Mike:
Welcome to the Mike Agruss Law video podcast. We are a different kind of law firm and that’s on purpose. At Mike Agruss Law, we see you as a person and not just a client and that makes us better at what we do. We’re not just lawyers and you’re not just a client. We’re friends, neighbors and family. This is a show about all things legalish that friends, neighbors and family want to know. This is season one episode two and today we’re talking criminal law. Today’s guest is Mark Galler, the owner of Mark Galler Law. Founded in November 2018, Mark focuses on criminal defense and civil litigation, primarily contract disputes and fraud. Mark, how are you?
Mark Galler:
Great, Mike. Thank you so much for having me on. I appreciate the invite here and this is a really wonderful setup you have.
Mike:
Yeah, thanks. Absolutely. I just started doing this video podcast and when I was thinking about doing it, I knew for sure, I would have someone on early on to talk criminal law. When I was in law school, I loved criminal law. I love criminal procedure. My wife and I are total junkies for Law and Order, Dateline. I love the documentary series, Making a Murderer and the Aaron Hernandez Show that also recently came out. Tell me a little bit about what you do at your firm.
Mark Galler:
Yeah, thank you Mike. My firm has been in existence since November 2018. I primarily practice and I’d say about 80% of my practice is criminal defense. I handle everything from simple traffic violations up into, including homicide and class acts offenses, everything in between. I’d say the real nuts and bolts of my practice would involve cases of possession of firearms, illegal possession of a firearm, drug cases and also, DUI practice as well.
Mike:
Okay, and I think you’d agree with me that I think criminal law and family law and I’m sure there’s other areas of law that are sort of their own separate animal, right? Tell me the difference between a criminal case and a civil case, what’s the difference?
Mark Galler:
That’s a great question and a lot of times, I get that even from my clients or people that don’t really understand how criminal law works. Criminal law is initiated by a victim of a criminal offense. Someone that they were either harmed by and they felt that they have been wronged so they go to the police, they file a report or complaints with their local police departments and then the police from there will initiate the proper procedure of filing a formal report. Maybe if it’s a felony level, they’ll reach out to the local states attorney’s department.
Mark Galler:
They will look to see if the assistant states attorney, that’s in charge of maybe felony review, thinks that there is enough evidence or proper procedure to bring in a case in front of either a grand jury or a preliminary hearing which is where the officers or other victims would come in to testify or witnesses would testify if there’s enough probable cause to bring a case. It’s really, where the government comes in and steps in to protect individuals who have been harmed and they try to set an example for anyone else looking to commit a crime and saying, “Hey, if you do this, these are going to be the repercussions and we’re going to protect the citizens of our state or our government.”
Mike:
Okay, and you just briefly touched on it as far as like the process from the time someone is arrested until trial. Walk me through all of the stages from what happens from day one until trial.
Mark Galler:
Exactly, so there’s a couple of ways that the criminal case can be initiated. The crime could have already occurred and the individual might not have been caught yet, okay? What often happens is, if the victim has some idea of the identity of that individual or maybe there is a video recording at a store location or from someone’s cellphone, they will then try to track that individual down. Try to look at the person’s identity. If they can identify the person through visual quality or if they have a name and then they’ll issue an arrest warrant and that is to bring in that individual to face the charges against them. If they were arrested on the spot of committing the crime, say, they were trying to break into a phone store and the police were nearby, somebody saw them breaking in and they arrested them on the spot, then formal charges would start at that point.
Mark Galler:
Now, the way that the next step works is once you’re arrested, they have a certain amount of time to bring you in for a bond hearing. Typically, it’s the next day. If it’s in the morning hours, they’ll bring you in, in the afternoon at the same day, where you’ll go in front of a judge and try to get a bond set and hopefully be released from custody. Custody is where you remain in the protection of the police. That’s the first step. The second step then is, they have to bring you in front of either a grand jury which is roughly 16 members of the community that’ll hear evidence and testimony from witnesses from police officers who will basically explain to the jury, under oath, what they saw.
Mark Galler:
Try to prove that there is problem … the government is trying to prove then through question that there’s probably cause to bring a formal case against that individual.
Mike:
Let me jump in there because I’ve got a quick question about that. Is there always a grand jury depending on what type of charge, whether it’s state or federal or if it’s like a minor DUI or I don’t know if you would consider that minor but is there always a grand jury?
Mark Galler:
Great question, no, it really only applies to felony level cases which is anything … class four felony is the lowest level of felony in Illinois and that’s because you can spend at least 366 days in jail or longer. What separates a misdemeanor from a felony is simply that. The highest level of misdemeanor is misdemeanor A and you could spend up to 365 days in jail there. What Cook County did specifically for the longest time was, they would go through a preliminary hearing, which affords criminal defense attorneys like myself the opportunity to go into court, with my client and then question the officer or witness, under oath.
Mark Galler:
Then ultimately be able to argue to the judge that there is no probable cause to bring the case and try to get it dismissed at that point but it’s easier for the state now to just skip that step, bring the evidence and the officers into court and essentially, feed them the questions that they need without opposition from somebody like me and their chances of getting the grand jury to indict the individual is extremely high.
Mike:
When someone is indicted, what is the next step?
Mark Galler:
After they’re indicted, then if the individuals are already in custody, then they have to go through an arraignment process and that’s where they are brought into court. They’re formally read the charges that are being brought against them. They’re told the possible punishment and jail time that they could face and from there, after that arraignment takes place, now, you’re in a full-fledged case.
Mike:
Got it, and during the full-fledged case, I know what it’s like in a civil case when you go through the discovery process, you answer interrogatories or questions, you turn over documents, parties sit for depositions and I want to know what’s the difference in that discovery phase in a criminal case, right, like are there depositions, do you answer written discovery? How does that work?
