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Burden of Proof in the Initial Red Flag Gun Law Hearing

Under Illinois’ red flag gun law, an Illinois court can remove firearms from a person who is dangerous. When the state, a family member, or a roommate files a petition for a firearms restraining order, they must prove that it is necessary. The petitioner is the party asking the court to remove the gun owner’s guns. The respondent is the gun owner or the person who may pose a danger by possessing or purchasing a firearm.

Which Burden Must the State Meet When Requesting a Firearms Restraining Order?

The state of Illinois or a qualified individual may file a petition in the county in which the respondent resides. The court must order a hearing within 30 days of receiving the petition. At the hearing, the petitioner has the burden of proving by clear and convincing evidence that the respondent poses a significant danger to himself, herself, or others by possessing, owning, or purchasing a firearm. When the court determines that clear and convincing evidence exists, it will issue a six-month firearms restraining order.

Meeting the clear and convincing evidence burden of proof is moderately difficult to prove. The “clear and convincing evidence” standard requires that the evidence shows that it is highly and substantially more likely to be true than untrue that the respondent poses a significant danger by possessing firearms.

Which Burdens Must the Gun Owner Meet to Receive His Guns Back?

All is not lost for the gun owner whose guns have been removed under Illinois’ red flag gun law. The respondent gun owner has a right to petition the court for a hearing to terminate the firearm restraining order. The gun owner must submit a written request for a hearing. At the hearing, the gun owner has the burden of proof. He or she must prove by a preponderance of the evidence that he or she does not pose a danger of causing personal injury to himself, herself, or another person in the near future by having a firearm in his possession or by purchasing a firearm.

The preponderance of the evidence burden of proof means that there is a greater than 50%chance that the gun owner does not pose a danger to himself or others in the near future by owning a gun. It is easier to meet the preponderance of the evidence burden of proof than to meet the “clear and convincing” burden of proof.

A Petitioner Can Request an Extension of the Firearms Restraining Order

It is important to note that a petitioner can petition the court to extend a six-month firearm restraining order. A petitioner may request that an Illinois court renew the firearms restraining order for another six months. The petitioner must file a petition within three months of the expiration date of the original restraining order. Once again, a petitioner must prove by clear and convincing evidence that the respondent gun owner is a danger to himself, herself, or others by possessing or purchasing guns.

We Can Help

Whether you need to petition the court to issue a firearms restraining order or you need to fight a restraining order, we can help. Contact the skilled Cook County attorneys at Glasgow & Olsson today to schedule your initial consultation.

(image courtesy of Ryan ei)

Joilet Man Faces Aggravated DUI Charges

A man from Joliet is facing nine criminal charges, including aggravated drunk driving charges, according to local law enforcement. The drunk driver struck and killed a pedestrian at the intersection of Park Drive and West Park Front this summer. A Will County grand jury recently indicted the defendant. He is facing one count of leaving the scene of a fatal accident and eight counts of aggravated driving under the influence.

With the holidays approaching, it is easy to drink to excess and then get into a motor vehicle. DUI accidents are usually higher around the holidays. If you are facing an aggravated DUI charge in Illinois, it is essential that you hire experienced DUI defense attorneys. At Glasgow & Olsson, our attorneys are skilled at defending Cook County clients against aggravated DUI charges. Contact our law firm today to schedule your free case evaluation.

Aggravated Driving Charges in Illinois

Any felony driving under the influence (DUI) offense is considered an “aggravated” DUI. Defendants convicted of an aggravated DUI may be subject to a maximum fine of $250,000 as well as other penalties. Under Illinois criminal law, a felony DUI conviction includes any of the following scenarios:

  • Third or Subsequent DUI Convictions;
  • DUI Resulting in great bodily harm, disfigurement, or permanent disability to another; person. A conviction of this type of DUI is a special class 4 felony. Defendants may face prison sentences of at least one year but can get as much as 12 years in prison;
  • Committing a DUI when the defendant has a prior conviction for alcohol-related reckless homicide or a DUI that resulted in great bodily harm or death of another person;
  • DUI resulting in the death of another person. The presumption in this type of case is that the Court shall sentence the defendant to prison. Depending on the circumstances, the accused can be sentenced up to 28 years in the Illinois State Penitentiary. This sort of sentence is NOT subject to day for day good time and the accused must serve at least 85% of the sentence;
  • DUI resulting in bodily harm to a motor vehicle passenger who was under the age of 16 at the time of the accident;
  • A second DUI committed while transporting a person under 16 years of age;
  • Committing a DUI while driving a school bus with at least one passenger on the bus;
  • Committing a DUI in a school zone with a speed limit of 20 miles per hour when the accident causes bodily harm to another person;
  • Committing a DUI when the defendant’s license has been revoked or suspended for a prior DUI, reckless homicide offense, statutory summary suspension, or leaving the scene of an accident that involved personal injury or death;
  • Committing a DUI while the defendant transported at least one passenger in a vehicle-for-hire;
  • Committing a DUI while not in possession of a valid driver’s permit or license.

Fighting an Aggravated DUI Charge in Illinois

The prosecution has the burden to prove that all elements of an aggravated DUI have been met. If you are facing an aggravated DUI charge, you may be able to make any of the following defenses:

  • Lack of probable cause for the DUI arrest made by law enforcement
  • Poorly administered or inaccurate blood, breath, or field sobriety tests
  • Fourth Amendment violations

If you have been charged with an aggravated DUI in Illinois, we can help. The defense attorneys at Glasgow & Olsson are nationally recognized experts on Illinois DUI and are the only published Aggravated DUI attorneys in Illinois. Contact our Schaumburg DUI defense attorneys to begin preparing your defense.

(image courtesy of Steve Halama)

What to do if You are Arrested for a DUI on Thanksgiving

You had big plans for Thanksgiving weekend. Every year you watch the Macy’s Thanksgiving Day Parade with your family. Perhaps you head over to a relative’s house to enjoy a large, home-cooked Thanksgiving Day meal with your family and friends and watch the football game. You had big plans for a relaxing and fun Thanksgiving weekend. Illinois drivers never intend to face a DUI arrest, especially during the holidays.

Unfortunately, Thanksgiving weekend is one of the worst times to be pulled over for a DUI. Illinois police officers are always overworked and overburdened during the holiday season. It is important to know what to expect if you are arrested for a DUI in Illinois on Thanksgiving weekend.

Arrest and Booking on Thanksgiving Weekend

If you are arrested for a DUI on Thanksgiving weekend, you might spend your entire weekend or longer in jail. After a police officer pulls you over, he or she will place you in the back of a patrol car and drive you to the police station. Illinois police officers often set up DUI checkpoints during holiday weekends in an attempt to apprehend drunk drivers. Alternatively, a police officer might stop you if you are swerving, speeding, or driving erratically.

The police officer will ask you to produce a valid driver’s license, proof of insurance, and registration. If the police officer suspects that you are intoxicated, he or she will ask you to step out of your vehicle and perform standard field sobriety tests. If you fail the field sobriety tests, the officer might place you under arrest and transport you to the police station for further breath, blood, or urine testing. If you fail the tests and shows a blood alcohol content of .08 or higher, or refuses to submit to testing, you may be subject to a statutory summary suspension of your driver’s license.

During processing, an officer will photograph you, fingerprint you, and confiscate your belongings. If you are a first-time offender, you might qualify for a Monitoring Device Driving Permit. You might be required to post a bond before police officers will release you. Finally, police officers might tow, impound, or seize your motor vehicle. During Thanksgiving weekend, police stations are often crowded and backed up. You might be detained much longer than you would expect.

Consequences of a Thanksgiving DUI

If you are charged with a DUI over Thanksgiving, you will be subjected to many negative consequences in addition to missing your Thanksgiving dinner. Your driving privileges, and possibly your freedom could be at stake. If this is your second, third, or fourth DUI conviction, you could face significant fines and jail time. It is essential that you contact a skilled DUI attorney as soon as possible.

Making even the smallest misstep during the arrest process could seriously hinder your DUI defense. At Glasgow & Olsson, our skilled defense attorneys have successfully defended many Illinois residents. If you are arrested for a DUI over Thanksgiving, contact our criminal defense law firm as soon as possible.

(image courtesy of Steve Halama)