FOID / CCL Appeals to the Director of State Police: Red Tape Abounds

If you appealed your FOID revocation or denial to the Director of the Illinois State Police (“ISP”) and are still waiting on a ruling on your appeal, you are not out of options.

I get a lot of calls about appeals to the Director. The common complaint is that people send their appeal to ISP and wait for months, but never hear back. For example, one person got no response for 6 months despite repeat calls to ISP before considering legal action.

My first thought on seeing this trend was to remind people that they have to follow the State Police instructions re: Appeal to the letter. I have since learned that following the instructions does not speed up the process. Thankfully, the ISP appeals process is not the end of the road.

ISP’s failure to act on an appeal arguably constitutes a constructive denial of your appeal, especially where months have passed with no response. ISP’s decision is subject to judicial review pursuant to Section 11 of the FOID Act (430 ILCS 65/11). Accordingly, a Circuit Court may review ISP’s decision (or lack thereof) and order the FOID be reinstated if ISP’s denial or revocation was in error.

I handle FOID appeals at all stages, and have had success in litigation against the State Police on administrative review and all the way up to the Appellate Court. For more information, please give my office a call.

DISCLAIMER: past performance does not guarantee future results, and every case is unique. This post is for informational purposes only and does not constitute legal advice or create an attorney-client relationship.

 

Door open for challenges to federal firearms prohibition

A recent opinion from the Third Circuit Court of Appeals suggests that the 18 U.S.C. § 922(g)(1) federal firearms prohibition should not apply to convictions that are not for serious offenses.

In Binderup v. Attorney General, the Third Circuit held that the Federal Gun Control Act’s section 922(g)(1) prohibition was unconstitutional as applied to the challengers, who had been convicted of corrupting a minor and unlawfully carrying a handgun without a license. The Court found that the challengers’ convictions were not for “serious” offenses, and set out factors for determining whether an offense is serious enough to justify loss of the offender’s second amendment rights.

Binderup suggests that persons convicted of nonviolent misdemeanors who receive a sentence on  the lower end of the applicable sentencing range are good candidates to seek relief in Federal Court. If your FOID has been denied or revoked under similar circumstances, seeking relief in federal court may be an option for you.

New FOID Law Makes ISP Report Firearms Disqualification to Local Law Enforcement to Encourage FOID Seizure

On January 1, 2017, the ISP will be required to forward notice of FOID prohibitions and revocations to local law enforcement agencies.

Public Act 099-0787 requires the Illinois State Police to give such notice “to all law enforcement agencies with jurisdiction to assist with the seizure of the [prohibited] person’s Firearm Owner’s Identification Card.”

On its face, the bill is calculated to prevent retention of FOID cards by people who have been rendered ineligible by a prohibition and/or revocation. However, my fear is that this will lead overzealous local law enforcement to conduct warrantless searches and/or seizures of firearms. Prohibited persons could then be prosecuted for possession of the firearms. The situation becomes even more complicated where a prohibited person lives with other gun owners who remain eligible to possess firearms.

Thoughts on Field Sobriety Tests

In this post, I offer one lawyer’s perspective on field sobriety tests. I can’t tell you how to beat field sobriety tests. But I hope to help you better understand field sobriety testing so you can make an educated decision should you be asked to perform any of the Standardized Field Sobriety Tests.

Recent Successes: FOID Reinstatement

I have been relatively quiet about FOID cases, but the recent news is good.

In Tazewell County, my client was granted court-ordered reinstatement of his FOID. The client’s FOID was revoked for a drug-related charge, and he had been determined to be a “person addicted to narcotics” or “unlawful user of narcotics” by the Illinois State Police. My client was shown not to be a drug user at the hearing.

In the 5th District Court of Appeals, my client’s objection to the State Police’s Motion for Summary Reversal was granted, and a briefing schedule was set. The State Police had requested reversal of the trial court’s Order granting reinstatement of my client’s FOID, arguing that the trial court lacked jurisdiction. My client’s objection was well taken, and the State Police motion was denied.