Mark Galler:
Yes, absolutely, the very first thing at least I do and most … I would say most attorneys do in the criminal setting is they file right away a motion for discovery and it’s a multi-paged document where you’re seeking certain pieces of evidence and while it’s the state’s responsibility and the government’s responsibility to prove their case, you want to try to collect all the evidence you can to maybe find pieces of evidence that are missing or that part of an investigation that wasn’t done correctly and then you can use that in your defense and there are certain items that we wouldn’t have to turn over, even with the state asking us for particular materials. We wouldn’t have to turn over to them to use that at trial unless we were actually going to use that at trial.
Mark Galler:
There’s a little bit of leverage that is provided to the defense side but yeah, immediately you file the motion for discovery and you start collecting evidence and I try to tell my clients, that could take a while, depending on the county you’re in, especially, and the judge you’re in front of. It might have certain deadlines and they set out a clear schedule for you right off the bat in terms of when production of discovery should be completed by and then from there, you’re looking at what you have and what you can use and you potentially start doing motion practice and whether or not you need to bring in people for evidentiary depositions or you need to deal with experts.
Mark Galler:
It could open up the floodgates, depending on the type of case and the documents and evidence that are being produced.
Mike:
Got it. In a civil case, you can take a deposition of a witness. How does it work in the criminal case, if you have a witness and you want to get their testimony, what would be the next step?
Mark Galler:
Absolutely, so what you could do is there’s several avenues. You can utilize services of a private investigator. If your client has the funds and the means to do that, it’s not always necessary. In more egregious cases, when you start getting up to the higher level felony cases or cases where your client is being wrongfully accused and I would highly recommend that in certain circumstances, absolutely. That’s one way where you can try to get witness statements and eventually maybe bring those in by way of an affidavit later on because an affidavit then is a sworn statement, that’s notarized.
Mark Galler:
It becomes official or you could bring them in for evidentiary depositions which is where they would be giving testimony under oath which then you can use at trial, even if you bring them in as a witness to testify during a trial.
Mike:
Okay, and after that discovery process or phase is done and you approach trial, what happens or what are some things that go on typically before a trial and your trial date.
Mark Galler:
Excuse me, that’s one thing to start moving pretty quickly. Once discovery is completed, and depending on whether or not you have motions to file and I keep saying motions for example, say, you have a gun case and by gun case, I mean, illegal possession of a firearm. Maybe they don’t have their FOID card and they were walking around with a firearm and an officer spotted that and they weren’t supposed to have this firearm on them. Depending on whether the officer conducted the stop properly, there could be motion to suppress evidence which is what’s done most often in drug or gun cases to try to show that there maybe was probable cause or a reason for the officer to approach that individual.
Mark Galler:
If they hadn’t approached that individual, they wouldn’t have found the firearms so you’re trying to remove that firearm as evidence from the case because then, if the government doesn’t have that piece of evidence it makes it much more difficult, sometimes impossible to prove their case moving forward at trial.
Mike:
Okay, you bring up something interesting that I wanted to ask you. I look at part of this, we’re going to talk criminal law, the procedure, how it all works and then I also am thinking of general questions that people always ask me, friends, family, neighbors, stuff like that and you just mentioned someone being stopped and they’ve got … there’s a search that police take over the gun and whether or not that can come in at trial. If a police officer stops you, should you talk to them?
Mark Galler:
I always like to say, no, don’t talk to them. Are you being respectful? Absolutely, you acknowledge their presence. You could be cordial, like you and I talking right now and you can have a normal conversation with them, give them your name, the basic information but if they start getting into details about the case, sorry about what you’re doing there, or why you’re sitting in your parked car, you don’t need to directly respond to that. It creates … The more you speak to an officer, the more you give them, the more evidence that is supplied to them to use in the case, if it’s brought against you.
Mike:
At what point during that conversation … This is a twofold question, so what are your Miranda rights and at what point during that conversation, if you do decide to talk to the police, are the police required to read you your Miranda rights?
Mark Galler:
Absolutely. If I give an example, it might make it a little bit more clear for those that might not understand the procedure. Let’s say, we’re dealing with a driving under the influence, a DUI case, all right. Say, you’re sitting in a parked car, you’re in a Target parking lot, you’re lawfully parked between the lines, your car is off and you’re hanging out in your car, maybe you have a friend with you and you’re just sitting there. An officer approaches your vehicle. At that point, in your mind, you’ve done nothing wrong, right? The officer says, “Hey, why are you sitting here, what are you doing?”
Mark Galler:
You’re not doing anything illegal unless there’s maybe a sign post that says you shouldn’t be here past 10:00 but say, it’s mid day on a Tuesday, when the stores are open, you’re doing nothing wrong. You have to at least answer the officers but if they start saying, have you’ve been drinking, have you’ve been doing this or doing that, you respectfully decline to answer any questions because what happens at that point is you start opening the door or the window and they might start smelling an odor of alcohol and now, they’re going to start using that information and then they’re going to start using their standard language of, “He’s got bloodshot, glassy eyes, an odor of alcohol upon his breath.”
Mark Galler:
Now, next thing you know, you’re going to admit to drinking a beer or two, while that isn’t illegal, it’s now providing more and more information to the officer that you were drinking. They’re going to start asking if you’ve been driving, where you came from and you might out of instinct answer where you came from, right? Now, he’s got you out of the car, asking to do field sobriety tests which are tests to determine for the officer just probable cause to arrest you for a driving under the influence charge. Now, to answer your question, it’s a subjective … it’s an objective question really, whether a person in a similar situation and the officer in that situation would think that the person has either committed a crime or was about to commit a crime.
Mark Galler:
That’s when they can arrest you, if that’s the case. If those elements are met and you’re arrested, any questioning after that, that isn’t voluntarily, there should be Miranda rights read and the other part of your question was what are Miranda rights? The second part of that is, there’s five Miranda rights that I’m sure everybody has heard, right? You have to an attorney. Anything you say can and will be used against you in the court of law. You have a right to a counsel with you. If you can’t afford an attorney, one will be provided for you. At that point, if they’re questioning you and you’re under arrest, that becomes a constitutional issue, right?
