The term “warrant” is frequently thrown around to mean various things, both conversationally and in the courtrooms. There are two fundamental types of warrants and they both give law enforcement officials various authority. The first is an arrest warrant and the second is a search warrant. This brief article touches upon the arrest warrant and a subsequent article will hit upon the search warrant. Broadly speaking, it is easy to think of a warrant as a court document that permits the law enforcement agency to do something that they couldn't already do by themselves. When they seek a warrant they are seeking permission.
It is important to note that there are two basic reasons that a person could be arrested.
A law enforcement official can arrest someone when they witness the crime being committed or have probable cause to believe that a crime was committed by an individual. Probable cause is a very fact-specific topic and I highly suggest conferring with an attorney if more information is required.
The topic of this article, arrest warrants, are pieces of paper that contain a description stating the name of the accused, the offense charged and the sworn statement of the person (usually law enforcement officials) making the statement. This document is called the complaint.
A judge takes the complaint and any testimony – usually offered by the officer or victim – and determines if there is probable cause to believe a crime was committed and that it was committed by the accused. If the court is satisfied with the evidence presented, then a summons may issue commanding the accused to be brought before the court at a specific place and time.
If the court does not want to issue a summons, then they will issue an arrest warrant at that time. However, the summons is an intermediary step that is considered for lower-level offenses.
The document commanding the appearance of the accused must be served upon them. If the accused ignores the court and does not appear on the stated time and date, then the warrant may be executed.
If a warrant is issued for the arrest of an accused, then any law enforcement officer in the State of Illinois has the authority to arrest the named person.
The law surrounding arrest warrants is very immense. As one can tell, there are a lot of nuances and procedural steps. If the proper procedure is not followed, then your attorney may wish to bring a pre-trial motion. Warrants are very serious and judges do not take them lightly.
It is strongly recommended that an attorney is consulted by any person who has a warrant out for their arrest. An attorney at Michling Plaza & Associates would be more than happy to sit down during a free consultation to discuss your particular matter further.
Assault & Battery
Battery occurs when an offender causes offensive contact with the victim. There is no degree of harm required, only that the contact would be considered offensive to a reasonable person.
Assault is defined as when a victim reasonably believes that that another person is threatening bodily harm to them. It is important to note that, unlike battery, no actual contact needs to be made for assault charges – it is the belief of the harm in the victim's mind that is important.
While assault and battery charges are typically misdemeanor offenses, there are many ways in which they can be raised to the felony level, including:
Use of a weapon;
Victim is a member of a protected class (police officer, disabled person, senior citizen).
The defendant or another person was threatened;
The defendant did not provoke the other party;
Confrontation was unavoidable; and
Physical action was required for your protection.
If felony charges are pursued by the prosecuting attorney, then they have to prove that one of the aggravating factors existed, beyond a reasonable doubt, in addition to proving the actual assault or battery charge. There are a number of defenses available that an experienced attorney at Michling Plaza & Associates, P.C. can employ to ensure your legal defense.
Since this is often the strongest argument, and since it is frequently claimed by defendants, it belongs at the top of the list. Contrary to popular belief, claiming self-defense is not as simple as most people think. If each of the following criteria is successfully proven, then a valid defense exists:
An attorney experienced with assault and battery charges knows how to successfully prove each element of a self-defense claim. At Michling Plaza & Associates, P.C., our attorneys have gotten assault and battery charges dismissed by proving self-defense.
As defined above, assault charges basically boil down to criminalizing threats. The prosecuting attorney must prove, beyond a reasonable doubt, that the victim was placed in reasonable fear of imminent danger. If a reasonable person would not have felt threatened, but the victim did, then no assault occurred. For example, assume the victim absolutely hated being touched by other people. She is at a baseball game when the home team scores a run. Everyone is high-fiving and celebrating when the person seated behind this victim pats her on the shoulder. She freaks out and calls the cops.
Now, assume that the victim is walking down an alley when a stranger spits in his eye. He calls the cops and presses charges.
In the first example, the contact (patting her on the shoulder) was offensive to that person. However, this contact is not considered reasonable by an ordinary person. In this case, there is a valid defense. On the other hand, the contact (spitting in the eye) is something most people would consider offensive and the victim was legitimately assaulted.
Legal Defense Team
Our experienced attorneys have handled numerous assault and battery cases. At Michling Plaza & Associates, P.C., you are supported by a team of legal professionals to ensure that the best protection is brought against these charges. Contact us today for a free consultation and prepare a legal strategy to overcome the allegations.
All About Bail
When someone is arrested and awaiting trial, they are often given the opportunity to get released from jail in the interim. This process is known as “bailing out” and here are some of the most frequently asked questions.
When is the bail amount set?
