Journey To Justice with David Drwencke

Episode 1 Transcript

Sam (00:06.456)
Welcome to Defending the Windy City with David Driewicki, where we delve into the world of criminal defense, while with experts who navigate its complexities every single day. I'm Sam Henninger, and I'm excited to interview the renowned criminal defense attorney and founding partner of DRD Law LLC, David R. Driewicki. Thanks for coming on, David.

David Drwencke (00:29.358)
Hey Sam, thanks for having me. I'm really excited to be here.

Sam (00:33.224)
Now, as we get started, I'm really interested just to get to know what's your background and your journey in criminal defense, law, and founding your firm.

David Drwencke (00:45.55)
Sure, you know, it sounds corny to start this way, but it's true. I wanted to be an attorney when I was a child, that when we go back with my family and look at a preschool and kindergarten and first grade of what do you want to be when you grow up? My answer was always an attorney and nobody could really explain why that was. I mean, including myself, I just knew that's what I wanted to do, but didn't know why. Uh, it just sounded like an interesting job. Uh, I knew it helped people. I knew that it was an important job, but until I got a little bit older, did I really learn that it really was a calling? But because I wanted to be an attorney from such an early age, everything I did was in preparing myself to be a litigator, to be in the courtroom in order to help people. So from high school into college, I knew I wanted to be pre-law, that I wanted to go to law school. When I was in law school, it was focusing on the classes and electives and programs and internships and externships that were about being in the courtroom. And my first legal job was actually even before I started law school was as a law clerk, so I could work with a judge in the courtroom around attorneys and prepare myself to be a litigator, uh, because this is what I've always wanted to do. And I love it. There hasn't been a moment that I've gone back and said, man, I really make a mistake. This was a, this was a terrible decision. I should have gone to medical school or something like that. I love it. And it's been a calling from as young as I can remember.

Sam (02:21.82)
Okay, first off, very interesting to me because you're right, perhaps not everybody has that same kind of feeling when it comes to law, especially criminal law. So tell me more about where that passion came from and what drove you to want to help those who are accused of crimes and do it. I think in particular it's so powerful to have somebody on your side who is non-judgmental through a process as vulnerable and so big in someone's life.

David Drwencke (02:54.542)
Well, part of it is, I think is just my personality, that there's two parts. I like to perform and being an attorney, you're in front of the judge, you're in front of the jury, you're making an argument on behalf of someone else. In the criminal context specifically, it's when they're at the lowest, scariest moment probably of their life, especially if they've never faced a criminal charge before. So it's that first part of just liking to perform, liking to be up in front of people, being comfortable doing public speaking, thinking on my feet, advocating for someone. And then it's the second component that I'm just a competitive person. I like to win. And that's been that way in everything. Again, as a child, if it was playing video games or board games to working through high school and college, I played college basketball at Albion College, that I wanna win at everything. And there are winners and losers in litigation that there are real stakes. There are real consequences in these cases. And it's satisfying that when I get a win, if it's at a trial and you get a not guilty, there's no better feeling. You walk out, walk on cloud nine, knowing that you really helped somebody and saw them through such a difficult time. Or when you negotiate a plea, because sometimes winning in my line of work isn't just getting the not guilty. That's certainly what you see on television. That's the goal of every case, but sometimes it's just getting someone through this tough situation through to the other side with the least amount of damage to their reputation, to their career, avoiding jail time, avoiding a criminal background by negotiating something that doesn't go on their background. And a big part of achieving either one of those goals, if that's going to trial and being successful and getting a not guilty, or it is negotiating out the right plea agreement, that's getting to know your client and understanding we're all human beings. You know, we make mistakes, we find ourselves in just crazy situations that many other people may not find themselves in. Just through the grace of God, they didn't find themselves in that position. That they had a gun stuck in their face and they had to defend themselves. That they were at a party and they didn't know that somebody else was possessing a gun or drugs or whatever it may be. Or any other number of situations that I find myself in defending someone and understanding that this is scary. It's anxiety inducing.

David Drwencke (05:21.966)
It's the fear of the unknown. We as human beings have a condit. We routinely think the worst that we've received a criminal charge. My life is over. I'm going to go to prison. I'm never going to be able to get a job or any of the other. These are the thoughts a lot of clients have when in reality, you know, it's not going to be that bad, let's talk about this, let's find out what the evidence is. And I'll see you through to the other side. And it has nothing to do with what you're charged with. It's about what the state has as evidence. It's a saying I use every day. I'm not worried about what the state says you did. I'm worried about, I'm focused on what they can prove and getting you through this as painlessly as possible. And that's part of the job as the attorney, of course, is to represent a client's interest, but sometimes it's just answering the questions and doing some literal and figurative handholding through the process.

Sam (06:17.128)
You know, you remind me of, there's this famous statue where Lady Justice is holding the scales of justice, right? But she's also blindfolded. And so when I think about law, I think about, for everything you just said about the humanity, the emotions of this whole experience of interacting with the law system, especially when it comes to criminal cases, it can feel so disheartening at times, just like you said, to have to go through all that. But I really appreciate how you're saying there is this human aspect to it all, where we're trying to reduce pain as the attorney and we're trying to just get them through in as painless a way as possible. And so this juxtaposition between the humanity of it all, but also it can sometimes feel like a heartless system that it's about justice, right? And so I'm very interested in hearing more about how some of your earlier experiences, a judicial law clerk has influenced the way you defend clients and go through your trials and legal proceedings.

