Archive for November, 2013

Date Rape is Still Rape

November 29th, 2013 at 4:00 pm

Many people believe that date rape is not as serious as other kinds of rape.  However, the only reason for the differentiation between the two terms is to specify the status of the involved parties.  For example, the term “rape” generally happens between two strangers, while “date rape” or “acquaintance rape” happens between two people who previously knew each other on some level.  Date rape can happen on a date, between two friends, between two people in a relationship, or between members of a former couple.  Furthermore, because date rape regularly occurs after a date or a party, the term often indicates that alcohol or drugs played a role in the conduct.

Date Rape is Still RapeSome offenders believe that accusations of date rape are not as serious as other types of rape charges, and that they will face less severe consequences if they force sex with someone they already know.  This belief is mistaken, as Illinois law does not differentiate between types of rape.  Prosecutors charge any rape act, regardless of the status of the parties, under 720 ILCS 5/11-1.20 for criminal sexual assault or 720 ILCS 5/11-1.30 for aggravated criminal sexual assault.

What constitutes criminal sexual assault?

The charge of criminal sexual assault is a Class 1 Felony and applies to anyone who allegedly commits an act of sexual penetration by using force or the threat of force.  The charge also applies to sex when the accused knew the victim would be unable to give knowing consent or is unable to understand the nature of the sexual act.  Therefore, this statute applies directly to many date rape situations in which the accuser claims to have been under the influence of alcohol or drugs and therefore was unable to protest.

A charge may be escalated to aggravated criminal sexual assault, a Class X Felony, under certain circumstances such as the accused used any time of weapon or caused any bodily harm to the victim.  It is not uncommon for some harm to occur in forceful date rape situations, so this charge is not reserved for stranger rape.

If convicted of criminal sexual assault, you may face mandatory prison time of four to fifteen years or six to thirty years for an aggravated charge.  Additionally, you will have to register with the Illinois Sex Offender Database, where information such as your name, address, and criminal conduct will be publicly available.  Therefore, date rape can result in very severe penalties that may affect your freedom, future employability, and life in general.

What should I do if I have been accused of date rape?

If you have been arrested or charged with any type of sexual assault, it is highly important that you contact an experienced Illinois criminal attorney as soon as possible.  Do not hesitate to contact the Law Offices of Christopher M. Cosley today.

The Theory of Constructive Possession in Criminal Matters

November 25th, 2013 at 3:39 pm

There are multiple criminal offenses in Illinois that include the concept of possession as a basis of criminal liability.  Perhaps criminal offenses involving contraband, such as weapons or illegal narcotics, are those crimes involving possession with which we are most familiar.  The law extends the definition of possession to include both actual possession as well as constructive possession.

The Theory of Constructive PossessionThe Possession Rules in Illinois

In order to impose criminal liability on the basis of constructive possession in Illinois, the facts of the case must support the finding that the defendant knew of the existence of the contraband, and also was in a position to exercise control over it despite the fact that the defendant may not have had physical control of the contraband. In other words, the theory of constructive possession involves demonstrating that the defendant has both the intent and the capability to maintain control and dominion over the illegal item. Cases involving constructive possession typically include owners or tenants of a home, car, or apartment where contraband is found. This definition has been interpreted and applied in different ways by courts in Illinois.

In People v. Schmalz, the Defendant was charged with possession of a controlled substance and possession of drug paraphernalia after she was discovered by a police officer in a room with three other people.  The officer saw three clear plastic bags of leafy substance (later identified as cannabis) and three bongs on the floor, within the defendant’s reach.  Defendant was arrested, and the officer discovered additional cannabis and additional paraphernalia in other areas of the house.  It was established that Defendant neither rented nor regularly stayed in the apartment where the contraband was found.  The Circuit Court returned a guilty verdict and Defendant appealed.  The Circuit Court reversed the decision, finding that while the Defendant had knowledge of the contraband, the State failed to establish that the defendant had any physical control over it, nor did the State prove that the Defendant attempted to exercise dominion over the contraband by trying to hide or conceal it.  Further, the Court found that the State presented no evidence, including a lack of fingerprint evidence, that the Defendant had brought the contraband into the apartment or how long it had been there. No contraband was found on the Defendant’s person or in her belongings.  As a result, Defendant’s conviction was overturned.