Mark Galler:
If they haven’t read you your Miranda rights and they start asking questions, that’s where that issue comes into play.
Mike:
I was going to ask you this later on but you brought it up with the drinking, driving example. If you’ve been drinking and you think you’re over the legal limit and you do get pulled over, what should you do?
Mark Galler:
Well, if you had one of my business cards, I actually have on the back your rights and again, it goes back to being respectful. Always be respectful to the police. They’re doing their job. They’re trying to ensure the safety of yourself and others and if you know you’ve been drinking, if you know you’ve had too many, and they’re going to be asking you if you’ve been drinking and I can’t tell you to lie but you don’t want to answer those questions so you respectfully decline to answer the questions or if you had a business card similar to mine, you hand that to the officer and then, if you don’t even speak then they can’t start using some this evidence saying, “Oh, I smelled an odor of alcohol.”
Mark Galler:
Well, they wouldn’t be able to smell an odor of alcohol in your breath if you weren’t actually talking to the officer, right? I mean, you presume unless somehow, you’re opening up your mouth and the odor is actually coming out but you would respectfully decline field sobriety test. You respectfully decline all that and that’s where it’s going to get a little scary. They’re going to arrest you, all right. They’re going to take you into custody and they’re going to take you to the station. You’re going to be sitting at the police station for a while and they still might ask you to do certain things but if you don’t give them the opportunity to collect that evidence, you’re not obstructing justice if you’re complying with them.
Mark Galler:
If you respectfully are placed in custody and taken to station, nothing is going to happen, except the case of driving under the influence but then they don’t have any evidence against you besides maybe what your eyes look like. Maybe if you had a sway in your walk to the car, a little gait, something that might be off. That’s all they have. They don’t have the full proof evidence to try to bring a DUI case against you.
Mike:
I remember in law school, there was a difference between … regarding Miranda rights, there was a difference in saying, I want to be silent and I want a lawyer. I don’t know if that distinction still applies now or the case law applies but is it … would it be … sure in an ideal world, someone gets pulled over and they have your business card and they can pull it out without saying anything and show it to an officer, that would probably be your ideal situation. I would imagine that doesn’t happen often. You get pulled over, you know you’re drunk, can you simply say, I want my lawyer. I’ve heard that that’s the four magic words you should say is I want my lawyer. Would you agree with that?
Mark Galler:
I wish it worked that simply but yes, I mean, then it invokes another constitutional right of yours, the right to an attorney but at that point, I mean, you’re not under arrest. There isn’t a criminal proceeding against you. Unless you’re under arrest, then that invocation of your rights would come into play but at that certain moment, the officer is going to be like, “Okay, great but I’m still going to have to get you out of the car,” and then they could still ask you … because at that point if you’re not under arrest, having an attorney present isn’t going to do anything. You need to respectfully decline it, let them place you under arrest and then, that’s when you say, I want to speak to my lawyer.
Mike:
You simply say, when they start asking you, have you’ve been drinking, you say … what would you say?
Mark Galler:
I mean, me personally, I would say, I respectfully decline to answer any questions and you could just keep saying, I want my lawyer. Sometimes, I’ve heard with police officers that that might … depending on how you say it can be respectful. It might smooth things over if you try to refrain from saying that without … just don’t simply answer the questions, you say I respectfully decline to answer the questions.
Mike:
Got it. Let’s move on to searches and seizures. What’s search and seizure? What’s required? Do you always need a warrant? Let’s talk a little bit about that.
Mark Galler:
Okay, perfect, perfect and we could tie that back into, let’s say an unlawful possession of a firearm and you’re in a newer vehicle that’s involved in a traffic stop, that the officers engage in a traffic stop. You have a constitutional right to protection of illegal searches and seizures by persons of authority, right? Whether that’s Cook County sheriff or a Chicago police officer or an officer in your area. You have a protection and security from just invasion of those rights. What that means is, the only time you could be … there’s really three ways that an officer has the right, constitutional right to search, let’s say your vehicle.
Mark Galler:
Say, you’re speeding down the road and they clock you going 85 and a 55. They pull you over for speeding and nothing else is going wrong. If they say, can I search your car and you say no, and they start searching your car, this is when these constitutional rights come to effect. There’s two different ways that this could come into play. The first is called a terry stop. That’s kind of the slang, legally sort of term that an officer has to see that, they reasonably thought a crime was being committed or that it had been committed. It’s an investigatory stop where they’re just trying to make sure that the person they’re talking to is either an actual suspect of a crime committed or they’ve heard that this person was involved in a crime.
Mark Galler:
They’re just trying to make sure that they arrest the right person. When you get into probable cause to do a more thorough search of a vehicle like the speeding car or the car that had sped and they’re searching the car for a firearm, they would have to have some sort of reasonable article of suspicion that they either saw this firearm or somebody maybe called in a 911 report and said, “Hey, this guy is waiving a gun at me. Here’s his license plate, here’s his car.” That would rise potentially to the level that the officers can now search your vehicle because they have this eye witness testimony or if they saw the gun in person, same situation, that’ll give them enough probable cause to know that there’s … that there could be more in the vehicle that they can actually end up searching the entire vehicle.
Mike:
Okay, and while we’re talking about searching cars, I remember from law school, I thought something that was interesting is searching apartments because you’re oftentimes dealing with significant others, roommates, who has authority so who can give permission to search an apartment and in particular when you’re dealing with multiple people living there. You could have a minor child, you could have a significant other, you could have a roommate so how does that work? The police shows up … the police officer shows up and they want to search your apartment, who can consent to that?
Mark Galler:
That’s a great question. A lot of times people do with … live with other roommates, maybe one, two, three or four are their roommates or they have like you said, their significant other over. Obviously, if it’s your apartment or if it’s your house, you can certainly give permission to search but if you have roommates that have … that are part of a lease and everybody is on the lease or maybe they’re paying you for rent, you can allow the police to go in to search at least your room and then the common areas. If your roommate’s door is locked and the officers has no reason to believe that a specific or that individual has done anything wrong or illegal, you can’t give permission to the police to search anyone else’s room.