David Drwencke (07:26.862)
The things that I've done in my past as far as getting to where I am today, the single things that I've done in my past as far as getting to where I am today, the single just shy of seven years for a trial level judge. His name was Rudy Nichols. He's every now and then. But what was so beneficial about this is that I was in the courtroom almost then. But what was so beneficial about this is that I was in the courtroom really talking about money. And then the criminal cases, which is always what I just felt drawn to. It was what you would see on television. Most movies and TV shows are not about simple cases. They're about people facing charges. But what was so valuable about it was getting to witness it. You know, I got to be an armchair quarterback. I got to see the state's attorney or the prosecutor. I got to see both public defenders, court appointed attorneys and private attorneys do their job. But I didn't have any stake in the game. I was there to watch and learn and be an aid on behalf of the judge, but I got to see very good attorneys. I got to see, in my opinion, very poor attorneys, and then certainly everything in between there. And I got to learn and take things that I liked. Man, that was really smart. I wanna do it that way. Or how attorneys would earn their reputation based on what they would do, not just the results they would get, but how they would carry themselves in the courtroom. And I would take that away. I have a notebook with me to this day of notes and ideas and thoughts. There are attorneys that I think about almost on a daily basis, like do it like he did it, or do it like she used to do it, and avoid doing it like some of these other attorneys did it. And as it relates to criminal law specifically is that your client is always a person. It is not a corporation, it's not some entity. It's an individual that I need to have a conversation with in those stakes.

David Drwencke (09:52.75)
Those consequences really are only borne by them. If this doesn't go the way we want, or we don't work out the right plea agreement, or we don't win the trial, I'm gonna have a conversation with that client. We're gonna look at one another face to face and say, this didn't go the way we wanted or it did. And that is one way of really grounding yourself and constantly being focused on who, at the end of the day is going to benefit, or they're the person who's going to be punished out of this. And that's what keeps me focused to work on these cases and not lose sight of the fact that there are real consequences with real people here. This isn't just that money, is it nice or great, but this is somebody's livelihood, their reputation is on the line and they're potentially could be going to prison. You know, the type of cases I handle routinely have dire consequences if it doesn't go the way that my client wants. So I got to see that for years, again, almost seven years when I was a clerk and then worked at a couple of law firms again, where I was just getting a taste of this, but got to learn from some great attorneys, ask questions, see it firsthand. But at the end of the day, learn that these are real people with families and loved ones and children, and they have their own career and their own aspirations and future at stake with this. And that keeps me focused. And that's what drives me to get those results. Besides the fact that I love doing this and I like winning, I know there's a real person there that I'm gonna have to have a conversation with at the end of this. And I'm going to be held accountable because it's my job to defend them and get the best results possible.

Sam (10:58.656)
I love that. So, so far we've heard there's this competitive nature to you that loves to win and get the results. There's this empathetic aspect to things of seeing people at their maybe lowest point in life, scariest point in life and helping them in that moment. Then there's the drama of the courtroom that you love as both a spectator and a participant. So I really want to hear more about, given the experience you've had, the people you've seen, good and bad be the litigators, be the advocates, what sets you apart have you noticed in the courtroom?

David Drwencke (11:34.254)
There's a few things. a few things. jump out during this conversation. I'm pretty in it, pretty in legitimately I love this. love this. And I can say from both my experiences as a clerk and now being an attorney and being in the courtroom every people, this is their job. They don't love it. Maybe they got backed into this. Maybe it was the family that pushed them into becoming an attorney, but they're not living and breathing and loving this in the way that I really am that it's not a, it's not just a saying, I love this. I'm doing what I wanted to do when I was a child. Now, as far as a litigator, one of the things, even in this interview, we've got video, uh, that sets me apart that you can't quite tell us I'm six foot nine, about 280 pounds. I'm a, I'm a big guy. Uh, and that physical, uh, appearance and it can be beneficial to my clients that I I'm the biggest bully in the courtroom, though I'm usually doing it with a smile on my face. Um, but I love this. And again, that enthusiasm and that passion really will, will show through to a client during a consultation, or it's that performance element that again, I'm, I'm in my element to be performing, to be advocating for my client, to be making an argument and that it's not this monotone this is the evidence and you're going to hear this and going through the paces or someone who apparently didn't know that public speaking was going to be a part of the job, I relish that. I'm good at it. I love it. That's fun. I get the excitement and adrenaline that I can only compare to when I played college basketball, that getting hyped up before a game and knowing that you're going to perform and there's a winner and a loser, that's there again. And I love that. So what sets me apart? Passion, zealousness, that this is my personality to be, to perform and to speak and to advocate. And that because of those things, because I love it, because I'm good at it, I also invest in myself. I invest in the firm heavily so that we are utilizing the best technology and tools that I'm up on the law that I can present myself and my client in the best light possible always because I just love this, that my job doesn't stop at

David Drwencke (13:56.846)
5pm or as soon as I walk out of the courtroom, I'm actually excited about learning more about what is the case, the latest case law, what's that new bit of technology, or software or a tool that I could be or should be using because it's going to help my practice work better or more efficiently, so that I can get better results for my clients. And that all comes from that foundational point of just being passionate about this and loving it that this I legitimately enjoy what I'm doing and that exudes into what I actually do every day and then into the basic stuff about how I run my firm and the tools and technology we use.

Sam (14:36.2)
Love that. You mentioned how having a bit of physical presence really aids in the line of work that you do and being the biggest bully in the courtroom, so to speak. I'm interested in knowing how that relates or perhaps what's a memorable experience that you have where you demonstrated defending your client's rights.

