falsely accused of a felony in Cook County?
Waterkotte: Even more reason to hire a lawyer ASAP. And a lot of times, time is of the essence. You know, maybe preserving an alibi. You know, you’re talking about falsely accused, oftentimes that could be because of an alibi or a witness. So in many cases, the sooner we get on a case, the better. And I say that from the sense that some things are time-sensitive. I had a recent case where we needed to get exterior camera footage. Well, a lot of times those things are purged. You know, businesses, they all have cameras on almost every exterior business now. And again, the sooner we get on these things and can start our investigation, particularly in the case of somebody being falsely accused, in whatever sense that may be, so we can start our investigation, and preserving certain evidence to help exonerate that individual.
Dunn: Let’s get into the court process, the Cook County felony court process. Where is that handled in the county, or if it’s Chicago, or if you’re dealing with a felony charge, where is that handled, that court process?
Boardman: Yes, so Cook County is not unlike other counties in the state of Illinois, which is that the courthouse… it’s a jurisdictional question, but then also there’s a location or several locations as to where your case will be handled. So in Cook County, they’ve got specific courthouses for domestic violence charges, perhaps traffic offenses, municipal offenses. So, depending on which classification of charge that you are facing, you’ll go to that courthouse that I would say addresses or handles those types of cases.
Dunn: So what happens at a felony arraignment in Chicago?
Boardman: An arraignment is essentially the opportunity for the defendant to become aware of the charges that are filed against him or her. It’s where the judge will say, “You have been charged with this. Do you understand your rights? How do you wanna plead?” At which point in time they’ll enter a plea for guilty or not guilty. Our job is to ensure that they, at that point in time, do not plead guilty and enter a plea of not guilty. That way we can then request all the discovery in the case or evidence in the case and negotiate with the state’s attorney, evaluate witnesses, different tasks like that, and then make a determination as to whether or not the case will be set for a trial later on.
Dunn: What’s a preliminary hearing for a felony case in Illinois?
Waterkotte: A preliminary hearing is a hearing in which the prosecutor will put on witnesses and present evidence for the court to make what’s called a probable cause determination. And I always tell clients it’s sort of like a little mini trial without a jury. They will put on, and when I say they, the prosecutors, the state, will put on just enough evidence to allow the court to say, “Yes, there is probable cause here.” And it’s kind of a safeguard for a defendant. To say, “Yeah, there’s enough evidence for this case to move on.” I also always caution clients, this is not a hearing in which they’re gonna determine whether you’re guilty or not guilty. A probable cause standard is much lower than guilt beyond a reasonable doubt. So again, the state will put on just enough evidence, so the court can make that determination. Typically it comes in the form of the testimony from the alleged victim.
Dunn: What’s a grand jury indictment in Illinois?
Waterkotte: A grand jury is another way, another avenue, in which the state can charge an individual. They will convene a grand jury. It’s a panel of citizens from the county. So for instance, in Cook County, the grand jury will be made up of citizens of Cook County, and their job is, again, to be presented enough evidence that there’s probable cause in that case to file the charges. So it’s a charging mechanism that prosecutors have at their disposal to bring a case against an individual, and the grand jury would make the determination after they present to a grand jury.
Dunn: How long does a felony case take in Cook County?
Waterkotte: It’s a wide range. So as we talked about the classifications of crimes in Illinois, from Class X all the way down, obviously the more serious the crime, typically the case is going to last longer in the judicial system, and that I think is true probably anywhere in the country. And the reason being is the more serious the crime, the stakes, number one, go up. The sentencing range goes up, and the complexity of the case typically does. And so, you’re talking about a low-level felony, that might be 6 months to a year. And these are just general timeframes. You know, you’re talking a first-degree murder case, you’re maybe talking 2 years, 3 years and sometimes even longer to get to trial, because the investigation that’s done, the number of witnesses that are done, the pretrial motions that are being litigated and fought, are going to be more frequent, more common than in your lower level felony cases.
Dunn: Will my felony case go to trial in Chicago?
Waterkotte: We don’t know. We never know at the outset. Now, at Combs Waterkotte, we prepare every case as if it’s going to trial. When a client calls us and hires us, we have a mindset that we are preparing this case for a trial. And I think that allows us to operate from a position of leverage. We never jump on a case thinking plea. That’s never our mindset at Combs Waterkotte. Our mindset is when we get a case in, what can we do to poke holes at this case, whether it’s, again an alibi perhaps, attacking the credibility of the alleged victim. So we always operate that this case is going to trial. Now, the fact is the vast majority of cases don’t go to trial. And we do try a lot of cases, but yet still the vast majority of cases do not go to trial. So it’s always a question from the outset that we don’t know, but we prepare like it is going to trial.
Dunn: What is discovery for felony cases in Illinois?
Waterkotte: The discovery process is the defendant’s constitutional right to get all evidence that the state has against him that the prosecutor’s in possession of, and that is evidence that’s good for him, bad for him, or indifferent. They can’t select, “Hey, we’re going to turn this over. We don’t believe this is relevant.” Anything that’s in their possession, we are entitled to under the Constitution, and that’s a fundamental right of a defendant so we can prepare in that there’s no such thing as trial by ambush or trial by surprise. You know, typically, when we get to a trial, not to say that you’ve never been surprised at a trial, but it shouldn’t happen. We should, as defense lawyers, know everything about this case, what they have against our client. Again, whether it’s good, bad, or indifferent, we will have all that, and we’re constitutionally entitled to have that.”
Dunn: What is a pretrial conference in a felony case in Cook County?
Waterkotte: A pretrial conference is typically where evidentiary issues are hashed out, as we’re leading towards trial, where motions are litigated. You know, if there’s a motion to suppress evidence, that’s a common defense motion. That’s a Fourth Amendment motion. You’ll see that frequently in drug cases. They’re gonna hash out those kind of issues, the issues that will need to be litigated prior to a trial. Oftentimes too, there’s plea negotiations that are done at a pretrial conference where the prosecutor and ourselves will discuss the strength of their case or the weaknesses of their case, and we’ll talk potential resolutions by way of a plea bargain.
Dunn: Can felony charges be dismissed before trial?
Waterkotte: It can. And, it’s not, I wouldn’t say common, but we’ve had many cases where cases have been dismissed, and it’s for a number of reasons. Maybe it’s witness issues. Maybe it’s the alleged victim has proven to not be credible. Those are common reasons for dismissal, probably the more common reasons. Prosecutors aren’t in the business of just handing out dismissals. It’s our job to earn that, and it’s our job to show that their case may not be as strong as they once thought it is, and it’s our job to do that. Again, prosecutors aren’t gonna say, “Oh, by the way, here’s a dismissal.” It’s the defense lawyer’s job. It’s our job to make that happen. Try to get that to happen.
Dunn: Can my felony case be moved to another county?
