Criminal Defense - Dreifuss Law

I’ve been charged with Non-consensual dissemination of private sexual images (a/k/a revenge porn) in Illinois. Now what?

Law Office of Dreifuss Law — Wed, 30 Nov 2016 03:45:00 GMT

First, do not cooperate with the police. Do not expect that you will be able to talk yourself out of this mess. The alleged victim is fuming and has already made a police report. At this point, your best bet is to politely decline answering any questions and request to speak with a lawyer. Call Dreifuss Law: 847-893-9399

Second, once you get home, do not contact the alleged victim. Do not send an apology email, text or voicemail. Do not try and make any settlement offer. Any contact you make with the complaining witness will be used against you in court and will almost certainly hurt the defense of your case.

Third, do not try to delete videos, pictures or messages from your phone. Most likely the police already have most of the evidence they will use against you. And if they want more, they will need a warrant. It is incredibly difficult–nearly impossible–to totally delete all data from a computer or smart phone. Do not even try. Police forensic technicians can recover all sorts of once-deleted material. Not only could this be construed as a separate criminal offense (obstruction of justice, destruction of evidence) but your act of deletion will be used as evidence of your “consciousness of guilt” at trial. In other words, as slick as you may think you are trying to be, you are probably doing more harm than good!

With a video camera on nearly every phone, the potential for these types of cases is enormous. Long are the days when a couple had to set up a camcorder with a tripod and find a blank VHS tape to document their sensual, private evening. As a result of the smartphone boom, couples’ sex tapes are being produced in record numbers.

When a relationship sours, that is when these private, intimate videos of people at their most vulnerable can be used to hurt the ex. And that is how the term “Revenge Porn” was created. (This crime is not limited to videos and also includes photos.)

As of June 1, 2015, Illinois Criminal Code created the new offense of Non-consensual Dissemination of Private Sexual Images. 720 ILCS 5/11-23.5.

A person commits non-consensual dissemination of private sexual images when he or she:

(1) intentionally disseminates an image of another person:

(A) who is at least 18 years of age; and

(B) who is identifiable from the image itself or information displayed in connection with the image; and

(C) who is engaged in a sexual act or whose intimate parts are exposed, in whole or in part; and

(2) obtains the image under circumstances in which a reasonable person would know or understand that the image was to remain private; and

(3) knows or should have known that the person in the image has not consented to the dissemination.

The definition of “sexual activity” is extremely broad and covers a wide range of potential activities:

“Sexual activity” means any:

(1) knowing touching or fondling by the victim or another person or animal, either directly or through clothing, of the sex organs, anus, or breast of the victim or another person or animal for the purpose of sexual gratification or arousal; or

(2) any transfer or transmission of semen upon any part of the clothed or unclothed body of the victim, for the purpose of sexual gratification or arousal of the victim or another; or

(3) an act of urination within a sexual context;

or

(4) any bondage, fetter, or sadism masochism; or

(5) sadomasochism abuse in any sexual context.

Revenge porn is a Class 4 felony in Illinois.

If you have been charged with Non-consensual Dissemination of Private Sexual Images, contact us now to begin preparing your defense.

Dreifuss, P.C. is a full-service criminal defense law firm available to handle all of your defense needs from Chicago to Waukegan and Nationwide. We are available to represent you or a loved one charged with the most serious crimes in state and federal courts. Please contact us at 847-893-9399 to schedule a free, in-office consultation.

This post does not create an attorney-client relationship and is not intended to provide legal advice. This post is for informational purposes only. We welcome your calls, e-mails, or letters, but please do not send any confidential or time-sensitive information until an attorney-client relationship is established. Each case is unique, and past performance does not guarantee future results.

Sex Crimes and Sex Offender Registration

Law Office of Dreifuss Law — Thu, 17 Nov 2016 10:09:00 GMT

Sex crimes are among the most serious and stigmatized criminal acts in our society. And some of the most serious of those are the Major Sex Crimes (e.g., Criminal Sexual Assault, Aggravated Criminal Sexual Assault, Predatory Criminal Sexual Assault of a Child, Criminal Sexual Abuse and Aggravated Criminal Sexual Abuse). These Major Sex Crimes involve some sort of touching, groping or penetration. But there are other sex crimes too.

Sexual Exploitation of a Child (720 ILCS 5/11-9.1), for example, is a Class A misdemeanor. And, as noted below, that offense does not require any physical contact. In fact, the statute specifically lists “virtual presence” as a possible scenario underlying this crime (e.g., Skype, Google Hangouts, FaceTime).