David Drwencke (15:02.158)
There's a few examples that come to mind. a few examples that come to mind. been When I was very early in my law practice I was very early in my When in Wayne County, Michigan, Detroit. It was one of the first appearances was one of the first appearances I ever got to have in court. case. And I was arguing emotion. I was arguing emotion. It was the other side's opportunity to speak. was we one another. Again, it was just the way the courtroom was lined up. it was just the way the courtroom was lined up.

And before opposing counsel even got into speaking about the case or making an argument about the motion, he commented on my size and said something to the judge about, you know, I'm kind of intimidating, you know, council is so tall and it just threw everybody off, including the judge that she made a face is like, um, counsel, let's just focus on the argument here, but it, it hit me. It's not that I wasn't aware that, you know, being tall kid could be intimidating. It can be scary. It's like, this is a really really big guy right here. Let's, let's not make him angry, even though again, I'm usually smiling, but it's like, this is, call it a weapon. This is an advantage for my client. So then when it comes to actual litigation, now we're in the courtroom that I get comments routinely, even from the state's attorney, which often oftentimes could maybe be the best compliment is that, man, just you command that room. All eyes are on you and it's a combination of how you speak and the enthusiasm and passion that you speak with. But it's also like, you can't teach six foot nine. Like when you stand up, people are gonna notice even if they don't wanna listen to you. Like you have that stature, you have that physical advantage that again, other people don't have because they're not six foot nine. So while I lean into that, absolutely. Again, that's both voice and physical presence. And you can even tell now I gesture a lot among other things, but this is all a part of the performance and advocating for a client and getting a judge or a jury to listen to me and to listen to our argument and to take us seriously. And I know that at the end of the day, you know, win or lose, uh, that my client will get a fair shot because I'm going to, I'm going to require it.

David Drwencke (17:17.39)
And my, my presence in know-how and knowledge is going to require that. But also because I'm taken seriously, because again, I'm the biggest guy in the room always that's never not been true in my entire career.

Sam (17:31.552)
That's so funny to me. I mean, it makes a lot of sense now that you'd be such a big sports fan. I don't know that someone of your height could get away with not being involved in sports. And so with the sports and your interest in technology, you mentioned how reading up and studying what's going on, how can this affect my job? How can I improve myself with implementing better technology? Tell us more about how those two interests really compliment your work.

David Drwencke (18:01.262)
It's true. When it comes to my own personal preferences, what am I interested in? If I'm not talking about the law, which is most of the time, I'm obsessed with it. I love it. It's sports or it's technology. People who have known me my entire life know that whatever the new gadget is that's coming out, I'm going to be fighting myself not to buy it or be an early adopter. And that's been cell phones, laptops, all kinds of new technology, the Apple vision pro everything. I'm sitting there just aching to try it out because it's new, it's innovative. And that's how I wanna be, I wanna be cutting edge. Well, now those interests in sports and technology have bled right into being a law firm owner. That there is all sort of technology and software and hardware that lawyers can be using. And I would make an argument, should be using. Like these are the best practices. If you're trying to service your clients in the best way possible and get the best results possible. You need to invest in the firm. And that's from having an iPad and your laptop and case management software and legal research software. And one of the newest, it's a little less than a year now. I've invested in artificial intelligence, co-pilot of sorts or co-counsel of sorts that I invested. It is not cheap, but it is an incredible tool when it comes to legal research.

David Drwencke (20:23.79)
Which allows me to do more to service clients in a better way. So it's this Venn diagram of I love gadgets. I love sports and the competitive nature of what's involved with that. And now I read up on learn about these tools that are out there. And it's like, this gives me a half a step advantage over the state's attorney. This gives me maybe multiple steps ahead of other attorneys that are doing criminal defense in Chicago that aren't investing in themselves. They aren't investing in their firm. They're, they're doing the basics. They have a notebook, they have a laptop and that's kind of it. They download things to their computer and that's, that's the end. They may be using Google or a friend's account to try to do legal research every now and then it's like, that is not the way I want to present my firm. That's not the right way to present and represent my client. And so that, that takes time and money and investment in both of those, both time and money in order to do that. But I love it. Like I'm that person watching YouTube videos or reading articles about what's coming down the pike or the new update or the new bit of software or whatever it is. And I just love it. I've cycled through a number of things because I realized while this isn't serving my needs or my client's needs the best. So I'll move on to the next thing and go to that tool. That's going to service them better. There's a number of things that there's software that I am effectively certain. I'm the only attorney in Cook County, which is saying something because there's a lot of us that invest in a couple of these tools. Like I've yet to run into another attorney who uses these and that's a competitive advantage for me, which again goes back to being a sports fan and liking to win and what have you. These all come together. My interests bleed into my professional career. There's a lot of overlap, but I love it because at the end of the day, it allows me to do my job better and then do a better job for my clients.

Sam (21:20.34)
I appreciate that because, well, I'll say, just on the topic of AI, I do recall just as a layperson seeing some story about the unfortunate attorney who used ChatGPT to cite some cases that didn't actually exist. And so it makes a lot of sense that you would be so interested in it because it indicates a lot of discernment in how you're implementing those technologies.