Waterkotte: It can by way of change of venue. And that would be the proper motion. You don’t see it often in counties with large populations, like Cook County. So one of the typical reasons, or perhaps the one maybe laypeople think of, is the pretrial publicity type thing. You know, this is such a crime that has been so publicized. But, when you’re in an area like Chicago, one of the largest cities in the country, with a humongous population, it’s not going to be all that common versus let’s say you’re in Adams County, you know, Quincy, Illinois, where if there’s a murder in that town, the whole town knows and very well may know people associated with the case. May know the police officers. It’s gonna be harder to impanel a jury. That’s the fundamental question of why they’re doing it is will this defendant have a panel of citizens to sit on a jury that will be fair and impartial that hasn’t made a predetermination of the outcome or the person’s guilt, and that’s why we’re doing it.”
Dunn: Let’s get into bond, pretrial, and detention. Can I get bond for a felony in Cook County?
Boardman: So Cook County being within the State of Illinois is under the statutory updates which eliminated cash bonds in the State of Illinois. So their process under the legislative actions that are now in place is that 48-hour detention period where basically once somebody is charged, then there has to be a hearing within that 48-hour time. Or, it can be continued for by agreement or for good purpose. But typically, there is a hearing within 48 hours of someone being taken into custody pursuant to a charge, where the judge is going to make those determinations regarding public safety interests, ability to participate in future proceedings or ensure their participation in future proceedings. So that would fall under the classification of attempting to flee or anything like that. But within those determinations, the judge does have a lot of discretion. The catchphrase or the legal terminology is can the judge ensure the participation of the defendant in the criminal proceeding through the least restrictive means possible?
So if there are means to ensure, based on the judge’s thinking, and the judge’s thinking is curated through arguments by both the state attorney and defense counsel. If the judge’s thinking is that, “Okay, for this type of charge, I can ensure their compliance with pretrial conditions and their participation in this process without them being housed in the jail facility,” then they will let them out. And they can let them out with conditions like they need to maintain employment, or they need to wear GPS tracking, or they are on home confinement, or they’re not allowed to use the Internet. And so there is a certain amount of discretion and leeway that the court is given under the statute to ensure that the defendant’s gonna remain compliant until the date in which they either enter a plea agreement or go to trial.
Dunn: Can I be held without bond for a felony in Illinois?
Boardman: Well, since Illinois is not a cash bond state, it comes down to the question of whether or not detention is necessary. So there are certain types of felony charges, think the most egregious felonies, actions, things like that, that are actually precluded from being released prior to trial. But on the felonies, I don’t wanna say unserious, but outside of that small classification of felonies where release is not permitted, the question of detention is an ongoing question. So at each court appearance, if a defendant’s counsel so wishes, they can file a petition for release. Or conversely, the state’s attorney can file a petition for detention. That happens all the time. Somebody is released and because through perhaps articulate arguments by defense counsel or a lack of criminal history, the judge goes, “Okay, well, this person, I can ensure their compliance with this process with very few parameters on their behavior during it.” Well, then they go out, and they get a new criminal charge, or perhaps there’s a substance abuse problem or something like that, where they’re demonstrating non-compliance. Even though the state’s attorney may have had a position that release was fine and applicable, they can file a petition to detain halfway through a case if need be.”
Dunn: What factors affect bond in a Cook County felony case?
Boardman: I would say the two overarching categories would be, is that defendant a flight risk and is that defendant an ongoing threat to the public safety of the community? They’re also going to look at factors or triggers of stability for that person. Oftentimes, the judge will ask, “Are you employed? Are you in school?” I’ve had judges who will freely inquire about criminal history, how many siblings someone has, or what type of family relationship someone has in that area. Do they have children in the area? Have they ever lived anywhere else? Do they have family in other states? I mean, it really matters a lot about criminal history, but also pedigree information to ensure that the person will be approximately located and able to appear in court.
Waterkotte: That’s why one of our first tasks as their attorney once we’re hired and we visit them at the jail or speaking to our client’s family, is we get a complete, what I would call social history of our client. Of those things, of their education level, their family background. Do they own their own home? Do they rent? Where do they live? Their ties to the community. If somebody has all their ties there in Chicago, they have family there, they’re born and raised in Chicago. That’s going to bode well in terms of they’re not a flight risk, okay? They own this home here. They have children in Cook County schools. So our job, when we visit a client at the jail for the first time, is we are getting a complete history, and that is to present our most compelling argument to address those two fundamental issues, which is flight risk, or are they a danger to the community.
Dunn: What is pretrial detention?
Boardman: Pretrial detention is, just practically speaking, where the defendant is being detained either in the jail in the county in which the charge is facing. Sometimes they’re housed in different facilities, depending on the classification of offense. Sometimes they’re housed in specific state administrative mental health facilities. But pretrial detention means that up to and through trial, they are not out walking around. They are in the jail facility, and that’s where they will be until there’s a determination in their case, whether that’s through a plea or whether that’s through a trial finding.
Dunn: Can I be released on electronic monitoring in Cook County, Illinois?
Waterkotte: Yes, and that is one of the conditions that you’ll see a judge set. So, typical conditions, of course it depends on the nature of the offense, on more serious offenses, they can release you on pure home detention, where you will have an ankle monitor that will inform whatever company’s facilitating that and overseeing that “Hey, they left their parameters, their house.” So that’s what we call strict home detention. There’s other less restrictive means of that where, perhaps in domestic violence cases, where they will put an exclusion zone on that, and it would trigger, for instance, if they went to that person’s particular address or became within 500 feet of it. That would be another one that the judge can do. So there are different, varying levels of GPS tracker, ankle monitor, home detention, that courts will
frequently use.Dunn: What conditions can a judge set if I’m on pretrial release?
Waterkotte: I mean, the list is essentially endless. The typical ones are the ankle monitor, home detention, an ankle monitor with exclusion zones, perhaps for the victim’s home or witnesses. Alcohol and drug crimes, you’ll frequently see a judge do what’s called a SCRAM bracelet, and that would … DWI cases you’ll see that frequently, and that would ensure that the defendant is not consuming alcohol while out on bond. Because if somebody were to consume alcohol and you had a SCRAM bracelet, of course that would be triggered, and that would be a bond violation. A lot of judges would yank that person and revoke the bond and put them in jail. Drug cases, you’ll frequently see drug counseling, things of that nature. And so, those are your most common ones. However, the list can be endless. You’ll see in sex crimes where a person cannot have use of the internet or perhaps even a cellphone. So there’s a number of creative ways relative to that crime, but I would suggest those are probably the most common ones that we’ll see.
Dunn: What happens if I violate pretrial release conditions?
