Criminal Defense of Drug and Controlled Substance Offenses
At Robert W. Brown, Jr.., no matter what kind of drug offense you have been charged with, you will get the professional legal help you need. In defending these types of criminal prosecutions, it helps to know the inner workings of the prosecutor’s office. Robert Brown is a former State’s Attorney, so he has special knowledge of how and why criminal charges are brought. Mr. Brown is a respected and experienced criminal defense attorney in Lake County ready to help you with personalized, quality legal representation.
Defendants in drug cases often enter the criminal justice system in one of several ways: by arrest by a police officer during a routine traffic stop and subsequent search of a vehicle in which drugs were discovered; by being picked up on an arrest warrant and having drugs on his person or in plain view; during the execution of a search warrant for a person’s home or business; or having been indicted by the Grand Jury after a long criminal investigation of alleged drug dealing.
While there is no magic formula for defending a drug case, most attorneys agree that thorough preparation before trial is imperative. In order to thoroughly prepare a case for trial, an attorney should conduct an extensive interview with his client, learn the facts and discussing what is and is not corroborated by the police reports, witness statements and physical evidence.
Terminology - Felony
Felony - an offense that carries a sentence to a term of imprisonment in a penitentiary for one year or more. Felonies are classified according to the amount of time to which a defendant may be sentenced to the penitentiary:
Class X felony: not less than 6 and not more than 30 years
Class 1 felony: not less than 4 and not more than 15 years
Class 2 felony: not less than 3 and not more than 7 years
Class 3 felony: not less than 2 and not more than 5 years
Class 4 felony: not less than 1 and not more than 3 years
Finesfor a felony are $25,000 or the amount specified for that offense, whichever is greater.
Under some circumstances a defendant may be eligible for an extended term, effectively doubling the sentence. This is usually due to aggravating factors such as a person’s prior criminal record.
Terminology - Misdemeanor
Misdemeanor - an offense that carries a sentence to a term of imprisonment in a facility other than a penitentiary for less than one year. Misdemeanors, like felonies, are classified according to the possible time a defendant may be sentenced to the county jail:
Class A misdemeanor: not more than one year, fine not to exceed $2,500 or the amount specified in the offense, whichever is greater.
Class B misdemeanor: not more than 6 months, fine not to exceed $1,500.
Class C misdemeanor: not more than 30 days, fine not to exceed $1,500.
Misdemeanor drug offenses - possession of cannabis less than 2.5 grams which is a class "C" misdemeanor; possession of cannabis 2.5 to 10 grams which is a class "B" misdemeanor, and possession of cannabis 10-30 grams which is a class "A" misdemeanor.
In order to sustain a conviction for possession of cannabis or a controlled substance, the prosecution has to show that defendant had knowledge of the presence of the drugs and that the drugs were in his immediate possession. Actual physical possession is not required. Possession may be "constructive" and can be inferred from the surrounding facts and circumstances. Once possession is proven, knowledge may be proven by circumstantial evidence.
Delivery of less than 2.5 grams of cannabis is a class "B" misdemeanor, and delivery of 2.5 to 10 grams of cannabis is a class "A" misdemeanor. Deliveries of cannabis in excess of 10 grams are felonies. Possession of more than 5,000 grams of cannabis is a class one felony and Manufacture or Delivery of more than 5,000 grams of cannabis is a Class X felony.
Schedule I substances are those where there is a high potential of abuse and dependency and no accepted medical use or acceptance (e.g., heroin).
Schedule II substances are subject to the same abuse, creating dependency, but having some accepted medical use (e.g., Codeine).
Schedule III substance are those of less potential for abuse than I & II and have accepted medical uses (e.g., pentobarbital).
Schedules IV & V substances have a low potential for abuse, an accepted medical use and limited dependency.
Possession or the manufacture of the substances contained in the enumerated schedules is a serious felony. The quantity and the type of substance determine the severity of the penalty imposed. The quality or purity of the substance, unlike federal law, has no effect on the penalty.
Penalties and potential outcomes
For some possession or delivery offenses a penitentiary sentence is mandatory, but for others, a period of probation, a term of periodic imprisonment or conditional discharge is available. Court supervision is not available for felonies. First time offender’s probation is available for some possession charges and is similar to court supervision [720 ILCS 550/10 & 570/410]. This form of drug probation has numerous conditions.
Court supervision: "a disposition of conditional and revocable release without probationary supervision, but under such conditions and reporting requirements as are imposed by the court, at the successful conclusion of which disposition the defendant is discharged and a judgment dismissing the charges is entered." [730 ILCS 5/1-21.] Court supervision is unique to Illinois and a way of avoiding a criminal conviction. This is a typical disposition in local ordinance violations for possession of cannabis. Note however that the federal government and many states refuse to recognize court supervision and treat such a disposition as a conviction.
