Criminal Defense in Illinois
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For those who have never before faced criminal charges, an arrest can be a frightening experience. The stress and anxiety of an arrest may cause you, your family members or friends to overlook important factors, such as the right to remain silent and the right to consult with a lawyer.
During and after arrest, please stay calm. Not everyone who is arrested is guilty of committing a criminal offense. An arrest is not a conviction. You are innocent until proven guilty.
Arrest
In an arrest, a police officer, state trooper, or sheriff restrains your freedom of movement because of your possible involvement in a criminal offense. The arresting officer may take you into custody, or you may be stopped, verbally or physically, for questioning about a crime.
A warrant for arrest is a written order signed by a judge directing the police to arrest the person named in the warrant. If a judge issues a warrant for your arrest, the police may arrest you in your home or in a public place. At the time of your arrest, the arresting officers should inform you they have a warrant and produce the warrant for your review.
Without your consent or extraordinary circumstances, the police cannot arrest you in your home without a warrant. The police can arrest you without a warrant if they have probable cause to believe that you committed an offense in their presence, or when an individual informs an officer that you have just allegedly committed an offense.
You can be arrested for committing a misdemeanor, which is a lesser crime. Some examples of misdemeanors are: disorderly conduct, driving under the influence of alcohol, driving without a valid driver's license, assault, battery, domestic battery, criminal damage to property, indecent exposure, theft, retail theft, resisting a police officer, stalking, and deceptive practice.
The police can also arrest you without a warrant if they have probable cause to believe that you have committed a felony, a more serious crime, in their presence, or when an individual informs an officer that you have just allegedly committed an offense. Some examples of felonies are: arson, burglary, forgery, kidnapping, armed robbery, murder, possession of stolen motor vehicle, sexual assault, trespass to residence, obstructing justice, possession or delivery of narcotics, home invasion and unlawful discharge of a firearm.
In addition, a citizen, such as a security guard or store owner, may detain you if you have committed, for example, the offense of retail theft, in their presence. In this instance, they must promptly turn you over to the police.
If you are arrested for a felony without a warrant, you are entitled to a prompt hearing (preliminary hearing) to determine whether or not the arresting officer had probable cause (the minimum level of required evidence) to arrest you. However, you may not have an opportunity for a preliminary hearing, where your attorney can cross-examine the arresting officer and challenge the State's evidence. The State is allowed to avoid a preliminary hearing by submitting evidence, in secret, to a grand jury which will return a bill of indictment against you.
Being Detained vs. Being Arrested
A police officer may detain a person, without arresting the person, if the officer has articulable suspicion that the person is engaging in criminal activity. For example, a police officer may request identification and conduct a limited search for weapons (for the officer's safety) if the officer observes a person pacing in front of a closed store late at night. This is called a "Terry Stop." Or, a store owner or employee might detain a person for a short time if they have a strong reason to believe that the person has stolen or was attempting to steal something from the store.
Resisting Arrest
An arresting officer may use reasonable force necessary to arrest you, but is not permitted to use excessive force or brutality. Even if you are innocent, you should not resist arrest. You risk being injured, and could be charged with the offense of resisting arrest. Even if you are later found not guilty of the charge(s), the arrest was not illegal if the arresting officer complied with the requirements of the law.
Search
Ordinarily, the police must have search warrant before conducting a search. However, after you have been arrested, the police may search your person and the immediate area around you without a warrant. This is known as a "search incident to arrest." The police may also search, if at the time of arrest, the arresting officer observes contraband. If the arresting officer finds items that are illegal to possess, such as a gun, drugs or drug paraphernalia, at the time of arrest, the arresting officer will retrieve the item(s) and charge you for unlawful possession of the item(s). The arresting officer may also take your wallet, identification, money and other personal items from you at the time of your arrest, for inventory purposes, and maintain the items in a secure place until your items can be returned to you, or used as evidence against you. It is important to verify that all of the items the officer removed from you are inventoried on a written list.
Obtaining Legal Representation
You are entitled to telephone a lawyer, friend or family member to notify them of your arrest. You have the right to consult with a lawyer and have him or her present when the police question you. You should remain silent until your lawyer is present, since any statements you make can be used as evidence against you.
If you cannot afford to hire an attorney, you are entitled to a court-appointed attorney. The Court may appoint a private attorney, a lawyer from a legal aid society, or a public defender. The police are required to advise you of these rights before questioning you. Ordinarily, the arresting officer provides these warnings during the confusion of the arrest. These rights are critical to your defense later on.
Even if you refused a lawyer at the time of arrest, you retain the right to have a lawyer present at any time after your arrest.
If a family member or friend, who has been arrested, calls, remind him or her that they have a right to an attorney, and that they are not required to respond to police questioning until an attorney is present.
