Kane County Announces Second Chance Felony Drug Program

Yesterday, the Kane County State's Attorneys Office has announced the creation of a Second Chance Felony Drug Program for Kane County cases.  The Kane County State's Attorneys Office already has Diversion Programs for domestic battery cases and for misdemeanor drug cases.  I have had clients placed into these programs.  Like the domestic battery and misdemeanor drug programs the Second Chance Felony Drug Program will give participants a chance to avoid a criminal record.  It will be open to people arrested for small amounts of drugs who do not have any criminal record and meet all the other requirements of the program. People who enter the program will be required to go through a year long drug education program and undergo random drug testing.  Those who successfully complete the program will have the charges against them dismissed and will be allowed to expunge their record.  The entire cost of the program will be paid for by the fines, fees and costs that are collected from the program participants who will be required to pay about $2,100 to go through the program.

For more information about the Chicago criminal defense attorneys at Legal Defenders, P.C., visit us at www.legaldefenderspc.com or call us anytime at 1-800-228-7295.

TASC and Drug Probation - A Primer

As a continuing service to our readers, we are presenting another article in our "Primer" series.  To see our previous "Primer"article about 410 or 1410 Probation, click here.

Drug and TASC probation is a special kind of probation because the law allows the defendant to avoid a criminal conviction and eventually expunge their arrest record.

Under “regular” probation, a felony conviction stays on the defendant’s record forever unless the Governor issues a pardon – not very common. Understanding the differences between drug, TASC and regular probation is important because it can mean the difference between having a clean record or being permanently labeled a convicted felon.

A further distinction is also necessary between drug probation and TASC probation. For drug probation, the Defendant is charged with possessing illegal drugs. For TASC probation, the charge does not have to be drug related, but rather, the Defendant elects to be treated as a person with a drug problem.  For example, if the Defendant is charged with Residential Burglary, they would not be eligible for drug probation or regular probation, but may be eligible for TASC probation.

TASC (Treatment Alternatives for Safe Communities), is actually run by a not-for-profit organization with offices in every county in Illinois.  In 2010, it provided services to 19,462 clients.  In large part, TASC provides services to defendants that have substance abuse and/or mental health problems.  TASC does not offer treatment directly, but rather coordinates the treatment program for the Defendant.  TASC also provides services not related to cases involving drugs such as the Domestic Violence Diversion program.  For more information on TASC see:  www.tasc.org

Under the Illinois Alcoholism and Other Drug Dependency Act (20 ILCS 301/40), a Defendant can request from the Court that they be treated as someone with a drug problem and referred to TASC for an evaluation.  However, the Court may find the Defendant is not eligible for TASC if there are:  1) charges pending alleging a violent crime; 2) the defendant has two or more prior convictions for violent crimes;  3) the offense charged is a crime of violence;  4) the defendant elected and was admitted to a treatment program on two prior occasions within any consecutive two-year period under Article 40;  5) the offense charged is in violation of Section 401 (a), (b), or (c);  5) The offense charged is related to methamphetamines; and  6) the offense charged falls under any other exclusion (DUI offenses, Residential  Burglaries with one or more prior felony convictions, other pending felony offenses, etc.). 

Even if the Court finds the Defendant eligible for TASC under 20 ILCS 301/40, acceptance into TASC is not automatic.  TASC has to accept the defendant.  Generally, TASC will accept a Defendant if they determine that a rehabilitation program will help and so long as the charge is not for a violent crime, involves a weapon, or possession of methamphetamines.   Once the Defendant is accepted into TASC, a tailored program is put in place to assist the Defendant with his substance abuse rehabilitation. The program and probation is for 24 months.  Upon completion, the judgment of conviction is vacated by the Court with the result being that case is concluded without a conviction. The arrest record can also be expunged from the public record 5 years after completion of the 24 months of probation.

Some Defendants run into problems while on “TASC probation” because they do not follow the program or fail one of the many drug tests. In those circumstances, the prosecutor usually files a Violation of Probation and asks the Court to sentence the Defendant to jail time.  Most judges are aware that recovery is not easy and will give the Defendant some lee way. However, a Defendant who shows little regard for the terms of their probation will get little or no sympathy from the Court

Turning our attention to drug probation, it is available under three circumstances under Illinois law:

     (a) Marijuana Possession.  Under the Cannabis Control Act (720 ILCS 550/10), a person who is charged for Possessing Marijuana is eligible for drug probation so long as there was no Manufacturing and/or Trafficking involved.  This probation is sometimes referred to as “710” probation in reference to the law before it was revised. 