Probation: "a sentence or adjudication of conditional and revocable release under the supervision of a probation officer." Probation is for a fixed period of time, but may be extended or revoked for violations while on probation. If revoked, the defendant may be re-sentenced to prison or jail.
Conditional Discharge: similar to probation but usually involves no direct reporting to a probation officer and often without the stringent requirements of probation.
Periodic Imprisonment: sentence of imprisonment during which the committed person may be released for periods of time during the day or night to work or seek employment, attend to family needs or obtain medical treatment.
What happens after an arrest
Regardless of where a defendant is arrested, he is generally tried in the county (venue) in which the offense was committed.
The time within which a crime must be prosecuted, called the "Statute of Limitations," is 3 years for a felony and 18 months for a misdemeanor. However, there are many exceptions to this general rule.
If a defendant is in custody, he must be tried within 120 days from the date a "speedy trial" demand is filed with the court on his behalf. If a defendant is not in custody, he must be tried within 160 days from the date a "speedy trial" demand is filed.
Unless the bond amount is set by a court rule or the defendant posts a previously set bond at the police station, he is afforded a prompt bond hearing before a judge. Before setting a bond, the judge hears about the nature of the alleged offense, any past criminal history, the defendant’s ties to the community and the seriousness of the criminal charges. The bond may be in a cash amount, such as $10,000.00; the defendant must post 10% or $1,000.00 to be released from jail.
Alternatively, the defendant may sign a personal recognizance bond which requires no cash to be posted; the defendant merely promises to appear at all future court dates. The amount of a criminal bond is subject to change by the judge. Either the prosecution or the defense, upon proper notice to the other side, can seek reduction or increase depending on the circumstances.
Defendants "out on bond" must appear at all court dates, follow court orders, not leave the state without permission, not violate any laws, surrender all firearms, and undergo medical or psychiatric treatment. Further, the court may impose any other conditions it sees fit. In Lake County people are often supervised while on bond by Pre-Trial Services.
At the conclusion of the criminal proceedings, the bond is refunded to the defendant or his attorney less the statutory 10% fee. Before that refund is made, all fines and court costs are deducted.
Following the bond hearing, if any, the next court date for misdemeanor charges is the arraignment date or status of attorney date. For felonies, once a determination is made regarding who will represent a defendant, the matter is set for a preliminary hearing or examination before a judge. Preliminary examination is a hearing before a judge to determine if there is probable cause to believe that the person accused has committed an offense. Few drug cases ever reach this point because in Lake County, Illinois, most defendants are directly indicted by a Grand Jury.
Felony indictments of the Grand Jury are returned in open court and a new court date is set. The defendant and his attorney are notified of the new date and which felony judge to appear before for arraignment.
Criminal charges must be in writing, stating the name of the offense, the statute violated, the nature and elements of the offense, the county and date where the offense occurred, and the name of the accused.
Typically, once a defendant has retained an attorney, the attorney will personally meet with the defendant during an office interview to learn the facts surrounding the case. At the first court date, which is either a bond hearing or a status of attorney date, an attorney will file his appearance notifying all concerned that he represents the defendant and that no one is to speak with the defendant without that attorney being present.
An attorney will generally enter a plea of "not guilty" on the defendant’s behalf at the arraignment. Motions for usual and customary discovery are made at that time. Future court dates for a pre-trial conference and trial date will then be set.
Frequently in drug prosecutions, an attorney will file various pre-trial motions to quash the arrest which challenges the constitutionality of the arrest and seeks to suppress certain physical evidence or statements or attacks the search warrant. An attorney may also file motions for a bill of particulars; motions to dismiss the charges, or to change the place of trial.
A written answer to discovery must be complied with by the prosecution within a fixed number of days, usually fourteen. The order for discovery requires the prosecution to turn over police reports, lab reports, photographs, physical evidence for testing, expert opinion reports, wire taps, and any statements allegedly made by a defendant to the police.
Once all this information has been received, the attorney will plan his client’s defense, file any necessary motions, and discuss any available options.
Police reports are important because if the officer's testimony deviates from his reports at trial, the officer can be impeached with the reports. Ideally, if witnesses can be interviewed prior to the prosecuting attorney speaking with them on the eve of trial, valuable statements may be obtained. It is vital that an attorney formulate a theory of defense and build evidence to support that theory. At some point a defendant and his attorney must decide if the defendant is going to testify.
Trial by judge or jury
If a defendant will make a poor witness, has an unfavorable appearance or demeanor on the stand, or has a prior criminal history involving drugs, taking the witness stand may be ill-advised.
In Illinois a defendant has a constitutional right to a trial by jury composed of twelve people drawn from the community, or the defendant may waive a jury and have a judge decide his case. A defendant has a statutory right to one substitution from the judge hearing his case if the motion is made in a timely fashion. In certain serious felonies, a defendant may be able to take a change from more than one judge. A defendant in a criminal case always has a right to challenge a judge for cause if he feels the judge is biased or prejudiced in his case.