When You Are in Custody
After you have been arrested, you will be taken into custody. For those arrested in McHenry County, you will be taken to the local police station, and later transported to the McHenry County Adult Correctional facility in Woodstock. Your arrest will be recorded in police records, and you will be fingerprinted and photographed. After you have been taken into custody and processed, you will need to obtain bail money in order to be released.
You may be asked to participate in a line-up. This is a procedure in which several people, including a suspect, are shown to victims and witnesses of a crime to determine whether or not they can identify the person who committed the offense. If the police ask you to participate in a line-up, you have a right to have an attorney present.
Several hours or days may pass before you appear before a judge who can consider releasing you. For example, those arrested for the offense of domestic battery are required to appear before a judge in "rights court," and may wait one to two days before appearing in Court. Also, those arrested for domestic battery must surrender any and all firearms in his or her possession, and refrain from returning to the domestic residence or having contact with the alleged victim for seventy-two (72) hours.
During this period, stay calm and do not discuss the circumstances of your arrest with anyone! Any statements you make, even if you think they are harmless, may be reported to the police and used as evidence against you.
If you are accused of a less serious crime, such as traffic violation, for example, the arresting officer may provide you a "Notice to Appear." Although you are not admitting guilt, you must appear in Court.
Release From Custody
After your arrest, you will be brought before a judge and provided an opportunity to be released while waiting for your first Court appearance. The judge will set your bail. Bail is money or other property deposited with the Court to ensure that you will appear in Court as required. In setting your bail, the judge will consider several factors: your criminal history, the seriousness of the alleged offense, your ties to the local community, your employment, and financial resources. You will be required to post bail, or you may be released on your own recognizance, in other words, your promise to appear in Court as required. The judge will also advise you of your first Court date, your date in court for arraignment.
Arraignment
After you have been released from custody, you will be required to appear in Court approximately two to four weeks later for your arraignment. During your arraignment, the judge will formally advise you of the charge(s) pending against you, as well as the possible penalties and sentencing alternatives you face. If you appear in Court without an attorney, the judge must allow you a reasonable amount of time to hire an attorney before proceeding with your case.
Your Arrest Rights
Right to remain silent
Right to have a lawyer present while being questioned
Right to have a lawyer appointed if you cannot afford to hire a lawyer
Right to be informed that anything you say may be used as evidence against you
Right to be informed of the charges against you
Right to be considered for release pending trial
Some Common Myths
Myth #1: Most People Accused of a Crime are Guilty
This myth is probably one of the most troubling ones of all--believed by the public and lawyer alike. In our opinion, lawyers who believe that they should never represent a client who has been accused of a crime, harm their clients by losing objectivity regarding the client's case. During and after arrest, please stay calm. An arrest is not a conviction. You are innocent until proven guilty.
In cases, for example, where there are allegedly witnesses to the offense, their testimony can be attacked and discredited by a skillful defense attorney. Prosecutors assume that since the State has witnesses listed in police reports, the State's case cannot be challenged in a court of law.
However, there are ways to challenge witness testimony if the defense attorney understands the witness' relationship to the alleged victim, where the witness was located during the alleged offense and whether or not the witness realistically had an opportunity to observe the incident complained of by the victim, and whether or not the "witness" came forward to provide information during the investigation of the case.
The bottom line is that these cases require detailed investigation.
Myth #2: It is Impossible to Win a Criminal Case
This myth is the biggest misconception regarding criminal offenses. Experienced criminal defense attorneys can "win" these cases when they conduct detailed investigations and present evidence in a logical manner during trial. There are two sides to every story, and the information presented by the Prosecutor is not always correct!
To be clear, when we say "win" a criminal case, we mean the Court finds our client "Not Guilty," or the prosecutor dismisses the charge(s), or the Prosecutor reduces the charge to a lesser charge or amends the charge to a different offense, or otherwise our obtaining a plea that avoids a conviction.
Myth #3: Anyone Can Defend a Criminal Charge
If a close friend needed a lawyer for a specialized field of law like IRS litigation, we would advise them to contact the local state bar and consult with a lawyer who has worked with the IRS. In this instance, you should seek the most skilled attorney who is focused in this field.
Wrongful Arrest
If the arresting officers did not conform to legal requirements, the arresting officers and the governmental authority with whom they are employed, may be responsible for compensating you for damages.
ABOUT THE AUTHOR: David B. Franks
David Franks is a highly effective Criminal, Driving Under the Influence (DUI) and Traffic Defense Attorney who has practiced criminal law since being admitted to the Illinois Bar in 1989. Mr. Franks has more than fifteen years of criminal prosecution and defense experience. Mr. Franks served as an Assistant State’s Attorney in both Cook County and McHenry County, Illinois. In McHenry County he served four years as a prosecutor in the Misdemeanor and Felony Divisions. He served as one of the first two designated Domestic Battery Prosecutors in McHenry County, as well as the Misdemeanor and Traffic Division Supervisor.
