Exclusively Practicing Criminal Defense for
Two Decades
David Olshansky

Armed Violence

The state of Illinois has gone through a period of extreme violence and crime. This led to the introduction of some of the toughest gun-control legislation in Illinois, compared to anywhere else in the country. Possession or use of a dangerous weapon while committing any felonies results in severely higher punishment for felonies. This could have a life destroying consequence for many people who may not even be aware of the legal consequences of their own actions. If you have been charged with possession of a weapon while committing a felony, contact our Chicago violent crime defense lawyer David Olshanksy today.

The debate over gun-control always takes the centre stage in national and Illinois state politics. People accused of armed felonies often get little to no sympathy in the media and public. Cases often become even more complicated when the defendant has had a history of violence or a criminal record.

There are plenty of people in Illinois, who have been victim to armed violence or know someone who has gone through this experience. A lot of people have lost their lives to violent gangs and criminals in the past and we can understand their grievances.

However, there are also many Illinois residents who have been wrongly charged and convicted of armed violence, even when their actions are not as severe as some of the more hardened felons. This is because the state legislation is quite strict on the matter. Our Chicago violent crime defense lawyers can help.

State Legislation

Charges for armed violence are covered under section 33 of Illinois Criminal Code of 2012. According to Illinois law, 720 ILCS 5/33A-2, a person may be convicted of armed violence if he or she commits a felony while carrying a dangerous weapon.

This is because the presence of the dangerous weapon, like a firearm, is considered a greater threat to the public health, safety and general welfare compared to cases where such a weapon is not used.

An individual may also be charged with armed violence if he or she discharges a Category I or Category II weapon while committing another felony.

A person may also be charged with armed violence if he discharges a Category I or II weapon during commission of a felony that results in bodily harm, permanent disability, disfigurement or death of another person.

The legislation identifies Category I weapon as a handgun, sawed-off rifle or shotgun or any other concealable firearm. Category II weapon is any other rifle, shotgun, stun gun or taser. Interestingly, the legislation also lists switchblades, knives, daggers, axes, hatchets or other deadly instruments as Category II.

Punishment for Armed Violence

Armed violence is a Class X felony. Punishment includes prison term from a period of 15 to 30 years for using a Class I weapon. Convicts can face a minimum prison term of 10 years for the use of a weapon of Category II.

If the discharge of weapon causes bodily harm, disfigurement or death the prison sentence may be increased to a minimum of 25 years.

Implications of Armed Violence

Based on the state legislation we can put armed violence into three categories.

The first category is where a person commits a felony under the state law while armed with Class I or II weapon without actually using the weapons.

The second category is where a person committing the crime actually discharges the weapon, while committing a felony as defined by the state law.

The third category is where a person committing a felony discharges a firearm that makes the possession of such a weapon the element of the base offense, enhances the base offense or raises the severity of the felony where it becomes a mandatory sentencing offense.

The first category of armed violence listed above is the most commonly charged by the state prosecution.

The problem with this charge is that the defendant may not have carried out any violence at all, but still gets charged with a Class X felony which carries a minimum penalty of 15 years in prison.

Historical Court Cases

A 21 year old man in Aurora was sentenced to 10 years in prison in February 2018 for illegal possession of a firearm while trying to sell marijuana. The man was arrested in 2016 when the police issued a search warrant for his home and found a loaded shotgun “within his reach” and over 60 grams of marijuana in his basement. Police believed that the man intended to sell the drugs, which is illegal in Illinois.

While selling of marijuana carries a lighter punishment, possession of a firearm can be used by the prosecution to get a conviction under Class X felony.

It should be noted here that the convict was not in the process of actually selling the illegal drugs. The man had also not used his firearm or threatened the use of force. The prosecution was still able to get a conviction of 10 years. The defendant would have been 19 years old when he was arrested.

In another case, a 27 year has been charged with armed violence and unlawful possession of marijuana with intent to sell. The man was pulled over on February 25, for a minor traffic offense when the police allegedly found a gun in the man’s vehicle.

Even if there is no evidence that the firearm was actually used, mere possession of it while “in the act of committing a crime” could lead to a prison sentence of 15 years.

Possible Legal Defenses

There are few options for a good defense in cases of armed violence. The prosecution simply needs to establish two points. First, they must show that the defendant was in the possession of a weapon as outlined in categories I and II. Second, they will need to show that the defendant was in the act of committing a felony as defined by the state.

Possible avenues of defense are to plead guilty to possession of weapon but argue against the intent of committing a crime. The legal team will need to consider the strength of prosecution’s case, evidence and witnesses before a course of action can be suggested.

Another option is to go with a plea bargain. While this option carries a guaranteed prison term, a good defense team may be able to negotiate and get the prison term reduced significantly. For example the prison term may be reduced from 10 years to 5 with parole in 4 years.

Contact the Chicago violent crime defense lawyers to fight your case. We can be reached at 312-902-3344 or online here.