Mark Galler:
There’s a common mistake with the communication and maybe how much control they have over these different areas of the apartment if it’s not your room. If it’s your significant other for example and say, they’re just visiting and you’re in the back of a squad car and she’s … and then the officer says to he or she, yeah go ahead, I live here, go search the house, it’s all yours. That’s where a constitutional issue can come into play, whether or not that person actually had authority to do so. In that particular circumstance, that would not be the case.
Mike:
Okay, let’s talk about I guess what I would consider some sort of just like general legal terms that people have maybe heard that they don’t know about. What’s a bench warrant?
Mark Galler:
A bench warrant is typically issued by a judge if an individual who maybe has a bond in place fails to show up to court and it’s the way that a judge can control the individual by use of the county’s sheriff’s department to go out and say, this person is in direct violation of the court order. They’re supposed to be in court today. They didn’t show up. I’m issuing a bench warrant and let’s say that’s a $25,000 D amount. What that means is then that the sheriffs are going to go affect or take control of that warrant to go try to track down that individual and they can place him under arrest and now the only way they get out of custody typically is if they can pay 10% of that $25,000 so $2,500 or if they have an attorney or an excuse, maybe a medical emergency took place and an attorney came in and filed a motion to quash and recall that warrant, then they can avoid having to pay the 10% fee before getting out of custody.
Mike:
What’s the difference between bail and bond?
Mark Galler:
Bail and bond are pretty synonymous. The difference would be bond is … where maybe say you’ve got a bail bonds company that an individual can’t afford to pay a bond or bail by themselves. They can go to a company that’ll post that bond on their behalf and they would have to supply some sort of item of value, maybe it’s a title to a vehicle. Something of actual value to … that the title company can hold on to issue the bond. Really, it’s the same thing. The amount that’s set by a court, by a judge that is going to either ensure that … that’s going to ensure that you show up to court and it’s kind of a security that’ll keep you coming back.
Mike:
Got it, and if you don’t come back, what happens to that money?
Mark Galler:
The money could be forfeited. There’s times where clients just disappear and you don’t hear from them again and you try to explain to the judge that you’ve reached out to the individual. They’ve come to court for year and a half and now, all of a sudden, you can’t get a hold of them. Then, there’s a … the judge will give an opportunity to appear in court one more time. Say, it’s two weeks out from the date that that warrant was issued, the bench warrant. You come to court in two weeks. Your client is still not there. Now, the judge is going to enter a judgment for bond forfeiture, which means then that … there’s that final date. If they don’t show up on their final date, then your bond is forfeited and it goes to the county.
Mike:
I’ve seen in the news recently, there seems to be a lot of new stories in Illinois and particularly nationally dealing with cash bail and people who can’t afford it, who are sitting in jail, waiting for their trial date, especially for non-violent acts. Tell me a little bit about what this reform is and what people are trying to do to change it. In other words, it seems like if you have money to post bail, you don’t have to wait for your trial date in jail but if you don’t, you sit there and wait and I’ve read articles, I couldn’t give you any numbers or statistics right now but it seems like, there’s a lot of people sitting in jail for non-violent offenses who simply can’t post bail or get a bond to get out. What is … and I don’t know how new it is but what’s this movement and why is it getting so much attention?
Mark Galler:
That’s a really great question. Bond money was the way that a lot of attorneys would set up contractual agreements with their clients on how to get paid. It was a way for individuals who were able to post bond to then pay their attorneys maybe down the road or whatever that agreement might be. Those amounts used to be higher and the counties were trying to defendants to post the cash bonds and that was the only form of payment and so the way that it has been going now and the reason it’s become such … kind of a contentious issue and a topic is because you have some … and I know we’re talking about non-violent offenders.
Mark Galler:
We have some violent offenders that are getting lenient bonds now because the government has kind of shifted in policy in terms of making sure that it’s not based on a monetary consideration for somebody to be able to post bond. They should look at the totality of the circumstances that maybe their education, if they’re going to school, if they’re working, if they have a family, who they have to really provide for. Now, you’ve got this mix of, is the bond appropriate for somebody in non-violent offense or if it is a violent offense and if they’re able to get out but they’re lowering the bond amounts and that’s creating an issue because now you’ve got individuals who maybe are going out, and committing another offense.
Mark Galler:
Now, they’re facing a violation of their first bail bond, maybe they had an I-bond. An I-bond is where you’re release on your own recognizance. You don’t have to pay to get out. You’re just released right away after the arrest process is complete. Then, they go out and they pick up another case or two. The issue is, and a lot of maybe police departments argue that that shouldn’t be the case, that the bond amounts need to be higher, they need to be more strict so that we can make sure that these repeat offenders aren’t going out and committing more crimes so that’s where the issue is.
Mike:
Right, and I think the main concern and what I keep reading in the news is that, these people are … can’t afford a bond and they’re in jail on a non-violent charge. Do you think eventually cash bonds will go away for say first time offenders with non violent charges in Illinois. What do you think it’ll look like in 10 years?
Mark Galler:
I think it’s turning that way. I think you’re exactly right, Mike and a lot of judges are really good at looking at that specific information, especially for non-violent offenders, they’re going to give you a chance. You have to prove to them and especially if your attorney or public defender who is handling the case is adamant about explaining your background and why you should get an I-bond as a non-violent offender and a first time offender. I think your chances are very, very great where you won’t have to post a monetary bond and I think that trend is going to continue and it will keep diminishing I believe.
Mike:
Okay, let’s move on to expungement. What is it? How does someone expunge their criminal record? How does it work? Do you do it? Do you help clients do that?
