Collateral consequences to a criminal conviction

There are many collateral consequences involved when someone is charged with a criminal offense that many people do not give appropriate consideration to when handling their case. What is a collateral consequence? It is any consequence of the criminal charge outside the court consequences, which I will call direct consequences. An example of a direct consequence would be a person losing his driver’s license after being convicted of a DUI, or going to jail after being convicted of robbery or burglary. Examples of collateral consequences include a person being unable to get a job because he has to disclose his retail theft conviction on job applications, or a person being unable to enlist in the military because of his conviction for domestic battery.
While direct consequences are obviously important (nobody wants to go to jail after a criminal conviction), collateral consequences are also very important to consider in deciding how to handle your criminal or traffic case. They often get shortchanged by both criminal defendants and defense attorneys simply because they are often long term instead of short term. An experienced lawyer will however recognize when collateral consequences need to be accounted for in handling a criminal case.
Certain scenarios regularly appear that involve collateral consequences. If you are young, such as high school or college age, any criminal conviction may hurt your chances down the road in getting a job. Often times a young defendant charged with theft or battery may not realize how this will hurt him down the road, he just wants to stay out of jail today. Nevertheless, it should be considered and discussed with his attorney.
Another situation that arises often is a non-citizen defendant facing a criminal charge. A conviction, and sometimes even supervision, can get a person deported or their visa revoked. Another situation is the defendant who holds a commercial drivers license (CDL) and is convicted or receives supervision on a traffic offense such as DUI or speeding. In addition to the direct consequences of possibly losing his CDL, he may have trouble getting a job driving a truck because he may be uninsurable for the company.
My final example concerns a person who is in college or professional school. He or she may be expelled from school after a criminal conviction, or have trouble applying for a professional license in the future.

Do I qualify to get my record expunged?

There is a lot of misinformation out there concerning expungements in Illinois. I get many phone calls from people who assume they are eligible for expungement but they are not. Here, I will attempt to give a little more information about expungements. This is by no means a full explanation of expungements, just some common mistakes I get calls about.

The only cases that can be expunged from your record are as follows:
1. arrest that were dismissed by the State, cases where you were found not guilty;
2. misdemeanor cases where you successfully completed a period of supervision for SOME offenses;
3. felony drug possession cases where you successfully completed expugnable probation;
4. Cases that have been pardoned by the Governor of the State of Illinois.

Most of the cases that I see seem to be #2 and #3. First of all, you must successfully complete your period of supervision or expugnable probation to even qualify for expungement. This means that you must have done all your community service, SWAP, paid all fines or restitution and not picked up any new cases. Even then, there is a waiting period to get certain offenses expunged. If you received supervision for offenses such as retail theft, domestic battery or criminal sexual abuse, you must wait five years. If the offense is battery, assault, criminal damage to property or misdemeanor cannabis, the waiting period is 2 years. If the offense is a DUI, reckless driving or any sexual offense involving a minor under 18, you can NEVER expunge it.

This is by no means a comprehensive list; please consult an attorney if your offense has not been covered. But keep in mind, if you received a conviction or your supervision was terminated unsatisfactorily, the ONLY way to expunge the offense is from a pardon from the Governor. You may however be eligible to seal the offense from employers, but that record will be available to law enforcement for the rest of your life.

With today’s job market as bad as it is, whether or not the offense you are charged with is expungable is definitely a question you want to ask before pleading guilty. I will discuss Sealing in the next blog entry.

What can I expect when charged with domestic battery?

Having talked to many clients as a defense attorney handling domestic violence offenses and to many victims as a prosecutor, I have learned that there is a lot of misinformation out there concerning how the court system handles domestic violence cases. This blog hopefully will clear up some of those misconceptions.

When a defendant is charged with domestic battery, the first thing to remember is that the charge is being brought by the state, not the victim. This comes as a surprise to many people. If the police are called to the home and there is an allegation of domestic violence, they will arrest the accused. It does not matter that the victim did not want him or her arrested, but just called the police to get that person out of the house. It does not matter that the person who was arrested was the one who called the police. It is the State who prosecutes domestic battery criminal cases, not the victims.

The first court appearance will be a bond hearing in front of a judge. Many people are surprised to learn that they cannot post bond at the police station like all other misdemeanors. When a person is charged with domestic battery, he or she must be brought before a judge. That might be the next morning, or it might mean the day after that. At the bond hearing, the only issues to be determined are the bond to be set, whether an order of protection protecting the victim and possibly others is to issue, and any conditions of bond that the judge may order. This means that even if the victim is in court and wants to dismiss the case, the case will not be dismissed by the prosecutor. Bond will be set based upon the defendant’s criminal background, the seriousness of the action alleged, and any factors in mitigation that the defendant offers through his or her attorney. The judge will also order the defendant to surrender any guns he may have and to have no contact with the alleged victim for 48 hours, even if the victim wants to have contact with the defendant.

If the victim is in court and is afraid for her safety from the defendant, she may ask for an order of protection calling for the defendant to have no contact with the victim and/or any of the victim’s dependants. The victim may also ask for exclusive possession of the house, cars, custody of any minor children, and a restriction on visitation of minor children by the defendant. That is why having a competent defense attorney protecting your interest is so important. If a defendant just agrees to the order of protection just thinking he doesn’t want to have contact with the victim anyway, he may be signing away more rights than he realizes. The defendant may want to object to the order of protection at the bond hearing. The judge will then enter an interim order of protection for about a week. The defendant can then come back to court and have a hearing on the issues included in the order of protection.

After the bond hearing, the next hearing will generally be a status hearing. At this hearing, the complaining witness must come to court and the state will generally subpoena him or her. Should the complaining witness not come to court, the State MIGHT dismiss the case at this time. I say might because, again, it is the State’s case. They do not have to dismiss it. If they believe it is a serious allegation they may take another date to try to contact the victim. Or, if the defendant gave a written statement to the police admitting to the crime and they have other evidence such as other witnesses, physical evidence, or pictures of the injuries, they can still proceed with the case. Again, this is why it is so important to have a competent attorney representing you at all stages of a domestic battery case.

If the victim appears in court and wants to testify against the defendant, the case will either be set down for a trial or the defendant, through his attorney, will negotiate with the prosecutor to plead guilty in exchange for a lighter sentence.

I hope this short blog clears up some of the confusion surrounding arrests for domestic violence offenses and order of protections.

Timeline of a Criminal Case (Part 4)

The next stage in the progression of a criminal or traffic case is a bench or a jury trial. If the matter is set for a bench trial, a judge will hear all of the evidence introduced during the trial and make a finding of guilty or not guilty. In a jury trial, 12 people from the community are selected by the prosecutor and the defense attorney to hear all of the evidence at trial. At the close of the evidence, the jury will retire to the jury room, elect a foreperson, and deliberate on the defendant’s guilt or innocence. The jury must come to a unanimous decision, meaning all jurors must agree with the finding of guilty or not guilty. If the jurors are unable to make a unanimous decision, the judge will declare a mistrial and set the matter down for a retrial.
At trial, it is the prosecution’s burden to prove the defendant guilty beyond a reasonable doubt. The defendant has no burden to prove anything, including his innocence. He or she can sit there and not put on any evidence during the trial and rely on the prosecution’s inability to prove him or her guilty beyond a reasonable doubt.
The trial will begin with opening statements by the attorneys where they will summarize what they believe the evidence will show. The prosecution then will get a chance to present witness and any relevant physical evidence in an attempt to prove their case. Once the prosecution rests their case, the defense attorney will make a motion for a directed finding. This motion essentially asks the judge to throw out the case for lack of evidence. If the judge grants this motion, the case is dismissed. If the judge denies the motion, the defense then has an opportunity to present any witnesses or relevant physical evidence in their case. The defendant may or may not choose to testify in his own behalf. After the defense rests their case, the prosecution is given the opportunity to present evidence to rebut the defense’s case. After both sides rest their case, both sides will get an opportunity to present closing arguments to the judge or jury.
After closing arguments, if it is a bench trial the judge will make a ruling of guilty or not guilty on the case. If a jury trial, the jurors will be given written instructions on the law, which are prepared by the attorneys. They will then retire to begin their deliberations.
If the defendant is found not guilty after the trial, the case is over. If the defendant is found guilty, the case will either proceed immediately to a sentencing hearing, or the case will be continued for a sentencing hearing after a pretrial investigation is done.
The next and final blog concerning the timeline of a criminal case will be the sentencing hearing.