It is important to note that while the appellate court in Schmalz did not find evidence sufficient to establish constructive possession, many cases exist in Illinois where courts have convicted the defendant under different facts and circumstances.  An experienced criminal defense attorney in Illinois can help you to understand the law as it applies to the facts of your specific case, while also providing valuable insight according to their experience in criminal defense.

If you or someone you know has been charged with a crime involving possession of contraband in the Chicago area, contact us today to discuss your options and preserve your rights.

What Is an Expungement and How Can You Get One?

November 22nd, 2013 at 3:30 pm

If you have a prior conviction on your record and have ever tried to get a job, you understand the problem: the employer is going to ask you if you have any convictions and you are obligated to disclose that you do. For many employers, this is a deal-breaker, and upon seeing a prior conviction, they will move on to the next candidate. This leaves you in the precarious position of not being able to obtain gainful employment, no matter how hard you try, because of a past mistake.

Expunging your record gives you a clean slate.Both conviction and arrest records are public, so potential employers can actually see if you have been arrested for an offense; even if you were not charged. Those of us who work in the field of criminal law appreciate that there is a huge difference between being charged for a crime and being convicted–police officers make errors all of the time. But potential employers are far less forgiving.

However, there is some good news. The State of Illinois understands this dilemma and has come up with a way to seal arrests and certain criminal convictions, making it so employers (and anyone who runs a background check) cannot see them. This is what an expungement is. Basically, an expungement erases your criminal records and lets you start off fresh again.

Do I Qualify for an Expungement?

Not all applicants can qualify for an Expungement based on the severity of their criminal history and the crimes contained therein. Generally, expungements are for misdemeanors and non-violent felony convictions that were committed a long time ago. To find out specifically whether you might qualify for an Expungement you should contact an expungement attorney today.

 Also, if you would like to learn more on your own, the Illinois State Appellate Defender’s website provides some helpful resources that shed light on this issue.

I Want an Expungement, What Should I Do?

If you are interested in starting fresh and getting your criminal record expunged, you should contact an experienced criminal defense firm. Here at The Law Offices of Christopher M. Cosley, we have experience in successfully getting records expunged involving DUI offenses, traffic offenses, license reinstatement, drug charges, domestic violence, and all juvenile matters.

Click here to contact The Law Offices of Christopher M. Cosley today, or call 847-394-3200 to schedule a free initial consultation and to determine if you are eligible for an expungement.

Domestic Abuse in Illinois: No Laughing Matter

November 20th, 2013 at 3:15 pm

Among all the crimes in Illinois, domestic abuse is among those treated most seriously by prosecutors and judges. Domestic abuse is defined by two elements. First, there is an act of violence. This can be an assault or a battery. That means that there does not necessarily need to be any force or physical touching involved. It is possible to get an assault charge for merely making threats to someone.

Domestic abuse charges are serious- contact an attorney for help with your case.For example, each of the following can be considered domestic abuse:

  • Spousal abuse

  • Child abuse

  • Criminal violations of Orders of Protection

  • Assault

  • Battery

  • Stalking

  • Harassment/telephone harassment

  • Threats

The second element of a domestic assault charge is the victim. What makes domestic abuse “domestic” is the victim. In Illinois there are several types of victims that qualify as domestic abuse victims, they are:

  • Family or household members

  • An adult with disabilities who is abused, neglected, or exploited by a family or household member

  • Any minor child in a defendant’s care; and

  • Any person residing or employed at a private home or public shelter which is housing an abused family or household member.