Waterkotte: So if you violate it, the state would file a motion to revoke the person’s pretrial release. And that would mean there’d be a hearing set. And the court can do it on its own motion as well. Frequently it’s done, if the state, the prosecutor becomes aware of a violation. You know, I’ll give you an example, the defendant, our client, reached out to the victim and there was a no contact order, which again is a common bond condition. And if that were to occur, the state would get notice of that. They would file a motion, to revoke that person’s pretrial release, essentially asking the court to incarcerate the
individual while the case is pending and going through the judicial system.Dunn: Can a judge order a no-contact order in a felony case in Chicago or Cook County?
Waterkotte: Yes. In almost all domestic violence cases. Or, I would even go one step further, in any case in which there’s an alleged victim, they will say there’s no contact with that victim. And that is really true of any jurisdiction in Illinois. You’ll see that in virtually every case. Now, there is the case in which, a husband and wife, you know, those get tricky because maybe they are reconciling. And so typically the judge will set a no contact order initially, and then we, as the attorneys for the defendant, will have to file a motion to amend that condition. Again, let’s say the husband and wife are saying, “Hey, we’re gonna reconcile. We want to work on our marriage. We want to still live in the same home. We have children together.” We would file a motion to change that condition to what we call no unlawful contact. Which… we can’t do that anyway. It’s against the law for me to push my wife, right? But nonetheless, that would be what our request would be for no unlawful contact.
Dunn: Let’s get into felony sentencing and penalties. What is the punishment for a felony in Illinois?
Boardman: The legislature’s carved out a number of different types of penalties. So you’re going to have the least restrictive, or the least punitive, which would be court supervision. Court supervision acts as essentially a probationary term of time. You’re going to have your probation conditions that you may have to accommodate during that. For example, you may have to take anger management. You may have to pay fees and fines. There may be chemical testing requirements that you have to do. You may have to go do a substance abuse treatment program, for example. So, the nice thing about court supervision and why, when it is available to a defendant, it is often, outside of a charge being dismissed altogether, why it’s typically a very attractive option, is because as long as you are able to accommodate all of the things that the court has laid out for you to accomplish during that period of court supervision, then it is not considered a conviction on your record. And, it’ll be as if it was dismissed at the completion of that term of time, as long as everything was complied with.
You’ve got the term probation. Probation acts in a similar way in the state of Illinois, but the difference between court supervision and probation, or court supervision and conditional discharge to probationary-like vehicles or devices that can be that the judge can use for sentencing, the difference between those two vehicles and court supervision is going to be that even though you’re placed on probation or conditional discharge, it does come with that conviction on your record. You’ve avoided prison, but you received a felony conviction. And then last, the most severe, the most punitive, would be actual sentencing to the Illinois Department of Corrections. Now, you can be sentenced to, in lieu of Illinois Department of Corrections, can be sentenced to home confinement. But the Illinois Department of Corrections would be sort of the final stop of the sentencing parameters of the court.
Dunn: What is the sentencing range for each felony class in Illinois?
Boardman: It’s going to depend. So for example, a Class 4, you’re going to have 1 to 3 years. With a Class 3, you’re going to have 2 to 5. With a Class 2, you’re looking at more like 4 to 7. And then for Class 1s and Class X, you’re looking at term of years that include potentially mandatory minimums. So for example, on a Class X felony mandatory minimum of 6 years. And depending on whether or not there’s any enhancements, that can be based on firearms, or special victims, or different classifications like that, it can result from 6 years all the way up to life sentences.
Dunn: Does a felony always mean prison time in Illinois?
Waterkotte: No, there are other options. As Josh mentioned, there’s court supervision. There is home detention. And so, we’ve gotten more progressive in sentencing. And that’s true in Illinois, like a lot of states, where there are other options. You know, this isn’t 20 years ago, everyone thinking that it’s prison or bust. We have gotten more progressive in that sense. For instance, drug crimes. The habitual drug user. You know, 15 years ago, it may be, “Let’s lock that person up,” right? We’ve gotten to the point where now, “Let’s get that person treatment. Let’s get the person the treatment they need.” Doesn’t mean every single case is like that, but there are alternatives to prison. And, I would say the vast majority of felony cases the individual does not go to prison. That said, you get into your Class 1s, Class Xs, your violent crimes, your sex crimes, prison is absolutely on the table and a very real possibility.
Dunn: Can I get probation for a felony in Cook County?
Waterkotte: Absolutely. And probation on a felony case is probably a fairly common outcome if it’s not a violent crime. If it’s not a sex crime, if it’s not a fifth-time DWI offender. In those cases, and the more serious the case, the sentencing increases with each one. Prior offenders. One of our first questions we ask our client is we want to know their criminal history. If somebody’s a six-time prior felon, that’s going to be a fundamentally different conversation than somebody that comes to us and this is their first time being charged. And that is probably one of the number one factors, outside of the offense itself, as to what a prosecutor is looking at when extending plea offers to you. It’s one of the number one factors a judge is going to look at when sentencing is what is this guy’s criminal history? If the person’s had five, six chances, we’re kind of getting to the end of the road and prison becomes a very real possibility in that case. And then of course, like I said, in the serious felony cases, you have victims, serious assaults, homicides, sex cases, prison is absolutely a real possibility.
Dunn: What is felony probation in Illinois?
Waterkotte: Felony probation can be up to 48 months in Illinois. And, there’s typically going to be a number of conditions, and it’s going to be relative to that crime. A drug offense, for example, is going to have some sort of substance abuse-counseling treatment. DWIs will have some sort of alcohol treatment. Domestic violence cases or assaultive-type cases are going to have anger management-type treatment. Batterers intervention programs are going to be common probation conditions on those cases. So it’s relative to the crime, and then it’s the job of the defendant. When we get a client a plea deal that he’s satisfied with, or she’s satisfied with, and they can accept it, and they say, “Yeah, I think this is reasonable,” I always tell them that kinda the burden shifts to that person. Now you know what is set forth. The court will clearly tell the defendant, “You’re getting probation. However, you’re going to have these three conditions,” whatever they may be. And it’s the defendant’s job at that point to make sure they’re complying with those conditions, whether it’s treatment, or anger management, or batterers intervention, or home detention for a period of time. Because if they don’t comply, the state or the court, will file a motion to revoke that person’s probation. And that’s never a good thing. You know, the judges frown upon that and say, “Hey, we gave you a chance on probation. You didn’t do it.” The defendant will have due process, they have due process rights to have a hearing. And of course, we’re back kind of on the table for sentencing. It more or less reopens the case as to the sentencing aspect of that case.”
Dunn: What is a conditional discharge felony case in Illinois?
Boardman: Conditional discharge is a classification that is available to the court. It’s going to act similar to probation in that there’s going to be conditions that are required to be acted upon. For example, in a domestic violence case, there may be provisions that there are no contact with the alleged victim and that you have to take some sort of anger management type course. For possession of a controlled substance, oftentimes terms under conditional discharge are going to be participation in a treatment program or treatment facility. And then once those are completed, then your obligations under the court are then discharged. But keep in mind, even with conditional discharge in the state of Illinois, it still is a conviction. So you’re avoiding any sort of prison sentence or prison obligation, but that can realistically be put back on the table if you do not comply with the terms that were set forth at the time of plea or at the time of sentencing.
Dunn: What is mandatory supervised release, or MSR in Illinois?
Boardman: Mandatory supervised release is going to be that period of time, or the definition or description of that period of time, after being released from the Illinois Department of Corrections, and that is facilitated through their parole board essentially, and you come out on certain conditions or certain requirements to ensure that you’re ingratiated back into the community at large.
Dunn: How much time do you serve on a felony sentence in Illinois?
Boardman: That completely depends on the type of felony. Some felonies, your more violent crimes, your sex crimes, they are going to be calculated at much higher percentages of time served. If you get sentenced to, for example, a year in the Illinois Department of Corrections, it may be the case that you get credit for time served. It may be the case that you’re eligible for a much lower percentage of service time based on the calculation through the Illinois Department of Corrections. So it becomes a math equation at that point.
Dunn: Can felony sentences run consecutively in Cook County?
Boardman: They sure can. So consecutively would be, for example, if you’re facing one, two, or more felonies, multiple charges. And oftentimes, if there is a prison sentence that’s going to be imposed, defense attorneys will try to have those sentences run concurrently. So for example, if you have several felonies that you have been found guilty of, or that you’re entering a plea agreement to accept Illinois Department of Corrections time, consecutive time would be okay, if it’s three charges at five years a piece, then you’d be facing up to 15 years in the Department of Corrections. However, oftentimes a negotiation point for defense counsel is, can we run these concurrently? Can each of the five sentences run together at the same time, with that clock starting at the same time? So that’s the differentiation between consecutive
and concurrent.Dunn: What sentencing enhancements are available in Illinois?
Boardman: Sentencing enhancements are going to be based on the actions participated in conjunction with those felonies. Think of an assault case with a firearm. Think of an assault case with a special victim, with someone with special needs, or was it a child, or does the sex crime involve forceful penetration with a firearm? If you classify those types of actions and add them into whatever you have been, basically if you get found guilty of not only the underlying charge, but also that those other types of events occurred, then the court can sentence you and add on 15, 25-year blocks depending on the types of actions that it basically enhanced the felonious behavior.
Dunn: Let’s talk about plea deals, reduction, and diversion. Can a felony be reduced to a misdemeanor in Illinois?
Waterkotte: Yes, absolutely. And it does happen. And it will typically happen with your lower level felonies—violent offenses, sex offenses, you’ll rarely see that occur. But on lower level, non-violent felonies, it absolutely can be reduced to a misdemeanor, and it’s frequently part of our plea negotiations with the prosecutor.
Dunn: Well, how do plea bargains work with felonies in Cook County?
Waterkotte: So plea bargains work where the state, the prosecutor, will extend an offer and say, “We will give your guy or gal, your client, 5 years if they plead guilty,” where the range could be, let’s say, 15 years. At some point, we always, in any case, have a conversation with our client. And it is, “Here’s the plea offer.” We have an obligation as their attorney to always convey a plea offer to our client. Whether they say, “I’m not taking a deal” or not, we still have an obligation to extend and convey that offer to them. It is always the client’s, and the client’s alone, decision to accept a plea offer or proceed to trial. Of course, as their attorney, we will advise as to the pros and cons. We will discuss trial, what that looks like, the strength of their, the state’s, case versus what is our trial strategy and what does the trial look like? And so we try to inform our client and give them all the information so they can make an informed decision. At the end of the day, unless a case is dismissed, the client’s going to have to make a choice. Do I take the plea offer? Do I go to trial? And so in our representation, it’s part of every case, again, absent the state outright dismissing a case.”
Dunn: What is a negotiated plea in Cook County felony court?
Waterkotte: Negotiation is, by definition, the state will, again, they will offer your client a plea offer, and that is not set in stone. We come back and say, “Well, how about shaving off a couple years?” If maybe we’re talking about a probation deal, well, they gave us a probation plea offer, but there’s a number of conditions, and if we think it’s a little burdensome, a little unnecessary, we might be negotiating the conditions of probation if it’s a probation-type case. If it’s a case that they’re talking incarceration, perhaps it’s us counter-offering as to a lower sentence, or even down to probation and saying, “This is why we believe our client is worthy of it. Here’s the issues with your case.” And so it’s our job as defense counsel to put together a compelling argument when we’re negotiating to a prosecutor. It’s not as simple as saying, “Hey, I don’t want that. Can I have this?” We’ve got to bring facts to the table why we think our client is deserving of it, you know? And so, if the state gave you a plea offer of 7 years, maybe we come back and say, “We think 3 years is more appropriate, and here is why. Here’s the things that our client has done.” Perhaps it’s a fifth-, sixth-time DWI. Well, he’s been sober for X amount of time. He’s gotten treatment out in the community while he’s been out on pretrial release. And so those are things that we will bring to the prosecutor to help lower that sentence and mitigate it.”
Dunn: Well, that’s an important fact, understanding what those are to mitigate a plea reduction of some sort, or bargain.
Waterkotte: It is. And it is incumbent upon us, and I think a lot of defense attorneys ignore this aspect. For instance, if I get a client out on pretrial release in Illinois, in Cook County, and let’s say it’s a felony dope case. It’s a felony drug case. Well, what I don’t want is him just being out and about. What I want him doing is getting treatment. You know, maybe a year passes while this case is pending in the judicial system, and at some point I want to go back to the prosecutor, perhaps it’s at sentencing, and say, “While he’s been out on bond, he has been in inpatient treatment, intensive inpatient treatment. He has continued to go to AA or NA, and done all these things to better himself or herself,” so we can put together a compelling presentation to lower that sentence. I think too often defense attorneys ignore that aspect. For instance, we recently got someone pretrial release on a sex case. And immediately had a meeting with the client and his family to get him enrolled in a number of things relative to the crime. A psychosexual analysis, intensive therapy, so we can bring these things to the table. At some point when we’re negotiating a plea or, again, if it’s at sentencing in front of a judge, we’re saying, “Look at all these things our client has done to better themself.” So, step one, getting the client out, but, step two, immediately is, “Let’s figure out some things we can do to help mitigate this if it’s necessary in that particular case.”
Dunn: Makes sense. What’s a blind plea in Illinois?
Waterkotte: A blind plea is where we are not accepting the plea offer on the table. The plea offer’s five years, let’s call it, and we say, “Okay, that’s acceptable. It’s accepted.” We take that in front of a judge, and it’s more or less a formality at that point that the judge accepts the agreed-upon plea disposition, plea agreement. A blind plea is where the state is saying, “Here’s our best plea offer,” and we’re saying, “Nope, we’re not going to take it, and we’re going in front of the judge blind,” meaning we don’t have an agreed-upon deal, right? And so we will have a sentencing hearing in which the state will make their argument as to what they think the appropriate sentence would be, and then we’re free to make our argument as to what we believe the appropriate sentence to be. And why it’s so important for our clients, while they’re out on pretrial release, to be actively doing things to help better themselves. So when we’re in front of a judge at a blind plea, we can put together a compelling presentation that our client has done a number of things while out on pretrial release to better himself.
