Illinois Unlawful Use of a Weapon Law
Criminal Code 720 ILCS 5/24-1
Illinois Unlawful Use of a Weapon law, also known as UUW, criminalizes possession of all sorts of weapons from knives, to broken bottles to guns. The overwhelming majority of UUW charges, however, involve guns. Indeed, UUW is the number one most charged felony in Cook County with 2016 seeing 2,414 charges in Chicago and 777 cases in the suburbs in 2016.1
Do not be confused by the law's name; you are not required to have "used" the gun in order to be charged with this crime. Unless the gun is broken down, inaccessible, unloaded and in a case, all that's needed is for you to have it on you or know it is in the car.2
Misdemeanor v. Felony UUW
Simple UUW is a Class A Misdemeanor, meaning it is punishable by up to a year in jail. UUW can be charged as a Felony or "Aggravated UUW" when the gun is loaded and immediately accessible, or, even if its unloaded, but the bullets are accessible. Finally, not having a Firearm Owner's Identification Card, possessing drugs, or having had an order of protection issued against you in the last 2 years are all things that will turn a simple Misdemeanor UUW into a Felony or Aggravated UUW.
Aggravated UUW Usually Carries Mandatory Jail Time if Convicted
Aggravated Unlawful Use of a Weapon is usually not eligible for probation; it comes with a mandatory minimum of one year in jail and up to a $25,000 fine if you are found guilty.3
As an elected official, the Cook County State's Attorney is under political pressure, especially in Chicago and the suburbs, to seek jail time in gun cases, even for people with no criminal background. More than anyone, Chicago UUW lawyers know the feeling of having a client who has never been in trouble with the law, and is now facing jail time just for having a gun.
First Time Weapons Offender Program for Defendants Under 21 Years-Old
As of January 1, 2018, entry into the First Time Weapon Offender Program is possible for defendants under 21 years-old charged with UUW and Aggravated UUW.4 There are many things that can disqualify you from getting into the program, but, if the prosector agrees and you successfully finish it, the case against you is dismissed without any jail time, guilty plea or conviction.
This program is truly an excellent possibility for those eligible. For information on strategies to secure such an agreement in your case, read my guide on Your Settlement Options.
Charged With UUW: What You Need to Know
Whether you had a weapon because you wanted to protect yourself and loved ones in a dangerous world, or you just love guns because they are beautiful and fun if enjoyed responsibly, here's what you need to know if you are charged with UUW in Illinois, with an emphasis on Chicago and Suburban courts:
I. Settlement Options in UUW Cases
II. How to Beat UUW Charges
III. Timeline Overview of What Happens in Court on a UUW Case
IV. Can I Be Deported for an Illinois UUW Conviction?
I. Getting Felony Unlawful Use of a Weapon Charges Reduced to a Misdemeanor
Every successful criminal defense begins with defining your goals. If you haven't already, get specific on what the best possible outcome is in your case.
Let's take a "typical" Aggravated Unlawful Use of a Weapon case:
Example: Dexter is a 23 year old college senior who has borrowed his uncle's car to go to a party with two friends. He's coming home around midnight going north on Lake Shore Drive when Chicago police pull him over for speeding and a broken taillight.
Officers immediately order Dexter and his two friends out and search the car. They find a loaded handgun under the driver's seat. Police reports allege that Dexter spontaneously blurted out that he owned the gun, but there is no signed statement or audio recording. Dexter is charged with Aggravated Unlawful Use of a Weapon and the car is impounded.
In order of desirability, a list of successful outcomes in such a case could look like this:
- Get the case dismissed with a pretrial motion,
- Beat the case at trial,
- Get charges reduced to a misdemeanor or
- Plead guilty in exchange for probation and no jail time.
Options #1 and #2 are "best" because it would result in outright dismissal. And the next section will explore just how to do that, because there are opportunities in this case.
But for now, let's talk about options #3 and #4 because you can pursue all these options at the same time and see what bears fruit. Options #3 and #4 involve deal-making with prosecutors or directly with the judge. This is a low cost tactic that every Chicago UUW attorney should explore because it is a low-cost, low-risk strategy that may achieve the case's goals.
