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Illinois Law

How to Properly Transfer a Firearm in Illinois

Wednesday, July 3rd, 2024

Transferring a firearm in an Illinois city like Edwardsville or Alton involves specific legal steps to ensure compliance with state and federal laws. Here’s a detailed guide based on the regulations and procedures outlined by Illinois state laws.

1. Understand the Legal Requirements

Before transferring a firearm, it’s crucial to understand the legal requirements in Illinois:

FOID Card: Both the seller and the buyer must possess a valid Firearm Owner’s Identification (FOID) card.
Background Check: A background check must be conducted to ensure the buyer is legally permitted to own a firearm. You can verify FOID cards here.
Record Keeping: Both parties must keep a record of the transaction for at least 10 years.

2. Conducting the Transfer

The process varies slightly depending on whether the transfer is between private individuals or involves a Federal Firearms License (FFL) dealer.

Private Transfer

For a private transfer (between two individuals):

Verify FOID Cards: Ensure that both parties have valid FOID cards.
Initiate Background Check: The seller must contact the Illinois State Police to verify the buyer’s FOID card and complete a background check.
Wait Period: There is a mandatory waiting period—72 hours for handguns and 24 hours for long guns.
Complete the Transfer: After the waiting period, complete the transfer and document it. Include details such as the date, firearm description, and FOID card numbers of both parties.

Transfer via FFL Dealer

For a transfer involving an FFL dealer:

Dealer Responsibilities: The dealer will conduct the background check and ensure compliance with federal and state laws.
Documentation: The dealer will handle the necessary documentation and record-keeping.

3. Legal Provisions and Compliance

Illinois law outlines specific provisions for person-to-person transfers:

430 ILCS 65/3(a): This section states that no person may knowingly transfer a firearm, ammunition, stun gun, or taser to another person within Illinois unless the transferee displays a valid FOID card or a valid license to carry a concealed firearm issued by the Department of State Police. Federally licensed firearm dealers must also comply with Section 3.1 for all transfers.
430 ILCS 65/3(a-10): This subsection requires private sellers to contact the Illinois State Police to verify the validity of the buyer’s FOID card before completing the transfer. The State Police will provide an approval number if the FOID card is valid, which is valid for 30 days from the date of issue.

For more details, you can verify FOID cards here.

4. Record Keeping

Both the seller and the buyer must maintain a record of the transaction, including:

Names and FOID card numbers of both parties.
Date of the transfer.
Description of the firearm (make, model, and serial number).

5. Special Considerations

Interstate Transfers: If transferring a firearm across state lines, federal law requires the involvement of an FFL dealer.
Inherited Firearms: Special rules may apply to firearms acquired through inheritance. It’s advisable to consult with a legal expert in such cases.

6. Legal Consequences

Failure to comply with Illinois firearm transfer laws can result in serious legal consequences, including fines and imprisonment. Always ensure that all steps are followed meticulously.

Conclusion

Transferring a firearm in Illinois involves several critical steps to ensure legal compliance. By understanding and following these steps, you can ensure a smooth and lawful transfer. Always consult with legal professionals if you have any doubts or specific circumstances that require special attention.

If you have any further questions or need assistance with specific scenarios, feel free to reach out to legal experts or your local law enforcement agency.

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What are the different types of assault charges in Illinois?

Monday, May 20th, 2024

Sometimes disagreements happen in life. An unfortunate fact is that sometimes these disagreements can become violent encounters between individuals. Often, we call this assault and think of this as violence between two people, but the State of Illinois has a specific definition for the word “assault”.

From Sec. 12-1:
(720 ILCS 5/12-1) (from Ch. 38, par. 12-1)
Sec. 12-1. Assault.
(a) A person commits an assault when, without lawful authority, he or she knowingly engages in conduct which places another in reasonable apprehension of receiving a battery.

Note the use of battery, which is another word with a specific legal definition:

Battery is an unlawful application of force directly or indirectly upon another person or their personal belongings, causing bodily injury or offensive contact. The attempt of battery is assault.

The State of Illinois has a series of laws that deal with different types of assault. I wrote this guide to help you understand how this breaks down.

An important distinction to understand with Illinois law is how different types of assault are classified. You may have heard of 1^st-degree, 2^nd-degree, and 3^rd-degree assault before. In Illinois those terms do not mean anything because they are from Colorado and New York laws.

Instead, Illinois defines assault as simple assault or aggravated assault.

