Petty Offenses, Misdemeanors and Felonies in Chicago
Petty Offense, Misdemeanor, & Felony Differences
You have been contacted by the Chicago Police, the Illinois State Police, or some other local police agency. You have been told that you are being charged with a criminal offense of some sort, and they want you to either:
- Come into the police department just to "talk about it" so they can hear your side of the story;
- Come in and surrender yourself on an outstanding warrant for your arrest; or
- Come in and "surrender to the process" of being arrested and charged without a warrant, at which time you will either be released from the station after being processed, or held overnight (or longer) until you can be brought before a judge for a bond hearing.
When you get this call, you need to know what may happen to you. When you get this call, you will need the advice and knowledge that can only come from a seasoned Chicago criminal defense lawyer.
If you fail to go into the police department under any of these scenarios, there is always the possibility that you may still be picked up and arrested. But when it comes to option number 1 "come in to talk about it", remember that you are under no such obligation to do so. You have the absolute right to remain silent, not answer any questions, and to not provide the police with any possible incriminating information. Your exercise of these rights in the face of option 1 will therefore either lead the police to:
- Seek an arrest warrant;
- Simply arrest you without a warrant; or
It could also lead to "nothing further" in that, if the police lack sufficient evidence without your own confession or statements which give you away, then they will likely go no further until such time as they do. In some circumstances, the police may be bluffing and simply may not have enough evidence to charge you. In such situations, your silence may mean the difference between a serious criminal charge and nothing at all.
What kind of case the police are investigating dictates what happens next. There are three types of offenses in Illinois, as the title above suggests: Petty Offenses, Misdemeanors and Felonies. There are rules that govern arrest procedures, and release on bond while the charges are pending. It is therefore essential to know what your possible exposure is regarding any charges that may be brought, so you know for what, and how, to prepare yourself.
A petty offense is basically a charge that, upon any finding of guilt after a trial, or upon a plea, does not carry a potential jail sentence of any kind, and is only punishable by a fine plus court costs, fees and/or assessments. Some examples of petty offenses presently include: speeding less than 26 miles over the posted limit, possession of less than 10 grams of cannabis, driving without proof of insurance, equipment violations such as broken headlamp, obstructed window, etc., texting while driving, and most ordinance violations.
On a petty offense, Illinois Supreme Court rules provide for the posting of bail security (bond), so that usually you are released on your own recognizance, or you can be made to post a cash bond that has been predetermined, usually in a range of $75.00 up to $150.00. Because the amount is a pure cash bond, the full amount of that bond is generally available to be used at the conclusion of the case in court to pay attorney fees, fines, court costs, etc. But if the case was dismissed in your favor you will generally get back the full amount posted.
A misdemeanor offense is an offense that can be punishable by a period of incarceration in a County Correctional facility anywhere from 1 day to as many as 364 days. Class A misdemeanors, such as certain DUI offenses, possession of cannabis of 30 - 100 grams, battery, retail theft (1st offense under $150.00), theft of under $300 (1st offense), driving while license suspended, reckless conduct (and so on, the list is quite long), are all presently punishable by up to 364 days in jail, a fine of up to $2,500.00 plus court costs, fees and assessments, or both. Class B Misdemeanors are presently punishable by up to 6 months incarceration and a fine of $1,500 plus costs, etc. Some Class B examples include: speeding 26 - 34 miles over the posted limit, telephone harassment, possession of 10 - 30 grams of cannabis, and animal neglect. Class C misdemeanors also carry a maximum fine of $1,500.00 plus costs, etc., however they carry a maximum jail sentence of up to only 30 days. Examples of Class C misdemeanors are: assault and disorderly conduct.
Aside from the potential of a jail sentence, almost all misdemeanors can also be disposed of by way of court sentences known as probation, conditional discharge or court supervision for up to 24 months. Some specific offenses cannot however be disposed of by way of supervision by operation of law, for example: domestic battery, resisting/obstructing a peace officer, 2nd offense DUI, driving while license suspended/ revoked based upon a DUI, reckless homicide, leaving the scene of a personal injury/ death accident if previously convicted of, or placed on supervision for that offense within the 10 previous years, as well as others. Some misdemeanors carry a mandatory jail sentence as part of any sentence of probation or conditional discharge, some carry a mandatory period of community service and some allow for one or the other.
Felonies are crimes that are punishable by a term of imprisonment of 1 year or more. Because they are the most serious of offenses, there are additional safeguards and procedures that are followed that do not apply in misdemeanor cases. For starters, there are no pre-approved court order bail schedules on felony cases, as there are in petty and misdemeanor cases (except crimes involving domestic violence, as misdemeanor charges of that nature go through a mandatory bond hearing). One way or another, a hearing must be held before a judge so that bond can be set.
Of course, that bail hearing may happen in the absence of a defendant, in the case where the State has determined that they wish to proceed by way of felony charges, and has either gone in secret to a Grand Jury to obtain an indictment, or has filed a complaint for preliminary examination before a court. Either way, the judge will conduct a hearing into the nature of the offense, and the defendant's background (in certain cases without the benefit of defendant or his attorney), and then set an amount of bail, or no bail at all. Once the Defendant has been arrested on the warrant, if he or she can post the required sum of money, he or she can be released from the station. But if the defendant cannot, he will be brought at the first opportunity before the court that issued the warrant, for a bail review and to begin the process of prosecuting the case.
Approval of Felony Charges by the States Attorney
In many instances, people are arrested without a warrant, based upon an officer's "probable cause" to believe that a felony has been committed. The police will use the custodial environment of the lock up to further any investigation they are still undertaking (such as to trying to obtain admissions or confessions from the arrestee), because they can hold a person for a significant period of time without even filing a criminal charge. The first "layer of protection" in Illinois is the requirement that an Assistant State's Attorney (ASA) review the facts presented and determine whether or not to approve the felony charge(s). Sometimes, an ASA may determine that, while a felony could be brought, under the facts and circumstances, it should not be brought, and perhaps misdemeanor charges or no charges at all, may follow.
Preliminary Hearing or Examination
Assuming the ASA approves the felony charge, the next step is for the State to file a complaint for a preliminary examination and present the defendant for a bail hearing. The authorities have run the arrestee's records through every crime database they have, in order to advise the Judge at the bond hearing of any prior criminal background. First, the Court reviews the complaints to see if there is "probable cause" to detain the person pending trial. If the court determines that there is, then they proceed to the actual bail hearing. But if the court finds that there is not probably cause, then the individual is released without bail on his own recognizance (although he must still appear in court as directed). The case is then continued for the State to either 1) obtain a Grand Jury Indictment within 30 days if the defendant is still in custody, or 60 days if he is released on bond, or 2) proceed to a preliminary examination before the court to determine "probable cause" to proceed to trial on the merits.
Grand Jury Indictment
If the State goes to the Grand Jury, it is done in secret. In Cook County Illinois, the Grand Jury is held at the Criminal Courts Building located in Chicago. In other Illinois counties, the Grand Jury proceedings are held elsewhere. The defendant is not notified, not present, and his attorney has no opportunity to address the jurors. It is often been said that a Grand Jury will indict a "ham sandwich" at the State's request, and while that may be an exaggeration, once the State announces its intention to go to the Grand Jury, a indictment is virtually a certainty. By contrast, a preliminary examination is held to determine if "probable cause" exists to believe that a crime has been committed, and that the defendant committed said crime. It is not a trial on the merits, as it is a limited hearing, where hearsay testimony is admissible (same with a Grand Jury).
However, it is a contested hearing in open court, not secret, with the right to confrontation of any witnesses, and the right to present evidence or testimony on one's behalf. It is said among legal practitioners that one cannot lose at a preliminary hearing, only win, in that a finding of "no probable cause" results in the immediate dismissal of the felony complaint(s). This may be true to some extent, but the "victory" can be short-lived, as nothing prevents the State from taking the case in secret to the Grand Jury anyway, as long as they inform the Grand Jury of the earlier probable cause hearing that resulted in a finding of no probable cause, and make the transcript of the hearing available.
Probable Cause and Formal Criminal Charges
Once the State has obtained its "probable cause" finding, they may then issue the formal charging document. If a Grand Jury issued the finding, then they will issue an indictment alleging all offenses they have approved. If a Judge found probably cause after a hearing, the State may issue an information based upon any and all charges supported by the evidence at the hearing. The difference between the two is this: only a Grand Jury may correct any technical defects or errors in a charging Indictment. The State may not amend an indictment on its own authority and they must otherwise "re-indict." An information however, may be amended on the State's motion at any time, and only requires a re-swearing that the charges contained therein are true and correct to the best of the ASA's belief, and that they are warranted under the earlier finding of probable cause.
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All criminal offenses in Illinois carry the requirement of proof beyond a reasonable doubt. As to felony and misdemeanor charges, there is an absolute right to a trial by jury, and fees may only be assessed as part of a sentence if, and only if, a defendant was found guilty. In petty offenses, however, there is a "right" to a jury trial, but because no jail time is attached, the State can charge court fees in advance of a trial, as a cost of demanding a jury, and said fees will not be refunded even after a not guilty verdict. All offenses carry the same rights to confrontation of witnesses, presumption of innocence, to testify or remain silent, and to be represented by competent counsel.
If you are ever arrested, charged, or cited with any criminal offense, or if the authorities are investigating you for any suspected offense, you need aggressive, effective representation against the power of the police and the State. You need experienced lawyers that will not shy away from their responsibility to you. You need the lawyers at Mitchell S. Sexner & Associates LLC. Call us right away at 1(800) 996-4824 to schedule your no cost, no obligation initial consultation.