In the past, Cook County prosecutors would almost never agree to reduce Felony UUW to Misdemeanor UUW. People with no criminal record were sentenced to a year in jail simply for having a gun. Recently, however, that's changed and I have seen Felony UUW cases get reduced to Misdemeanors with the right negotiation strategy.
The first step in pursuing this option is putting together a "mitigation packet". A mitigation packet is simply a collection of documents and supporting evidence telling the client's story and why he should be given reduced charges or no jail time.
In Dexter's case, that might include a cover letter telling his story as a person. It would mention his zero criminal history and would include things like his college report card, proof of his involvement in the community, a letter from the boss at his part time job and character references.
Will it work? Nothing is ever certain. But there is nothing to lose and potentially much to gain. One way to increase the likelihood that it will work is combining the negotiation efforts with a pretrial motion to dismiss, which we'll discuss in the next section.
One thing for sure, however, is that an organized and concerted effort to tell the client's story in negotiations is much more likely to succeed than a half-hearted request for an offer. Effective deal-making is a powerful, low-cost and low-risk strategy that should be every criminal attorney's first line of defense.
For more on this strategy, read my guide on Your Settlement Options.
II. How to Beat Illinois UUW Charges
One way to give your negotiations "teeth" is to have a pretrial motion to dismiss on the table at the same time that you pursue a deal. And just as important, the pretrial motion has the potential to totally defeat the charges in case talks break down.
There are a few ways to beat an Illinois UUW case:
Option #1: Beat the Case With a Pretrial Motion to Dismiss Challenging the Search of the Car
Recall our example with Dexter and his two friends:
Example: Dexter is a 23 year old college senior who has borrowed his uncle's car to go to a party with two friends. He's coming home around midnight going north on Lake Shore Drive when Chicago police pull him over for speeding and a broken taillight. Officers immediately order Dexter and his two friends out and search the car. They find a loaded handgun under the driver's seat. Police reports allege that Dexter spontaneously blurted out that he owned the gun, but there is no signed statement or audio recording. Dexter is charged with Aggravated Unlawful Use of a Weapon and the car is impounded.
Why did police search the car? This is a powerful question backed up by our Constitution's Fourth Amendment rule against unreasonable searches. It has been used for centuries to defeat thousands of criminal cases. There are few motions more powerful to the criminal defense attorney than the Fourth Amendment because, if successful, anything that was found in the search, whether drugs or guns, cannot be used. Without this evidence the case falls apart and must be dismissed.
When police lawfully stop a car, they can search that car if they have reasonable suspicion that it contains weapons. Police reports will typically attempt to justify the search. They will say things like "suspect spontaneously blurted out that he had a gun" or "suspect made furtive movements with his hands indicating danger to the officer" as justification to search the car.
But whether this is legally sufficient to search the car is something that thousands of books, articles and cases have analyzed and is a question for the judge to determine. The purpose of a Fourth Amendment motion is to cross-examine the officer and highlight these issues to the judge. When backed up by the right case law, these motions have incredible power.
Option #2: Beat the Case at Trial By Challenging "Possession"
Suppose that negotiations with prosecutors break down and that the pretrial motion to dismiss fails. The offer on the table is one year in jail and life as a convicted felon. Is there any other option?
The other option is taking the case to trial. In Dexter's case, there are opportunities to win. Just being close to or around a gun is not enough. Illinois courts have held that, in order to prove a defendant knowingly possessed a gun, he must (1) have knowledge of the gun and (2) have immediate and exclusive control over the area where the weapon was found.5 If the gun was someone else's and you did not intend to possess it, you are not guilty of Unlawful Use of a Weapon.6
In this case, the car is not titled in Dexter's name and the weapon was found in a spot (underneath the driver's seat) where he wouldn't necessarily have known it existed. There's also two other people in the car, so its unclear who actually "possessed" the gun because other people have control over the area where the weapon was found.
