In Illinois, an Expungement is the removal from police and court files records of arrests and charging information. These records, even if exonerated, can still keep one from being judged unfairly by prospective employers, dates, voters, and others. After an expungment , the records are sent to you for your disposal, display on your refrigerator , posting on you Myspace page, or perhaps the turnover to your spouse for their “permanent record” on you. An expungement of an arrest record or court file is available for only those persons who have not been convicted of a criminal offense or ordinance violation.
Therefore, assuming you have never been previously convicted of a crime or ordinance violation:
*If you were arrested, but never charged, the arrest record can be expunged.
*If you were arrested or charged, but the case was dismissed, the arrest or case can be expunged,
*If you were charged with a crime, went to trial and were acquitted, the arrest and case can be expunged.
*If you were sentenced to and successfully completed court supervision, your case and arrest can be expunged. Some types of charges require waiting five years after successful completion of court supervision, such as retail theft. Generally, most cases require waiting 2 years after the expiration of court supervision before an expungment can be granted.
You cannot get an expungment if you were convicted, or received a sentence of probation, or conditional discharge. You can get an expungment following dismissal of a case following successful competition of special types of probation, such as TASC probation or first offender probation for certain drug offenses.
If you cannot obtain an expungement, you may want to explore “sealing of records” or a pardon by the governor or president, in which case being friends with the executive branch of government or making a large contribution to a political campaign is highly advisable.
For more information, because this stuff is complicated, please call Joe Borsberry at (309) 637-9000.
Also, for the record, it is expungement.
Wednesday, September 17, 2008
Tuesday, September 9, 2008
FAQ ILLINOIS DIVORCE
This following information is intended to provide general answers to commonly asked questions regarding divorce in the State of Illinois. The information provided should not be construed as legal advice and nothing herein should be construed as creating an attorney client relationship. It is highly advised that you meet with an experienced criminal law practitioner AS SOON AS POSSIBLE before making any decision that may affect your rights.
“CAN I REPRESENT MYSELF?”
Yes, but life is complicated. If you end up in divorce court and represent yourself, you are expected to know and follow all of the local rules, Supreme Court Rules, and other procedural rules, as well as know the law, as well as the facts of your case. Failure to do so could cause you to lose your case or be required to start over. Even a lawyer going through a divorce should have an attorney helping him or her. A local judge once said it best when he commented, “Sure, you can perform brain surgery on yourself too, but it is going to hurt a whole heck of a lot and you are going to make a big mess.”
An experienced family law practitioner who will properly represent you will save you time, money and headaches and ensure that your rights are fully represented. This is not merely a self-serving sales pitch. It is the best piece of legal advice you will ever receive. We offer free initial consultations on divorce and all family law matters. If you would like to personally meet with an experienced family law practitioner, please contact Joseph M. Borsberry at the Borsberry Law Offices, P.C., as soon as possible at (309) 637-9000.
“How Can I Get a Divorce?”
A divorce or “dissolution of marriage” in the State of Illinois case is not unlike any other lawsuit. The process begins with one party filing a Petition for Dissolution of Marriage, which is generally served on the other party through a variety of means. After the other party is served, the other party has a certain number of days to file an answer or they can be defaulted. Ultimately, if grounds are proven, and through either agreement or a judge deciding issues, such as custody, child support, visitation, and property division, a Judgment for Dissolution of Marriage is entered with the court and the divorce is generally final.
If you have further questions on this, please contact Joseph M. Borsberry at the Borsberry Law Offices, P.C., as soon as possible at (309) 637-9000.
“How Long Does it Take to Get Divorced?”
If all paperwork is done properly and both parties agree on all issues, depending on court time, in some circumstances a divorce can be obtained in couple of days. If there are children involved, it is required that both parties attend a Children’s First class before the court will grant a divorce.
The speed in which a divorce is resolved depends primarily on the issues involved and how much the parties argue... With the number of all legal cases handled by county courthouses, obtaining court time has becoming increasingly difficult. You may have to wait months to have court time, with the court sometimes requiring pre-trials, case management conferences, status hearings, and other hearings prior to hearing evidence on disputed issues.
Our firm strives to provide you the best result possible on your case as quickly, efficiently, and amicably as possible. If you have further questions on this, please contact Joseph M. Borsberry at the Borsberry Law Offices, P.C., as soon as possible at (309) 637-9000.
“Where Should I File For Divorce?”
A party may file a Petition for Dissolution of Marriage in any county in the State of Illinois as long as one of them resides in that county. One or both of the parties must live in the county where the case is filed.
Our firm has represented clients in Illinois counties from as far north as Chicago and as far south at Marion. When given a choice of counties to file in, we recommend doing so for efficiency and the convenience of all parties involved. If you have further questions on this, please contact Joseph M. Borsberry at the Borsberry Law Offices, P.C., as soon as possible at (309) 637-9000.
“How Long Do I Need to Live in Illinois to Obtain a Divorce?”
One of the parties must have resided in the State of Illinois for at least 90 days prior to the court granting a divorce in Illinois. In order for an Illinois court to make a custody decision involving the child of the parties, Illinois must be the home state of the child for at least six months.
Jurisdictional issues are complex legal issues. Cases involving parties of different states are special circumstances that require proper analysis. If you have further questions on this, please contact Joseph M. Borsberry at the Borsberry Law Offices, P.C., as soon as possible at (309) 637-9000.
“What Grounds Do I Need to Prove to Get A Divorce in Illinois?”
One cannot simply obtain a divorce because they want one. The most commonly used grounds for divorce is extreme and repeated mental cruelty. Other grounds include impotency, bigamy, adultery, desertion, habitual drunkenness, addictive drug usage, attempted murder of the spouse, physical cruelty, felony conviction, or the fact that the spouse infected the other with a sexually transmitted disease as a basis for the grounds for divorce.
In order for the court to enter divorce upon “no-fault grounds” or “irreconcilable differences,” there must be an irretrievable breakdown of the marriage and the parties must generally have lived separate and apart for more than 2 years. If the parties agree they can waive the two year requirement and have a no fault divorce entered if they have lived separate and apart for six months.
If you have further questions on this, please contact Joseph M. Borsberry at the Borsberry Law Offices, P.C., as soon as possible at (309) 637-9000.
“What is an Annulment?”
A divorce dissolves a marital relationship between a husband and wife. An annulment or declaration of invalidity of marriage is a legal determination that the marriage was never legally effectuated and in theory never happened. It should not be confused with an annulment granted by a church, which has no legal enforcement. To legally annul a marriage one of the following must be proven by a court of competent jurisdiction: (1) that one of the parties lacked consent to the marriage at the time because of either mental incapacity, drugs or other incapacitating substances; (2) that a party was induced to enter into the marriage by force or duress, or by fraud involving the essentials of the marriage; (3) that a party lacks the physical capacity to consummate the marriage and the other party did not know of that incapacity at the time of the marriage; (4) that a party was age 16 or 17 and did not have proper consent or judicial approval; and (5) that the marriage was a prohibited marriage.
Annulments are rare in Illinois and a spouse does not have a right to an annulment if the requirements are not met. In certain situations an annulment may not be preferable over a divorce. If you have further questions on this, please contact Joseph M. Borsberry at the Borsberry Law Offices, P.C., as soon as possible at (309) 637-9000.
“What is a Separation?”
The term “separation” is often confused. If married parties are not living together and are living separate, this does not constitute a legal separation. Further, if parties are going through a divorce, they are not required to live separately during the process, although in some situations it can be extremely stressful on the family. A legal separation is a court order providing for the reasonable support and maintenance of one party while they live apart.
There are situations where a legal separation is preferable to a divorce. If you have further questions on this, please contact Joseph M. Borsberry at the Borsberry Law Offices, P.C., as soon as possible at (309) 637-9000.
“Is Divorce ‘Messy’ or ‘Dirty?’”
It can be, but it is not necessary and not preferable. With dissolution of marriage courts are called upon to assist parties who cannot decide to make provisions for custody, child support, visitation, and division of property. For custody decisions, courts are not to consider conduct of a proposed custodian that does not affect custody of the children. For property decisions, courts are to divide marital property equitably without regard to marital misconduct. Therefore, courts generally do not want to hear “dirty laundry” and do not care about it. With very few exceptions, misconduct generally does not affect a divorce at all. Focusing on the misconduct of one party tends to delay proceedings, cause unnecessary acrimony, cause the expending of needless attorney’s fees and can have a bad impact on the case.