Rights of all defendants
At any trial, either by a judge or a jury, every defendant in a criminal case has the following rights:
1. Plead not guilty or persist in any not guilty plea previously made
2. Presumed innocent of the charge(s) filed
3. Require the prosecution to prove guilt beyond a reasonable doubt
4. Not required to testify against oneself
5. See and hear the prosecution’s witnesses and evidence in open court and to have an attorney cross examine those witnesses
6. Present evidence or call witnesses (including expert witnesses) of one’s own and have the court require them to come to court and testify
If a defendant fails to appear for trial and the prosecution has proven through substantial evidence that the defendant is willfully avoiding trial, the court may conduct a trial in his absence. If found guilty, the court can conduct a sentencing hearing and impose a sentence. An arrest warrant is issued and the defendant goes directly to jail or prison when he is found.
After reviewing the facts and evidence with an attorney, his client may elect to have him negotiate the case (enter into a plea bargain with the state) in an attempt to reach a favorable disposition, or if the defendant thinks the prosecution is being unreasonable, he may elect to take a "straight plea" in front of the judge. If one elects to proceed with a straight plea, then he will be waiving his right to a trial and the aforementioned rights, and he cannot pick and choose the crimes he wants the judge to sentence him to. He must plead to all offenses charged.
If after a trial by a jury or judge the defendant is found not guilty, he shall be discharged and cannot be retried again for the same offense because the double jeopardy provisions of the federal and state constitutions would bar retrial. If a motion for a mistrial is granted, then under most circumstances the defendant can be retried. In most cases, if a defendant is found not guilty, he will be entitled to have his entire arrest expunged.
If a defendant is found guilty or pleads guilty in what is called a straight plea, and not as a result of the plea bargain, he is entitled to a sentencing hearing before the same judge who accepted his plea of guilty.
At this point in the legal proceedings the court usually orders that a "PSI" (pre-sentence investigation) be prepared by the adult probation department. This report gives the judge sentencing alternatives disclosing the defendant’s criminal record, education, employment, medical and psychological problems, drug usage, impact upon the victim or other relevant information.
At a subsequent sentencing hearing, the prosecution may attempt to introduce evidence of one or more of these factors: that the defendant’s conduct caused or threatened serious harm, that he received compensation for the offense, has a prior history of criminal activity, held public office, and that a harsh sentence is necessary to deter others from committing the same crime. These and a host of other factors are considered "Factors in Aggravation" [730 ILCS 5/5-5-3.2].
The defendant is entitled to introduce "Factors in Mitigation" [730 ILCS 5/5-5-3.1] including, but not limited to, the following that his criminal conduct neither caused nor threatened serious physical harm; that he acted under strong provocation; that his conduct was induced or facilitated by someone else; that he has no prior criminal history; that the criminal conduct was a result of circumstances unlikely to recur; that it is unlikely that he would commit another crime; that imprisonment would entail excessive hardship; and that he is likely to comply with the terms of probation.
Even if a defendant has been convicted of a crime and sentenced, he is entitled to appeal that conviction or attempt to withdraw a plea bargain or straight plea. That motion must first be made before the judge who presided over the case and then before the appropriate appellate court unless a direct appeal to the Illinois Supreme court is permitted.
Illinois law also contains harsh provisions providing for the "Forfeiture of Property" when the possession or deliveries of cannabis or controlled substances are involved. Such items as automobiles, airplanes, boats and cash are subject to seizure and forfeiture.
Since July 1, 2000, college students who have been convicted of a drug offense (possession or sale of a controlled substance) will not be eligible to receive grant, loan or work assistance.
The key to protecting your rights in any prosecution for the possession or delivery of a controlled substance is obtaining the services of an experienced and highly-qualified criminal attorney.
The Law Offices of Robert W. Brown Jr., P.C. in Libertyville, Illinois is devoted to representing the rights of those who have been arrested.
Note: There are literally hundreds of crimes and offenses in Illinois involving the possession or delivery of a "Controlled Substance" and the General Assembly adds more each session. Therefore, it is beyond the scope of these web pages to discuss all of them.
In Illinois most criminal statutes are found in the Illinois Complied Statutes, Chapter 720 entitled, "Criminal Offenses," Chapter 725 entitled, "Criminal Procedure," and Chapter 730 entitled, "Corrections." The Illinois Controlled Substances Act sets forth lists or schedules of controlled substances. These publications may be found in any public library or on our Web Resource page.
Disclaimer: The information contained in this web page is not intended to serve as legal advice or as a substitution for a consultation with a qualified criminal attorney. New laws are frequently passed by the General Assembly and the Appellate Courts of Illinois are constantly issuing opinions interpreting how the law is to be applied, therefore it is imperative that you consult with a legal professional.
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