David Drwencke (21:46.286)
Well, that's is important because again, yeah, you can be an early adopter and you take the good with the bad that if you're in version 1.0 or the first iPhone, as opposed to what's out now with the pro max and what the software and hardware can do you, there's a learning curve. That's part of it. Some of it's the bugs that you got to work through. Not everything's infallible just because it's the latest and greatest. Doesn't mean it's, uh, ready for showtime, but I still like to get into it and, and realize, is this something that's going to help? or not, and you still have to vet software. You still have to vet AI tools. Uh, you can't just do research, copy and paste it and throw it into a brief. That case that you're talking about is effectively what that attorney did by. This looks like a neat tool. I did a research query through chat GPT. I copied and pasted it. And then lo and behold, I believe the firm was that it, it, it basically made it up. You know, it came, it did like amnesia or whatever they want to call it made it up and none of these cases were real and they got sanctioned didn't as well. They probably should have. It's at the end of the day, it's your name at the bottom of the sheet that you're signing off on. Um, but these tools can be very helpful. These tools can make you more efficient and effective. These tools are necessary when it comes to legal research or just servicing clients, the way I communicate with clients and having a portal for clients, having a repository for the discovery of the evidence, these are things that attorneys should be using and come to find out many are not because it costs time and money and they don't wanna invest in that because there's an easier or less costly or free cost of entry. They'll just do that. The only person who really suffers is ultimately is the client.

Sam (23:34.112)
Hmm. Now, if that wasn't just the great zinger to end this on, let me ask you, though, just thinking back on this conversation, what would you say you'd want the listener to take away from this conversation with you about your expertise in criminal defense law?

David Drwencke (23:53.55)
Well, especially in Cook County and in Chicago, there are a number of attorneys, a lot of excellent attorneys, but what you're going to come to find out if you call them and book a consultation is that not everybody loves this. Not everybody focuses singularly on criminal law. That's all I do. It's one of the first things I'll tell someone when they call. All I do is criminal law period, full stop, because I think to be very good or the best at something you can need to focus. I'm not a jack of all trades. I do criminal law. I invest in myself and the firm. And then at the end of the day, if there's one big takeaway is that I love this. And when the stakes are high and the consequences are real, and you need to hire someone to stand between yourself and the state of Illinois, that you want somebody who loves this, who invests in themselves, who is passionate about that and has every possible advantage, if that's technological or if it's education or, or training, uh, find that person because they're more likely than not going to get you the results that you desperately want and need.

Sam (24:57.18)
Love it. Yeah. David, thank you so much for coming on. And I just really want to say for the listener, if you appreciate this conversation, subscribe, because there's going to be a lot more and you're going to really appreciate what David has to say moving forward. So David, thank you again.

David Drwencke (25:14.03)
Thanks, Sam.

Sam (25:15.852)
There we go.

David Drwencke (25:17.326)
Awesome. Um, I'll change my shirt real quick. I only need a couple of cents. How long did I go? I didn't even, I didn't pay attention when we started.

There we go. Good. I actually felt like a long out of here. Okay. I'll change the shirt real quick. I won't keep you guys.

Sam (25:40.021)
Sure.

Okay. What do you want me to do?

Sam (25:58.696)
Okay. Yeah, yeah, yeah.

Sam (26:12.651)
Thanks for watching Defending the Windy City with David Jouicke. I'm Sam Henninger, like and subscribe.

Sam (26:22.732)
Cool. Will you just tack that onto the remaining? Cool.

Sam (26:34.603)
Yep.

David Drwencke (26:37.07)
Okay, I'm back. I try to make that as painless and easy as I possibly could.

David Drwencke (26:44.398)
Good deal. Yeah, that was fun. I mean, at the end of the day, you know, I, I felt even as I was talking, like, God, you're going for a while without like having a stopwatch going or anything.

Sam (26:56.608)
Christine was, she was poking me the whole time, letting me know where we at. So yeah.

David Drwencke (27:02.062)
Okay. Well, no, that's good. Again, I looked, I was going to make a mental note to at least look like, when are we starting? And then at least glance down between questions and be like, okay, we're at 20 minutes. Like you're doing okay. Or like that was too long or too fast or whatever.

Sam (27:12.681)
Mm-hmm.

Sam (27:21.472)
Huh. Yeah.

David Drwencke (27:21.646)
Sure. Yeah. I actually get the timestamp going. Yeah. I can appreciate that. Yeah. I'm ready when you are that and I've got the next set of admittedly I didn't even look at it. I mean it's there. It's like a crutch or something but I'm ready when you guys are.

Sam (27:34.118)
Yeah, sure.

David Drwencke (27:50.958)
Absolutely. Yeah. Super comfortable. Again, these are all, I talk about this stuff all the time. It felt to a certain degree, almost like a, in part a consultation, a little more, a little more formal and obviously question and answer, but no problem.

Sam (28:02.868)
Yeah, yeah. Cool.

Great, here's to two more.

David Drwencke (28:09.134)
Here we go. I'm ready for you.

Sam (28:21.324)
Let me pause real quick. Would you pronounce your name just one more time? That's right. Okay. I doubted myself the first time when I was on camera.

David Drwencke (28:24.59)
Oh, Drew Wiki, Drew wick of a candle key, Drew Wiki. Well, I don't blame you. I trust me, I get it. That is not a problem.

Sam (28:33.9)
Through Wiki, great. There we go.

Sam (28:39.176)
Welcome to Defending the Windy City with David Driewicki. In today's episode, we delve into the complex landscape of gun laws and contraband possession in Illinois. Drawing from his experience as a criminal defense attorney, David will share insights into common misconceptions and mistakes people make regarding possession laws and offer strategies for safeguarding their rights in such circumstances. I'm Sam Henninger, and I'm excited to interview David Driewicki. Thanks, David, for coming on.