If you have further questions on this, please contact Joseph M. Borsberry at the Borsberry Law Offices, P.C., as soon as possible at (309) 637-9000.
How is Property Distributed as Part of the Divorce?
Property is generally “marital” or “non-marital” property. Property that was acquired during the marriage is generally considered marital property. Marital property is equitably divided between the parties. Equitably does not always mean equally.
Property acquired by a party prior to the marriage, property acquired through gift or inheritance, or property received as a gift during the marriage is generally on-marital property that is awarded to that spouse.
There are numerous statutory and common law exceptions to these concepts. If you have further questions on this, please contact Joseph M. Borsberry at the Borsberry Law Offices, P.C., as soon as possible at (309) 637-9000.
ATTORNEY’S FEES: WHO SHOULD PAY THEM?
CHILD CUSTODY: SHOULD I LEAVE THE HOUSE?
VISITATION: SHOULD IT BE SUPERVISED?
CHILD SUPPORT: IS THE AMOUNT BEING PAID CORRECT
ORDERS OF PROTECTION: WHAT DO I DO NOW?
TAX EXEMPTIONS: WHO GETS TO CLAIM THE CHILD ON TAXES?
DAYCARE AND EXTRA-CURRICULAR COSTS: WHO PAYS FOR THIS?
MAINTENANCE: WHEN DOES IT END?
If you have further questions on any these other issues, please contact Joseph M. Borsberry at the Borsberry Law Offices, P.C., as soon as possible at (309) 637-9000.
“CAN I REPRESENT MYSELF?”
Yes, but life is complicated. If you end up in divorce court and represent yourself, you are expected to know and follow all of the local rules, Supreme Court Rules, and other procedural rules, as well as know the law, as well as the facts of your case. Failure to do so could cause you to lose your case or be required to start over. Even a lawyer going through a divorce should have an attorney helping him or her. A local judge once said it best when he commented, “Sure, you can perform brain surgery on yourself too, but it is going to hurt a whole heck of a lot and you are going to make a big mess.”
An experienced family law practitioner who will properly represent you will save you time, money and headaches and ensure that your rights are fully represented. This is not merely a self-serving sales pitch. It is the best piece of legal advice you will ever receive. We offer free initial consultations on divorce and all family law matters. If you would like to personally meet with an experienced family law practitioner, please contact Joseph M. Borsberry at the Borsberry Law Offices, P.C., as soon as possible at (309) 637-9000.
“How Can I Get a Divorce?”
A divorce or “dissolution of marriage” in the State of Illinois case is not unlike any other lawsuit. The process begins with one party filing a Petition for Dissolution of Marriage, which is generally served on the other party through a variety of means. After the other party is served, the other party has a certain number of days to file an answer or they can be defaulted. Ultimately, if grounds are proven, and through either agreement or a judge deciding issues, such as custody, child support, visitation, and property division, a Judgment for Dissolution of Marriage is entered with the court and the divorce is generally final.
If you have further questions on this, please contact Joseph M. Borsberry at the Borsberry Law Offices, P.C., as soon as possible at (309) 637-9000.
“How Long Does it Take to Get Divorced?”
If all paperwork is done properly and both parties agree on all issues, depending on court time, in some circumstances a divorce can be obtained in couple of days. If there are children involved, it is required that both parties attend a Children’s First class before the court will grant a divorce.
The speed in which a divorce is resolved depends primarily on the issues involved and how much the parties argue... With the number of all legal cases handled by county courthouses, obtaining court time has becoming increasingly difficult. You may have to wait months to have court time, with the court sometimes requiring pre-trials, case management conferences, status hearings, and other hearings prior to hearing evidence on disputed issues.
Our firm strives to provide you the best result possible on your case as quickly, efficiently, and amicably as possible. If you have further questions on this, please contact Joseph M. Borsberry at the Borsberry Law Offices, P.C., as soon as possible at (309) 637-9000.
“Where Should I File For Divorce?”
A party may file a Petition for Dissolution of Marriage in any county in the State of Illinois as long as one of them resides in that county. One or both of the parties must live in the county where the case is filed.
Our firm has represented clients in Illinois counties from as far north as Chicago and as far south at Marion. When given a choice of counties to file in, we recommend doing so for efficiency and the convenience of all parties involved. If you have further questions on this, please contact Joseph M. Borsberry at the Borsberry Law Offices, P.C., as soon as possible at (309) 637-9000.