Dunn: Can I avoid prison with a felony plea deal?
Boardman: Yes, absolutely, for a number of reasons. One of the predominant factors is do you have a lack of criminal history? Oftentimes, a state’s attorney is going to be more willing to negotiate in good faith without the possibility of prison time if someone has just demonstrated that this is sort of a blip on their record as opposed to a habitual offender. You can avoid prison through strategic methods. Perhaps a recommendation for a plea agreement for prison was on the table, but then through the diligence and strength of defense counsel working through the evidence, then prison comes off the table as being too punitive. And the reason why is because the thought process of the state’s attorney is likely, “Is this a case that if I did have to take it to trial, that I would prevail at trial?” And weaker cases tend to have much stronger negotiations around non-prison options. And once again, for first-time offenders, there’s diversion programs. There’s opportunities presented to the defendant even after a finding of guilt, to avoid continuing criminal behavior. But after so many bites of the apple, it really becomes the only option left outside of acquittal.
Dunn: Can you avoid a felony conviction through diversion in Illinois?
Boardman: Yes, there’s first-time offender programs and many times you’ll see those utilized for possession of substances, things like that, where there’s articulable reasons based on addiction issues and various things, where the court and the state’s attorney and defense counsel all have the common goal of getting that person treatment and getting them you know, facilitating their betterment.
Dunn: What is felony court supervision in Illinois?
Boardman: Felony court supervision is, think of it almost as a probation. Don’t confuse court supervision with probation.
Dunn: Like a traffic violation.
Boardman: Yes, exactly. Court supervision is going to be, and it can be supervised or unsupervised, but court supervision is going to be a period of time that the court places on you, where you’re going to likely have conditions. For felonies, it’s going to be conditions like participation in treatment programs, participation in anger management or anti-battery type classes. You could have court supervision conditions that you’re not to possess a firearm. But largely what it is is a period of time that the court sets out for you to be on your best behavior and not pick up any more criminal charges and not violate any of the conditions that were set out whenever you entered into a plea or were placed on court supervision. And at the end of it, if you have successfully fulfilled all of your tasks and not picked up any new charges or anything like that, then it’s a non-conviction. It’ll be dismissed. You will not have that felony conviction on your record. So whenever you’re entering into maybe a new job or a housing application or something along those lines, and there’s a question that says, “Have you ever been convicted of a felony?” You can honestly answer no, because it’s a non-conviction.
Dunn: Can the judge give supervision for a felony case in Cook County?
Boardman: Yes, the judge is the one that is responsible for the sentencing. Sentencing oftentimes happens as a result of a negotiated plea, but the judge still maintains that control and that discretion over the sentencing of the defendant, whether that be a blind plea or an open plea where there is no agreement between the state and defense counsel. It could be as a result of a negotiated plea. And then sometimes, even after a finding of guilt through a bench trial or jury trial, it still is an option to the court to sentence that defendant that’s been found guilty to a court supervision term of time.
Dunn: What is the differentiator between before a judge or before a grand jury?
Boardman: Well, a grand jury is going to be at the initial proceeding of the case. The grand jury is a panel of your peers within that jurisdiction, or within that county, that’s going to hear a limited amount of facts from the state’s attorney, and then they’re going to make a probable cause determination. So a grand jury is at the preliminary stages of a case. A jury trial is going to be likely the final stop of the case. So there’s bench trials and there’s jury trials. Jury trials are going to be sort of that traditional jury of your peers. Each side’s going to have an opportunity to present their case, and the jury is the finder of fact. They are the ones that make the determination of guilt or not guilt. At a bench trial, the judge assumes the role of the jury and is the trier of fact and determines whether there is guilt or there is not guilt.
Dunn: Can the state drop felony charges in Illinois?
Boardman: Absolutely. They do it all the time for various reasons. For example, pursuant to a plea agreement, if you’re charged with three different felonies arising out of one incident, then they’ll say, “If you plead to felony count one, we’ll drop two or three.” They may drop felonies as a result of evidentiary issues. It may be the case that over the passage of time or the lack of availability of witnesses or of other types of evidence, they would not be able to necessarily present their case at trial and meet that burden of proof. So they can drop them for those reasons as well.
Dunn: Can felony charges be dismissed? Can I get in a program to get the dismissal to take place?
Boardman: Dismissal can act as sort of a caret, or based on compliance or certain behaviors from the defendant. So oftentimes in a first-time offender’s program or court supervision, at the beginning you understand that as long as you do all of these things and abide by the law, that this will ultimately result in a dismissal. But it can be a dismissal without prejudice, meaning that if at any point in time, those charges could potentially be refiled.
Dunn: How long does a felony stay on your record in Illinois?
Boardman: Well, a felony conviction is going to remain on your record indefinitely. So outside of some sort of ability to seal that record, that conviction will remain on there.
Dunn: And will a felony show up on a background check in Illinois?
Boardman: Yes. It’ll very likely show up on a background check, whether that’s through a federal or state background check.
Dunn: Can a felony be expunged?
Boardman: Illinois is not what I would consider a very expungement-friendly state. There is eligibility for expungement classifications. For example, if there was not a conviction that resulted, whether there was a nolle prosequi or a dismissal of that felony, at that point in time you’re really just expunging the arrest records and not so much the record of the conviction themselves. Oftentimes, the focus of analysis on eligibility of expungement is whether or not a conviction occurred.
Dunn: Can a felony be sealed in Illinois?
Boardman: Yes, certain classes of felonies, your lower level classes of felonies can. You can at least apply to have them sealed or petition to have them sealed. But with your more violent crimes, your sex crimes, domestic violence, those types of felonies, you should have no expectation that those can be expunged or sealed.
Dunn: What types of felonies can be sealed in Illinois?
Boardman: You’re gonna look at felonies falling into that Class 4 category. You know, I’ve had success sealing felonies relating to eluding or fleeing, perhaps possession of controlled substance felonies. I would take them out of the category of violent crimes and place them into non-violent crimes. Your analysis or the applicability of sealing to non-violent crimes is going to be way more friendly under the current laws in the state of Illinois than what would apply to violent crimes.
Dunn: Can a felony be expunged if the charges were dismissed?
Boardman: Depending on the felony, yes. And that’s going to be one of the first things that I focus on whenever a potential client calls in and asks if they are eligible for expungement. If there was no conviction, then that at least advances that person towards being able to expunge that felony. Now, certain classifications of felonies are just not going to be expungable. I mean, if you’ve got multiple DUIs, that’s not going to be expungable. Sex crimes are not going to be expungable. But if there was a non-conviction or a dismissal of a non-violent felony, you’ve got a good chance that we’d be able to at least evaluate it for expunging, if not sealing it.
