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Chicago DUI defense lawyersYou can probably imagine what it feels like to be pulled over by the police on a night where you have had a few drinks, even if it has never happened to you before. The lights flash behind you and your heart sinks. By the time the officer is at your window, you are probably extremely nervous, but you want to make this go as smooth as possible so that you get home quickly. As expected, the officer asks if you have been drinking, and you honestly answer that you had a couple earlier. Then, the officer asks if you will take a breathalyzer test. Can you refuse?

Understanding the Law

According to Illinois law, drivers give their implied consent to submit to blood alcohol content (BAC) testing by operating a motor vehicle on the streets and roadways of the state. There is an important caveat, however. Implied consent only refers to testing that is conducted incident to an arrest for driving under the influence (DUI). This means that you are under no obligation whatsoever to take a BAC test unless and until you have been arrested on suspicion of DUI. Regardless of what the officer tells you, if you have not been arrested, you cannot be forced to take a breathalyzer.

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Chicago criminal defense attorneysA total of 29 states have adopted medical marijuana laws and eight have legalized the drug for recreational use. Several others have also started to decrease the legal consequences for illegal possession of cannabis and related products. Illinois was one of the ones to recently join these ranks, bringing fairly substantial changes to the state’s approach to charges related to marijuana.

Small Possessions Considered a Civil Penalty

Last year, Governor Bruce Rauner approved the decriminalization of possession of small amounts of marijuana. Now, citizens found with up to 10 grams of the drug receive only a civil penalty, which is similar to a traffic ticket. Consequences include a fine of $100 to $200 per offense. In addition, citations are automatically expunged twice per year.

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Chicago criminal defense attorneyIn 2013, Illinois lawmakers—led by State Representative Lou Lang, D-Skokie—passed legislation to create an experimental medical marijuana program in the state. The Compassionate Use of Medical Cannabis Pilot Program Act was signed by then-Governor Pat Quinn so that state officials could determine the effectiveness of allowing marijuana to be used in the treatment of certain illnesses and ailments. Supporters of the program were excited by the idea that eligible patients could get relief without fear of prosecution on charges related to the possession or consumption of marijuana.

Good Intentions

As a pilot program, the initial medical marijuana measure contained a sunset clause, meaning that the law would automatically be repealed four years after it went into effect on January 1, 2014. If the program was a success, new legislation would be needed to make it permanent.

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Chicago criminal defense attorneyIn last week’s post on this blog, we talked a little bit about the two different types of drug possession. We discussed that actual possession refers to having illegal drugs on your person or in your immediate vicinity while constructive possession refers to the presence of illegal drugs in your home or car. The difference in the two types of possession is a key point in determining whether you could face criminal consequences if a guest or passenger brings illegal drugs into your home or car, but it is not the only consideration. Your knowledge of the situation is also a factor; you cannot stop what you do not know is happening.

Knowledge of the Drug’s Presence

The Illinois Controlled Substance Act provides that it is illegal for a person to knowingly possess a prohibited substance. “Knowingly,” however, is very important part of the law. In seeking a conviction, prosecutors must prove beyond a reasonable doubt that you knew that the drugs were present, whether they were found in your car, your home, or in a purse or backpack. Depending upon the situation, proving your knowledge can be very difficult.

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Chicago criminal defense attorneyA large number of criminal cases—particularly those involving illicit drugs or illegal firearms—hinge on the evidence seized by law enforcement during searches. A police search of your property, including your home or car, with very few exceptions, requires one of two things: your voluntary consent or a properly obtained search warrant issued by a judge. It is almost never a good idea for you to allow a warrantless search of your property to proceed. At the same time, if the police have obtained a search warrant, you must be careful not to interfere with the search.

How Is a Search Warrant Issued?

According to the Illinois Constitution and Criminal Code, a search warrant can be issued by a judge on the basis of probable cause. Unlike many other states, Illinois allows a warrant to be issued “upon the written complaint of any person under oath or affirmation.” This means that a judge does not need to wait for a sworn affidavit from a law enforcement officer. Any private citizen can provide a sworn statement that identifies the person and/or place that should be searched and things that should be seized.

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