Will I go to jail for my DUI? What you need to know about DUI sentencing in Illinois

One of the most daunting questions on the minds of my DUI clients is “will I go to jail for this?” The answer depends on a number of factors, but primarily on your criminal background.

First determine if you are a first offender. If you have ever been convicted of DUI, you are not a first offender. Note that this differs from “first offender” for purposes of statutory summary suspension (SSS) proceedings, which define first offenders as persons convicted within the past 5 years. Do not be confused: any prior conviction in your lifetime means that you are not a first offender for purposes of the criminal DUI charge.

If you are a First Offender, it is unlikely that you will go to jail.

As a general rule, first offenders rarely receive jail sentences in DUI cases. In most cases, first offense DUIs are Class A misdemeanors, punishable by up to one (1) year in jail and a fine of up to $2,500. However, it is exceedingly rare for misdemeanor first offenders to wind up with a jail sentence. Importantly, the offender is also eligible for court supervision. In other words, a good plea deal can keep first offenders from being convicted in the first place.

That said, there are some important exceptions to be aware of. Illinois’ DUI statute contains several provisions which can modify a first offense to an aggravated DUI, i.e. a felony DUI. Because felonies carry harsher penalties than misdemeanors, aggravated DUIs naturally carry a greater risk of a jail sentence. Sentencing for aggravated DUIs will be explained in more detail below.

Common circumstances which may turn a first offense DUI into an aggravated DUI include:

• Committing the violation in a vehicle that is not covered by a liability insurance policy.
• Committing the violation without a valid driver’s license or permit.
• Violations resulting in accidents which cause the death of another person, great bodily harm or permanent disfigurement to another, or bodily harm to a person under 16 who was being transported by the offender.

If you are not a First Offender, it is more likely that will receive a jail sentence.

Illinois law imposes harsher penalties on DUI offenders with prior DUI convictions.

Second Offenses:

Absent aggravating circumstances, 2nd offense DUIs are Class A misdemeanors and are unlikely to carry mandatory jail sentences. The offender is often given the choice between a short jail sentence or a large number of hours of community service work.

• Misdemeanor 2nd offenses carry a mandatory minimum sentence of either 5 days in jail or 240 hours of community service in addition to any other penalties.
• The presence of aggravating circumstances can enhance the statutory penalty and may call for a mandatory jail sentence. For example, convictions for misdemeanor 2nd offense DUIs where the defendant’s BAC was 0.16 or higher (i.e. twice the legal limit) carry a mandatory minimum sentence of 2 days in jail and a mandatory fine of $1,250 in addition to any other penalties.

Felony First or Second Offenses (Aggravated DUIs):

• Aggravated first or second offense DUIs are Class 4 felonies. In Illinois, class 4 felonies are punishable by one (1) to three (3) years in prison.
• A sentence of probation or conditional discharge on an aggravated DUI will allow the offender to dodge the lengthy period of imprisonment imposed by the felony sentencing provisions. However, anyone sentenced to probation or conditional discharge for an aggravated DUI must serve a minimum of either 10 days of imprisonment or 480 hours of community service. See 625 ILCS 5/11-501(d)(3).

Third DUI:

• A third DUI is a class 2 felony and carries a sentence of not less than three (3) years in prison, and up to seven (7) years.
• If the offender’s BAC was 0.16 or more, the offense carries a mandatory minimum of 90 days imprisonment and a minimum fine of $2,500 in addition to other penalties.
• The offender remains eligible for a sentence of probation or conditional discharge, but must then serve either 10 days in jail or 480 hours community service.