Punishments for Domestic Violence Go Beyond Jail Time

If you are convicted of a domestic abuse crime, you will likely be looking at least some time in jail and a significant fine. However, you will also experience other collateral punishments from the conviction. For instance, if you are convicted of a domestic abuse crime, you may lose visitation rights with your children (or custody), have a protective order issued against you by your spouse and/or children, and in some cases have parental rights terminated altogether.

 To learn more about the specifics of this issue, take a look at the Illinois Domestic Violence Act. The law discusses ancillary matters like orders of protection, the responsibilities of law enforcement officers, and the role of health care providers in domestic violence cases.

Have You Been Charged with a Domestic Abuse Crime in Illinois?

If you have been charged with a domestic abuse crime in Illinois you need to ensure you have a passionate, experienced Illinois criminal defense attorney at your side. With so much at stake, you should do everything you can to ensure that you exit the criminal justice system as quickly as you can and with as few collateral consequences as possible. Click here to contact Christopher Cosley, a Chicago criminal defense attorney with the experience and dedication you need.

Underage Drinking and Punishments in Illinois

November 14th, 2013 at 10:39 am

illinois-underage-drinkingDrinking alcohol is dangerous for people of all ages even if they are old enough to drink legally. The law is not meant just to get people in trouble, it is to protect them, which is why the punishments can be so severe.

Not only is consuming alcohol illegal, but those under 21 cannot even transport or have alcohol in their possession. If someone underage is caught transporting alcohol in their vehicle, they can be fined up to $500 and receive a jail sentence of up to six months. The exception to this law is if a person under the age of 21 is transporting alcohol for employment or under the order of his or her parents.

If someone underage is caught drinking and driving, their punishment will be even more severe than someone who is of age because they will have broken multiple laws. If someone underage registers a Blood Alcohol Content (BAC) of 0.08 or higher while driving, he or she may be sentenced to 30 days in jail and be fined up to $500.

Under the Zero Tolerance Law, any person under the age of 21 can be punished for drinking and driving even if he or she does not register a 0.08 BAC. Depending on how many offenses the person may have and whether or not he or she refuses the test, the offense if punishable by 3 months up to 2 years in prison. The prison time, of course, increases if the BAC is above 0.08.

Some underage drinkers even go as far as getting a fake ID so that they can buy alcohol themselves and get into bars. With each step away from the truth, these teens are digging deeper and deeper holes for themselves with the law. Having a fake ID can result in 25 hours of community service, most likely for an alcohol abuse prevention program or a fine of at least $250. If a person who is 21 or older allows someone else to borrow their ID can have the same results.

Underage drinking dangerous for the drinker and it is also dangerous for those around him or her. Anyone with knowledge of underage drinking can get into legal trouble as well. If you have been caught drinking underage or allowing someone to, contact a criminal attorney for help. Located in Rolling Meadows, attorney Chris Cosley will help you through your underage drinking court case today.

Family Files Suit for Lock up Death in Drug Arrest

November 11th, 2013 at 1:09 pm

jail timeMay Molina was a community activist for many years in the city of Chicago.  Even with her diabetes, asthma, and inability to go anywhere without a wheelchair, she still voiced her opinion against the Chicago Police Department.   She was especially adamant her son’s wrongful lockup for a crime he did not commit.  In 2004, her voice was silenced after being locked up for drug possession.

For 24 hours in lockup at the police station, Molina was without her medicine.  Other inmates at the time as well as her attorney notified the police on duty that Molina was becoming breathless and confused.  No one acted on their warning and within a few hours, Molina was found dead in her cell.

Recently, the surviving family of May Molina has decided to filed a civil suit against the Chicago Police Department.  When May was arrested, she had asked the officers to bring her medicine but she was denied.  May’s family is claiming in the suit that the city normally denies medical requests of inmates at holding cells of Chicago police departments.

During the trial they had an expert corroborate their claim.  Former assistant police chief of Seattle Michael Brasfield is an expert in police practices.  He told the jury that Chicago departments hold people longer than other cities, permits unqualified officers make medical decisions neglects calling in a medical staff even when those who were arrested were in critical condition.  Brasfield said that as a department “you are supposed to err…unequivocally on the side of overresponding, on the side of well-being and safety.”