A judge will typically set a preliminary amount during the first court appearance. In most cases a defendant will be required to post 10% of the stated amount in order to be released. If the defendant does not have the funds available to pay the court, then a lawyer can ask the court to reduce the set bail at a later date. Details on reducing the bond are provided below.
What factors are considered when a judge sets the amount?
This is a very frequently asked question and the answer depends on whether the person is charged with a felony, misdemeanor, or petty offense. There is affixed formula that applies in traffic and misdemeanor cases. The court is given discretion in setting the amount if a felony is charged, but they are required to consider:
The nature offense charged;
Whether the offense charged is one involving violence;
Whether a firearm was used at any point during the offense or subsequent arrest;
Motivations and/or ability to flee the jurisdiction of the court;
Family and community relationships and ties; and
The financial resources and employment of the accused.
Show up to all court events;
Obey all court orders;
Do not leave the state;
Report any changes in address; and
Do not commit any criminal offense or violate any criminal statute.
There are more factors and a full list can be found here (LINK TO 725 ILCS 5/110-5(a)).
What is the purpose behind bail and common conditions of release?
The whole point is to ensure that a person who is released from jail follows court orders. The money is, in a sense, leverage that the court has over the defendant. If a condition is violated, then, amongst other consequences, the posted funds are forfeited.
There are conditions imposed by the court that the defendant must follow once they are released on bail. These are set forth in the order and vary from case to case. However, the following typically apply to all defendants:
The amount required is too high – Bond Reduction Hearings
If the amount required is simply too large for a particular defendant to pay, there are remedies available. After speaking with your attorney and filing the proper motions, a bond reduction hearing can be held. At this hearing, your attorney will present facts and evidence that support a lower award while the prosecuting attorney will try to counter them.
These hearings require a high level of detail and they vary from case to case. It is best to consult with an attorney regarding your specific situation.
Should I post the bail or pay for an attorney?
This is a very common question and, because there is often only enough money to either (1) get out of jail or (2) retain counsel, this is a legitimate concern. In many cases, both options are available. At Michling Plaza & Associates, we often represent defendants without requiring a retainer.
Instead of providing a large payment upfront, we give our clients the option of signing over the posted bail money. At the conclusion of the case the money is returned to us and, after we apply it to the attorney's fees, the remainder is returned to you.
One of the things that make the legal process so intimidating and complex is the nomenclature that is used. “Arraignment” is on such term and it simply describes one of the early stage steps in the process.
What happens at the arraignment?
The defendant is formally notified of the charges being pursued against them. That's about it; the judge reads off the charges and gives a copy of the charging document to the defendant.
Is that all?
Not quite. In addition to putting a defendant on notice of the charges, this is also the time that a plea is entered. Unless there are specifically unique circumstances, the options are typically guilty or not guilty.
This is also a great time to get some preliminary motions filed. Defense attorneys like to use this court event to file various motions. Some common examples include a motion for a bill of particulars or a motion for discovery.
What if I have additional questions?
This is an often overlooked stage in the criminal process and even attorneys sometimes underestimate its importance. If you have any questions about this, or any, stage, an attorney at Michling Plaza & Associates would be happy to help.
The initial one-hour consultation, which is provided to each client at no charge, is very often one of the most critical interactions in the attorney-client relationship. Not only do you get to provide details about the event and receive a legal analysis, but this is also the first time that you get to meet an attorney. These first impressions are very valuable and set the tone for the rest of the case.
I have to actually like my attorney?
Of course! You need to feel comfortable with your attorney because you need to be able to talk openly with them. The initial consultation allows you to determine, with no commitment to hire, whether you are a good fit for that particular attorney.
Your attorney is probably going to know a lot about you and, depending on the charges, many of these details can be sensitive. If you are not comfortable talking with your attorney, then critical facts can unintentionally be left out. This means that the legal defense is not as strong as it could be.
How should I prepare for my consultation?
The most important thing that you can do is bring any documents relating to your case. This includes police reports, tickets, complaints, court documents, and the like. You do not have to go out of your way to collect these papers, but if you have them readily available, it is always helpful to have them with you during the consultation.
Bring more information rather than less. If you think something might be helpful, then you should bring it along. We are quick at filtering through documents and determining what is important and what is not. When it comes to information – more is better.
What can I expect at the initial meeting?
When you first come into Michling Plaza & Associates, you will be greeted and seated in our lobby. Your attorney will come out and make a formal introduction before the conversation is moved to one of our conference rooms.
You can then tell your story and ask questions. The attorney may ask some specific questions, but we encourage you to tell us everything that you think will help us represent you.
Will I have to hire an attorney?
Not at all. These consultations are offered without cost and without commitment. You will not be pressured or pushed into making a decision at that moment. We will discuss the option and give you details, but this is not a sales meeting and we do not expect you to make an instantaneous decision. A handful of clients make the decision to retain us on the spot, but others do not. At the very least, we will leave you with a copy of our retainer agreement so that you can go home, in a much more comfortable setting, and make the decision on your own time.