Fourth  or Subsequent DUI:

• A fourth or subsequent DUI are offenses for which a sentence of probation or conditional discharge may not be imposed. In other words, conviction will carry the lengthy period of imprisonment found in the felony sentencing provisions.
• A fourth DUI is a class 2 felony for which a sentence of not less than three (3) years in prison will be imposed, and up to seven (7) years.
• A  fifth DUI is a class 1 felony for which a sentence of not less than four (4) years in prison will be imposed, and up to fifteen (15) years.
• A sixth or subsequent DUI is a class X felony for which a sentence of not less that six (6) years in prison will be imposed, and up to thirty (30) years.

Felony DUIs and Extended Term Eligibility:

It is important to note that the above felony sentencing ranges do not contemplate extended term eligibility. An offender facing a felony charge for which she is eligible for extended-term sentencing will face a much higher sentencing range. For example, an extended term class 2 felony carries a sentence of seven (7) to fourteen (14) years in prison, as compared to the 3 to 7 year range for standard class 2 felonies.

Will a Speeding Ticket raise my insurance? The Long-term Consequences of a Traffic Conviction

You just got pulled over and got a traffic ticket. The cop explains to you that if you just plead guilty and pay the fine, you don’t have to appear in court. This is terrible advice, and here’s why:

In Illinois, the average true cost of a 15 m.p.h. speeding ticket is $744 in extra car insurance payments.

Pleading guilty to a traffic ticket (or failing to appear in court) will result in a conviction. And a conviction means that your insurance company can raise your insurance rates. Paying the fine or failing to appear is very likely to make your car insurance premium more expensive.

How Long Will a Traffic Conviction Affect my Monthly Car Insurance Premiums?

The answer to this depends on your provider, but a good rule of thumb is that your Illinois provider will keep a traffic conviction in their system for 5 years. Every policy is different, so contact your car insurance provider to find out how long a ticket will affect your policy.

How Much Will a Speeding Ticket Raise My Premium?

Again, the answer depends on your policy and provider. But research shows that a speeding ticket for 15 m.p.h. over will raise an Illinois driver’s premium by 12.5% per year on average. The average increase for an Illinois drivers’ premium after a 15 m.p.h. ticket is $124.80 per year. In other words, a 15 m.p.h. speeding ticket will cost $744 in extra car insurance payments. In Decatur, the true cost of a 15 m.p.h. speeding ticket was $771.60.

How Can I Keep a Traffic Ticket from Raising my Car Insurance Premium?

The answer is simple: don’t get convicted. A sentence of court supervision will result in no conviction if the driver does not get another ticket during the period of supervision. This is why I always push for supervision or amendment of the ticket to a nonmoving violation.

As I frequently explain to traffic clients: in the vast majority of cases, my modest fee for traffic cases more than pays for itself in the long run. Pleading guilty looks like an easy out, but don’t be fooled; it can cost you in the long run, and it probably will.

 

ISP to Switch to Online-only FOID Application and Appeals Process; 3 Tips for a More Effective Appeal

The Illinois State Police (ISP) will soon implement a new online-only FOID application process similar to the online application currently used for concealed carry licenses (CCL). Users will also be required to appeal denied FOID applications online. The process will be simpler, but winning an appeal of a denied or revoked FOID will not. I will discuss the changes and offer 3 tips for a more effective appeal of a denied FOID application or revoked FOID card.

On March 16, 2015, the ISP will merge the FOID and CCL application system by refurbishing its electronic CCL application system to incorporate the FOID application. ISP describes the new system as a change that will modernize and expedite the FOID application process. The online application system will replace traditional paper FOID applications, which will no longer be accepted after March 9, 2015. An electronic appeals process will also be implemented.

Electronic FOID Appeals

Individuals whose FOID application is denied will also be able to initiate their appeal online via the ISP web site. Documents submitted on appeal will be uploaded to the ISP web site for official review, and users will receive instantaneous confirmation of their receipt. Additionally, the web site will track the progress of denied applicants’ appeals and provide information on the status of the appeal. At the time of this writing, it is unclear how appeals of revoked FOIDs will be handled, but I surmise that the ISP will use the same system for appeals of FOID revocations. The new appeals process will be less cumbersome to most. But a successful appeal will still require knowledge of the FOID act, federal firearms law, and the art of legal advocacy.