Demanding trial in this case is not without risk. It's an unwritten rule in Chicago and throughout Cook County criminal courts that if you lose at trial, you will be hit with a "trial tax". This means that, if you are found guilty, you will be sentenced to more time than the offer you turned down.
But with high risk comes potentially high reward. If a judge or jury finds you "not guilty", you walk away from the case totally free. You can even file a motion to have the record of the case expunged and destroyed.
Your attorney can suggest, advise and recommend a course of action. Ultimately, however, whether to go to trial, and whether to choose a judge or jury, is a decision you must make. In making that decision, it is important to have as much information as possible about your judge and how the dynamics of your case play in Chicago juries versus a jury in the suburbs.
Option #3: Using the Latest Caselaw to Beat UUW Charges
It is crucial for the UUW lawyer in charge of your defense to be current on the ever-evolving caselaw governing this area of the law. The UUW statute is incredibly long and detailed, making it a breeding ground for technicalities and loopholes.
For example, UUW law prohibits carrying a gun that's not in a case, but, what counts as a “case”? Is the center console of a vehicle a “case”?
It is indeed.7 Not because the law says so, but because the statute is not 100% clear and the Illinois Supreme Court had to fill in the grey area.
Option #4: Constitutional Attack of Laws Prohibiting Carrying Guns and Other Weapons
In 2013 the Illinois Supreme Court struck down parts of the Illinois Aggravated Unlawful Use of a Weapon law as unconstitutional.8 The court ruled that the law violated the Second Amendment Right to Bear Arms because there was no legal way to carry a handgun outside the home for personal protection in Illinois. I am proud to say that I was on the frontlines of this struggle and successfully sued the government in federal court on behalf of a client who was being prosecuted via the unconstitutional law.
Since then, lawmakers have added the Illinois Concealed Carry Act providing a legal means to carry a handgun outside of the home, thereby "correcting" the statute. As a result, many UUW cases were simply thrown out.
While the law has been "corrected" of this constitutional defect, I believe there are still ways to use the Right to Bear Arms to defeat UUW prosecutions. As with any new and groundbreaking Supreme Court case, Aguilar has disturbed an area of the law and this has an in turn created opportunities. While UUW law as it relates to firearms has been corrected, many other weapons related laws have not and may be ripe for constitutional attack.
For more information on best practices when fighting a criminal case, see my guide on "How to Beat Your Case".
III. Timeline Overview of What Happens in a "Typical" Chicago UUW Case
Arrest, Bond Hearing
Every UUW cases begins, of course, with an arrest. Within 48 hours after arrest, you will appear in Central Bond Court at 2600 South California. Arrests that happen in the suburbs go to their respective District Courts: Skokie, Rolling Meadows, Maywood, Bridgeview or Markham.
By now, you probably know that bond hearings last only a couple minutes. The prosecutor argues for a high bond and your lawyer argues for a low bond. Depending on your background and the facts of the case, the judge usually decides on something in the middle.
Due to the presence of a gun, clients charged with UUW are often in danger of receiving a higher than usual bond. As elected officials, Cook County judges are under political pressure to be "tough" on gun crime by setting a high bond in UUW cases.
Getting a bond is a crucial step in the criminal process. It can change the whole outcome and momentum of the case. If your loved one has not yet been given a bond, or you need bond reduced, it is crucial that he be fully represented at the bond hearing by a UUW attorney that can devote time and attention into giving him the best possible chance of bonding out.
After bond, the next step is appearing in a different court for a preliminary hearing. The location of your arrest determines where your preliminary hearing will be. Arrested on the south side and your preliminary hearing goes to the Branch 38 courtroom in the courthouse at 727 E. 111th Street in Chicago. Arrested on the west side and your preliminary hearing happens in the Branch 50 courtroom in the courthouse at 5555 West Grand in Chicago.
The purpose of a preliminary hearing is to determine whether there is probable cause that a felony was committed and that you committed the felony. This is the first opportunity to have your UUW thrown out and I have personally had judges dismiss UUW cases against my clients at preliminary hearing.