David Drwencke (29:08.654)
Thanks for having me again, Sam.

Sam (29:11.156)
I'm excited. So let's dive into this. Would you please start out with just providing an overview of the current laws and regulations regarding guns and contraband possession in Illinois?

David Drwencke (29:22.83)
Sure, the easy way of thinking about this in Illinois is that if you are not a FOI, The easy way of thinking about this in Illinois is that if you are not a FOI, not be driving around with a gun. I mean, that's the kind of the lot of people that in Illinois recreational marijuana or cannabis is legal for use and even possession. But if you get into the laws, you get into the nitty gritty of under what circumstances and how much and how can you transport that marijuana or cannabis, a lot of people find themselves getting into trouble with that as well. And of course there are other types of contraband. If we're talking about methamphetamines or other types of drugs, those are just outright illegal. So don't possess those, don't drive around with them because that's just outright illegal in and of itself. When it comes to cannabis, again, because that's where we run into a lot of issues, is that it needs to be in a sealed compartment, odorless, in a perfect world, not even have access to that. So have it in your trunk, have it somewhere where you can't immediately reach over and grab it. Otherwise that can be a possession charge. And that can be the basis of searching the rest of your car. And we'll certainly dive more into that. But the most important portions of this is that if it's an illegal substance that you're not supposed to have, carrying it around on your person or in your car can lead to a possession charge. And that ranges from very simple misdemeanors up to the most serious felonies, in part, depending on what is that contraband, how much of that contraband do you have, what does your criminal background look like? These are a lot of the factors that go into it. But the simple part is if you're not supposed to have it, don't carry it and don't have it in your car. Uh, if you're allowed to have it, you have a CCL or you have a cannabis, it's pay very close attention to the laws as to how that's supposed to be transported and in what kind of container and in what portion of your car. Again, when it comes to a gun unloaded in a sealed container, again, like a lock box that again, you don't have access to the advice would be put that in the trunk when it comes to being on your person, if you don't have a foiled or CCL don't have that on your person. And when it comes to cannabis, again, be mindful, odorless sealed container, probably best that you don't have immediate access to it, have it in the trunk or something like that.

Sam (31:57.136)
Okay, wow, a lot of caveats. So let me ask then, what is an individual's rights when it comes to firearm possession or other illegal items under Illinois law?

David Drwencke (32:09.294)
Tricky, there are a lot of caveats because there are some exceptions where you absolutely can have a gun and you absolutely can carry cannabis or prescription drugs, things like that, where it's legal for you to possess them. You can have them on your person or in your pocket, or if it's a gun in a holster or on your person. But those, you're getting really into the nitty gritty again, but the foundational point is, do you have that firearm identification card? Yeah, as the state said, you can possess that gun. having the CCL or the concealed carry license that opens up where and under what circumstances you can carry that gun just because you have a foiled FOID doesn't mean you can just carry the gun everywhere and under all circumstances. Cannabis again is the one kind of a recreational drug that most people have familiarity with. Again, it is legal and in certain amounts and in certain conditions again in this odorless sealed container that you're not supposed to just have a blunt or a joint in your pocket. You're not supposed to be carrying around in a baggie. Those are inappropriate forms. So it's getting into the rural specifics of those laws, but know that you have to have the appropriate card and that comes from the state as it relates to guns. And then as it relates to cannabis, it's usually the form you're going to buy it from a real dispensary, a legitimate. I don't want to use the word dealer, but a dispensary or somebody's actually selling it in a legitimate way, not somebody on the corner of the street or a friend or anything like that. They will certainly be in a legal form, but you'll notice there again, they're odorless. They're sealed. They'll be in another bag sealed within a bag and they the dispensary are likely to tell you don't open this until you get home. Don't just leave this in the center council. Put this in your trunk or the back seat so you don't have immediate access and you're not giving the officers a reason to want to search your car or search you, that's some of the best advice I can give is make sure you're doing things appropriately. And when in doubt, simply just don't do it because the consequences can be very real.

Sam (34:18.996)
Okay, I appreciate that, getting a good sense of the state law there. But I'm also interested in learning more about how constitutional rights come into this, particularly the Fifth Amendment, and how that relates to individuals who may be suspected of possessing illegal items or participating in criminal activities. So how does that play into things?

David Drwencke (34:40.237)
Of the types of cases I handle as a criminal defense attorney here in Chicago, it's one of two types of possession. There's actual possession. That's where you have it literally have that's actual possession. Then there's a more of a legalese version of constructive where you do not literally have the gun or the drugs on your purse. You don't have them in your pocket. They're not in your hand, but they're near you. They're underneath your seat in a car. They're in a book bag that's next to you, or maybe was on your back and an officer saw you take it off and drop it or something like that. So it's not literally on your purse and you're literally and actually possessing it. It's constructive possession. So we treat it as if you possessed it by circumstantial evidence. Did you have access to it? Was it within an arms reach? Could you reasonably control that item or location? Did you know that it was there? That's usually one of the biggest questions. Did the person even know it was there? And then of course, the circumstantial evidence that a case can be built on are statements. And that's where the fifth amendment comes in, that you do have certain rights when you are being arrested and being interrogated by the police. And this is a common misconception that I run into again, almost daily where a potential client or a client will ask, Hey, no one read me my rights. No, does the case get dismissed? You know, what what's going on? Why, why is this case going on? No one read me my rights. The simplest way to describe Miranda or the fifth amendment, your right against self-incrimination or saying things that are going to hurt you is twofold. Are you under arrest?

