Monday, April 17, 2017

IF A GUN LAW IS UNCONSTIUTIONAL, CAN MY CONVICTION UNDER THAT LAW BE SET ASIDE?

A few years ago, you were convicted under an Illinois gun law that banned carrying a firearm outside the home. In 2013, the law was set aside. Is there anything you can do about your prior offense?

If you have been convicted under an Illinois gun or other law that was later declared unconstitutional, you may be able to ask the court to set your conviction aside. This is particularly important if your immigration status is at risk. Even if you are a citizen, your prior conviction may still be used to upgrade a future offense unless you act first.

In 2013, the Illinois Supreme Court struck down parts of the Illinois Aggravated Unlawful Use of a Weapon statute, stating that it was a flat ban on ready to use guns outside the home. (See People v Aguilar.) The affected parts said that a person commits aggravated unlawful use of a weapon when he or she knowingly carries an uncased, loaded and immediately accessible firearm on his or her person or in any vehicle except when on his or her land, home or place of business. Such an offense was a Class 4 felony.

Once a law is declared unconstitutional, it is considered unconstitutional from the beginning. But that doesn’t mean that your conviction disappears automatically. You must take action to clear your record. If you don’t, Illinois courts have held that the prior offense can be used to upgrade sentencing on a future offense.

In People v Smith, the defendant was convicted of unlawful use of a weapon by a felon based on his prior felony conviction under a gun statute that was later declared unconstitutional. The court held that because the defendant did not clear his felony status, his prior conviction could still be used as an element of the current offense.

If you were convicted under this or another unconstitutional statute, contact an experienced criminal law attorney immediately. An experienced attorney can help you work through the court system to have your conviction vacated.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

No comments: