POTENTIAL CHANGES IN ILLINOIS CRIMINAL LAW – PRIOR DUIS ADMISSIBLE IN DUI TRIAL? HIGHER RETAIL THEFT FELONY VALUE THRESHOLD?

Politicians are like teenagers, if you don’t keep an eye on them, you won’t know what they’re up to until it’s too late. Sometimes they make sensible decisions, sometimes they get caught looking for sex in a public bathroom. Unlike teenagers, politicians can be voted out of the house. So it’s our duty as citizens to keep an eye on Springfield. But who’s got time for that?

We do. At Robert Callahan and Associates, we feel it’s our duty as criminal defense attorneys to not only know what the law is, but what it could be. No doubt, the proposed changes in criminal law being debated in Springfield are something all criminal defense lawyers and defendants need to follow. Just this last legislative session, which ended May 31st, over 150 proposed criminal law bills were considered by Illinois House and Senate.

Below is a list & description of bills that, if passed, will have an almost immediate impact on every courtroom in the state:

From the Illinois Senate:

• ADMISSION OF PRIOR DUI(S) IN DUI TRIAL: SB681 & SB3155

• If these bills pass, DUIs will join the ranks of sex offenses and domestic violence as the only criminal offenses in Illinois law where propensity evidence is explicitly allowed against a defendant at trial. What this means is the State can introduce a prior DUI in a current DUI trial to basically show you’ve done it once, so…. Or as the bills state, your prior DUI “may be considered for its bearing on any matter to which it is relevant.”

• • • Like domestic violence and sex offenses, the law would require a pretrial hearing where the Court conducts a “balancing test” to determine the prior DUI’s admissibility.
    • APPLIES ONLY IF DEFENDANT REFUSES BREATHALYZER: Evidence of a prior Illinois DUI would only be admissible at trial if a defendant refuses to submit to chemical testing.

• REFERRED FOR ASSIGNMENT

• FELONY RETAIL THEFT VALUE THRESHOLD = $2,000: SB3257

• • • Proposal: Retail theft- item value under $2000 = misdemeanor. Over $2,000= felony. Currently the threshold felony level is $300.
    • Would require felony retail thefts based on a prior conviction to be based on a prior felony theft conviction. Currently, a misdemeanor retail theft can be enhanced to a felony if the defendant has a prior theft conviction, whether this prior is a misdemeanor or felony.

• REFERRED FOR ASSIGNMENT

• PETITION TO GET OFF MURDERER & VIOLENT OFFENDER AGAINST YOUTH REGISTRY: SB3489

• • • People required to register under the Murderer and Violent Offender Against Youth Registry generally must do so for a 10 year or lifetime period. If this bill passed, a registrant would be able to petition for early release from registration.
    • To qualify for early release, the petitioner must:
      • demonstrate exemplary conduct within his or her community;
        • exemplary conduct = testimony, character witnesses, or other evidence to demonstrate rehabilitation & no felony convictions during the last 5 years of registration.
      • successful completion of the terms and conditions of his or her registration for 5 consecutive years on the registry;

• PASSED IN BOTH HOUSES

From the Illinois House of Representatives:  

• NO STATUTE OF LIMITATIONS FOR CERTAIN SEX OFFENSES: HB5112

• • • If passed, like murder, charges for criminal sexual assault, aggravated criminal sexual assault, or aggravated criminal sexual abuse could be “commenced at any time.”
    • As it stands, there is no statute of limitations for criminal sexual assault, aggravated criminal sexual assault, predatory sexual assault, felony criminal sexual abuse, and aggravated sexual abuse, where the victim is under 18. 720 ILCS 5/3-6(j)(1).
    • Currently, the statute of limitations for these offenses is within 10 years of the commission of the offense if the victim reported the offense within 3 years of its commission. That’s confusing, but the message in the new proposal is clear: Illinois does not like sex offenses. 720 ILCS 5/3-6(i).

• REFERRED TO RULES COMMITTEE

• STEALING FROM THE STOOP IS A FELONY: HB5125

• • • Creates a class 4 felony theft when a person takes a package off a porch or stoop delivered by the  USPC or other express delivery service.

• REFERRED TO RULES COMMITTEE

• AGGRAVATED BATTERY TO COP = NON-BAILABLE OFFENSE: HB5649

• • Would add Aggravated Battery to Peace Officer to the list of specific offenses where a defendant could be held without bail based on the specific type of charge.
  • Currently, these offenses are:
    • Offenses carrying a life sentence;
    • Non probationable offenses;
    • Stalking;
    • Unlawful Use of a Weapon-within 1000 ft of a school;
    • Terroristic Threat;

• • Defendants can also be held without bail where the Court conducts a hearing and determines their release would pose any threat to the physical safety of anyone.

• DEFENDANTS CAN PETITION FOR RESENTENCING: HB 4828

• • If passed, this bill would allow defendants to petition for resentencing under certain conditions:
    • 30 days have passed since the original sentencing; AND
    • The statutory penalty imposed “has been subsequently reduced or altered in a manner that includes, but is not limited to:
      • (A) reducing the minimum or maximum sentence for the offense;
      • (B) granting the court more discretion over the range of penalties available for the offense; or
      • (C) changing the penalties associated with the offense or conduct underlying the offense in any way.”
  • REFERRED TO RULES COMMITTEE

When bills are proposed, in either the Senate or House of Representatives, they go through a series of steps where they are assigned to specific committees before being voted on by legislature. Once the bill does pass its way through these committees and is passed by both houses, it is sent to the Governor. The Governor then has 60 days to sign it, do nothing, or veto the law. Only a veto will result in the law failing to take effect, unless the Governor proposes his own amendments.

If any of these bills eventually become law, their practical, everyday effects will be seen almost immediately. In the world of DUI criminal defense, the change would be monumental. Prosecutors would yet again add a powerful tool to their already ample arsenal. If passed, this law would put Illinois on the map as the only state in the country where such a law exists. On the other hand, felony thefts will raise their prices with the stroke of a pen and put us at similar felony retail theft thresholds as other midwestern states. This is much needed. Additionally, Defendants will have a statutory mechanism to challenge and change their sentence as society reduces the punishment for their crimes. From a defense standpoint, it’s a mixed bag.

Besides these bills, politicians have proposed bills on constitutional issues relating to stalking, the sex offender registration, and multi-dwelling units that could also impact the future of criminal defense law. Proposed changes to Illinois law are something criminal defense attorneys should watch closely. If these bills pass, the criminal defense lawyers will need to know right away how they will affect their clients. At Robert J Callahan & Associates, we’re ready. If you need expert, aggressive criminal defense representation, call 312 322 9000.