» Criminal Defense
What if I can't afford an attorney?
Luckily, our system requires that you have legal representation if and when you are charge with a crime. In Illinois we have a county Public Defender System. Each county has a Public Defender appointed by the Chief Judge. In larger counties like Dupage, Cook, Will, Kane, the offices are quite large, with many assistant public defenders to represent you. All public defenders are attorneys — they all went to law school and had to pass the bar. If you think you need an attorney appointed to you, just ask the judge at your next court appearance. They may have you fill out an affidavit of assets to prove you are indigent. If you are, the court will appoint a lawyer to represent you.
Do I need a Lawyer?
Yes. If you try to represent yourself the Judge will hold you to the same standards he or she would if you were a licensed attorney — no exceptions!
I was in the car, but the drugs belonged to my friend. Why was I charged with possession of drugs?
This is called "constructive possession." It means that if you are near drugs, and you could exercise control over the drugs, then you are in possession. For example, if four people are in a car inhaling or injecting drugs together and a police officer knocks on the window, all four could be convicted of possession even if the drugs were in the center console and not on anyone person.
Should I have a Jury or Bench trial?
This is our favorite question! As we have said before, "the jury trial is the great equalizer." Taking 6 to 12 citizens from the community and asking them to listen to the evidence and apply the law, is truly the best part of our legal system. The few cases when a jury doesn't do what some people expect get much attention and overshadow the thousand and thousands of trials where the system worked and justice prevailed. It's true, jury trials are more time consuming and more difficult to prepare for — and that is why many attorneys don't like to do them. They may even try to talk clients out of their constitutional right to a jury trial. Not at The Law Office of J. Patrick Nelson, PC. Our criminal defense attorneys pride themselves on their skills picking jurors, cross-examining witnesses, and making opening and closing arguments. It is where we are at our best.
What is Court Supervision?
If you plead or are found guilty, you receive a sentence. Usually this results in a conviction — which goes on your "record." If you are applying for a job and they ask if you have ever been convicted of crime, you would have to say yes. Court Supervision keeps your record "clean," so to speak. It literally means that after you plead guilty, the case is continued for a period of time (usually one year) and if you stay out of trouble and pay your fines, the case is dismissed. In reality, it is a form of probation that doesn't result in a conviction. It is the best possible result short of a finding of not guilty.
The Police never read me my Miranda rights — shouldn't my case be thrown out?
It is a common misconception that the police have to read EVERYBODY their Miranda rights or the case against them gets thrown out. Miranda warnings — named after the Supreme Court case Miranda v. Arizona — apply only to custodial interrogation. In simpler terms that means to questions asked, and statements made, while a person is not free to go.
The police have asked me to take a lie detector test — should I?
In most cases, no. Remember, you are presumed INNOCENT. You are not required to prove anything. You are not going to convince the police not to charge you. They won't believe you even if you pass the lie detector test. Be happy they asked you to take a polygraph — it usually means they don't have enough evidence and they are fishing for a confession. Also, remember that polygraph tests are not admissible at trial — not even if you pass.
Should I take the breath or blood test?
This is a tough question. You have to consider the statutory summary suspension. If you take the breath or blood test your license will be suspended for 6 months. If you don't, the suspension will be a year. That being said, if you blow over a .08, it becomes more difficult to win your case at trial. If there is no blow, the chance increases greatly. If you have had nothing to drink and blow under .08, your license will not be suspended.
Can I sleep off the alcohol in my car?
No. You may not pull over to the side of the road and sleep off a DUI. You don't want to be anywhere near your car. It is called "Actual Physical possession" and most people don't realize it. Even if the keys are in the bushes and you are asleep in the back seat — you are guilty of DUI. But ... at The Law Office of J. Patrick Nelson, PC we have found a defense to "Actual Physical Possession" that has been quite successful. Our criminal defense attorneys have employed a necessity of shelter defense, and we have won many jury trials with the necessity defense.
I blew under .08 and they still charged me with a DUI. Why?
Something most people don't is that you can still be guilty of a DUI in Illinois even if you have blown under a .08. Section Section 625 ILCS 5/11-50(a)(2) only requires that the state prove you were under the influence — it doesn't have to be over .08.