Train Stop One – Alleged Crime 

     When someone is accused of a crime, the police are either there right away, or the police do not get involved until later. 

     Scenario 1 (Misdemeanor DUI) – Police come right away

     Defendant James Smith is driving down Cicero Avenue in Chicago and is stopped by an unmarked police car for allegedly running a red light. The Chicago Police approach Defendant James Smith and ask for his license and insurance. While asking for Defendant James Smith's license, the police officer thinks Defendant James Smith has been drinking because the officer tells Defendant James Smith that he can smell alcohol on his breath. 

     Scenario 2 (Domestic Violence) – Police get involved later

     Defendant James Smith comes home from work at the same time as his wife Michelle Smith comes home from work. The two get into an argument, while their twelve year old son Charles Smith is in the other room. Defendant James Smith and Michelle Smith are screaming at one another in the kitchen. Michelle Smith accuses Defendant James Smith of pushing her in the back, which she says caused her to fall and get hurt. Their minor son Charles Smith could hear his parents arguing in the kitchen, but did not see his dad allegedly pushing his mom or his mom's fall.  

Train Stop Two – Crime Investigation

     Scenario 1(Misdemeanor DUI)  – Police come right away

     Defendant James Smith has police contact right away for allegedly running a red light. That sees police instantly make contact with Defendant James Smith and begin investigating the traffic stop, but looking for ways to get Defendant James Smith out of his car to search him and his car. 

     Since the police officer thinks Defendant James Smith has been drinking, he asks Defendant James Smith if he was. James Smith replies that he had one beer after work. The officer does not believe Defendant James Smith and asks him to step out of the car. Defendant James Smith complies. The officer then asks him to do Field Sobriety Tests (FSTs) on the sidewalk. When the officer thinks Defendant James Smith may be impaired, he asks Defendant James Smith to submit to a breathalyzer, which Defendant James Smith does. 

Scenario 2 (Domestic Violence) – Police get involved later 

     The day after Defendant James Smith and his wife Michelle Smith have their big kitchen argument, Michelle Smith talks to her sister about what happened and her sister tells her to bring minor Charles Smith to the sister's house and for Michelle Smith to go make a police report about the domestic violence allegation. Michelle Smith does that and goes and reports the allegation of domestic violence to her local police station. Michelle Smith does not tell Defendant James Smith that she is going to make a police report for domestic violence. 

Train Stop Three – Arrest

     Scenario 1(Misdemeanor DUI) – Police come right away

     The police officer believed that Defendant James Smith swayed a little on the walk and turn test, so he asked Defendant James Smith to do a breathalyzer. The breathalyzer came back that Defendant James Smith had a Blood Alcohol Concentration (BAC) of .09, just over the legal limit for a driver's BAC. 

     Since the officer observed Defendant James Smith driving the car and the BAC just came back to .09, the officer arrests Defendant James Smith for driving under the influence, a DUI and also issues him a citation for disregarding a traffic control light, which was the reason for the traffic stop. Since Defendant James Smith did the breathalyzer, the officer arrests him under an A1 DUI. 

     Scenario 2 (Domestic Violence) – Police get involved later

     Michelle Smith goes to her local police station to make a police report for domestic violence against her husband, Defendant James Smith. Michelle Smith tells Detective Darrell that she and James Smith got into an argument about her thinking he was cheating on her. Michelle Smith tells Detective Darrell that as she was leaving the kitchen, Defendant James Smith pushed her in the back and she fell and hit her head on the wall. 

     Michelle Smith has no bruises or marks on her, but Detective Darrell believes her and tells Michelle Smith that he is going to wait for James Smith to get back to their house that night and go arrest him. Detective Darrell does that and arrests Defendant James Smith for the allegation of domestic battery. 

Train Stop Four – Detention Court Hearing

     Scenario 1 (Misdemeanor DUI) – Police come right away

     In Illinois, a standard misdemeanor DUI is not a detainable offense, so after being processed and booked at the police station, the police will release Defendant James Smith with his citation for disregarding a traffic control light and his misdemeanor DUI. As long as Defendant James Smith has no other pending warrants and there is no allegation that he caused any damage to property or injury to any person in his DUI, Defendant James Smith will be released from the police station and given citations that have the date of his first court appearance. 