Mark Galler:
I do. Yes. Yes. So, there’s expungement and there’s sealing. Expungement is the ultimate goal of individuals and typically … there’s numerous requirements but typically, if there’s a conviction involved, you’re not necessarily able to expunge your record. If you are able to expunge your record, say, it’s for maybe a petty drug offense. In today’s day and age with marijuana being legal in Illinois, there’s numerous requirements for what and how your potential convictions or arrest and how they can be expunged but when you’re successful in getting it expunged, the file is essentially deleted.
Mark Galler:
It’s torn up, it’s thrown away and you’re not able to track it down. I’ve actually tried to do this for some clients that have had records expunged in the past and now, they’re trying to get particular licenses and at least I have not been able to find, and I’ve talked to numerous agencies all the way up to high level FBI agencies seeing if we can track down this information. Whether or not they do keep this information, I have not found a single shred of successful expungement. So, if you can get that, that’s wonderful. Sealing is also another great step. That’s essentially where any … most non-government entities cannot see that you’ve had a prior conviction, if you meet certain requirements for your case to be sealed.
Mark Galler:
You lawfully can say that you have not been convicted of a crime if you have that case sealed. The only way you can get that unsealed is by court order. You have to file a particular motion and the judge has to unseal that file of which then can be seen. That typically doesn’t happen for individuals looking for employment, unless it’s with a government agency or of course some sort of law enforcement.
Mike:
How does someone determine if they should try to get their record expunged or get something sealed? Can everyone do it or, how does that work?
Mark Galler:
Absolutely. Yeah, at least try to call your attorney. Call your local expungement attorney, criminal defense attorney, any attorney that handles those types of issues will be able to inform you in a matter of few minutes. If it’s not clear, then that attorney or if you can provide them with the case information of the case you’re trying to expunge or seal, they can look that up in the system, go to the courthouse and then get an answer for you with a few minutes. If you are trying to look for a job and you do have a felony conviction, numerous statutes or I should just say, cases that you might have a conviction for can be at least sealed and a lot of them can be expunged.
Mark Galler:
It’s really worth looking into and especially with … Now, with marijuana being legal in Illinois, there’s been thousands of convictions for possession of marijuana back in the day. Now, with this case being in effect, you can get effectively and there are certain requirements, automatic expungements for at least the arrest, if it was under … if you were under possession of 30 grams of marijuana and in case, at least a year old and you hadn’t delivered the marijuana to people that were at least three years younger than you. The way that the government has set this up now, the state of Illinois still offer automatic expungements for those arrests but the rollout dates are quite far.
Mark Galler:
If you want to do it for free, that’s one way to do it, if it’s just for the arrest. It could take up to one to five years depending on how long ago your conviction was, for the government to actually start rolling out the expungements. If you were convicted of possession of marijuana and it was 30 grams or less and you meet the other requirements, now what happens is they have to go through the parole board. A petition has to be filed and then there has to be a pardon made by the governor and then the governor has to submit certain paperwork to the different entities and that could take even longer than what, the one to five time year frame could be.
Mike:
Okay, and I wanted to talk to you about this, about marijuana is now legal in Illinois, as of January 1st 2020. You had mentioned that you can possess, what was it, under … well, tell me, how much can you possess as an individual person in Illinois, without getting in trouble?
Mark Galler:
Yeah, good question, good question. You can legally possess, under 30 grams of actual marijuana buds. I believe it’s 500 milligrams if it’s edibles and then even a smaller amount if it’s a concentrate of THC and you can lawfully carry that in your house. You can’t grow marijuana unless you have a medical marijuana license and this new law actually created an interesting issue too with Illinois, also allowing concealed carry license. If you have a concealed carry license or your FOID card, while the federal government hasn’t recognized marijuana as a lawful drug, it’s still illegal federally, so there’s an interesting question now if these states are allowing the purchase in owning of marijuana, will that affect your FOID card or your concealed carry license and the technical answer is yes. I mean, technically, it can be revoked. That’s something people need to really be careful about.
Mark Galler:
Obviously, if you carry the marijuana outside of your home, and you’re driving around with it, it needs to be in a concealed compartment, somewhere that’s not easily accessible. Anytime you’re carrying an alcohol or now marijuana, you want to keep it in your trunk, keep it simple, just keep it as far away. You don’t need to have it in your front seat. You don’t need to have in your center console, there’s no reason. Obviously, you can’t smoke and drive and that’s also going to create new complications with now lawful searches of cars, when the car can be searched if an officer smells marijuana. It’s going to create a whole new string of case laws that will be coming down in the next couple of years.
Mike:
Yeah, and that was something else I was going to ask you, I think it’s interesting if you’ve been drinking and you get pulled over, I think most people can smell alcohol from a mile away. Let’s say at your house, you get high and then an hour later, you hop in your car and go pick up a pizza or whatever you’re going to do, right? I sort of see the issues that officers may have in this situation where I leave work at the end of a long day. I’ve had my contacts in all day and someone might look at me and think like you’re high based on glossy eyes and bloodshot and so on and so forth.
Mike:
How is that going to work with people who are pulled over and officers think that they are high but they don’t smell anything, they don’t see anything, there’s nothing on them. I mean, have you run into this yet with your clients? To me, it seems like it’s going to be a little bit like of a cluster.
Mark Galler:
Absolutely and it really is. It’s much easier to look at somebody in a setting where they might be suspected of a DUI and do proper procedures for that because you are … you do get that slurred speech or some individuals can develop slurred speech or they might wobble a little bit more when they walk or they’re falling over. It’s more unlikely for somebody, if they’re high or under the influence of THC to exude the same sort of symptoms as somebody in the DUI. To answer your question, it’s going to take some cutting edge technology at least in terms of if they can develop some sort of portable breath test like they do for detection of alcohol in someone’s breath.
Mark Galler:
If they could do something like that in a portable setting without having to draw your blood to detect a THC level. Now, there is a certain limit that you can have in your system at the time you’re driving, it depends on how many hours you smoke. It depends on body weight. I mean, you’re getting to more into like a scientific level of what’s appropriate in driving. It’s much more rare for somebody to face a driving under the influence of a substance than it is for alcohol. It’s really hard to prove and now, with it being pro se legal, meaning that just because you smell like weed, doesn’t give an officer probable cause to just search your car.