The problem, however, is that, even if the judge throws out the case at preliminary hearing, the State can simply get a Gand Jury to say there was probable cause. Still, the preliminary hearing is an opportunity to flesh out important facts about the arrest and lay the ground work for a future motion to dismiss.
If there is a finding of probable cause at the preliminary hearing, your case will be sent to the presiding judge at 26th & California for assignment to yet another judge and courtroom.
The judge you are assigned to can have an enormous impact on your case because, unless you file a motion to substitute judges within a strict time limit, he or she will be your permanent judge. It is therefore crucial to know the judge you are assigned to. If their temperament, judicial philosophy and attitude towards guns is harmful to you and your case, a motion to substitute judges should be filed.
This is not without risk. You usually only get one chance to substitute judges and you may be assigned to an even worse judge. It is therefore important to know not only the judge you are assigned to, but also, what other judges you could be assigned to.
A Note on Impoundment
Unlawful firearm possession triggers car impoundment if you were driving at the time of the arrest. You can get your car back by paying a penalty in the administrative hearings building at 400 West Superior, Chicago. Every day your car is in impound, the City is charging storage fees, so the sooner you pay the penalty and get it out, the better.
While you are there, you can request a hearing, but you must do so within 15 days of the arrest. If it is shown at the hearing that there was no probable cause of a Municipal Code violation, your fees are refunded. This is also an opportunity to cross-examine the arresting officer and lay groundwork for future motions to dismiss in the criminal case.
After Assignment: Discovery, Negotiations, Pretrial Motions
After you are assigned to a judge, UUW lawyers file a written motion for discovery. This is simply a motion in writing putting the State on notice that it must hand over all evidence. Some lawyers rely on oral motions, but this is an inferior practice because the rules clearly state that a motion in writing is required to protect your rights.9
Once all evidence is handed over, your lawyer should invite you into the office to review everything, discuss objectives and provide a strategy for the path ahead. As discussed earlier in this guide, this could mean negotiating a deal and attempting to dismiss the case with a pretrial motion.
If negotiations break down and motions fail to dismiss the case, the only option left is to go to trial. Pretrial motions are written, filed and argued to lay the best possible foundation for victory at trial.
At trial, prosecutors and the criminal defense attorney make opening statements, witnesses testify and the ultimate decision is left to the judge or jury to determine whether you are guilty or not guilty. If "guilty", another date is set for sentencing. If "not guilty" you leave court a free man or woman. You may qualify to expunge or destroy the record of your arrest. You may also have a potential civil lawsuit if the prosecution violated your civil rights.
IV. Can I Be Deported for an Illinois UUW Conviction?
Yes. A noncitizen faces deportation (now called "removal") under 8 USC § 1227(a)(2)(C) if they are convicted of an offense relating to a firearm. Other types of firearms offenses for purchasing, selling or using a firearm are similarly deportable.
This does not mean that if you are arrested and charged with UUW that you will definitely be deported. You can fight to maintain your innocence in the criminal case and possibly prevent U.S. Immigration and Customs Enforcement (ICE) from seeking to deport you. And even if they do, there are deportation defense measures that may prevent your removal and allow you to remain in the United States.
As you can see, UUW cases are a high stakes area of the law with little forgiveness for not taking advantage of every effective defense strategy.
If after reading this you would like more information, you are invited to call me at 312.396.4112 or contact me online.
You can also find information on fees by reading my pricing policy and service guarantees.
For information on me, including my background and practice philosophy, check out my attorney profile.
1. Cook County State's Attorney Data Report, October 2017
2. 720 ILCS 5/24-1(a)(4); 720 ILCS 5/24-1.6
3. 720 ILCS 5/24-1.6(d)
4. 730 ILCS 5/5-6-3.6
5. Illinois v. McIntyre, 962 N.E.2d 1108 (2011)
6. In Dexter's case, it would be wise to also file a motion to exclude the statements police say he made based on a violation of the Miranda rule, in order to better his chances of winning at trial.
7. Illinois v. Diggins, 919 N.E.2d 327 (2009)
8. Illinois v. Aguilar, 2 N.E.3d 321 (2013)
9. Illinois Supreme Court Rule 412