     Other paperwork James Smith will have with him when he leave the police station is his Warning to Motorists. That is because before police offer James Smith a breathalyzer, they must read him the Warning to Motorists. The Warning to Motorists is a document that informs anyone who is about to be issued a breathalyzer that they have the right to refuse the breathalyzer, but if they do so, it is a minimum twelve month suspension of their driver's license, even if they are subsequently not convicted of driving under the influence. 

     Scenario 2 (Domestic Violence) – Police get involved later 

     Domestic violence is a detainable offense in Illinois. That means that when Detective Darrell goes to arrest Defendant James Smith at his house, that Defendant James Smith must first go before a judge to determine whether or not he should be released from police custody during his pending domestic violence allegation or be held in custody for the duration of the case. 

     The detention judge's decision to either release or not release Defendant James Smith is a crucial stage of the process, so Defendant James Smith is entitled to a lawyer at his detention hearing and should have an experienced criminal defense lawyer with him. That is because judge's are very hesitant to release criminal defendants during a domestic violence allegation, so Defendant James Smith should have a criminal defense lawyer with him to advocate for his release. 

     The decision to release or not does have a middle ground of releasing Defendant James Smith, but with specific conditions of his release. Some of those release conditions could be that Defendant James Smith wear an ankle monitor while he is released during his pending domestic violence allegation. The judge could issue an order that Defendant James Smith be given a police escort to get basic belongings from the house he and Michelle Smith own together, but that Defendant James Smith cannot return to the house during the pending case and an ankle monitor will be placed on him to make sure he stays at least five hundred feet from he and Michelle's house and five hundred feet from her and her work. 

     Since Defendant James Smith and Michelle Smith have their minor son Charles Smith, the judge can also enter an emergency order of protection that Defendant James Smith cannot have any contact with Michelle Smith, other than for arranging childcare for their minor son, while the domestic violence allegation is pending. 

Train Stop Five – Probable Cause to Proceed with Criminal Charges

     Unlike the felony process, the misdemeanor process does not have a preliminary hearing or a grand jury to determine whether or not probable cause exists to move a criminal allegation forward against someone. 

     For the misdemeanor process, the officer's observation and misdemeanor DUI citation to Defendant James Smith serve as probable cause for the prosecution to continue with the criminal allegation of a misdemeanor DUI against Defendant James Smith. 

      Similarly, for the misdemeanor process, Detective Darrell's arresting Defendant James Smith for the allegation of domestic violence based on Michelle Smith's accusation is all the more that is needed to find probable cause for the prosecution to continue the criminal allegation of domestic violence against Defendant James Smith.  

Train Stop Six – Formal Charges

     For the misdemeanor DUI and disregarding a traffic control light allegation, Defendant James Smith will receive paper citations or "tickets" from the arresting police officer. That serves as the notice of what Defendant James Smith is being charged with. There is no formal "indictment" paperwork that will be given to Defendant James Smith because this is not a felony allegation. 

     For the misdemeanor domestic violence allegation, Defendant James Smith will not receive a citation or "ticket." Defendant James Smith will know his official domestic violence allegation, but not from receiving a citation or ticket. Instead, James Smith will receive a formal Misdemeanor Complaint, which looks like this. The Misdemeanor Complaint puts James Smith on official notice of his formal charge.      

Train Stop Seven – Assignment and Arraignment

     Assignment 

     The misdemeanor process is not like the felony process in that for a felony one judge will determine if there is probable cause for the prosecution to proceed with a criminal allegation against a felony defendant, but then the case is transferred to a different judge. In the misdemeanor process, the judge you are before for your initial case appearance is going to be the judge who presides over your case. 

     Arraignment

     Like the assignment different in the felony process, the misdemeanor process will not have the same formalities of arraignment. Nonetheless, the judge will still inform the misdemeanor defendant that he must be present at each and every court appearance.  

