Friday, October 29, 2021

WHAT IS A CHOKING OFFENSE UNDER ILLINOIS LAW?

You met with a possible “match” on one of the many dating apps. The meeting very quickly led to hookup sex. You thought you were both enjoying yourselves, and that the other party had asked you to choke them. But now the police have arrested you.

What are the possible charges? What can you do?

Under Illinois law, choking or strangling someone is defined as intentionally impeding the normal breathing or circulation of the victim’s blood by applying pressure on their throat or neck or by blocking their nose or mouth.

The charges depend on whether the other person is or is not a household/family member. In either case, choking is an aggravated offense. Mind you that Illinois courts have found some dating relationships to qualify for purposes of domestic battery law. (See Is it Really a Relationship Under Illinois Domestic Battery Law?)

For your casual, one-time hook-up, you could be charged with Aggravated Battery (720 ILCS 5/12-3.2) a Class 3 felony. Your charge can be upgraded to a Class 1 felony if you used a dangerous instrument, had a prior conviction or caused the victim great bodily harm, permanent damage or disfigurement.

For a more serious dating relationship, even one that has ended, you can be charged with Aggravated Domestic Battery, (720 ILCS 5/12-3.3), a Class 2 felony that carries mandatory prison time.

As with most crimes, the state must prove you guilty of all the elements of the offense beyond a reasonable doubt. Did the victim tell you to choke them or otherwise consent? Did the victim choke you? Is there any corroborating physical evidence such as photographs or medical reports? If you are charged with aggravated domestic battery, can the state prove the victim was a household or family member?

This is a very controversial area, and opinions as to the validity of consent are likely to vary widely from judge to judge. Therefore, it is important to retain an attorney who is familiar with the preferences of the judges in your particular courthouse in order to determine your best possible defense.

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.)

Friday, October 15, 2021

DID YOU CONSENT TO A POLICE SEARCH?

An officer generally must have a warrant in order to search you or your property unless an exception to the warrant requirement exists. One exception is that you consented. But did you really? While this may seem like a straightforward yes or no question, the facts can be murky, and different judges may interpret the same facts very differently.

To prove consent, the state must show you did so freely and without coercion. Consent cannot be extracted by implied threat or covert force. If your consent was nonverbal, the court will look at whether you intended to consent or were merely acquiescing to authority.

For example, in People v. Banta, the officer asked the defendant if he could search his person. The officer testified that the defendant “did not tell me no.” Video of the incident did not have sound so that the court had to infer whether defendant gave consent through his body language. The court held that even if defendant had not verbally refused, his lack of protest was insufficient to establish voluntary consent, and that the state had failed to meet its burden of proof.

If you have been charged with a criminal offense, contact an experienced criminal law attorney immediately. Did you agree to the search? Was your consent voluntary? If not, an attorney may be able to petition the court to suppress any evidence resulting from an illegal search.

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.)