Mark Galler:
Now, if they see that you’re carrying weed and it’s right on top of your dashboard, well, now, you’re violating the statute and that you might be able to open the door for the officers to search the car so you want to try to avoid that obviously. Similar too with the new gun laws that came out not too long ago, right? Just because somebody might … if an officer sees a firearm in your coach jacket, while that is lawfully being concealed and maybe the wind blew it open for a second, it’s not pro se illegal to have a gun. Okay? That doesn’t mean, the officer can just come to you and start searching and patting you down.
Mark Galler:
They would need to ask proper questions. Do you have a FOID card? Do you have a concealed carry and it doesn’t just open the door for the officers to do anything they like and same thing with marijuana now.
Mike:
Got it. I think what’s interesting about marijuana and maybe that’s … I find challenging is it’s legal in certain states, like in Illinois but it’s not federally legal. What type of situation could someone get in trouble possessing marijuana legally in the state of Illinois but because they maybe in a federal building or on federal grounds, for example, you can’t show up to O’Hare with marijuana, right, because the airport is federal property. Can you explain this distinction and the difference between it being legal in a state and not being legal federally and where people could run into issues although they’re still in Illinois?
Mark Galler:
That’s a great question and it does apply to people visiting these types of states as well. Illinois is now the 11th state that has fully legalized marijuana. If you’re visiting a state like Illinois, Colorado, California, your ability to purchase and maintain weed is different than the actual citizens of that state. The way you can get in trouble and to answer your question if I’m understanding correctly is obviously, you can’t bring a little baggy of weed on a plane with you. Otherwise, now, you’re violating state and federal law. You can’t just smoke in public. There has to be certain areas that you can smoke.
Mark Galler:
Some dispensaries might allow you to maybe test their product or they might have a smoking lounge and if everything is licensed property, that’s fine. You can’t go into a place of amusement like a bar or a restaurant and smoke, even if they might sell it there, if it’s at least a place for amusement like that, that’s not allowed. You can’t smoke in a park, you can only smoke in your own residence if you are renting and there’s a landlord. You need permission from the landlord. That’s something that you might not think about but that’s very important and it might be kind of awkward to ask the landlord, “Hey, can I smoke in my own apartment?”
Mark Galler:
Those are things you aren’t able to do. Once you start stepping into the federal grounds of an airport and you have, are in possession of what is legal in a state setting, that’s where you’re going to get in trouble because now you’re kind of crossing state lines into a federal territory.
Mike:
Right, and so for example, could you walk into a post office, that’s in Illinois carrying a legal amount of weed where if you were … where it’s legal to carry in the state of Illinois but now, you’re in a post office which is a federal building and so, then does it become illegal in that building?
Mark Galler:
It does. It wouldn’t become … it wouldn’t be crossing the lines of a federal offense. It’s still would be a state offense but like a firearm, there are certain places and restrictions on where you can carry it. Same thing with alcohol, right, you can’t just carry around open alcohol where you please. If you walk into a post office with a bottle of open alcohol, now, you’ve got problems. Same thing with marijuana. You got to keep it in a concealed compartment in your car or if you’re going somewhere else, you need to plan the transportation for that accordingly.
Mike:
Okay, I want to switch gears and talk about when police can interview or question minors. We talked at the top of the podcast about Making a Murderer and we were talking actually about Brendan Dassey before we started rolling the cameras.
Mark Galler:
Yes, yes.
Mike:
How he was questioned and he was a minor and then, recently in Illinois, there’s a new law that I want to talk to you about dealing with Corey Walgren and so, I think that’s all … it seems like this new law in Illinois now and the Making A Murderer, it seems like this idea of when police can question minors, who needs to be present? Do they need their rights read? Tell me what the law is and tell me why this is becoming such a hot topic and if you know about the Corey Walgren case, if you could talk a little bit about that. I find that super interesting after watching Making A Murderer and then things that have gone on recently in Illinois about when you can interrogate a minor, who needs to be present and what are the rules?
Mark Galler:
The answers can be quite convoluted. I’ll try to keep it as simple as possible because it’s a very tricky situation and most people think that you can’t … the police can engage in a conversation with a minor at all and that’s simply not the case. Let’s start with the Corey Walgren case, which effectively created some new laws. At least for the school settings, so if you’re on school grounds and you’re suspected of committing some sort of crime or violation of school code or something is going on but I think you’ve committed some sort of illegal activity, the officer, maybe if there’s an officer with the school or they call in a police department, they cannot question you on school grounds without a parent being present.
Mark Galler:
That also leads to the next point, if you’re not on school grounds and an officer wants to question you and you’re underaged, it’s under 16, 16 and younger, they would have to break it down, whether maybe it’s a misdemeanor or a felony and that depends on the age range. If they are suspecting you of either of those and we can get into the age differences later, they at least need to make a reasonable attempt to contact either your guardian or your parents, so what’s reasonable is always open for interpretation with most of these types of issues in law, whether there’s probable cause, whether the officer had reasonable suspicion. That’s where the factual issues come into play.
Mark Galler:
If you are suspected of committing a crime that I’m sure they’ll ask you, “Hey, do you have mom or dad’s number, maybe grandma, somebody? Can you give us their number and we can try to call them.” They have to make a reasonable attempt and hopefully they log that properly. If not, that might create issues and whether or not the questioning was done in violation of the constitutional rights. The Walgren case though was quite sad, really a tragic case. The individual was suspected of possessing underaged child pornography which can happen even if you’re underaged yourself and a lot of people don’t know that.
Mark Galler:
You could be 15, you could be in possession of some provocative pictures of another underaged individual and you could be facing charges for underaged child pornography and that’s what this is individual, Mr. Walgren was facing at that time. You’re 16 years old. The schools officer is questioning him about it, saying, “We know you had these pictures, why do you have these pictures,” and the student ended up running out of the building, slipped away and jumped off the parking space and killed himself. Then, obviously, the parents were shocked, the school officer or the principal, nobody tried to contact the parents at all, which is absolutely absurd.