Train Stop Eight – Discovery Process 

     Discovery is where real defense lawyers can make or break a case. It is crucial that Defendant James Smith is in great communication with his criminal defense lawyers during the discovery process. Anyone accused of a crime has a right to any and all evidence, including witness names and points of contact, that the prosecution or law enforcement has in its possession. Whether or not a piece of evidence is relevant is not up to the prosecution. Anything in the prosecution’s possession must be disclosed to a person who is charged with a crime. 

     Discovery is called a process because it is not over in one court appearance. Often times the prosecution will have some discovery to give your defense lawyer at the first court appearance, but the vast majority of discovery will come in the weeks and possibly months that follow. 

     Discovery takes so long to complete because it is not like defense lawyer to client communication where defense lawyer can just call his client and ask for documents or points of contact for potential witnesses. Discovery that the prosecution must give you starts with the prosecution sending a subpoena to the police department for any reports, witness statements, bodyworn camera footage, or anything else the police gathered in their investigation or continued investigation. 

     That means that a prosecutor’s subpoena on one case must get sent to the Chicago Police Department Headquarters, which then has the subpoena go to the district where the officers work out of, which then has the subpoena go to the individual officers. Then, those individual officers gather any evidence they have and send it back to the prosecution through that chain’s reversal, which then makes it to the defense lawyer from the prosecutor. A good defense lawyer can speed this process up by listing specific things that the defense lawyer wants in discovery or notifying the prosecutor that something is missing. 

Train Stop Nine – Motion Practice

     A motion is either the prosecution or defense asking the judge to do something specific. A motion can be filed by either the prosecution or defense. A motion is literally “moving the judge” to do something. 

     A motion can be filed at any stage in a criminal proceeding. However, you will typically find motions filed during the discovery process or after discovery is complete. 

     Examples of motions are: Motions to Compel and Motions to Suppress

     Motions to Compel – if Defendant James Smith’s defense lawyer finds in a police report stating there was another witness to the alleged domestic battery against his wife and that a statement from that witness was taken by police, but was not given to defense in discovery, then the defense lawyer can file a Motion to Compel the police to turn over that missing evidence. The judge will then make a ruling to determine if the police must be compelled to turn over the witness statement. 

     Motions to Suppress – this is often used when a defendant’s rights were violated. The Motion to Suppress is not about whether or not a crime occurred, rather it is about did a government actor obtain evidence in violation of the law. 

     From our Scenario 1 (Misdemeanor DUI) of Defendant James Smith being pulled over for allegedly not stopping at a traffic light and then police later accusing Defendant James Smith of DUI, the Motion to Suppress would not be a trial on whether or not Defendant James Smith was driving under the influence; the Motion to Suppress is whether or not the police really did believe Defendant James Smith had a traffic violation. That can be proven by dashcam footage, so if the video shows there was no traffic violation, then the judge can suppress all evidence that pertains to the DUI allegation because the police obtained Defendant James Smith's BAC by violating his right to be free from a false traffic stop in the first place. 

     Similarly, in Scenario 2 (Domestic Violence), where Defendant James Smith is accused of pushing his wife Michelle Smith, if the detective who interviewed Defendant James Smith after he was arrested for domestic violence did not read Defendant James Smith his rights about having an attorney or remaining silent and Defendant James Smith made statements to the detective about the allegations, then the defense lawyer could file a Motion to Suppress Defendant James Smith’s statements to law enforcement.

     If Defendant James Smith’s lawyers are successful at the Motion to Suppress, it is possible the case can be dismissed because the prosecution is now informed by the judge that the judge will not allow the prosecution to use evidence that was illegally obtained by the police. Without their illegally obtained evidence, the prosecution will likely have to dismiss the case. 

Alternate Train Track - Negotiated Plea

     The Train Track Theory of criminal defense from Chicago criminal defense lawyers Weiss & Villalobos uses a train as the method to explain the steps ("Stops") in the criminal process because, like a train, it is possible to take a different track.