(a) A person commits sexual exploitation of a child if in the presence or virtual presence, or both, of a child and with knowledge that a child or one whom he or she believes to be a child would view his or her acts, that person:

(1) engages in a sexual act; or

(2) exposes his or her sex organs, anus or breast for the purpose of sexual arousal or gratification of such person or the child or one whom he or she believes to be a child.

(a-5) A person commits sexual exploitation of a child who knowingly entices, coerces, or persuades a child to remove the child’s clothing for the purpose of sexual arousal or gratification of the person or the child, or both.

And while Sexual Exploitation of a Child is a misdemeanor (meaning it is only punishable by 364 days in jail versus felonies punishable by 1 year or more in prison), it is still a very serious offense with significant consequences. The most important consequence to many of our clients is the Sex Offender Registration requirement.

Sexual Exploitation of a Child is “sex offense” as defined by the Illinois Sex Offender Registration Act. That means that a conviction for Sexual Exploitation of a Child will require registration as a sex offender for 10 years. That registration consequence elevates a Sexual Exploitation charge above your typical misdemeanor. And that also means that defending against these charges requires some proactive and creative thinking by defense counsel.

If a plea bargain is the client’s only choice, there may be two good options. First, try to get the charge amended to something that does not require sex offender registration. Public Indecency (720 ILCS 5/11-30), for example, is also a Class A misdemeanor and often covers the circumstances underlying a Sexual Exploitation of a Child charge. And a conviction for Public Indecency does not automatically require sex offender registration–only if it is a third or subsequent conviction. If the prosecution is unwilling to amend the charge, the second option is to aim for Supervision. In Illinois, the disposition of Supervision is not a conviction. Therefore, receiving Supervision on a charge of Sexual Exploitation of a Child would not trigger the sex offender registration requirements.

All of these cases are highly fact specific and dependent on the person’s criminal background. But experienced criminal defense attorneys, like us, can help you navigate these waters.

If you have been charged with Sexual Exploitation of a Child or a different sex crime, contact us now to begin preparing your defense.

I was charged with felony Burglary for that!?!

Law Office of Dreifuss Law — Mon, 12 Sep 2016 10:15:00 GMT

Traditionally, Burglary was defined as: the breaking and entering of a dwelling house of another, at night, with the intent to commit a felony therein. Translated, this means: breaking in to some else’s home, at night, with the intent to commit some other felony while inside. And that traditional definition is consistent with what most envision, when they think of Burglary: a sneaky cat-burglar stealing jewelry from an unsuspecting woman’s dresser while the residents sleep–straight out of a Hitchcock movie.

But Burglary has long been defined by statute (created by our state lawmakers) to encompass much more that the traditional, judge-made conception of Burglary. In Illinois, burglary is defined as:

A person commits burglary when without authority he or she knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle, railroad car, or any part thereof, with intent to commit therein a felony or theft.

720 ILCS 5/19-1

This means that reaching in to a car and swiping a GPS, cellphone, or sunglasses is burglary. And prosecutors can even amp up a simple retail theft (720 ILCS 5/16-25, Class A Misdemeanor) to Burglary if they are so inclined (e.g., walking into a store intending to steal something). Swipe some lipstick from Walgreens and you could face a Burglary charge.

Burglary is a Class 2 Felony punishable by up to 3 to 7 years in prison. Therefore, a tiny theft case can be charged as burglary to apply extreme pressure to defendants to work out a plea deal. This type of over-charging is nothing new to criminal defense attorneys. Such use of prosecutorial discretion can force somewhat weak prosecutions to plea out because the risk of a trial and felony conviction is too big. (Note: We never recommend plea bargains until the full extent of the State’s case is explored, tested, and dissected.)

If you have been charged with Burglary or a similar crime, contact us now to begin preparing your defense.

Should I submit to a Breathalyzer test? Or more commonly: Should I blow?

Law Office of Dreifuss Law — Mon, 01 Aug 2016 10:47:00 GMT

No. (OK – that’s my answer. Thanks for visiting…If I stop there, I’d win some sort of an award for the world’s shortest blog post. But I am a lawyer–full of hot air–so you know there is a longer answer!)

When clients come to the office for a consultation, they have already been charged with Driving Under the Influence (DUI) and have already made the decision regarding providing a breath sample. But, this question is a perennial favorite among friends and acquaintances.

The more complete answer to the question “Should I blow?” is: “No. Unless you are 100% sure that you are stone cold sober and will blow zeroes.” If you have consumed ANY amount of alcohol that may be detected, I always tell clients: do not blow.

And the reason is simple: submitting to a Breathalyzer test will only make the case against you that much stronger. It is just one more piece of evidence that the prosecutor will use to justify the police’s arrest of you and the breath sample will be the principle evidence against you at trial.