   (b) Other Drug Possession.  Under the Illinois Substance Control Act, (720 ILCS 570/410), a person who is charged for possessing your most common street drugs or possessing an unauthorized prescription form,  is eligible for drug probation.  This probation is sometimes referred to as “1410” probation in reference to the law before it was revised.                                 

     (c) Methamphetamine Possession.  Under the Methamphetamine Control Act (720 ILCS 646/70), a person is charged with possessing less than 15 grams of methamphetamine, is also eligible for drug probation.  This probation is often referred to as “Section 70” probation.

The term of drug probation is for 24 months. During that period, the defendant is required to a) submit to a minimum of 3 drug tests during the term of probation, b) perform 30 hours of community service and 3) not possess a firearm.  Further, you must pay mandatory fines and costs which are approximately $1,200,00.  The Court can further add additional terms to the probation depending on the circumstances.

Unlike TASC probation, in drug probation a judgment is not entered against the defendant.  When the defendant completes his drug probation, the case is simply dismissed. Under TASC probation, a judgment is entered against the Defendant when they enter TASC and the judgment is later vacated by the Court upon successful completion of probation.  As noted, under TASC probation, TASC designs a tailored program for the defendant and they must comply with the recommendations of TASC to successfully complete probation.

The State legislature has take notice that drug addiction is a disease and has carved out these limited exceptions to regular probation to give addicts an opportunity to get better and avoid criminal convictions.  With the thousands of inmates currently in jail for drug related crimes, one would think that these programs need to be expanded and the law amended to reflect the enormity of the problem of drugs in our communities. 

For more information about the Chicago criminal defense attorneys at Legal Defenders, P.C., visit us at www.thelegaldefenders.com or call us anytime at 1-800-228-7295.

2011 New Illinois Speeding Law

A new speeding law went into effect the beginning of this year which could drastically change the way traffic tickets have been handled throughout the State of Illinois for many years.  Speeding 30 mph over the limit is no longer simply a traffic offense.  It is now a Class B Misdemeanor which carries a maximum penalty of up to six months in the county jail and a maximum fine of $1,500.  Speeding 40 mph over the limit has always been a Class A Misdemeanor which carries a maximum penalty of up to one year in the county jail and a maximum fine of $2,500.  What has been changed about speeding 40 mph over the limit is that drivers can no longer receive court supervision if they are convicted of this offense.  Court supervision is a sentence that allows drivers to keep their criminal record clean and eventually expunge the entire matter from the public record.  The only sentence available for driver's convicted of speeding 40 mph over the limit is conditional discharge or a misdemeanor conviction.  But a skilled attorney may be able to avoid this harsh penalty by negotiating a plea with the prosecutor that would involve the state reducing the charge to speeding under 40 mph over the limit.

For more information about the Chicago criminal defense attorneys at Legal Defenders, P.C., visit us at www.thelegaldefenders.com or call us anytime at 1-800-228-7295.

1410 or 410 Probation - A Primer

As a continuing service to our readers, we are presenting our first  article in our "Primer" series

I frequently get calls from clients inquiring about different options for avoiding a felony conviction for a drug case.  An often misunderstood type of first time felony drug offender probation that allows defendants to avoid having a felony conviction is commonly known as 1410 or 410 Probation.  Here's how it works.  When you are sentenced to 1410 or 410 Probation, you plead guilty to the drug offense at the time of sentencing.  A Motion to Vacate your plea is entered and continued until the termination date.  Once you successfully complete your probation, your conviction is vacated, as if it never happened.  So, when someone runs your criminal record, it doesn't show a conviction.  However, a record of your arrest, and the court files and records will remain.  A background search will turn up those records and an employer may not hire you once they find out that you were once charged with a felony drug case.  The only way to remove the court records and the arrest record is to expunge or seal your records.  You can expunge the case 5 years after you complete your 1410 or 410 Probation.  The law does allow you to seal your case 4 years after completion of your 1410 or 410 probation.  However, expungement is much more thorough then sealing and sealing takes much longer than expungement so you are better off waiting for the expungement.  1410 or 410 Probation is a great alternative for first time drug offenders which allows them to avoid having a felony drug conviction on their record which will follow them around the rest of their lives.  Of course, in order to expunge or seal you must not catch any other cases after you completed your 1410 or 410 probation.

On a side note, 1410 or 410 probation may not preclude an alien from being deported by Immigration.  There is at least one case from this jurisdiction, Gill v. Ashcroft, 2003, which held that a sentence of 1410 or 410 probation is considered a conviction under immigration law.  Other jurisdictions have held differently and this issue may very well make its way to the United States Supreme Court.  But the point is that practitioners need to be aware of the potential immigration consequences of a sentence of 1410 or 410 probation.