Aggravated Assault

Aggravated assault is defined in (720 ILCS 5/12-2) (from Ch. 38, par. 12-2) Sec. 12-2. Aggravated assault. It has numerous factors that go into classifying it this way. The severity of an aggravated assault charge can range from a misdemeanor to a felony depending on which factors are present. Here’s the full legal definition:

(720 ILCS 5/12-2) (from Ch. 38, par. 12-2)
Sec. 12-2. Aggravated assault.
(a) Offense based on location of conduct. A person commits aggravated assault when he or she commits an assault against an individual who is on or about a public way, public property, a public place of accommodation or amusement, or a sports venue, or in a church, synagogue, mosque, or other building, structure, or place used for religious worship.
(b) Offense based on status of victim. A person commits aggravated assault when, in committing an assault, he or she knows the individual assaulted to be any of the following:
(1) A person with a physical disability or a person

60 years of age or older and the assault is without legal justification.

        (2) A teacher or school employee upon school grounds

or grounds adjacent to a school or in any part of a building used for school purposes.

        (3) A park district employee upon park grounds or

grounds adjacent to a park or in any part of a building used for park purposes.

        (4) A community policing volunteer, private security

officer, or utility worker:

            (i) performing his or her official duties;
(ii) assaulted to prevent performance of his or

her official duties; or

            (iii) assaulted in retaliation for performing his

or her official duties.

        (4.1) A peace officer, fireman, emergency management

worker, or emergency medical services personnel:

            (i) performing his or her official duties;
(ii) assaulted to prevent performance of his or

her official duties; or

            (iii) assaulted in retaliation for performing his

or her official duties.

        (5) A correctional officer or probation officer:
(i) performing his or her official duties;
(ii) assaulted to prevent performance of his or

her official duties; or

            (iii) assaulted in retaliation for performing

his or her official duties.

        (6) A correctional institution employee, a county

juvenile detention center employee who provides direct and continuous supervision of residents of a juvenile detention center, including a county juvenile detention center employee who supervises recreational activity for residents of a juvenile detention center, or a Department of Human Services employee, Department of Human Services officer, or employee of a subcontractor of the Department of Human Services supervising or controlling sexually dangerous persons or sexually violent persons:

            (i) performing his or her official duties;
(ii) assaulted to prevent performance of his or

her official duties; or

            (iii) assaulted in retaliation for performing his

or her official duties.

        (7) An employee of the State of Illinois, a municipal

corporation therein, or a political subdivision thereof, performing his or her official duties.

        (8) A transit employee performing his or her official

duties, or a transit passenger.

        (9) A sports official or coach actively participating

in any level of athletic competition within a sports venue, on an indoor playing field or outdoor playing field, or within the immediate vicinity of such a facility or field.

        (10) A person authorized to serve process under

Section 2-202 of the Code of Civil Procedure or a special process server appointed by the circuit court, while that individual is in the performance of his or her duties as a process server.

    (c) Offense based on use of firearm, device, or motor vehicle. A person commits aggravated assault when, in committing an assault, he or she does any of the following:
(1) Uses a deadly weapon, an air rifle as defined in

Section 24.8-0.1 of this Act, or any device manufactured and designed to be substantially similar in appearance to a firearm, other than by discharging a firearm.

        (2) Discharges a firearm, other than from a motor

vehicle.

        (3) Discharges a firearm from a motor vehicle.
(4) Wears a hood, robe, or mask to conceal his or her

identity.

        (5) Knowingly and without lawful justification shines

or flashes a laser gun sight or other laser device attached to a firearm, or used in concert with a firearm, so that the laser beam strikes near or in the immediate vicinity of any person.

        (6) Uses a firearm, other than by discharging the

firearm, against a peace officer, community policing volunteer, fireman, private security officer, emergency management worker, emergency medical services personnel, employee of a police department, employee of a sheriff’s department, or traffic control municipal employee:

            (i) performing his or her official duties;
(ii) assaulted to prevent performance of his or

her official duties; or

            (iii) assaulted in retaliation for performing his

or her official duties.

        (7) Without justification operates a motor vehicle in

a manner which places a person, other than a person listed in subdivision (b)(4), in reasonable apprehension of being struck by the moving motor vehicle.

        (8) Without justification operates a motor vehicle in

a manner which places a person listed in subdivision (b)(4), in reasonable apprehension of being struck by the moving motor vehicle.

        (9) Knowingly video or audio records the offense

with the intent to disseminate the recording.