The police offered a counterclaim that Molina never asked for medical attention.  The fact is that Molina’s autopsy showed that there were tinfoil packets of heroin in her throat that she may have swallowed prior to arrest.  The medical examiner’s office ruled that the death was accidental.  Proving that the police department is responsible for the death of Molina may change the care for others being processed in the system.

Another way to protect yourself in the judicial process is to have the support of a legal professional.  A lawyer who will look out for your best interest.  If you need that kind of a lawyer, reach out to an experienced Cook County criminal attorney today.

New Laws to Improve Illinois Boating Safety

November 7th, 2013 at 1:00 pm

boatSenator Julie Morrison has sponsored a bill, which along with other measures will make waterways safer next year.  For Morrison, this bill is personal.  In 2012, her nephew, 10 year old Anthony Borcia was killed after falling off a tube on Petite Lake in Northern Illinois.  Morrison stated that “for me, this law is about turning a personal tragedy into an opportunity to protect other people.  Last summer, my nephew was killed by a boater under the influence of drugs and alcohol.  I’m doing everything I can to keep other families from experiencing our loss.”

The person responsible for Tony’s death was David Hatyina.  He was sentenced to ten years in jail after pleading guilty to operating a motorboat while under the influence of alcohol and cocaine.  His blood alcohol level while operating his boat was between .09 and .12, which is over the legal limit.

One measure that was signed into law would make the penalties harsher for people who operate boats under the influence.  If convicted of this crime, offenders would have their driver’s license suspended for three months.  It also requires boaters who are involved in boat accidents to submit to a breathalyzer or other chemical blood alcohol test.  This is how implied consent works when a driver is suspected of DUI.

The other measure would require certification before certain people can operate a watercraft.  People who were born on or after the first day of 1990 would need to complete a boat operation safety course and also receive certification from the Illinois Department of Natural Resources.  Without this new law, only kids from the ages of 12 and 18 need to be certified unless they are driving a boat with their parent or 18 year old guardian.  The last bill would require boats who are towing a person to show an orange flag as a warning to other boaters.

Morrison also stated that “people need to know that drinking and boating is every bit as serious as drinking and driving.  I hope that requiring blood alcohol tests in the case of serious boating accidents will make some people think twice before they crack open a beer while they are operating a boat.”  If you have been operating any vehicle and pulled over for suspicion of DUI, you need help.  Contact an experienced criminal defense attorney in Rolling Meadows who can handle your case.

Texting While Driving…A Bus

November 3rd, 2013 at 12:55 pm

We have all heard that texting while driving is dangerous, and that texting distracts drivers and endangers passengers and other drivers on the road. No one wants their child in a vehicle while the driver is texting or otherwise distracted from the road.

Texting While Driving a BusWhat about a vehicle with a bunch of child passengers and a texting driver? One Florida school bus driver decided to use her cell phone while driving a bus full of middle school students home from school.

A 14-year-old girl pulled out her phone to record her bus driver swearing and yelling at the students, but instead caught the driver texting.

In the video, the driver was shown driving with one hand on the wheel and the other holding her phone, texting. Her eyes were on the phone, not on the road.

ABC news reported on the video in which the bus driver jerked the wheel, apparently after drifting into another lane, and then continued to text.

This bus driver has been suspended for violating the school districts policy, but Florida’s texting while driving law does not go into effect until October, and even then, it excludes bus drivers, who will be under the power of the school that they work for.

Florida will become the forty second state in the United States to treat texting while driving as a primary traffic offense, according to the Governors Highway Traffic Association, which also listed Washington D.C., and other United States territories in the list with the 41 states.

The Inquisitr reported that over 3,000 people were killed due to distracted driving accidents in 2011.

If you have been accused of distracted driving, contact a Chicago criminal defense attorney for assistance. Attorney Chris Cosley will help you through your criminal court case for texting while driving near Rolling Meadows, Illinois today.