How to Win a FOID or CCL Appeal Using the New System?

Unfortunately, ISP provides little guidance on what is needed for a successful appeal. There is no way to ensure you win on appeal if your application is denied or your FOID is revoked. As such, I recommend asking an Illinois attorney with experience in FOID and/or CCL reinstatements to help you with your appeal.

These three tips can help you make a stronger case on appeal:

1. Focus on rebutting the stated reason for denial and/or revocation.
   You will receive correspondence from ISP that states the reason why your application was denied or your FOID/CCL was revoked. You should submit any evidence you can gather to dispute the reasoning behind the decision, or show that the decision was made in error. Further, do not submit evidence that is not relevant. For example, if ISP alleges you are a habitual user of illegal narcotics, you could submit the results of a clean drug test taken by a licensed physician or laboratory certified by the Illinois Dept. of Health and Human Services. On the other hand, a letter from your pastor saying you are a peaceful person would not be very helpful.
2. Submit evidence with indicia of credibility and/or trustworthiness.
   ISP will not allow you to be present when it considers your appeal. Thus, it is best to submit written evidence that is not easy to dispute and will look credible to an administrative law judge (in case you lose your ISP appeal and seek review in circuit court). For example, submit your testimony in the form of a notarized affidavit rather than as a hand-written letter.
3. Familiarize yourself with relevant statutes, caselaw, and rules of legal procedure.
   You don’t have to be a lawyer to conduct effective legal research (although a law degree certainly helps). Building your knowledge of relevant legal authority will help you make a better case on appeal. The basis of the denial or revocation you are contesting will be Illinois law, or an interplay of Illinois law and federal firearms laws. As such, you should familiarize yourself with the law underlying ISP’s decision (which is often cited in the notice of denial/revocation). It may be helpful to read the FOID Act (430 ILCS 65 et seq.), the Firearm Concealed Carry Act (430 ILCS 66 et seq.), and select provisions of federal law prohibiting certain persons from possessing a firearm (e.g. 18 U.S.C. § 922(g)). You can search for case law that is relevant to your circumstances. You can also learn more about the circuit courts’ limited authority to reverse ISP’s decision of your appeal by studying the rules of Administrative Review in the Illinois Code of Civil Procedure (735 ILCS 5/3 et seq.)

Daniel J. Reynolds is a lawyer at Erickson, Davis, Murphy, Johnson & Walsh, a Decatur, IL law practice.

Sources:

• ISP Press Release
• ISP New FOID Application Overview

DISCLAIMER:

The information on this website is for general purposes only and should not be interpreted to indicate a certain result will occur in your specific legal situation. The facts of your case are unique and must be assessed by our attorneys before representation can commence. The information on this website is not legal advice and does not create an attorney-client relationship.

The Alphabet of Driving After a 1st DUI: MDDP, BAIID, and Getting Back on the Road

How long until I can drive again?

This is a common question from our firm’s first offender DUI clients. The hard truth is that your driver’s license will remain suspended for several months. But this dark cloud has a silver lining: many 1st offenders still qualify to drive during their suspension. Illinois’ Monitoring Device Driving Permit (“MDDP”) program allows eligible first offenders to drive with a Breath Alcohol Ignition Interlock Device (“BAIID”) installed in their vehicle. I will help explain the permit process and offer you a discount on BAIID installation.

ISBA Seeks Amendment to Drug DUI Law

Did you know that smoking marijuana two weeks ago could land you a DUI charge today under current Illinois law? Illinois’ zero-tolerance policy for drug DUIs allows drivers to be prosecuted for DUI even if they were not high behind the wheel. The Illinois State Bar Association (ISBA) hopes to change the way drug DUIs are charged with its recent legislative initiative.