    (d) Sentence. Aggravated assault as defined in subdivision (a), (b)(1), (b)(2), (b)(3), (b)(4), (b)(7), (b)(8), (b)(9), (c)(1), (c)(4), or (c)(9) is a Class A misdemeanor, except that aggravated assault as defined in subdivision (b)(4) and (b)(7) is a Class 4 felony if a Category I, Category II, or Category III weapon is used in the commission of the assault. Aggravated assault as defined in subdivision (b)(4.1), (b)(5), (b)(6), (b)(10), (c)(2), (c)(5), (c)(6), or (c)(7) is a Class 4 felony. Aggravated assault as defined in subdivision (c)(3) or (c)(8) is a Class 3 felony.
(e) For the purposes of this Section, “Category I weapon”, “Category II weapon”, and “Category III weapon” have the meanings ascribed to those terms in Section 33A-1 of this Code.
(Source: P.A. 101-223, eff. 1-1-20; 102-558, eff. 8-20-21.)

Note that within the definition is a sub-section about assault with a motor vehicle. Sometimes you may see the term “vehicular assault” used, but understand it is only a factor that goes into deciding if an assault is aggravated assault or simple assault.

It is important to work with a competent defense lawyer if you are charged with aggravated assault because they can help guide you toward the best legal defense depending on the nuances present and the potentially complicated nature of this charge.

Simple Assault

Simple assault is not specifically defined in Illinois law. It is a term derived colloquially from case law in People v. Peck, 260 Ill. App. 3d 812 (1994). In this case, the Illinois Appellate Court clarified that assault involves conduct that places someone in fear of imminent battery, while battery involves actual physical contact. Due to this emphasis on the legal word, battery, we can refer to (720 ILCS 5/12-3) (from Ch. 38, par. 12-3) where battery is defined in Illinois law.

(720 ILCS 5/12-3) (from Ch. 38, par. 12-3)
Sec. 12-3. Battery.
(a) A person commits battery if he or she knowingly without legal justification by any means (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual.
(b) Sentence.
Battery is a Class A misdemeanor.
(Source: P.A. 96-1551, eff. 7-1-11.)

While this may seem like a simple definition, it is still best to work with an experienced criminal defense attorney. It is the best way to ensure you receive the best defense against the State of Illinois. You don’t know what you don’t know and it’s your record and your life on the line should you be charged with assault, whether it’s simple or aggravated.

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Introducing Your Guide to Clearing Charges in Illinois

Tuesday, April 23rd, 2024

I’m excited to share our new comprehensive guide on expungement in Illinois! This guide is designed to help you understand what goes into clearing charges from your record in Edwardsville and across the state of Illinois. Whether you’re seeking to erase a past mistake or simply curious about the process, this guide has everything you need. Click here to read the guide.

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The Impact of the Pretrial Fairness Act and SAFE-T Act in Criminal Defense in Edwardsville, IL and the broader Madison County Area

Friday, February 23rd, 2024

The Pretrial Fairness Act, which is part of the Safety, Accountability, Fairness and Equity-Today Act, commonly known as the SAFE-T Act, will completely end the use of money bond and transform Illinois’ pretrial decision-making process throughout the whole state including Edwardsville, IL within Madison County.

In the prior system, judges set an amount of “cash bail” or “money bond” for detained individuals. Detainees could be released prior to a trial if they paid the amount of bail. In the new system, the role of cash payments will be eliminated and judges will determine whether detained individuals pose a risk if released. Pretrial release can be denied by a judge after a hearing, “when it is determined that the defendant poses a specific, real and present threat to a person, or has a high likelihood of willful flight.”

While the elimination of cash bond seems like a win for individuals charged with crimes, the reality is that prosecutors have learned to use the language of the Act to their advantage. Under the Pretrial Fairness Act, the State must now meet a higher burden of proof before the Court can find that someone should remain detained pretrial. Unwary criminal defense attorneys do not know the intricacies of the Act to require the State to meet its high burden, and as a result their clients are detained pre-trial.

Before requesting pretrial release under the Pretrial Fairness Act, an analysis needs to be done to ensure that that the Defendant is released. First and foremost, a determination needs to be made regarding as to whether or not the charge is a detention eligible offense based on safety concerns.

Which crimes are eligible for denial of release after a first arrest?