For more information about the Chicago criminal defense attorneys at Legal Defenders, P.C., visit us at www.thelegaldefenders.com or call us anytime at 1-800-228-7295.

Kane County Debuts Domestic Violence Diversion Program

Kane County has announced that they have established the first domestic violence treatment program in the state which makes it possible for defendants to avoid the harsh consequences of a conviction for a domestic battery.  The program is called the Domestic Violence Diversion Program.  To get into the program, the Kane County State's Attorney's Office will screen first time offenders, require that the offender pled guilty, and if they finish a prescribed course of treatment over a year, the charges will be eventually dismissed.  This will allow people to expunge the case and the arrest from their records, as if it never happened.  The program has a $450 fee plus a $200 donation to a domestic violence shelter.  About 1,600 people a year are charged with domestic battery in Kane County.  Officials estimate that roughly 150 to 180 people a year would be eligible to enter this program.  The program is designed for first time offenders and not for long time abusers.  

We will keep an eye on how this program performs with the hopes that other counties will copy this and try similar approaches to dealing with Domestic Battery cases.

For more information about the Chicago criminal defense attorneys at Legal Defenders, P.C., visit us at www.thelegaldefenders.com or call us anytime at 1-8--228-7295.

Quinn Working On Parson Backlog

On Good Friday, Illinois Governor Pat Quinn granted 147 pardons.  None of the people pardoned are currently serving time in prison.  Most of the convictions were in the 1980's and 1990's and most were for probation.  In addition to the pardons he granted, he denied 258 pardon petitions.  He also authorized two people had had already received pardons to expunge their records of their convictions.  Governor Quinn took office in January of 2009.  Since he took office he has acted on 769 pardon petitions.  He has granted a total of 321 pardons, denied 440 petitions and authorized 8 people who have previously received pardons to expunge their records.  The previous governor, Rod Blagojevich, was notorious for taking no action on pardon petitions.  This inaction lead to a major backlog of petitions.  People are not allowed to reapply for a pardon until action is taken on their pending petitions.  The lack of action by the previous governor had left many people in limbo unable to do anything about their pardons.

For more information about the Chicago criminal defense attorneys at Legal Defenders P.C., visit us at www.thelegaldefenders.com or call us anytime at 1-800-228-7295.

Supreme Court Rules Cell Phone Can't Turn Misdemeanor to Felony

The Supreme Court ruled that the government's interpretation of a statute to convert a misdemeanor to a felony was overly broad. The defendant had used a cell phone to set up the purchase of a misdemeanor amount of cocaine. The government argued that the defendant should be charged with a felony because they used a "communication facility" set up a drug transaction. A literal reading of 21 USC 843(b) made this into a felony. The Supreme Court rejected the governments interpretation of the statute because it was clearly not in line with Congress' intent when enacting the statute. The governments reading of the statute also conflicts with the classification of the drug itself as a misdemeanor. The majority opinion went on to point out the absurdity of the government's interpretation of the statute since it would expose the first time drug buyer using a phone "to punishment 12 times more severe than a purchase by a recidivist offender and 8 times more severe than the unauthorized possession of a drug by rapists."

The case is Abuelhawa v. U.S.

For more information about the Chicago criminal defense attorneys at Legal Defenders, P.C., visit us at www.thelegaldefenders.com or call us anytime at 1-800-228-7295.

Expungement Orders Ignored By State Police

The Illinois State Police have been ignoring Court Orders directing them to expunge criminal records. This practice seems to be limited to court orders coming out of the Markham Courthouse in Cook County. These court orders have been complied with by the Clerk of the Circuit Court and the arresting police agencies, but not the Illinois State Police. Approximately 281 expungement orders issued by the Chief Judge at Markham have not been complied with by the Illinois State Police. Once the expungement order is entered, the defendant, or their attorney, forwards the Order to the Illinois State Police. In 281 of those cases, the Illinois State Police has mailed a letter back to the defendant, or their attorney, informing them that their case could not be expunged. At least one Petition has been filed in Markham seeking to hold the Illinois State Police in contempt of court for failing to comply with a court order. In response, the Illinois State Police agreed to comply with 137 expungement orders but refused to comply with another 144. The petition to hold the Illinois State Police in contempt of court has since been voluntarily dismissed while the defendant in the case and the Illinois State Police try to negotiate a settlement of this issue.

Once again, this practice of ignoring expungement orders appears to be limited to expungement orders coming out of the Markham courthouse.

For more information about the Chicago criminal defense lawyers at Legal Defenders, P.C., visit us at www.thelegaldefenders.com or call us anytime at 1-800-228-7295.