David Drwencke (37:03.31)
And really the way of viewing that is, am I free to leave? And you can ask that question to the officer. Obviously, if your hands are behind your back, your handcuffed, you're in the back of a squad car, good bet you've at least been detained and you're probably under arrest. The second component to that is, are you being interrogated? You know, somebody just, an officer asking your biographical information, what's your name? Provide to me your ID. That's not self-incriminating. You're just, the officer has a right to know that information, especially if you're driving, you should have valid driver's license and insurance among other things. You have to turn that over. Now, if they're going to start asking other questions that are beyond that biological things, especially if you're in custody, then you need to be provided your Miranda rights. The next component to that, I think without getting in the weeds is that there are times you're not under arrest, you're behind the wheel of your car, you've been stopped on the street. and the officers are asking you questions where you're not under arrest, but now they're asking you more than your name or, hey, where are you headed? Where are you coming from? Basic kind of questions. They're asking, hey, is that your bag? Is that your car? Is there any contraband in the car? Did you know there was a gun in the back seat or in the trunk? Things of that nature. And twofold, A, you don't have to answer those questions. Those aren't required. And B, answering those questions are likely going to be the foundation of how the state builds a case against you by making admissions and making statements that we can't unpack later. And that sinks the entire battleship, so to speak.

Sam (38:07.664)
Right. That's very interesting. What other misconceptions or mistakes do people make when it comes to possession laws and how can they protect their rights in those types of situations?

David Drwencke (38:20.91)
Some of the best advice that I can provide of the others specifically is when you're a driver of a car and the officer even tells you it's for a minor traffic violation. You did a rolling stop, you didn't signal appropriately, you could be pulled over is that many clients don't believe that an officer can ask them out of the car. Illinois law says that they can. They can ask you out of the car for officer safety. The officer can view the vehicle. They can look inside the vehicle. They aren't supposed to be doing a search, but it's called, it's the plain view doctrine. If they can see it with their own eyes without actually having to go into the car, they don't have to pretend like they didn't see it. So if they see a baggie that looks like it might be drugs, or they see the butt of a gun, they don't have to have a warrant for that. They're seeing it's in plain view. They can just see that.

The other bit is it relates to this misconception of not being able to be asked out of the car or be asked at least some basic biographical questions. The advice is even if you know or believe that the officer is wrong, that they told you you ran a red light and you didn't, the argument isn't going to be one there on the scene. If we need to work through the system, that's why you hire me. You hire a criminal defense attorney because we'll unpack that. We'll go and check pod cameras and security cameras and dash cameras and body cameras that the officers may have on but getting belligerent or Argumentative with the officer right then and there is only going to make the situation worse. It never makes it better You're more likely to get the adrenaline pumping and be angry and say something that you're ultimately going to regret Because now you're in your emotions and you're angry about the situation And then the fact the matter is later on if we ever have to negotiate on something Officers will remember bad interactions that they've had with people just like they'll remember if it was really good. I've had that happen where the officer comes back, we're negotiating a resolution and the officer, you know, he was really nice guy. He was pleasant. I didn't have any problem with him. You know, state, work out however you wanna work it out. Meanwhile, the alternative would be, man, he really gave me a hard time. Like he was swearing at me. He wouldn't give me his identification. He started getting violent. He wouldn't put his arms behind his back. He was kicking things. He was whatever. Beyond the fact you might pick up other criminal charges.

David Drwencke (40:43.278)
The officer will remember that and their input is a part of a negotiated plea a lot of times. So the advice is, even if you know you're right or you suspect you're right, that's not the time you're gonna be successful. So be as professional as you can be, be pleasant, answer what you have to answer. Don't answer what you don't have to answer. And we'll fight this out when it's appropriate in court.

Sam (41:05.644)
Hmm. Say more if you could about how your perspective as a criminal defense attorney has really colored your perspective on these types of cases of firearm or contraband possession.

David Drwencke (41:20.238)
There's so many of these types of cases because again, there's so many of these types of cases gun possession where what a potential client or the client makes admissions to either builds the case and makes the I mean by that is you're driving your car. You get pulled over with legitimate reason maybe not again will unpack that at a later date.

They search the car and they find something. And then my client, again, scared or nervous or whatever it may be, starts to come up with an explanation being, oh yeah, that was my brother's, he left it there. Well, here's the problem. You think you're talking yourself out of the situation, but you just admitted that you knew that the drug or gun was there and then you had access to it. This for possession purposes, the case is basically done. unless we can challenge the stop or the search in some other technical way. But factually speaking, based on the evidence that would be presented to a judge or a jury, it's done. It's another example of you didn't have to say anything. You weren't under arrest, so Miranda doesn't apply. You were just volunteering information that you didn't need to do. So there's plenty of examples where you feel in the moment you got caught, you wanna talk yourself out of it, or that you're going to be able to talk yourself out of it.

And you make admissions about, yeah, that is my bag in the back of the seat. Then they find a gun next to the bag. Well, we know it's your bag now. So constructively now this gun must be yours, or at least they're going to argue that it is, um, you make admission about what you know, is in the car or not in the car, don't, you don't have to answer that question. You know, if they, if they, being the police officers, find a weapon or contraband, we'll figure out later on whether you actually knew what was there or not. But if you make an admission,

David Drwencke (43:44.11)
The case is largely done unless we can find a legal technicality to win on, which would be a fourth amendment issue, not likely to be a fifth, a fourth amendment, meaning did they have probable cause to stop you or your vehicle? And did they have probable cause to do that search? And that's a real low threshold. So trying to win on a legal technicality is difficult. So don't answer questions that you don't have to answer. I can't implore potential clients to avoid doing that as much as possible. beyond just being pleasant with the officer during the stop. Because again, there'll be another day to unpack this.