Some felonies and a small number of misdemeanors are eligible for denial of release after a first arrest if the state proves that the arrested person poses a “real and present threat to any person or persons or the community, based on the specific, articulable facts of the case.” These charges are:

1. All forcible felonies, as defined in 110-6.1: “treason, first degree murder, second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, armed robbery, aggravated robbery, robbery, burglary where there is use of force against another person, residential burglary, home invasion, vehicular invasion, aggravated arson, arson, aggravated kidnaping, kidnaping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement or any other felony which involves the threat of or infliction of great bodily harm or permanent disability or disfigurement;”
2. All non-probationable, non-forcible felonies (the most common are drug sales that involve large quantities of drugs or that happen near a school, church, or other protected place, and repeated DUIs.);
3. Stalking and Aggravated Stalking;
4. Violations of Orders of Protection, Civil No Contact Orders, or Stalking No Contact Orders;
5. Domestic Battery and Aggravated Domestic Battery;
6. All sex crimes (including all forms of criminal sexual assault, criminal sexual abuse, child pornography related charges, and various charges relating to sexual misconduct with children and human trafficking);
7. An additional enumerated list of offenses, which include:
  1. Discharge of a firearm (both aggravated discharge and reckless discharge);
  2. Offenses related to gun sales and purchases, as well as non-probationable gun possession charges;
  3. Human trafficking and involuntary servitude;
  4. Reckless homicide and involuntary manslaughter;
  5. Child abduction;
  6. Felony child endangerment;
  7. Hate crimes;
  8. Aggravated unlawful restraint;
  9. Threatening a public official;
  10. Felony animal cruelty and torture charges;
  11. Aggravated battery with a deadly weapon;
  12. DUI in various circumstances (when there is great bodily harm or death, when the accused is driving a school bus, when the accused has a previous reckless homicide conviction, and when there is bodily harm to a child); and
8. Attempts to commit any of the above offenses.

It is critical to keep in mind that detention-eligible does not mean detained. If the prosecutor wants to jail someone, the following steps occur:

The prosecutor must file a written petition stating what threat the person poses or why they believe the person is highly likely to intentionally evade prosecution, and formally request a detention hearing;
The judge may hold the hearing immediately or grant up to a 48 hour continuance for both sides to prepare for this hearing (24 hours for class 4 felonies and misdemeanors). The arrested person can be held or released during this time as decided by the judge; and
The state must succeed at the detention hearing, and meet the standards for detention.

Frequently Asked Questions about the Pretrial Fairness Act

Will the police still be allowed to arrest people?

Yes. Police will still make the decision about who to arrest if they suspect someone of breaking the law. For many low-level charges or in situations where a person isn’t posing an obvious threat to themselves or anyone around them, police will issue tickets instead of taking people into police custody. Rather than having to pay a fee like you would for a parking ticket, these tickets will have a court date on them requiring you to appear in court on that day in front of a judge.

What will happen if I miss a court date?

If you miss a court date, a judge can either let you know that you missed court by sending you a notice or they can issue a warrant for your arrest. If you receive a notice saying you have missed a court date, it is important to resolve the issue as soon as possible to avoid having a warrant issued for your arrest.

If I get arrested, could I still be jailed while awaiting trial?

Yes. Judges will still be able to jail people when they are charged with serious crimes and are found to pose a threat to another person or the community or if they believe a person is likely to flee prosecution. Most people will be released and no one will have to pay a money bond to be released from jail.

What will happen if I’m arrested again after I’ve been released pretrial for a different charge?

If you are arrested for a new charge while you are already on pretrial release, you can be temporarily jailed. A judge will hold a hearing to decide if you will be jailed until trial or released.

Could I be arrested for violating the terms of Electronic Monitoring?

Yes. Whenever someone violates the terms of their electronic monitoring, a judge can review the violation and decide on a response, including up to 30 days in jail. Additionally, if someone removes or damages their electronic monitoring device or tries to flee the jurisdiction, they could be charged with a felony called “escape” from electronic monitoring. If you must leave your home while on electronic monitoring, it’s important to talk with your lawyer about how to get permission in advance.

What will happen if I violate the rules a judge sets for me before trial?

If you violate the rules a judge sets for you before trial, there may be a hearing to determine what the consequence will be for breaking those rules. That consequence can be a warning, a change in the rules of your release, or up to 30 days in jail. If you are rearrested for a new case before trial, you may be jailed until your trial.

Additional Resources

The Seven Essential Elements of the Pretrial Fairness Act (PDF Download)

Sample Motion (PDF Download)

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Edwardsville Criminal Defense Attorney Reviews K-9 Drug Detection Reliability

Thursday, January 29th, 2015

Law enforcement agencies have been increasingly dependent on drug-detection K-9’s, but are their results reliable in court?

A K-9 must have completed a training course and be certified in order to be used on the field or for a K-9’s alerts to be recognized by a court. In the recent years, the effectiveness and reliability of K-9 and K-9 training have been raising questions that have lead courts to re-evaluate the proper approach of assessing K-9 searches.