Dunn: Can I get a job with a felony conviction in Chicago?
Boardman: That’s going to largely depend on several things, one of which is going to be the type of felony that’s on your background. There’s a turn of phrase that we use, crimes of moral turpitude. I mean, with those types of crimes, you’re looking at fraud, abuse, different things like that. That may signal a red flag to potential employers. But the other thing that I’m not able to answer is that employer’s appetite for giving someone a job with a felony conviction. Some employers pride themselves on providing employment opportunities to people that have demonstrated rehabilitation. They may have a felony on their conviction, but it may not be anything that has been recent, or it may be something that has some form of, not justification, but at least explanation, and they’re able to be employable despite that conviction. But I can’t answer that, because each employer is going to have sort of different policies. And then there are also employment laws in the state of Illinois that are going to dictate whether or not you can not hire someone purely on the basis of a criminal charge.
Dunn: Seems awfully subjective.
Boardman: It is, yes. Yeah. That’s why you need to call an attorney to make that determination of what type of felony is on your record, and then whether or not there’s anything that you can do as far as an expungement or sealing of that record.
Dunn: Can I rent an apartment with a felony conviction in Illinois?
Waterkotte: That will always depend on the owner of that apartment, the policy of that particular apartment. We frequently get questions like that or, “Will it show up on my background, my charge, my conviction?” And we, unfortunately, can never answer with certainty. And the same is true of housing. Every place that you fill out a housing application will have certain policies. And I’ll tell you this, that if it’s a non-violent offense, I tend to find that apartments, condos, rental situations will still allow you to rent in those situations.
Dunn: Can I travel internationally with a felony conviction?
Waterkotte: You can. And where it’ll sometimes trigger an issue is entry into a foreign country. And so we’ve heard stories from clients in the past that perhaps they have a felony assault charge conviction on their record, and it’s caused issues either entering a country or coming back to the United States. And they may pull you aside, ask you about that, making sure that you’re not precluded from going, entering or exiting that particular jurisdiction
or country. But typically, yes, you can.Dunn: Can I lose a professional license due to a felony in Illinois?
Waterkotte: Absolutely. And when we’re talking professional license, it can be anything from a doctor, a lawyer, or nurses. We’ve defended a lot of nurses over the years. And, anyone with a professional license and has been charged with a felony is typically going to have a separate process running simultaneously to their criminal case to face whatever board or panel that will conduct an investigation, ultimately make a ruling on that licensing.
Dunn: Let’s talk about gun rights. FOID and felony connections. Can I own a gun if I have a felony in Illinois?
Boardman: Presently, the law does not support gun ownership if you’re a convicted felon. And that’s the state of Illinois, and then there’s also federal limitations on being able to possess a firearm with a felony conviction. Or even federally, if you’ve been found guilty or have been convicted of even domestic assault misdemeanors, then you’re precluded from being able to own a firearm.
Dunn: Will a felony conviction revoke my existing FOID card?
Boardman: Yes. There a process that’s facilitated through the sheriff’s department or police or law enforcement entities where they’ll request that you relinquish that FOID card or
will come get that from you.Dunn: Can I ever get my FOID rights back after a felony in Illinois?
Boardman: Typically, the process would be to determine whether or not your felony can be sealed or there’s some sort of ability to expunge or seal, and you’d be able to petition to have your FOID card reinstated. But that is rare, and you should not expect it if you have been convicted of a felony.
Dunn: Can I get a CCL with a felony connection in Illinois?
Boardman: No, because your ability to conceal and carry a weapon is directly tied to your ability to possess that weapon lawfully. So it is a byproduct of the other restriction.
Dunn: Can felony charges affect my FOID card before I’m convicted in Illinois?
Boardman: Yes. And to expand on that even greater, beyond felony convictions, if you have been charged with a misdemeanor or if someone has filed an order of protection against you, you have to relinquish that FOID card through your local law enforcement entity.
Dunn: What types of felonies permanently ban gun ownership in Illinois?
Boardman: Through the state of Illinois, any felony that you’re convicted of, you’re going to be precluded from owning a gun. And then federally, that’s also going to be the case, and expanded even into misdemeanors, like based on domestic assault and those types of things.
Dunn: Can domestic violence affect my gun rights in Illinois?
Boardman: Domestic violence can affect your gun rights if you’ve been found guilty of a domestic violence felony or a domestic violence misdemeanor, and that follows the authority of both Illinois state law and federal restrictions as well.
Dunn: Let’s talk about immigration consequences of felonies in Illinois. Can a felony affect immigration status in Illinois?
Boardman: Yes, it certainly can. As you’re going through your immigration process or if you have immigrated, oftentimes one of the conditions of you remaining eligible for either citizenship or eligibility to remain is based on your lawful behavior while you’re in the United States or while you’re in the state of Illinois. So you jeopardize that process when you do become charged and/or convicted of a felony.
Dunn: Can a felony lead to deportation?
Boardman: It certainly can, yes. And it can trigger holds through federal agencies like ICE, and those holds can occur even before there’s a determination of guilt.
Dunn: What felonies are considered aggravated felonies for immigration?
Boardman: Aggravated felonies are going to be based on the definition of aggravated for the statutes themselves. So whether it’s immigration or whether it’s not immigration, the aggravated is going to be based on enhancing factors. And that’s going to be more serious allegations relating to either abuse or if you utilize a gun in furtherance of some other type of felonious behavior, that’s going to add an aggravated classification. And, like you said, that is within the context of immigration law and outside of the context of immigration law.
Dunn: Can a plea deal still trigger immigration consequences?
Boardman: It certainly can because a negotiated plea deal may result in a conviction for a misdemeanor, which then may potentially put you on the radar of immigration agencies. A plea deal may be that you’re facing multiple felonies at one time, and you only plead guilty and are convicted of one of those felonies. Well, once again, that can put you on the radar of immigration agencies.
Dunn: Should non-citizens take plea deals in felony cases?
Boardman: They should be very wary of what they plead guilty to. And they also should do that based on the direction and counsel of an attorney because what you don’t want to do is blindly accept a plea deal, even if it may be for a reduction in charges, and it be a trigger or it be an accelerating factor of greater immigration scrutiny.
Waterkotte: It may be a situation, too, where the plea deal is a very good one. Where we would ordinarily tell our client, or advise our client, “Hey, this is a great plea deal.” However, in the case of a non-citizen, it might not be. And that still, despite it being a very favorable plea offer or plea deal, still triggered deportation. So it’s something that, as defense counsel, when we’re representing a non-citizen, we have to be incredibly aware and diligent, about what would an acceptable plea offer be. And in many cases, those cases have to go to trial because if you’re not getting a plea deal that would avoid deportation, you’re kind of at an all or nothing crossroads where we have to try to get acquittal at trial in order for this individual to remain in the United States.