Sam (43:50.192)
I appreciate that. I think words that are coming up in your explanations are leave space for unpacking later as much as you can.

David Drwencke (43:58.254)
It's a hundred percent true. That is exactly right. Where you've, this is true of all kinds of cases, not necessarily just a contraband and firearms, it's just you've committed yourself to a story. Before you even know what evidence the state or the police have when you don't answer a question other than the basics that you're required to, if you don't answer questions, if you don't provide a statement,

We have the benefit of then sitting back. use with clients, it's like playing cards. That once we're in litigation, once we're over their hand. They have to show me their hand of cards. How strong of a case do they have? Do they have video? Do they have eyewitnesses and fingerprints or what have you? What do they have? boy, oh boy, my client said something that he or she really should not have. And now our hands are tied because we're committed to that.

Had they not made the statement, or they had not committed themselves to a version of the facts or a story, we can be a little more creative and work through with an explanation that satisfies why the state has this evidence. So it goes back to a foundational point of other than what you are effectively required to answer, which are those basic biographical bits and providing your license or identification, pretty much everything else. you don't have to answer or you can ask to have an attorney or just refuse to answer in its entirety without an attorney.

Sam (45:27.18)
That sounds really good to know for most people. Let me ask you though, in Illinois, have there been any unique cases that have set up the law as it is now?

David Drwencke (45:40.238)
There's, there's a few, one of the biggest ones that we run into that is defense attorneys that relate to guns and contraband go specifically to the smell of cannabis. There, there's some settled case law, but now there's some new things that are working their way through the court of appeals. And I think eventually we'll find their way to the Illinois Supreme court. But in what I mean by that with the smell of cannabis, an officer stops you again, for something simple, stoplight, or you were speeding or whatever it may be. They're just going to issue a ticket. At least that's their thought is they're approaching your vehicle. You roll down the window, you're doing everything you're supposed to do. License and registration. You're not volunteering any information, but the officer says that he can smell burnt or fresh cannabis that in and of itself under Illinois law, as it stands right now is enough now for them to search you and to search your car. I don't love that bit of case law right now, because I think it's a little open ended and kind of disproving whether somebody did or did not smell cannabis is effectively impossible. There are cases that are working through that now that cannabis is and has been legal for recreational purposes, why is the smell of cannabis in and of itself enough to search a car when certain possession of cannabis and this the actual smoking and use of cannabis is legal? It'd be like smelling a cigarette.

Cigarettes are legal, at least if you're over 18, you can buy, possess and use. So why would smelling a cigarette give rise to a search of your purse and your vehicle? I think that's where some of the logic is going. But right now, if your car or you smell like cannabis, the officer can search you or your vehicle. So where does the advice come out of that? Don't smoke cannabis and drive beyond the fact that you might be under the influence. You're also inviting a search of your purse and your car. You know, make sure your car is clean and de scented, you know, have, have things in your car that get rid of that smell because it is pungent, it is strong, it is noticeable. Uh, so if you've been smoking, don't drive, change your clothes, make sure your car is clean because again, that's the basis of searching your car and that's when officers find. Guns or they find other contraband. So if you're trying to avoid that, don't smell like cannabis, don't have fresh cannabis in your car.

Sam (48:03.724)
Well, let me let me push on that a bit, David. I appreciate that as a as a caution. But let me ask you, are there actual cases coming up just off the whiff of marijuana?

David Drwencke (48:16.686)
There are, there is some case law at the court of, now there's some split decisions in this. That's why it's not quite the law of the land in the state of Illinois. But there are some cases that come back that if that's all the officer has, they've stopped you for speeding, they approach your car, they smell burnt cannabis. If that's it, if that's the only thing they have, that is no longer sufficient to search your car. Now, again, that's not the ultimate law of the land, unfortunately. Do I think that that's probably where things are heading over the next few years? Probably, you know, again, with cannabis being legal, the recreational use of cannabis being legal, the comparison again, I think is apt as cigarettes, where again, you're allowed to smoke that, you can smell like cigarettes, and no one's gonna search your car. But right now, yeah, the smell of burnt or fresh cannabis can be the basis to ask you out of the vehicle to then search your car for other contraband. And even though they smell cannabis and they don't find any, but they find the gun. Now we have a gun possession case that we're gonna be working on.

Sam (49:18.752)
Gotcha. Wow. So looking back at this conversation so far, there's so many things I've learned, not least of which, not to say just keep your mouth shut, but obviously, leave things to be unpacked later. What other advice or other key factors would you offer for people to consider when they're thinking about their rights and legal options with these types of possession cases?