The K-9 training course and requirements vary per state. Some state legislatures have been implementing laws in order to have a statewide standard. For example, in Illinois, the Illinois General Assembly passed a law requiring a K-9 to undergo training and obtain certification under a standard similar to that of the Scientific Working Group on Dog and Orthogonal Detector Guidelines (SWGDOG). SWGDOG is a nationwide standard that was established to develop a consensus-based ‘best practice’ system to enhance the performance of K-9 teams and to optimize their use in combination with electronic detectors. SWGDOG was established in order to improve the reliability of a K-9’s alert during a search, the evidence of that search and the K-9’s training presented in court. Under the Illinois law, 50 ILCS 705/10.12, law enforcement agencies must have their K-9 annually certified, each time meeting the stated requirements designated by the Illinois General Assembly Board.

Majority of courts, both state and federal, treat K-9 alerts as per se probable cause when the K-9 is trained and reliable. Until recently, these courts were quick to find this standard based simply on affidavits from the dog’s officer or handler stating their dog was trained or certified. Then in recent years, courts began applying limitations as to the factors considered when determining a K-9’s reliability. Particularly, in Florida v. Harris, the U.S. Supreme Court held that each party should be allowed to make their best case in order to prove that the K-9’s performance was reliable, as oppose to Florida’s previous “check list” test, as described below.

When a court tests whether an officer has probable cause to conduct a search all that is required is the kind of “fair probability” on which “reasonable and prudent people act.” The Florida Supreme Court had created a strict evidentiary checklist to assess a drug-detection K-9’s reliability, where the State would need to introduce comprehensive documentation of the K-9’s prior hits and misses in the field. The U.S. Supreme Court quickly dismissed this, reasoning that this caused too many inaccuracies, especially with false alerts—both positives and negatives. For that reason, the U.S. Supreme Court found that evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust the K-9’s alert. However, the Supreme Court also found that the defendant must have an opportunity to challenge such evidence of a K-9’s reliability. For example, the defendant may contest the adequacy of a certification or training program, examine how the K-9 or the handler performed in the assessments, or even say the officer cued the K-9.

Dogs are creatures of habit and officers or handlers can create subtle cues, whether intentional or unintentional, which can cue the K-9 to alert during a search, especially when the officer or handler has reason to believe there is contraband present. Unfortunately, courts regularly overlook this fact. Judges often trust the testimony of a K-9 officer because they fail to recognize the K-9 officer or handler’s role in or effect on a search. This leads to another weakness in the use of a K-9.

Moreover, problems like residue or trace odors may trigger a false positive alert. These false positive alerts, which can be caused by previous contact with a narcotic by either the serchee or a third party, leads the K-9’s officer or handler to believe there is probable cause. Even if the alert is valid, the alert is often to the odor of a narcotic, which the K-9 is trained to detect, and not the presence of the actual contraband. In these cases, the officer does not meet the proper requirements needed to perform a search and is therefore violating the serchees Fourth Amendment rights.

The Illinois Appellate Court recently decided a case based on the U.S. Supreme Court’s decision in Florida v. Harris. In People v. Litwhiler, the defendant’s conviction resulted from a traffic stop during which a police officer found the defendant in possession of a controlled substance. The K-9’s handler testified that the K-9 used during the traffic stop was certified in a ten-week training session where it was taught apprehension, tracking, and the detection and recognition of different scents and odors of contraband. In addition, the handler was certified and the K-9 was re-certified two times a year to do narcotic and apprehension work. The defendant argued that the K-9 was not sufficiently certified; yet the court found that the record proved otherwise. The record indicated that 66% of the time the K-9 alerted, narcotics were found. This, along with other evidence, lead the court to hold that the field alert statistics and the handler’s testimony were sufficient to satisfy the State’s burden of proving the K-9’s reliability.

Court decisions and legislations, like the one passed by the Illinois General Assembly, are increasingly testing the limits of a K-9’s use in the field by law enforcement officers. Although most cases will be decided on a case to case basis, these changes will lead courts to take a second look at a K-9’s reliability when convicting a defendant based on a K-9’s alert.

References

Florida v. Clayton Harris, 133 S.Ct. 1050, (2013).

Jeff Weiner, Police K-9’s and the Constitution: What Every Lawyer and Judge Should Know, The Champion, April 2012.

Patrick Yeagle, Drug Dogs Fail the Sniff Test, Illinois Times, January 9, 2014.

People v. Litwhiler, 12 N.E3d 141 (Ill. App. Ct. 2014).

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