Copyright Franks & Rechenberg, PC
More information about Franks & Rechenberg, PC
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
Arrest
In an arrest, a police officer, state trooper, or sheriff restrains your freedom of movement because of your possible involvement in a criminal offense. The arresting officer may take you into custody, or you may be stopped, verbally or physically, for questioning about a crime.
A warrant for arrest is a written order signed by a judge directing the police to arrest the person named in the warrant. If a judge issues a warrant for your arrest, the police may arrest you in your home or in a public place. At the time of your arrest, the arresting officers should inform you they have a warrant and produce the warrant for your review.
Without your consent or extraordinary circumstances, the police cannot arrest you in your home without a warrant. The police can arrest you without a warrant if they have probable cause to believe that you committed an offense in their presence, or when an individual informs an officer that you have just allegedly committed an offense.
You can be arrested for committing a misdemeanor, which is a lesser crime. Some examples of misdemeanors are: disorderly conduct, driving under the influence of alcohol, driving without a valid driver's license, assault, battery, domestic battery, criminal damage to property, indecent exposure, theft, retail theft, resisting a police officer, stalking, and deceptive practice.
The police can also arrest you without a warrant if they have probable cause to believe that you have committed a felony, a more serious crime, in their presence, or when an individual informs an officer that you have just allegedly committed an offense. Some examples of felonies are: arson, burglary, forgery, kidnapping, armed robbery, murder, possession of stolen motor vehicle, sexual assault, trespass to residence, obstructing justice, possession or delivery of narcotics, home invasion and unlawful discharge of a firearm.
In addition, a citizen, such as a security guard or store owner, may detain you if you have committed, for example, the offense of retail theft, in their presence. In this instance, they must promptly turn you over to the police.
If you are arrested for a felony without a warrant, you are entitled to a prompt hearing (preliminary hearing) to determine whether or not the arresting officer had probable cause (the minimum level of required evidence) to arrest you. However, you may not have an opportunity for a preliminary hearing, where your attorney can cross-examine the arresting officer and challenge the State's evidence. The State is allowed to avoid a preliminary hearing by submitting evidence, in secret, to a grand jury which will return a bill of indictment against you.
Being Detained vs. Being Arrested
A police officer may detain a person, without arresting the person, if the officer has articulable suspicion that the person is engaging in criminal activity. For example, a police officer may request identification and conduct a limited search for weapons (for the officer's safety) if the officer observes a person pacing in front of a closed store late at night. This is called a "Terry Stop." Or, a store owner or employee might detain a person for a short time if they have a strong reason to believe that the person has stolen or was attempting to steal something from the store.
Resisting Arrest
An arresting officer may use reasonable force necessary to arrest you, but is not permitted to use excessive force or brutality. Even if you are innocent, you should not resist arrest. You risk being injured, and could be charged with the offense of resisting arrest. Even if you are later found not guilty of the charge(s), the arrest was not illegal if the arresting officer complied with the requirements of the law.
Search
Ordinarily, the police must have search warrant before conducting a search. However, after you have been arrested, the police may search your person and the immediate area around you without a warrant. This is known as a "search incident to arrest." The police may also search, if at the time of arrest, the arresting officer observes contraband. If the arresting officer finds items that are illegal to possess, such as a gun, drugs or drug paraphernalia, at the time of arrest, the arresting officer will retrieve the item(s) and charge you for unlawful possession of the item(s). The arresting officer may also take your wallet, identification, money and other personal items from you at the time of your arrest, for inventory purposes, and maintain the items in a secure place until your items can be returned to you, or used as evidence against you. It is important to verify that all of the items the officer removed from you are inventoried on a written list.
Obtaining Legal Representation
You are entitled to telephone a lawyer, friend or family member to notify them of your arrest. You have the right to consult with a lawyer and have him or her present when the police question you. You should remain silent until your lawyer is present, since any statements you make can be used as evidence against you.
If you cannot afford to hire an attorney, you are entitled to a court-appointed attorney. The Court may appoint a private attorney, a lawyer from a legal aid society, or a public defender. The police are required to advise you of these rights before questioning you. Ordinarily, the arresting officer provides these warnings during the confusion of the arrest. These rights are critical to your defense later on.
Even if you refused a lawyer at the time of arrest, you retain the right to have a lawyer present at any time after your arrest.
If a family member or friend, who has been arrested, calls, remind him or her that they have a right to an attorney, and that they are not required to respond to police questioning until an attorney is present.
When You Are in Custody
After you have been arrested, you will be taken into custody. For those arrested in McHenry County, you will be taken to the local police station, and later transported to the McHenry County Adult Correctional facility in Woodstock. Your arrest will be recorded in police records, and you will be fingerprinted and photographed. After you have been taken into custody and processed, you will need to obtain bail money in order to be released.