Mark Galler:
They didn’t even give a reasonable attempt. Now, you’re on school grounds which should be a little bit … even more protected because those individuals are there to ensure a safe ground for students to attend school at, right? They’re the most vulnerable individuals typically other than obviously a certain specified classes of people but they’re young, they don’t know any better. This law effectively changed that by … because these parents really pushed for change. They filed civil law suits. They really pushed for legislation change and that became effective and now, the children can’t be questioned on school grounds without a parent present or guardian.
Mike:
What would you, if you had a teenage kid, what would you tell them? What would be your advice if you’re stopped by the police, you’re pulled over, you did something wrong at school and you’re getting questioned, like we were talking about earlier, when the police pull you over and you’ve been drinking, what you’re supposed to say, what would you advise a teenager to say in those situation? Should they say contact my parents, I don’t want to talk to you? What would you say in that situation?
Mark Galler:
I would always ask to contact my parents and you tell, “Hey, I’m 16. I’m 15. I’m 17. Contact my parents,” and if you are at that age, where you’re 17, 18 years old, and you’re going to want to try … you could still ask for your parents but then at that point if you realized you have rights to have an attorney present, you want to try to kind of say what we talked about before or respectfully decline to answer the questions and then once you’re arrested, then you get your right to contact an attorney but yeah, if you’re underaged, you always contact and tell the official or school personnel, I want to talk to my parents or my legal guardian.
Mike:
Sounds good. The last topic, I want to talk about is DNA. I was watching a movie with my wife, recently. It’s actually a docuseries and the name is slipping me but it dealt with whether or not people who are arrested are required to give their DNA and I think most people are used to when you get arrested, you go to the station, they take your fingerprints, that’s put into a database. The show I was watching was now talking about, “Okay, can they DNA swab you?” I find that interesting because I think there’s all sorts of privacy issues and they obviously use the DNA to run it through a bank to see what else … what other crimes you’re associated with.
Mike:What’s the current law on taking a DNA swab? Does it matter if someone is just arrested and not convicted? How does it work?
Mark Galler:
That’s also a very heavy question too and I’ve been dealing with a lot of very contentious litigation through motion to suppress illegal blood draws that I’m arguing are unconstitutional and this deals around DUIs, where somebody is suspected of DUI and they weren’t involved in an accident, no one was injured and the individual was found unresponsive in a vehicle and the next thing you know the officers have paramedics arrive and they take him to the hospital and they’re drawing blood. By that point, the person was conscious, was able to communicate with the hospital personnel and there’s absolutely no reason that the hospital should be taking the blood of the individual and then telling the officers this person has above the legal limit of alcohol in their system, even after the conversion.
Mark Galler:
Some of the case law is starting to change in that respect. To answer your question specifically abour DNA swabs, it depends on the type of charges against you and the severity. So, if it’s like criminal, sexual assault or homicide, you can object to it if you’re in custody and they say, “Hey we need to take your DNA.” You could say no, I’ve had clients now starting to get punished within certain facilities but the proper procedures for the government to file a motion to ask the court, to allow a DNA collection of a sample from the accused, from the defendant. It’s granted almost 100% at a time, unless there’s certain issues or illegality of police conduct or something that maybe causes that separation of why the DNA should be taken.
Mark Galler:
If the charge is serious enough like criminal sexual assault then, it’s pretty much like clockwork. You can get DNA swab for it because then they need to compare it from maybe some DNA samples that they’ve collected through evidence at the scene, on the suspected victim. Then, yeah, that’ll stay in the system at least until the outcome of the case and that’s where it could changed.
Mike:
Got it and I guess my question is this. So, the way I understand it, everyone is arrested and booked, they give their fingerprints, right?
Mark Galler:
Fingerprints. Yeah, absolutely.
Mike:
I think what’s interesting about this is, is it now, everyone is arrested and booked? Is it fingerprints and the DNA swab or is it not that clear cut? In other words, if I went and vandalized the building and was arrested and brought to the station, they take my fingerprints, right?
Mark Galler:
Yes.
Mike:
Would they take my DNA?
Mark Galler:
Not at that time. Not legally at that time, no. You have to meet a certain requirement of the level of charges against you. Again, you’d have to be charged with something severe than just burglary or defacing a building, theft or DUI, for the most part, you have to meet a certain exceptions and … that would rise the level of a higher charge against you, like a class acts or a class one if it’s a sexual assault, something like that, then that’s when they’re able to start collecting your DNA but anything … there’s a long list. It’s hard to list them all but for say simple battery, now, they can’t just come in and take your DNA.
Mike:
Okay, I know I said, that was going to be the last topic but I’ve got one question in general that I think a lot of people would want to know and then we’re going to move on to some other non-legal stuff. When does someone need a criminal defense lawyer? At what point, should someone say, I need a lawyer?
Mark Galler:
That’s also a great question. I get that asked all the time and I think it’s a matter of comfort. Okay? What an attorney is able to do in a criminal setting is essentially provide a shield between law enforcement and the government and the individual you’re trying to protect, like the suspected defendant. My first question is when I ask clients this, if they’re calling on behalf of somebody who is about to be questioned maybe they’ve heard rumors that the police are looking for this individual for whatever reason, I ask, “Well, would it make it you feel better to have an attorney there because if you were to retain me, what I offer is pre-retainer agreements,” right?
Mark Galler:
What I do is I send a letter to the client. I set up a certain line of communication with them or if I know there’s detectives involved, I contact them immediately. I’ll go to the police station right away. I’ll let them know, “Hey, this is my client. If you need to contact them, if you need to question them, please call me first. I’ll be happy to work, to bring them in. We can sit down, do what needs to be done on your end but respectfully, we’re not going to answer any questions.” That’s where I can come in because now that invokes going back to the constitutional rights of when you should ask for a lawyer, when do you ask for a lawyer?
