Sunday, October 7, 2012

Aggravated unlawful use of a weapon under Illinois law

The state of Illinois has some of the nation's toughest laws on firearms. It is tragic because Chicago is one of the most violent places in America. If there is any place in America where a person would need a firearm for protection, it would be Chicago.

State of Illinois
Although the Second Amendment gives each person the right to bear arms, it is illegal to carry a loaded gun in Illinois. It is no small crime to carry a loaded gun. In Illinois, the offense is called aggravated unlawful use of a weapon. It is a felony for which the defendant can be sentenced to 1 to 3 years prison.

Time and time again, the Chicago Tribune runs a story about an out-of-state resident who comes to Illinois with a firearm for protection. Often the person is from Indiana, and he decided  to carry a loaded handgun while visiting Chicago.

It is a tragic story each time. The fact that the person was from out-of-state and possessed a valid out-of-state firearms license is not a defense. The fact that he was ignorant of the law is not a defense, either.

The criminal charge of aggravated unlawful use of a weapon is referred to by lawyers and judges as Agg UUW. The crime is found in the criminal code at 720 ILCS 5/24-1.6.

Aggravated unlawful use of a weapon is categorized as a Class 4 felony. If guilty, the defendant can be sentenced to 1 to 3 years in the Illinois Department of Corrections and may be fined up to $25,000. The law says that the judge is permitted to sentence the defendant to probation as opposed to time in custody.
The state of Illinois has toughest laws on firearms

However, the policy of the Cook County State's Attorney is to seek a prison sentence in every case. Basically, the defendant is caught in a political debate in firearms cases.

The city of Chicago is stricken with a high crime rate and multiple shootings on a daily basis. In response the prosecution seeks the maximum penalty on every case. Even for a defendant with no criminal history whatsoever, the prosecution will seek a prison sentence.

Many people are confused about the name of the charge because they did not use the weapon. But it does not depend on firing the gun. Simply possessing a loaded gun is considered aggravated unlawful use of a weapon.

The elements of aggravated unlawful use of a weapon are the following:

  1. Possessing a firearm either on your person or in your vehicle
  2. When you are not on your land, your residence, or your fixed place of business

And any one of the following elements is present:

  • The firearm possessed was uncased, loaded, and immediately accessible. 720 ILCS 5/24-1.6(1)-(3)(A).
  • The firearm was uncased, unloaded, but the ammunition was immediately accessible. 720 ILCS 5/24-1.6(1)-(3)(B).
  • Regardless of whether the firearm was loaded, the person possessing it did not have a Firearm Owner's Identification Card (FOID). 720 ILCS 5/24-1.6(1)-(3)(C).

The statute provides additional elements which would subject a person to the charge of aggravated unlawful use of a weapon. For example, a person can be charged with the felony if he was engaged in the commission of a misdemeanor offense, or had an order of protection issued against him within the last two years, or he was possessing a handgun and not yet 21 years of age, etc. Aggravated UUW charges under these circumstances are less common.

A second or subsequent offense of aggravated unlawful use of a weapon is a Class 2 felony with a mandatory prison sentence ranging from 3 to 7 years. The court is not permitted to sentence the defendant on a second offense to probation. Rather, a second offense is non-probationable.

The primary means of defending a charge of aggravated UUW is to challenge the search that produced the weapon, or find reasonable doubt as to possession.

The questions that should be asked are,

  • How did the police gain access to the firearm?
  • Did the police have a search warrant?
  • If not, did the police have probable cause to allow them to search the person or the vehicle?
  • Did the defendant possess the gun, or someone else?

The answer to these questions depends on the facts of each case and a lawyer should be consulted.

By Lewis Gainor

Source: The Criminal Lawyer Illinois


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