You may be asked to participate in a line-up. This is a procedure in which several people, including a suspect, are shown to victims and witnesses of a crime to determine whether or not they can identify the person who committed the offense. If the police ask you to participate in a line-up, you have a right to have an attorney present.
Several hours or days may pass before you appear before a judge who can consider releasing you. For example, those arrested for the offense of domestic battery are required to appear before a judge in "rights court," and may wait one to two days before appearing in Court. Also, those arrested for domestic battery must surrender any and all firearms in his or her possession, and refrain from returning to the domestic residence or having contact with the alleged victim for seventy-two (72) hours.
During this period, stay calm and do not discuss the circumstances of your arrest with anyone! Any statements you make, even if you think they are harmless, may be reported to the police and used as evidence against you.
If you are accused of a less serious crime, such as traffic violation, for example, the arresting officer may provide you a "Notice to Appear." Although you are not admitting guilt, you must appear in Court.
Release From Custody
After your arrest, you will be brought before a judge and provided an opportunity to be released while waiting for your first Court appearance. The judge will set your bail. Bail is money or other property deposited with the Court to ensure that you will appear in Court as required. In setting your bail, the judge will consider several factors: your criminal history, the seriousness of the alleged offense, your ties to the local community, your employment, and financial resources. You will be required to post bail, or you may be released on your own recognizance, in other words, your promise to appear in Court as required. The judge will also advise you of your first Court date, your date in court for arraignment.
Arraignment
After you have been released from custody, you will be required to appear in Court approximately two to four weeks later for your arraignment. During your arraignment, the judge will formally advise you of the charge(s) pending against you, as well as the possible penalties and sentencing alternatives you face. If you appear in Court without an attorney, the judge must allow you a reasonable amount of time to hire an attorney before proceeding with your case.
Your Arrest Rights
Right to remain silent
Right to have a lawyer present while being questioned
Right to have a lawyer appointed if you cannot afford to hire a lawyer
Right to be informed that anything you say may be used as evidence against you
Right to be informed of the charges against you
Right to be considered for release pending trial
Some Common Myths
Myth #1: Most People Accused of a Crime are Guilty
This myth is probably one of the most troubling ones of all--believed by the public and lawyer alike. In our opinion, lawyers who believe that they should never represent a client who has been accused of a crime, harm their clients by losing objectivity regarding the client's case. During and after arrest, please stay calm. An arrest is not a conviction. You are innocent until proven guilty.
In cases, for example, where there are allegedly witnesses to the offense, their testimony can be attacked and discredited by a skillful defense attorney. Prosecutors assume that since the State has witnesses listed in police reports, the State's case cannot be challenged in a court of law.
However, there are ways to challenge witness testimony if the defense attorney understands the witness' relationship to the alleged victim, where the witness was located during the alleged offense and whether or not the witness realistically had an opportunity to observe the incident complained of by the victim, and whether or not the "witness" came forward to provide information during the investigation of the case.
The bottom line is that these cases require detailed investigation.
Myth #2: It is Impossible to Win a Criminal Case
This myth is the biggest misconception regarding criminal offenses. Experienced criminal defense attorneys can "win" these cases when they conduct detailed investigations and present evidence in a logical manner during trial. There are two sides to every story, and the information presented by the Prosecutor is not always correct!
To be clear, when we say "win" a criminal case, we mean the Court finds our client "Not Guilty," or the prosecutor dismisses the charge(s), or the Prosecutor reduces the charge to a lesser charge or amends the charge to a different offense, or otherwise our obtaining a plea that avoids a conviction.
Myth #3: Anyone Can Defend a Criminal Charge
If a close friend needed a lawyer for a specialized field of law like IRS litigation, we would advise them to contact the local state bar and consult with a lawyer who has worked with the IRS. In this instance, you should seek the most skilled attorney who is focused in this field.
Wrongful Arrest
If the arresting officers did not conform to legal requirements, the arresting officers and the governmental authority with whom they are employed, may be responsible for compensating you for damages.
ABOUT THE AUTHOR: David B. Franks
David Franks is a highly effective Criminal, Driving Under the Influence (DUI) and Traffic Defense Attorney who has practiced criminal law since being admitted to the Illinois Bar in 1989. Mr. Franks has more than fifteen years of criminal prosecution and defense experience. Mr. Franks served as an Assistant State’s Attorney in both Cook County and McHenry County, Illinois. In McHenry County he served four years as a prosecutor in the Misdemeanor and Felony Divisions. He served as one of the first two designated Domestic Battery Prosecutors in McHenry County, as well as the Misdemeanor and Traffic Division Supervisor.
Copyright Franks & Rechenberg, PC
More information about Franks & Rechenberg, PC
View all articles published by Franks & Rechenberg, PC
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