“How Long Do I Need to Live in Illinois to Obtain a Divorce?”
One of the parties must have resided in the State of Illinois for at least 90 days prior to the court granting a divorce in Illinois. In order for an Illinois court to make a custody decision involving the child of the parties, Illinois must be the home state of the child for at least six months.
Jurisdictional issues are complex legal issues. Cases involving parties of different states are special circumstances that require proper analysis. If you have further questions on this, please contact Joseph M. Borsberry at the Borsberry Law Offices, P.C., as soon as possible at (309) 637-9000.
“What Grounds Do I Need to Prove to Get A Divorce in Illinois?”
One cannot simply obtain a divorce because they want one. The most commonly used grounds for divorce is extreme and repeated mental cruelty. Other grounds include impotency, bigamy, adultery, desertion, habitual drunkenness, addictive drug usage, attempted murder of the spouse, physical cruelty, felony conviction, or the fact that the spouse infected the other with a sexually transmitted disease as a basis for the grounds for divorce.
In order for the court to enter divorce upon “no-fault grounds” or “irreconcilable differences,” there must be an irretrievable breakdown of the marriage and the parties must generally have lived separate and apart for more than 2 years. If the parties agree they can waive the two year requirement and have a no fault divorce entered if they have lived separate and apart for six months.
If you have further questions on this, please contact Joseph M. Borsberry at the Borsberry Law Offices, P.C., as soon as possible at (309) 637-9000.
“What is an Annulment?”
A divorce dissolves a marital relationship between a husband and wife. An annulment or declaration of invalidity of marriage is a legal determination that the marriage was never legally effectuated and in theory never happened. It should not be confused with an annulment granted by a church, which has no legal enforcement. To legally annul a marriage one of the following must be proven by a court of competent jurisdiction: (1) that one of the parties lacked consent to the marriage at the time because of either mental incapacity, drugs or other incapacitating substances; (2) that a party was induced to enter into the marriage by force or duress, or by fraud involving the essentials of the marriage; (3) that a party lacks the physical capacity to consummate the marriage and the other party did not know of that incapacity at the time of the marriage; (4) that a party was age 16 or 17 and did not have proper consent or judicial approval; and (5) that the marriage was a prohibited marriage.
Annulments are rare in Illinois and a spouse does not have a right to an annulment if the requirements are not met. In certain situations an annulment may not be preferable over a divorce. If you have further questions on this, please contact Joseph M. Borsberry at the Borsberry Law Offices, P.C., as soon as possible at (309) 637-9000.
“What is a Separation?”
The term “separation” is often confused. If married parties are not living together and are living separate, this does not constitute a legal separation. Further, if parties are going through a divorce, they are not required to live separately during the process, although in some situations it can be extremely stressful on the family. A legal separation is a court order providing for the reasonable support and maintenance of one party while they live apart.
There are situations where a legal separation is preferable to a divorce. If you have further questions on this, please contact Joseph M. Borsberry at the Borsberry Law Offices, P.C., as soon as possible at (309) 637-9000.
“Is Divorce ‘Messy’ or ‘Dirty?’”
It can be, but it is not necessary and not preferable. With dissolution of marriage courts are called upon to assist parties who cannot decide to make provisions for custody, child support, visitation, and division of property. For custody decisions, courts are not to consider conduct of a proposed custodian that does not affect custody of the children. For property decisions, courts are to divide marital property equitably without regard to marital misconduct. Therefore, courts generally do not want to hear “dirty laundry” and do not care about it. With very few exceptions, misconduct generally does not affect a divorce at all. Focusing on the misconduct of one party tends to delay proceedings, cause unnecessary acrimony, cause the expending of needless attorney’s fees and can have a bad impact on the case.
If you have further questions on this, please contact Joseph M. Borsberry at the Borsberry Law Offices, P.C., as soon as possible at (309) 637-9000.
How is Property Distributed as Part of the Divorce?
Property is generally “marital” or “non-marital” property. Property that was acquired during the marriage is generally considered marital property. Marital property is equitably divided between the parties. Equitably does not always mean equally.
Property acquired by a party prior to the marriage, property acquired through gift or inheritance, or property received as a gift during the marriage is generally on-marital property that is awarded to that spouse.