Mark Galler:
Now, if you’re being asked by detectives, I would always advise to try to have that lawyer retained. If you know that they’re coming to question you or if you know that you might be arrested soon, at least for me, that would provide some comfort. Other people wouldn’t maybe want to wait until they’re already arraigned and the case has already started. It really depends on the individual.
Mike:
Got it. I guess, I watched these shows and like I said, I’m super interested in criminal law. The first job I had at a law school, there were two partners there, one partner did criminal defense and the other one did personal injury and the personal injury partner took me under his wings. I still did a little bit of criminal defense work there. I loved it. I would always talk about the cases with my girlfriend at the time, she’s my wife now, about the criminal law cases and I remember her telling me, she’s like, I don’t … she’s like if you would gone into criminal defense, I don’t know how that would have made me feel. Who knows what would have happened but I find it super interesting but, I find it interesting, I watched all these shows and I’m super paranoid.
Mike:
I always tell her … to me, it seems like if you have the means to have a lawyer, you should always have a lawyer. I tell my wife like if anything would ever happen to me and I joke, like even if we have nothing to do with it, don’t talk to anyone, right? In other words, is there ever anything good that could come out to talking to the police or talking to an investigator?
Mark Galler:You think you’re going to be able to handle the situation until you start saying something that starts ringing bells in the investigator’s mind or the officer’s mind, or the detective’s mind and now, you’ve opened up the floodgates. Now, they might be smelling blood and maybe now, they know who else to go talk to based on something you said. Maybe, you didn’t have anything to do with … maybe anything you did but now, they know who to ask and now, maybe that person know. I always say, it’s best to be respectful, to decline to answer any questions, even if you didn’t do it, you have an attorney with you, all the time. Contact somebody you know just to have a card on you.
Mark Galler:
You might not have to pay that individual just to get a card but at least you have something on you, so that if something does happen, you know who to call and in most times, they’ll be good. If I get a call late at night, I’ll be at the jail immediately. I put on a suit and tie, if it’s 10 at night, I’ll head there and that’s where we can afford that protection. Absolutely, 100%, like you’re joking, and all these documentaries, it’s always maybe the husband that murdered his wife or something and they’re claiming he did but he actually didn’t do it. The first person they’re going to look at is always the spouse.
Mark Galler:
Whether it’s husband and wife, wife and wife, whoever that happened to, they’re always going to look at the spouse first and they’re going to start asking questions and it’s better to, I would say clam up and some people think well, isn’t that going to make me look bad? Aren’t they going to think, well, why would I ask for an attorney right away if I didn’t do it? That’s just being smart. That’s just being smart because you don’t want to talk to police and start answering questions that you might not know is actually digging you into a deeper hole, where an attorney might be able to catch that at least that they know you a little bit and they know a little bit of the facts, they’re at least going to be able to prevent that from even happening.
Mike:
Right, and this is a good segue into letting all the viewers know how … what’s the best way to get in touch with you and we’ll put all your information up at the bottom of the video but if someone wanted to get in touch with you, what’s the best way to get in touch with you?
Mark Galler:
I appreciate it. Yeah, so I have a website, it’s [email protected]. My phone number is 708-406-9797. I answer text all hours of the day. If you would like to set up a phone call, in person meeting, my office is in Downtown Oak Park at 1010 Lake Street. It’s floor … unit number two but yeah, I answer text and calls all day, you can go to my website. Check out the information there. I’ve got different information on all various crimes and activities, what you should do in certain circumstances and there is actually an inquiry form you can fill out, which will lead right directly to either my computer or my phone and I can help answer any questions right away that you might have and I’d be happy to do so.
Mike:
Awesome. All right, before we finish, I’d like to do a couple of rapid fire questions here with you. Tell me what’s your favorite animal?
Mark Galler:
Cheetah.
Mike:
Cheetah?
Mark Galler:
Yes.
Mike:
Okay. Cool. How about your favorite app?
Mark Galler:
Favorite app?
Mike:
Yeah.
Mark Galler:
That’s a great question. I would have to say my favorite app …
Mike:
What do you use the most?
Mark Galler:
Boy, I would like to say, I honestly use Facebook a lot for news purposes.
Mike:
Okay, sounds good. What’s your perfect vacation?
Mark Galler:
Somewhere in Italy. I love Tuscany. Somewhere where I can drink some wine and eat some good food.
Mike:
What is your favorite food?
Mark Galler:
Favorite food is, I got to say pasta.
Mike:
Sounds good.
Mark Galler:
A meat pasta.
Mike:Okay. How would you finish this sentence, weekends are for …
Mark Galler:
Relaxing.
Mike:
Okay. I think that’s what I have on my bio. Someone … my other guest who is here, Melissa said … when I said, tell me how to finish this sentence, weekends are for, and she said I’d have a different answer for you, if you ask a few years ago but she said now it’s working. That’s what weekends are for.
Mark Galler:
Yeah, sure. It’s a good problem to have.
Mike:
Last one, if you weren’t a lawyer, what would you be?
Mark Galler:
An astronaut. If I was smart enough to. That’s also the problem.
Mike:
You realized you weren’t smart enough and then went to law school, right?
Mark Galler:
I couldn’t do math. I was terrible at all forms of math and yes, so then I went to law school.
Mike:
Perfect. Well, this has been great. Like I said, when I started doing these video podcast, I knew I have someone on to talk about criminal law early on. I find this super interesting. I think it’s something that everyone should want to know about and so, I appreciate you coming on, answering all my questions. I think it’s helpful for just everyone in general to know what criminal law is all about, so this has been great. I appreciate you coming on, giving your contact information out in case anyone wants to get in touch with you and stay tune for our next podcast.
Mark Galler:
Thank you so much Mike for having me on. I really appreciate your time. Thank you.
Mike:
Thank you. I appreciate it.