IMPORTANT NOTE: There are actually two potential breath tests involved in a DUI. The first breath test is the Preliminary Breath Test (PBT). This is typically give at the roadside and is used to help the police determine if they have probable cause to make an arrest for DUI. The PBT results are not admissible at trial to prove blood alcohol content (BAC) and cannot be used to prove guilt of DUI at trial. The PBT results may only be used to help establish probable cause.

The second breath test is the one done at the station (the evidentiary test). And those test results are admissible as evidence against you at trial. In fact, when it comes to alcohol-induced DUI’s as opposed to drug-induced (other than cannabis), if you blow 0.08 or over, you can be convicted of DUI even with no evidence of impaired driving! Therefore, no matter how well you may do on the field sobriety tests, providing a breath sample at the station can sink you.

Please take note that this blog post is limited to the criminal prosecution for DUI only. I tell clients, if you want to put yourself in the best position possible for a “Not Guilty,” do not blow and do not agree to perform the field sobriety tests. (Easier said than done.) Proving intoxication and impairment beyond a reasonable doubt will be a significant obstacle for the prosecution without such evidence.

But whether you decide to provide a breath sample will also have implications related to the Illinois Statutory Summary Suspension (SSS) of your license. SSS is an administrative suspension of your driving privileges by the Secretary of State. For a first-time DUI, if you provide a breath sample, the length of the SSS is six months and if your refuse to blow, the length of the SSS is 12 months. (There are different suspension periods for: non-first-time offenders, CDL drivers, school bus drivers, and drivers under 21. For questions about these situations, please call our office.)

The moral of the story is: don’t help the police build the case against you. Every statement you make, every field sobriety test you perform, and every breath sample you provide are all evidence the State will use against you.

Pot-smoking Pantera fans? A cannabis DUI case study.

Law Office of Dreifuss Law — Thu, 02 Jun 2016 10:52:00 GMT

This firm’s client was headed home from a Pantera concert in Chicago with his four friends when he was pulled over by the Illinois State Police on I-94 for speeding. When the officer approached the driver (our client), the officer detected a “strong odor of cannabis” coming from the vehicle.

When the officer asked our client why the car smelled like cannabis, our client told the officer that people had been smoking pot around him at the concert but that he had not smoked. And that was our client’s consistent answer to that question which was repeatedly put to him. The four passengers said the same exact thing: everyone denied smoking cannabis and advised the officer that the strong scent was due to other pot-loving Pantera fans. (The officer asked our client and his passengers 26 times whether they smoked pot that night, and each time everyone gave the same denial.)

The officer then ordered all of the occupants out of the car, placing our client in the back of his squad and the four friends sat against the median. The officer searched all five occupants but failed to unearth any contraband on them.

Increasingly frustrated that he didn’t catch our client red-handed with cannabis or drug paraphernalia, the officer then searched the vehicle with our client’s consent. The officer tore the car apart looking in every nook and cranny for the weed but found nothing. The officer was now pissed because he was certain he stumbled upon a career-enhancing drug bust. Hitting a dead end, the officer turned his attention to a potential DUI.

The officer administered Standardized Field Sobriety tests (and a couple non-standardized tests), and, surprise-suprise, the officer said our client failed those tests. Our client was then arrested for Driving Under the Influence (DUI) in violation of 625 ILCS 5/11-501(a)(6).

After being retained, we subpoenaed records and training materials from the Illinois State Police, filed a Petition to Rescind the Statutory Summary Suspension and filed a Motion to Suppress. We argued that the officer lacked probable cause to arrest our client for a DUI for six reasons:

The officer had no evidence that our client had ingested cannabis that evening;
The officer was repeatedly given consistent denials from our client and his four passengers. All of them advised that people were smoking pot around them. (We argued that this was no different that a designated driver getting a beer spilled on him at a rowdy Blackhawks game.)
The officer’s search failed to uncover any cannabis or drug paraphernalia;
The officer did not have adequate training to make a probable cause determination for a cannabis DUI;
The officer’s administration of the SFTs departed from the applicable standard protocols; and
The officer’s administration of non-Standardized Field Sobriety tests (finger-to-nose and “modified Romberg test”) cannot form the basis for the officer’s probable cause.

We ran the hearing on our Motion and the Petition to Rescind, and we won. The judge determined that the officer lacked probable cause for his arrest. Our Motion to Suppress was granted, as was our Petition to Rescind the Statutory Summary Suspension. And the State dismissed the DUI. But the judge’s rationale was not directly related to one of our 6 arguments.