There are numerous statutory and common law exceptions to these concepts. If you have further questions on this, please contact Joseph M. Borsberry at the Borsberry Law Offices, P.C., as soon as possible at (309) 637-9000.
ATTORNEY’S FEES: WHO SHOULD PAY THEM?
CHILD CUSTODY: SHOULD I LEAVE THE HOUSE?
VISITATION: SHOULD IT BE SUPERVISED?
CHILD SUPPORT: IS THE AMOUNT BEING PAID CORRECT
ORDERS OF PROTECTION: WHAT DO I DO NOW?
TAX EXEMPTIONS: WHO GETS TO CLAIM THE CHILD ON TAXES?
DAYCARE AND EXTRA-CURRICULAR COSTS: WHO PAYS FOR THIS?
MAINTENANCE: WHEN DOES IT END?
If you have further questions on any these other issues, please contact Joseph M. Borsberry at the Borsberry Law Offices, P.C., as soon as possible at (309) 637-9000.
FAQ ILLINOIS CRIMINAL LAW AND PROCEDURE
This following information is intended to provide general answers to commonly asked questions regarding criminal law and criminal procedure in the State of Illinois. The information provided should not be construed as legal advice and nothing herein should be construed as creating an attorney client relationship. It is highly advised that you meet with an experienced criminal law practitioner AS SOON AS POSSIBLE before making any decision that may affect your rights. (c) 2008 Borsberry Law Offices, P.C.
RIGHTS OF THE ACCUSED IN ILLINOIS
Every person in the State of Illinois charged with a crime is presumed innocent until proven guilty beyond a reasonable doubt in court. They are entitled to be represented by a competent attorney who will zealously represent their interests through every stage of criminal proceedings after they are charged. People have the right to counsel even before charges are filed, but a person does not have a right to have their attorney present for grand jury proceedings. Every person charged with a crime in which there is a chance of incarceration is entitled to court appointed counsel. If the prosecutor waives jail time, the right to court appointed counsel does not apply. Every person charged with a crime in the State of Illinois has the right to a jury trial, even if they are guilty or did what they are accused of doing . A person may waive the right to a jury trial and have a trial before a judge. A jury trial requires the unanimous decision of guilty by all jury members before one can be convicted. A bench trial or judge trial still requires that a judge find the defendant guilty beyond a reasonable doubt. Depending on several factors, it may be advisable to proceed with a bench trial as opposed to a jury trial. A defendant can initially demand a jury trial and elect to have a bench trial. However, a defendant cannot waive the right to a jury trial, demand a bench trial, and later be entitled to a jury trial. It is the opinion of the Borsberry Law Offices, P.C. that it is generally preferable from a defendant’s perspective to have a jury trial. If acquitted, the case ends and the defendant is free to go. If convicted, the Defendant is generally entitled to have a sentencing hearing in which the judge decides a punishment considering the Illinois Code Corrections and facts in aggravation and mitigation.
“SHOULD I TALK TO THE POLICE?”
The police have a right to try to question witnesses when they feel a crime may have been committed. You have the right to consult with any attorney before deciding on whether to answer police questions. You have an absolute right to remain silent. If you waive your right to remain silent, any statements made may be used against you as part of the prosecution against you. The most conservative approach would be to remain silent or have your attorney present when you make any statement if you are going to make any statement regarding any alleged criminal actions undertaken by you. If you are asked to answer police questions, immediately call the Borsberry Law Offices, P.C. at (309) 637-9000.
“WHAT IF I AM ARRESTED?”
An arrest occurs when you are not only told by an officer, “You are under arrest,” but also if there is a functional equivalent of arrest, meaning you reasonably do not feel free to leave. If you are arrested, remain calm, remain silent, and cooperate fully with the arresting officer. Otherwise resisting arrest, even an improper one, is a crime. Battering an officer with offensive touching, no matter how slight, could be charged as a felony, which is often a more serious than the crime you are being arrested for. If a defendant is arrested based upon an arrest warrant, the arresting officer must inform the defendant that a warrant has been issued and must inform the defendant of the general nature of the offense specified in the warrant. A defendant may also be arrested without a warrant if there is probable cause for arrest. If a defendant is arrested without a warrant, the officer must still inform the defendant of the general nature of the reason for the arrest.