Dunn: Can a felony prevent citizenship or naturalization?
Waterkotte: It can, and there’s a process by which they do that, and they do a very thorough process. And certainly one of the components of that is someone’s criminal history. And so it absolutely can preclude somebody from gaining citizenship.
Dunn: Let’s talk about felony defenses and evidence in the Cook County, Chicago, Illinois area. What defenses can be used against felony charges in Illinois?
Waterkotte: I mean, there’s a number of defenses. I will speak to probably some of the more common defenses, as us being defense lawyers. For instance, in an assault case, a murder case, probably our most common defense is self-defense. The question is obviously fact specific to each case. Perhaps in a drug case, those are frequently litigated pretrial with motions to suppress evidence. We’re alleging that the cops illegally searched and seized the person, a car, and illegally seized those drugs. That is a common defense motion in a drug case. Other common defenses are alibi defenses. If, let’s say, it’s a burglary, a robbery, and we’re saying, “Well, hold up. Our client did not do this. He or she was not there, and we have an alibi defense. Hey, they were not even in the jurisdiction, or they were out of the state.” And so those are common defenses as well.”
Dunn: Can evidence be thrown out due to an illegal search?
Waterkotte: Absolutely. And again, in the drug sense, that is one of our most litigated issues. And when we have any drug case, particularly in the context of a vehicle search, we are scrutinizing the police reports and the discovery for any Fourth Amendment violations. I mean, that is probably a defense attorney’s number one weapon, is a Fourth Amendment issue in the context of searches and seizures of people, homes, vehicles.
Dunn: What’s a motion to suppress in Illinois?
Waterkotte: A motion to suppress is we are alleging a Fourth Amendment violation, and if a cop illegally searches you, your vehicle, your home, seizes you, places you in custody, that would be what we would assert as a Fourth Amendment violation. And the avenue in which we proceed and present that to the court would be by way of a motion to suppress. And at a motion to suppress, the state would put on that arresting officer to testify as to his or her search of whatever it is they’re searching, the seizure, or detention, or placing our client under arrest, and we’d have an opportunity to cross-examine that officer. Ultimately, then we would argue to the judge why we believe this is in violation of our client’s Fourth Amendment right. And if the court agrees with our position, the remedy for them is to exclude that particular evidence. For instance, in the context of searching a car and you find drugs, if we were successful on our motion to suppress, the court ruled in our favor, the court would say, “You cannot use… that cannot be used as evidence.” Well, of course, if they don’t have the evidence of the drugs, the case goes away.
In fact, I had this very issue two days ago in which an officer searched my client after a traffic stop, got him out of the vehicle, and immediately went into his pocket to search him. So that, we asserted was an illegal search, and then he pulled out basically what looked like a little thing of ChapStick, like a little cylinder tube, and the cop opened that up and found dope in there. And we filed a motion to suppress. I asserted that there was two searches done here, one into his pocket and one into the tube, and that they were both illegal. Now the court did not agree with my position on the first search, but did agree with my position on the second search, the opening of the tube, and the judge ruled that that evidence was inadmissible, which there was a gun and there was drugs. That case was dismissed on the spot after the judge ruled in our favor.
Dunn: Excellent.
Waterkotte: It was a very good result.
Dunn: Yes, it’s a very good results.
Waterkotte: The client was happy.
Dunn: Can statements be suppressed if it’s a Miranda violation?
Waterkotte: That is another great question. And, we would also file a motion to suppress statements, and it’s a common defense motion that we use, particularly in the context of interviewing, interrogating our client, and they give incriminating statements. And there are many cases that but for our client giving the statement, they would not be charged. And what I mean by that is there’s no other evidence. The best evidence a police officer could ever have is a confession. Saying, “I did it,” or, “Yeah, I was there and I did whatever it is I’m accused of doing.” However, they have to obtain those constitutionally. And this is a very frequently misunderstood aspect of law because a lot of times we get calls at our office and they say, “They did not give me my Miranda rights.” It doesn’t apply to every situation. That’s a whole other lecture, probably. However, that is something we are always, as defense lawyers, looking at, if our client provided a confession or incriminated himself or herself, is if they were in custody, and you can be in custody without being in cuffs. Naturally, we think of being in custody as somebody cuffed, somebody’s in a jail cell, in an interrogation room. That doesn’t necessarily have to be the case. However, if that person is what we deem to be in custody, they have to be Mirandized if the officer’s asking guilt-seeking questions. In other words, they’re interrogating about the particular set of facts or circumstances they’re investigating. They would have to be Mirandized, and if they are not Mirandized, those statements can be thrown out.
Dunn: That sounds subjective.
Waterkotte: It is, and there is case law, and the Illinois Supreme Court has set forth, and there’s a number of cases on this issue, and laid out factors of when somebody should be Mirandized. They, again, do not have to be in custody. If you have five police officers around you and surrounding you, and you’re not in handcuffs, that’s gonna be a question for the court to answer. Was that person in custody? Were they free to leave? And I’ve had cases where a client has been deemed to be in custody despite the fact that there’s no handcuffs due to a number of factors and circumstances courts will look at to make that determination. And it is. And you know, there’s no such thing as the same case with the same facts.
Dunn: No cookie cutter stuff, right.
Waterkotte: No, and so courts are, in many of these cases, sitting right on that fence of this is a close one, and they’ll have to make that determination.
Dunn: Can a case be dismissed due to lack of probable cause?
Waterkotte: Yes, and that will happen at the preliminary hearing phase. So a preliminary hearing is typically at the earlier phase of the process in which a judge will make a determination whether the state, the state’s attorney, has presented enough evidence to say there is probable cause that this individual committed the crime in which they’re charged with. And so, that is a very important stage for us as defense attorneys to really challenge the case, and it gives us our first opportunity to cross-examine the state’s witnesses to determine how they would hold up later at a trial. And so it can be used for a number of purposes. Obviously, we’re challenging probable cause, but even in cases where there’s going to be probable cause found, it’s still an important phase of this process because it gives us, as defense lawyers, our first crack at, at cross-examining and challenging the state’s witnesses.
Dunn: Can witness statements be challenged in Cook County Court?
Boardman: Absolutely. And that often is one of the best sources of ammunition that we as defense counsel have to weaken a case. Are there inconsistencies with their statement versus law enforcement statements? Do they rely on purely hearsay? Are there other types of other types of contradictions that we can point out? And once you’re able to identify those, then really put them on the spot and evaluate whether or not they’d actually be the type of person that the state would want to put on the stand and try to meet that burden of proof based purely on whatever their statement is or their assertion or observation is.
Dunn: Can video surveillance be used in felony cases tried in the Cook County or Chicago area?