Instead, the judge held that the officer unreasonably prolonged the stop and therefore violated our client’s Fourth Amendment’s right to be free from unreasonable searches and seizures. Most important to the judge was the fact that the questioning of all five occupants, the search of each, and the search of the vehicle took approximately 45 minutes. In other words, it took almost an hour for the police to turn its attention to a possible DUI, and, once the searches failed to turn up any contraband, the police lacked authority to continue its detention of our client.

Last year, the U.S. Supreme Court held:

[A] police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure is justified only by a police-observed traffic violation, therefore, ‘become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing the ticket. (quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005)).

Rodriguez v. U.S., 135 S.Ct. 1609, 1612 (decided April 21, 2015). Further, “[a]uthority for the seizure ends when the tasks tied to the traffic infraction are–or reasonably should have been–completed.” Id. at 1614 (emphasis added). Despite not raising that exact issue in our briefing, that was the issue that convinced the judge to side with our client.

To our client, the judge’s reasoning is almost irrelevant–we beat the DUI! To the criminal defense practitioner the takeaway is more nuanced. This case reinforced the following lessons: (1) “You miss 100% of the shots you don’t take.” ~Wayne Gretzky. If we didn’t run the Motion to begin with, our odds of success were nil. (2) Throw lots of different theories in your Motions to Suppress because you never know what will compel your particular judge. (3) Even Pantera fans like to smoke up.

Have you been charged with resisting arrest? Was the underlying arrest even legal?

Law Office of Dreifuss Law — Thu, 19 May 2016 10:59:00 GMT

The general assumption is that one cannot resist even an unlawful arrest. And that is based upon a reading of 720 ILCS 5/7-7 which states that “a person is not authorized to use force to resist an arrest.” And that applies to an arrest which is unlawful.

That would seem to conclusively resolve any uncertainty. But a recent case this firm handled proves otherwise. We beat a resisting arrest case because the police violated our client’s Fourth Amendment rights.

The police were dispatched to our client’s home in response to an alleged domestic violence incident. When the police arrived, our client’s nephew (the alleged victim) was outside of the home, separated from our client. The police approached our client’s home and asked him to come outside so that they could arrest him for Domestic Battery (720 ILCS 5/12-3.2).

Our client is savvy and advised the police that he would not submit to arrest without an arrest warrant. He remained inside his home and repeatedly told the police that he did not consent to their entry in to his home and that he did not consent to a warrantless arrest. With no consent and no exigent circumstances justifying a warrantless arrest, the police were stuck. And every time our client reminded them of this, the police became increasingly frustrated.

That is when the police, reliving the Wild West days, reached in to our client’s house, tried to pull him out of his home, and then barged in, tackling him to the ground. As the police were effectuating their illegal arrest, they alleged that our client pulled his arms away as they cuffed him. That (pulling his arms away) was the basis for the resisting arrest charge.

In Illinois, 720 ILCS 5/31-1 (Resisting or obstructing a peace officer, firefighter, or correctional institution employee) provides:

(a) A person who knowingly resists or obstructs the performance by one known to the person to be a peace officer, firefighter, or correctional institution employee of any authorized act within his or her official capacity commits a Class A misdemeanor.

The key phrase here is that the resisting or obstruction must relate to an “authorized act.” And a recent Illinois Appellate Court examined this issue. People v. Jones, 35 N.E.3d 970 (2d Dist. 2015).

The facts of the Jones case are strikingly similar to the facts of our client’s case. There, the police violated Mr. Jones’s Fourth Amendment rights when they made a warrantless entry into Mr. Jones’s home in response to an alleged domestic battery case. During the course of his arrest, Jones also pulled away from the police and was charged with resisting.

The Appellate Court determined that the police’s warrantless entry in to Mr. Jones home was an “unauthorized act that defendant could obstruct.” Relying on Jones, we filed a Motion to Quash Arrest and Suppress Evidence Illegally seized arguing that because the arrest of our client was illegal and that could not be a basis for a resisting arrest charge.

Upon reviewing our motion, the prosecutor decided to drop all charges against our client instead of moving forward with an uncomfortable and embarrassing hearing for the State’s police officer.

A final and important note. Dreifuss, P.C. does not encourage anyone to resist arrest. We strongly recommend that you deal with police in a calm, respectful manner. Keep your mouth shut. Don’t consent to searches. Don’t provide a statement and call us ASAP. Depending on the specifics of each case, it is likely that a prosecutor could charge Aggravated Battery of a Peace Officer (720 ILCS 5/12-3.05(a)(3)). (The Jones case involved that charge, and the Appellate Court sustained Mr. Jones’s conviction on that charge because he repeatedly kicked the arresting officer.) It is a best practice not to tussle with the police, but, if you are so charged, call us because we have the experience and skill to provide the strongest defense.