Once you are arrested, the three most important things you can do are:
1. Respectfully ask to speak to an attorney immediately.
2. Respectfully tell the officer you are not going to answer any questions.
3. Remain silent.
According to a U.S. Supreme Court case, the arresting agency can hold you for up to 48 hours before releasing you, setting a bond, or setting a bond hearing. Once incarcerated, the arresting agency has a duty to provide you with humane care, including food and necessary medical treatment.
If you are arrested, immediately call the Borsberry Law Offices, P.C. at (309) 637-9000.
“THE POLICE DID NOT READ ME MY RIGHTS.”
Prior to questioning a person in custody police are required to advise a person of certain rights, commonly referred to as the Miranda rights. Although a simple, concept, this has often created confusion.
Police have the right to question you if you are not under arrest and not in custody. They are not required to read you your Miranda rights in this situation.
Police also have the right to arrest you if there is probable cause and then not question you. They are not required to read you your rights in this situation.
If police question you in custody and do not ready you your rights this is a potentially problematic situation that your must discuss with your attorney as soon as possible.
If faced with this situation, immediately call the Borsberry Law Offices, P.C. at (309) 637-9000.
“I HAVE TO BE IN COURT RIGHT NOW. WHAT SHOULD I DO?”
If required to appear in court for a criminal charge, the first thing one should do is contact an attorney as soon as possible. Our office offers free consultations for criminal, divorce, juvenile, paternity, adoption, child support, order of protection, post decretal, and family law matters. We offer a variety of appointment times, including the availability of weekend and night appointments.
However, if you cannot consult with us before going to court for a criminal case make, go to court and appear in a timely manner. When you get to court be sure you do 3 things:
1. Respectfully ask for additional time to hire an attorney.
2. Plead not guilty.
3. Demand a Jury trial.
If faced with this situation, immediately call the Borsberry Law Offices, P.C. at (309) 637-9000.
“I WAS TOLD THEY ARE NOT PRESSING CHARGES.”
Often persons accused with crimes are told the alleged victim is not “pressing charges.” The decision on whether or not to charge a person with a crime rests solely with the State’s Attorney’s Office. The State’s Attorney’s Office has the sole discretion to charge or not charge a person for a crime based upon numerous factors. Merely because an alleged victim does not want to bring charges does not mean the State’s Attorney’s office will not. The State’s Attorney’s Office often brings charges in such a situation, especially where there is domestic violence.
Often a person is told by the police that they are being arrested or given a Notice to Appear in Court for an alleged crime. Again, the decision on whether or not to charge a person with a crime and what crime specific crime is charged rests solely with the State’s Attorney’s Office. Often a police officer will arrest for one crime, but a person is charged with something completely different.
If faced with this situation, immediately call the Borsberry Law Offices, P.C. at (309) 637-9000.
“SHOULD I USE THE PUBLIC DEFENDER?”
Attorneys are expensive, but necessary. Every person charged with a crime in which there is a chance of incarceration is entitled to court appointed counsel if they cannot afford private counsel. If the prosecutor waives jail time, the right to court appointed counsel does not apply. Most counties in the State of Illinois have a Public Defender’s Office whose duty it is to provide a defendant charges with a crime a zealous and competent legal defense. Some smaller counties have their courts appoint counsel to represent defendants charged with crimes who cannot afford private counsel.
All attorneys, whether court appointed or private, have a duty to zealously and competently defend their clients, whether they are paid by the defendant or not. Every person charged with a crime in the State of Illinois has the right to a jury trial, even if they are guilty or did what they are accused of doing, whether they have a Public Defender or not. Hundreds of cases are won each year by court appointed counsel. Public Defenders are attorneys. However, you often do not have a choice of public defender. Choosing a suitable lawyer for your needs is a private and personal decision that may affect the rest of your life.
Like with any attorney, having one that serves your needs is vitally important. If you are not satisfied with the approach of your Public Defender, you have the absolute right to hire an attorney of your choosing. A private attorney is in the business of not only providing you with a zealous defense and competent legal services, but also serving your specific needs to your satisfaction. Private counsel also have the ability to develop and holistic approach and marshal additional resources to your case and offer legal advice outside of what courts appoint counsel for, such as order of protections, family law disputes, traffic cases, ordinance violations, etc. Although one may be entitled to court appointed counsel in Juvenile court, having one private attorney handling all matters will provide a comprehensive approach to your legal needs.