Timeline of a Criminal Case (Part 2)

The next court date for a criminal defendant charged with a misdemeanor offense is generally a status date for the defendant to have his defense attorney file an appearance and request any evidence in the case that the State will be using against the defendant. If the case is going to result in a plea of guilty it is possible for the whole case to be resolved on the first court date. However, in most cases there may be one or several more status dates until the case is eventually set down for a jury trial, bench trial, or a plea of guilty.

The next court date for a criminal defendant charged with a felony offense is usually the preliminary hearing. This hearing generally occurs within a few weeks from the bond hearing. If the defendant is still in custody because he or she could not post the bond set, the hearing must be held within 30 days of arrest, unless the defendant agrees to a continuance. If the defendant is on bond, the hearing must be held within 60 days of arrest, unless the defendant agrees to a continuance. At the preliminary hearing, the prosecution must prove to a judge that there is probable cause for the case to move forward. The Prosecution generally does this through eyewitness testimony or testimony from the investigating police officer. The defense attorney will have an opportunity to cross-examine all witnesses. If the judge finds no probable cause or if a hearing is not held within the proscribed time constraints, the case is dismissed. However, the prosecution can decide to bring the charge to a grand jury, and if the grand jury returns what is called a true bill, the case will be reinstated, and the defendant will be notified by the court that he must return to court.

The next blog, I will discuss the court appearance that follows the preliminary hearing – the arraignment.

Is Court Supervision Always the Right Move?

Often times criminal defendants and their attorneys think that court supervision is the best solution for a client and should always be taken if offered by the prosecution. In most cases, supervision is a very good disposition of the case. It does not involve any jail time. It is non-reporting, so you don’t have to report to a probation officer. Often times it is expungeable from a criminal defendant’s permanent record, so future employers will not have access to the plea.

However, it is still a guilty plea and can have severe direct and collateral consequences. For instance, in Illinois, if you receive supervision on a DUI, it is your one and only bite at the apple. If you ever get another DUI in the future, even if it is 50 years later, you are subject to a mandatory driver’s license revocation. So it is always preferable to beat the case at trial if possible, even if the State is dangling the carrot of court supervision before you.

Another consequence of court supervision is possible deportation. While the court and the prosecutor may not consider the charged offense a serious offense, federal immigration law may. So a person who is a legal resident or an illegal immigrant may face deportation even if they receive supervision on certain offenses. This can result in terrible situations for people. I have seen legal residents who have been in this country since they were children sent back to their country of origin because of guilty pleas!!

Also, while the state of Illinois may view court supervision as a slap on the wrist, the Federal government does not. When a person pleads guilty or is found guilty of a federal offense, the court uses the Federal Sentencing Guidelines as a guide to sentence the defendant. These guidelines take into account the defendant’s criminal history, and supervision counts! Thus, a defendant could end up with a longer sentence on a Federal drug charge because they decided to plead guilty in state court on what they considered a minor charge, such as simple battery or driving on a suspended license.

Another misconception out there is that all supervision cases are expunged. That is not the case. Certain offenses are ELIGIBLE for expungement, however the criminal defendant must actually petition the court for expungement. And there are many offenses that cannot be expunged, regardless of whether a defendant received supervision. Some examples are DUI, Domestic Battery and Reckless Driving.