Choosing an attorney is an important decision and there are many factors to consider. Many people choose to take some time, think it over, and then they get back to us. We are here to help either way.
Misconceptions and Truths – Breathalyzers
There are a lot of misconceptions about the breathalyzers that police officers use to measure the blood alcohol content (BAC) readings of drivers. This brief article was written to dispel some of the more common misunderstandings and to provide some helpful information.
Misconception #1: Mints and/or breath fresheners can mask or even lower a BAC reading.
Truth: Mints and breath fresheners do not affect the amount of alcohol that is in your breath. While they mask the odor, this has no bearing on the breathalyzer. In fact, some mouthwash products actually contain alcohol.
Misconception #2: Breathalyzers pick up only alcohol.
Truth: Breathalyzers can pick up substances other than alcohol if they contain compounds that have a similar chemical structure. Some products that can cause a breathalyzer to falsely indicate the presence of alcohol include paint fumes, rubbing alcohol, varnish and even some cleaning products. Also, acetone could cause a false indication. Diabetics and those with high protein diets can have acetone present in their breath.
Misconception #3: If someone permits a breathalyzer test, it will always be allowed in court.
Truth: There are really two types of breathalyzer tests. The first one is used by officers for screening purposes and is known as the Preliminary Breathalyzer Test (PBT). These are the ones people typically think of where it is administered on the side of the road. These are almost never allowed into court. The second test is administered at the police station with a much larger and more accurate machine. The results from this type of breathalyzer are typically admissible in court.
These are the top three most common misunderstandings about breathalyzers. The next four items are the top three things about breathalyzers that the attorneys at Michling Plaza & Associates, P.C. want you to know.
Important Fact #1: People have the right to refuse taking the Preliminary Breath Test (PBT) without consequence to their driving privileges. When someone is pulled over because the officer believes they are driving under the influence, the officer must first establish probable cause before an arrest can be made. This probable cause is provided for if someone submits to the PBT. If the driver doesn't submit to the test, then the officer must establish probable cause to arrest through his observations including slurred speech, odor, red eyes, inability to obey instructions, and the like. It is important to note that someone cannot refuse to take the second test (usually administered at the police station) without having a statutory 12-month suspension of their driving privileges.
Important Fact #2: Drivers have the right to remain silent and to have an attorney. It is highly recommended that they exercise them both. As it pertains to driving under the influence offenses, the delivery of speech is typically more important than its content. For instance, a driver may just be telling the police officer about his day which, most likely, is arbitrary and contains no admission. However, the words may be slurred or the driver may be mumbling. These speech impediments are more damaging than the words themselves.
Important Fact #3: Field sobriety tests are not as accurate as people, or police officers, think. While it is important that a driver does their best at these tests, failing a portion or two is not all that compelling against the driver. There are many studies that have shown that these various tests are not nearly as accurate as many people think. You can find a very good article on the topic HERE (http://www.mphlastala.com/jfssfst.pdf)
Important Fact #4: An officer must qualify as an expert before being allowed to testify on certain topics. Not every police officer is experienced with DUI offenses. Therefore, not every officer can testify accurately as to whether they observed the signs of intoxication. In our preparation for trial, Michling Plaza & Associates, P.C. always looks at the qualifications of every police officer that is going to testify. Many law firms miss this critical first step.
A DUI charge is serious and can have a lasting impact on a person's ability to work, travel, and participate in day-to-day activities. A driver facing these consequences needs to speak with an experienced attorney. AT Michling Plaza & Associates, P.C., we determine the best strategy to make sure they are treated fairly and that justice is reached. Contact us today for a free consultation.
Police Searches of Vehicles
When someone is pulled over, the police are only authorized to make visual observations of your vehicle.
You never have to allow the police to search you or your vehicle. They are allowed to ask and you are allowed to refuse. Many people think that the police can search the vehicle during a traffic stop, but this is not the case.
When can they search the vehicle?
Absent the driver's consent, the vehicle can only be search if the police have either:
If, for example, there is a firearm sitting on the back seat, then the officers are allowed to search the vehicle. They have to see something in plain sight (i.e. without rummaging around or opening doors) that indicates the need for a search.
(2)A search warrant
This is a document signed by the judge that has been covered in detail HERE (LINK)
If you are arrested, then the police can search you and your vehicle. For this reason alone, drivers should remain calm and avoid being arrested in every way.
A legal defense
These tips are provided in hopes that drivers know their rights when they are pulled over. At Michling Plaza & Associates, we believe that arming people with knowledge is the best way to avoid these situations altogether. However, if you end up facing criminal charges, know that you do not have to face them alone.
Our attorneys have handled numerous traffic citations and charges. The best thing you can do in this situation is employ a legal team to defend your rights.