For a free consultation to discuss the options with your case, immediately call the Borsberry Law Offices, P.C. at (309) 637-9000.
DCFS ISSUES
ORDERS OF PROTECTION
PROBATION VIOLATIONS
JUVENILE COURT CASES
DUI
FOID CARD PROBLEMS
FEDERAL CHARGES
EXPUNGMENTS
If faced with any of these issues, immediately call the Borsberry Law Offices, P.C. at (309) 637-9000
RIGHTS OF THE ACCUSED IN ILLINOIS
Every person in the State of Illinois charged with a crime is presumed innocent until proven guilty beyond a reasonable doubt in court. They are entitled to be represented by a competent attorney who will zealously represent their interests through every stage of criminal proceedings after they are charged. People have the right to counsel even before charges are filed, but a person does not have a right to have their attorney present for grand jury proceedings. Every person charged with a crime in which there is a chance of incarceration is entitled to court appointed counsel. If the prosecutor waives jail time, the right to court appointed counsel does not apply. Every person charged with a crime in the State of Illinois has the right to a jury trial, even if they are guilty or did what they are accused of doing . A person may waive the right to a jury trial and have a trial before a judge. A jury trial requires the unanimous decision of guilty by all jury members before one can be convicted. A bench trial or judge trial still requires that a judge find the defendant guilty beyond a reasonable doubt. Depending on several factors, it may be advisable to proceed with a bench trial as opposed to a jury trial. A defendant can initially demand a jury trial and elect to have a bench trial. However, a defendant cannot waive the right to a jury trial, demand a bench trial, and later be entitled to a jury trial. It is the opinion of the Borsberry Law Offices, P.C. that it is generally preferable from a defendant’s perspective to have a jury trial. If acquitted, the case ends and the defendant is free to go. If convicted, the Defendant is generally entitled to have a sentencing hearing in which the judge decides a punishment considering the Illinois Code Corrections and facts in aggravation and mitigation.
“SHOULD I TALK TO THE POLICE?”
The police have a right to try to question witnesses when they feel a crime may have been committed. You have the right to consult with any attorney before deciding on whether to answer police questions. You have an absolute right to remain silent. If you waive your right to remain silent, any statements made may be used against you as part of the prosecution against you. The most conservative approach would be to remain silent or have your attorney present when you make any statement if you are going to make any statement regarding any alleged criminal actions undertaken by you. If you are asked to answer police questions, immediately call the Borsberry Law Offices, P.C. at (309) 637-9000.
“WHAT IF I AM ARRESTED?”
An arrest occurs when you are not only told by an officer, “You are under arrest,” but also if there is a functional equivalent of arrest, meaning you reasonably do not feel free to leave. If you are arrested, remain calm, remain silent, and cooperate fully with the arresting officer. Otherwise resisting arrest, even an improper one, is a crime. Battering an officer with offensive touching, no matter how slight, could be charged as a felony, which is often a more serious than the crime you are being arrested for. If a defendant is arrested based upon an arrest warrant, the arresting officer must inform the defendant that a warrant has been issued and must inform the defendant of the general nature of the offense specified in the warrant. A defendant may also be arrested without a warrant if there is probable cause for arrest. If a defendant is arrested without a warrant, the officer must still inform the defendant of the general nature of the reason for the arrest.
Once you are arrested, the three most important things you can do are:
1. Respectfully ask to speak to an attorney immediately.
2. Respectfully tell the officer you are not going to answer any questions.
3. Remain silent.
According to a U.S. Supreme Court case, the arresting agency can hold you for up to 48 hours before releasing you, setting a bond, or setting a bond hearing. Once incarcerated, the arresting agency has a duty to provide you with humane care, including food and necessary medical treatment.
If you are arrested, immediately call the Borsberry Law Offices, P.C. at (309) 637-9000.
“THE POLICE DID NOT READ ME MY RIGHTS.”
Prior to questioning a person in custody police are required to advise a person of certain rights, commonly referred to as the Miranda rights. Although a simple, concept, this has often created confusion.
Police have the right to question you if you are not under arrest and not in custody. They are not required to read you your Miranda rights in this situation.
Police also have the right to arrest you if there is probable cause and then not question you. They are not required to read you your rights in this situation.
If police question you in custody and do not ready you your rights this is a potentially problematic situation that your must discuss with your attorney as soon as possible.
If faced with this situation, immediately call the Borsberry Law Offices, P.C. at (309) 637-9000.
“I HAVE TO BE IN COURT RIGHT NOW. WHAT SHOULD I DO?”
If required to appear in court for a criminal charge, the first thing one should do is contact an attorney as soon as possible. Our office offers free consultations for criminal, divorce, juvenile, paternity, adoption, child support, order of protection, post decretal, and family law matters. We offer a variety of appointment times, including the availability of weekend and night appointments.
However, if you cannot consult with us before going to court for a criminal case make, go to court and appear in a timely manner. When you get to court be sure you do 3 things:
1. Respectfully ask for additional time to hire an attorney.
2. Plead not guilty.
3. Demand a Jury trial.
If faced with this situation, immediately call the Borsberry Law Offices, P.C. at (309) 637-9000.
“I WAS TOLD THEY ARE NOT PRESSING CHARGES.”
Often persons accused with crimes are told the alleged victim is not “pressing charges.” The decision on whether or not to charge a person with a crime rests solely with the State’s Attorney’s Office. The State’s Attorney’s Office has the sole discretion to charge or not charge a person for a crime based upon numerous factors. Merely because an alleged victim does not want to bring charges does not mean the State’s Attorney’s office will not. The State’s Attorney’s Office often brings charges in such a situation, especially where there is domestic violence.
Often a person is told by the police that they are being arrested or given a Notice to Appear in Court for an alleged crime. Again, the decision on whether or not to charge a person with a crime and what crime specific crime is charged rests solely with the State’s Attorney’s Office. Often a police officer will arrest for one crime, but a person is charged with something completely different.
If faced with this situation, immediately call the Borsberry Law Offices, P.C. at (309) 637-9000.
“SHOULD I USE THE PUBLIC DEFENDER?”
Attorneys are expensive, but necessary. Every person charged with a crime in which there is a chance of incarceration is entitled to court appointed counsel if they cannot afford private counsel. If the prosecutor waives jail time, the right to court appointed counsel does not apply. Most counties in the State of Illinois have a Public Defender’s Office whose duty it is to provide a defendant charges with a crime a zealous and competent legal defense. Some smaller counties have their courts appoint counsel to represent defendants charged with crimes who cannot afford private counsel.
All attorneys, whether court appointed or private, have a duty to zealously and competently defend their clients, whether they are paid by the defendant or not. Every person charged with a crime in the State of Illinois has the right to a jury trial, even if they are guilty or did what they are accused of doing, whether they have a Public Defender or not. Hundreds of cases are won each year by court appointed counsel. Public Defenders are attorneys. However, you often do not have a choice of public defender. Choosing a suitable lawyer for your needs is a private and personal decision that may affect the rest of your life.
Like with any attorney, having one that serves your needs is vitally important. If you are not satisfied with the approach of your Public Defender, you have the absolute right to hire an attorney of your choosing. A private attorney is in the business of not only providing you with a zealous defense and competent legal services, but also serving your specific needs to your satisfaction. Private counsel also have the ability to develop and holistic approach and marshal additional resources to your case and offer legal advice outside of what courts appoint counsel for, such as order of protections, family law disputes, traffic cases, ordinance violations, etc. Although one may be entitled to court appointed counsel in Juvenile court, having one private attorney handling all matters will provide a comprehensive approach to your legal needs.
For a free consultation to discuss the options with your case, immediately call the Borsberry Law Offices, P.C. at (309) 637-9000.
DCFS ISSUES
ORDERS OF PROTECTION
PROBATION VIOLATIONS
JUVENILE COURT CASES
DUI
FOID CARD PROBLEMS
FEDERAL CHARGES
EXPUNGMENTS
If faced with any of these issues, immediately call the Borsberry Law Offices, P.C. at (309) 637-9000
Sunday, September 7, 2008
WELCOME
In the future, our firm will post commentary on a variety of topics relating to divorce and criminal law in the Peoria, Illinois area. I hope you find this information helpful. You will see war stories, helpful hints on navigating the legal maze, and practicing law.
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