   A plea can occur at any point after someone is formally charged and brought before a judge who will preside over the case. A plea is an alternate train track route to take, rather than follow the train stops all the way to a trial. 

     Negotiations for a case dismissal or potential negotiated plea can occr at any point after the alleged crim occurred. That is because both Train Track One (Trial Route) and Train Track Two (Negotiated Plea Route) can and should be occurring at every train stop in the Weiss & Villalobos Train Track Theory. If all of the evidence points to Defendant James Smith having committed the crime he is charged with and he loses his motions to suppress so all of the evidence obtained by law enforcement can be used against him at trial, it is often in Defendant James Smith's best interest to have his criminal defense lawyers enter into negotiations. That is because if the weight of the evidence is so strong that Defendant James Smith will most likely be convicted, then the prosecutors will likely ask the jduge for a higher sentence because Defendant james Smith made the crime victim (his wife Michelle Smith) have to relive the experience by having to testify about the event the domestic violence event. 

     A negotiated plea is a case onto itself. For the best results at a negotiated plea, it is crucial that your criminal defense lawyers be in constant contact with you to gather information about your background and life goals to better negotiate with the prosecution as to why you do not deserve the harsh sentence that a conviction can bring. 

Train Stop Ten – Trial 

     If Defendant James Smith’s misdemeanor allegation is not dismissed during the discovery process or motion practice and there is no agreement to a potential negotiated plea by Defendant James Smith and the prosecution, then the matter will go to trial. 

     Since Defendant James Smith has a right to a trial, he also has a right to decide if he wants a judge alone trial or a jury trial. That decision on who he wants to hear the facts of his case belongs only to Defendant James Smith, so he must have criminal defense lawyers who can guide him on which route is best for him at trial. 

     A judge alone trial is often called a bench trial. This is where the judge will be the sole person to determine whether or not the prosecution has proven their case beyond a reasonable doubt against Defendant James Smith. 

     A jury trial is where twelve members of the public are selected, after a process called voir dire, to hear the facts of the case and determine whether or not the prosecution has proven their case beyond a reasonable doubt against Defendant James Smith. 

Train Stop Eleven – Sentencing Hearing

     If Defendant James Smith is found not guilty at his trial, whether it is a judge alone or jury trial, his case is over and he can then expunge his record.

     If the prosecution does not dismiss its case against Defendant James Smith or no negotiated plea is reached and Defendant James Smith’s misdemeanor allegation goes to trial and he is found guilty, Defendant James Smith will then have a sentencing hearing. 

     A sentencing hearing is not done on the same day as a judge or jury return their decision on guilt or innocence of Defendant James Smith. A sentencing hearing is labor intensive. 

     At a sentencing hearing, Defendant James Smith’s judge will hear from the prosecution and defense lawyers on what a just sentence should be. While at trial the prosecution can not bring up prior convictions Defendant James Smith may have, unless they are very specific convictions, the prosecution may do that during sentencing. The same goes for the defense lawyers though. While the defense lawyers cannot bring up all the other good things Defendant James Smith has done in his life during the trial, the defense lawyers can bring them up at sentencing. That is because a trial is only determining whether or not the allegation happened and sentencing is judging Defendant James Smith in total. 

Train Stop Twelve – Appeal

     If there is something that Defendant James Smith and his criminal defense lawyers believe the judge made an error in during the trial, then Defendant James Smith may appeal his finding of guilty after trial, whether it was a judge alone or jury trial.

     Examples of where Defendant James Smith and his criminal defense lawyers may believe an error was made is the judge allowing the jury to hear from a prosecution witness who talked about a prior conviction of Defendant James Smith that improperly influenced the jury as to whether or not Defendant James Smith committed the current allegation he is charged with. 

     As shown in the Weiss & Villalobos train track theory of criminal defense above, proper criminal defense is a massive process. Having the right criminal defense lawyers is crucial to making sure you are properly represented because facing a misdemeanor allegation is nothing to take lightly. You can contact Wiess & Villalobos to discuss your criminal defense matter by clicking here.