Boardman: Certainly, and it often is. Now, there has to be an analysis and there has to be some form of foundation laying, and that goes into more of a technical evidentiary discussion, but as long as there’s foundation and relevance to the usage of it, then it’s often utilized, sometimes to the benefit of the defendant and sometimes it’s not to the benefit of the defendant.
Dunn: Can cellphone location data be used as evidence in felony cases in Cook County or Illinois?
Waterkotte: Yes, and in fact, I have a case where cell phone evidence is the sole basis of the state trying to put my client through the crime scene. It was an assault case, and they were saying the cellphone pinged in this location at the approximate time of the crime. And, outside of that, there is very little evidence. So in that case, we are challenging that data. And it’s an inexact science. It’s like anything. We can challenge it, and I would always suggest to folks to be wary of that. And there are ways to attack that and challenge it, but certainly can be used against the defendant, and frequently is to put that person, our client, at the scene of the crime.
Dunn: Wow. It’d be hard to determine. I mean, I’m not an attorney, but I’m just thinking out loud. That’d be hard to prove that the phone was attached to the person.
Waterkotte: And that’s another issue with it. We can’t assume, just like in a leaving the scene… I’ll give you an example. Like a leaving the scene of an accident case, well, my car could be.. you could run my plates, but you still have to put me behind the vehicle, right? A number of people could use my car. My wife could be using it. My friend could be using my car. It’s the same thing with a cellphone. We can’t assume. It’s circumstantial evidence. I mean, we can’t assume that that person was in possession of his or her phone at that point. And so despite the fact that you can put the phone at the approximate location of the crime, they still have to prove that the defendant was in possession of that phone. I mean, what if it was left in a vehicle? The vehicle was with another person.
Dunn: Which is impossible to prove.
Waterkotte: It is. And it’s circumstantial evidence. That can be attacked, and those are things that we frequently do.
Dunn: Let’s talk about felony warrants and probation violations. What happens if I have a felony warrant in Cook County?
Waterkotte: Well, if you have a felony warrant and you’re out, you can be arrested at any moment. Now, due to the population of Cook County, and due to how large the city of Chicago is, law enforcement is typically not going to be out looking for low-level, non-violent folks with felony warrants. It’s just not practical, not feasible, not enough manpower. Now, that said, where we get calls all the time is that person’s pulled over. That person’s in a fender bender. There’s a domestic situation, and the cops get called to that house. Well, they’re going to run those individuals. Felony warrant. They’re going to be taken in and taken into custody. On your more violent offenses, they will actively go out and find you if there’s a felony warrant, and then you’ll be booked in, processed, and there’ll be a detention hearing to follow.
Dunn: How do I clear a felony warrant in Chicago?
Waterkotte: I would say the first step is if you know you have one, call an attorney ASAP. And I always urge clients to get an attorney ahead of just saying, “Hey, I’m gonna go turn myself in.” Because there are cases where we can negotiate with the prosecutor, “Hey, we’ll turn this individual in.” Perhaps we can use it for leverage. Perhaps we can use it to, you know, secure his immediate release. It’s important to kinda have your ducks in a row before you go into custody. You know, it’s a lot easier to get things done, to hire an attorney, to get funds together, to notify loved ones, whatever the case may be, while you’re free, have access to your phone, and you’re not sitting in a jail cell. And so there are times we get a phone call and somebody says, “I got a felony warrant. I’m about to go turn myself in.” I would always urge against that and say, “Get an attorney lined up first,” because we’ll be able to help and facilitate that process to make it smoother and hopefully get their release quicker.
Dunn: What happens if I violate felony probation in Chicago or Cook County?
Waterkotte: So, the state’s attorney will typically file a motion to revoke that probation. And the easiest way to think of that is it sort of reopens your case. There was a plea deal. You entered a plea. You’re placed on probation. Well, once you violate that probation and the state files that motion to revoke your probation, it sort of reopens that whole process. It’s probably the easiest way to think of it. You’re now returning before the court for, in effect, your second time being sentenced on this because you violated probation, and you can violate it a number of ways, whether that’s committing a new charge, in which case you’ll have two cases. You’ll have the one that you’re on probation for, and you’ll have the new one. Other violations are what we call technical violations. For instance, you didn’t report to your probation officer. That’s a common one. You absconded. Another common one is you didn’t complete some sort of program that you were asked to complete, or you were ordered to complete, I should say. Those are technical violations. But in any event, under either of those, you will be brought before the court and, in effect, be sentenced again. The attorney would be present, and we’re gonna be saying, “Hey, give this person another chance.” The state could be saying, “We gave him a chance. We’re trying to now send him to the penitentiary.” It depends on the case, but that’s how those work. And, you know, it’s never a good thing because now you’re back before a judge. You were given a set of orders to follow, and you didn’t do it.
Dunn: Can you go to jail for a probation violation in Cook County?
Waterkotte: Absolutely. It’s always on the table. I will say, when you commit a crime while on probation, those chances go up, right? “We gave you a chance on probation. You’re on probation, and despite that, you picked up a new criminal charge.” That’s going to be a little more difficult of a task than what we consider a technical violation. You didn’t complete alcohol treatment. You know, life happens, things happen. Our client had a death in the family, whatever the case may be. Technical violations, while not good, are going to be treated usually a little more lenient than what we call laws violation. That’s committing a new crime while on probation. But absolutely, particularly in the case of a law violation, jail or prison is on the table.
Dunn: Can a probation violation turn into another felony charge?
Waterkotte: The violation itself can’t. However, you can commit a new crime and be charged with a new crime, and thus have the new case that you’ll have, and also reopening the case in which you were on probation. So we frequently get calls. You know, let’s say somebody picks up a new criminal charge while on probation, the first thing I generally tell them is, “Now we have two cases we’re dealing with. We have not only the case that you’re on probation for that’s kinda reopened, but now we also have to deal with this new case that you were charged with.”
Boardman: To expand on that too… You have to think about it if someone’s on court supervision, which is a non-conviction. So technically speaking, if the judge removes you, or as a penalty of that probation violation, it can impose… It’s not a new felony, because it is the same charge that existed that you were placed on court supervision for. But instead of that caret of no conviction on your record, they can penalize you by making… You can still be on some form of probation or do shock time or something like that, but that conviction is now going to be implemented as a part of that revocation.
Dunn: Can I be arrested for missing a probation appointment?
Boardman: What can occur is the state’s attorney files a motion to, or a petition to, revoke. That’s going to get scheduled with the court for a revocation hearing, and you can get an arrest warrant or a failure to appear style warrant if you do not participate in that proceeding.
Dunn: Always such great information. I mean, we’ve covered a lot about felony charges, Cook County, Chicago, Illinois. Combs Waterkotte is one of the leading criminal defense firms in Illinois, so I’m just happy you guys are here. Appreciate you giving all this great information. To the people out there, thank you for having us.
Waterkotte: Thank you for having us.
Boardman: Of course. Thank you.