David Drwencke (49:45.422)
Sure. I mean, beyond the fact that of course, I'm always going to advise people don't break the laws of foundational point as a lawyer and a member of the bar. That's the starting point. If you don't have a FOID or CCL, don't possess that gun. There are very real and serious, serious consequences, especially in Illinois and Cook County for gun possession. They just don't do that as a foundational point when it relates to anything that's not cannabis or something that's legal. As far as drugs are concerned, same idea, you know, just don't do it. Now, for those who who have or are dealing with those type of situations or may deal with that situation in the future. Yeah, the foundational best practices are don't answer questions that you don't have to answer. Be polite, be pleasant at the scene because that's gonna pay dividends in the long run and not invite future issues to you. The more you fight, the more the officers are gonna get unhappy and then think that you have something to hide. But just enacting your rights to answer just the basic questions. Here's my license. Here's my insurance. This is my name. That's all that there is. And I'm not gonna answer any other questions because I don't have to, and I'm not legally obligated to, will go a long way. And of course, then understanding the basics of what actual and constructive possession is, that obviously if you're going to have a gun, the worst thing you can do is have it in your waistband and be walking around and driving around with it if you're not legally allowed to do so. How do you try to soften that situation? have it in the trunk. If you're going to carry things around, have that not on your person. You know, certainly don't admit to having knowledge that it's there among other things. It goes back to not answering questions. You don't have to. And then ultimately the attorney is going to know the latest lay of the land. You know, have things changed recently as it relates to cannabis being the basis of a smell of cannabis to be a search. Your attorney is going to know that the actual elements of a constructive possession case. That's what your attorney is going to know. can look at those facts, present the best defense for you. And these are the types of cases routinely that can be won in a very fast trial. If my client does themselves an awful lot of favors by not answering questions, by not admitting to things, not by volunteering information, goes a long, long way. I think that's the best advice I can give.

Sam (52:04.556)
Well, I think that's great. I've learned so much personally just from this. So David, I want to thank you again for lending your expert eye and letting everybody know just what their rights are, what they should be doing, when they are in these types of situations and how they could best be served by an attorney such as you.

David Drwencke (52:25.582)
My pleasure.

Sam (52:28.384)
And there we go.

David Drwencke (52:29.774)
Cool. I will swap around one more time and keep you all. How do we do on time on that one? I didn't look again. 25 minutes, maybe.

Sam (53:04.45)
I know, right?

Sam (53:10.216)
I was gonna say like, it doesn't really come into play for me, but it's good to know.

David Drwencke (53:30.958)
All right. I'm back again. I'm back again. Um, yeah, you know, the, I couldn't probably actually legally or not, not illegal, but I'd feel weird. Um, but the best advice I'd probably tell people, especially those who really, really can't help themselves and want to drive around with guns and drugs would be put it in the trunk. Don't drive your own registered car and deny everything because you'll get away. You'll you'll win because it's not immediately accessible. You can deny if it's not your car, it's not presumed that you know what's in the car.

Um, so you just say, Oh, I didn't, you know, it's my mom's car. I didn't know there was a kilo of blow in the trunk and, you know, and probably we'll win like that. I mean, I've had enough of the hose where there's a gun rattling around in the back seat, but it's not his car. It was at night. Prove he knew it was, he probably did, but like prove that it would, that he knew it was there and that he immediately access or could immediately access it. And judges can't now.

The benefit, I guess, from societal point is they're still going to take the gun. You know, like we're saying it's not our gun. We didn't know anything about it. They're just going to take the gun and destroy it. So it's a gun off the street. That part is good, but you avoid the criminal convictions. So it'd be, yeah, don't drive your own car, keep it in the trunk. Um, and don't admit to anything. And you're very likely to win later on would be the, the conclusion on

Sam (54:57.242)
See, this is the behind the scenes scoop that you get to give to your clients.

David Drwencke (54:59.918)
That's it. That's well. I mean, that really is because those are the first questions. I'll ask, you know, they'll say I got caught with a gun in the car. I'm like, let me guess you got pulled over for a kind of nothing. They smelled cannabis and then they found a gun. Like, yeah, how'd you know? It's like, this is the millionth time I've run into this. So then I asked, was it your car? Was there anybody else in the car? Because then you might be able to project it onto somebody else. And when they start to all know it was my girlfriend's car and I'm like, good.

Like you, now you have a, you didn't admit that it was yours. Was it, or like, uh, you, they didn't find it in your book bag with your school ID and driver's license or anything like that. And like, no, no, no, no. And it's like, well, then we could win this. It's when they do the alternative, like, oh yeah, that's my bag. And then they, they find a gun in the bag. Well, then it's your gun. Like that you don't get them then say, no, no, somebody else packed my bag. Like, uh, you're in deep doo doo then.

Sam (55:52.492)
Hmm.

wild.

David Drwencke (55:56.782)
the reality of where I'm at when it comes to that's why some of those I don't mind. They're very easy. They're simple cases. They're serious. If you have a background felony background, you're looking at what's called a class two felony. That's three to seven years. If you have a worse background, it what's class X in Illinois means six to 30 years you can be facing for possessing that gun. So you can get launched into the sun. Um, not, not good. When you have the word, you know, if you're a felony, you get popped with a gun. It is not, not good. So

Sam (56:14.555)
Damn.

David Drwencke (56:27.182)
Oh yeah. And then it's called the truth and sentencing law. So we, everything, but like an X for the most part are at what's 50%. So class four felony, the lowest level felony you're facing, probably probationable, but one to three years in prison. What would you really face? Cut it in half. It's six, six months to a year and a half is what you're really facing. But on a class X it's 85% of that. And of course, murder is a hundred percent. There's a few other examples, but, um, so, I mean, yeah, there's some real,

life altering consequences on this stuff. And, uh, but I see it all the time, but then suddenly then that's where it can experience matters. I can ask those questions like, Oh, here's the defense. We've talked for five minutes. This is what we'll do at trial. So I mean, you're not lying to me. This is what we'll find at trial and we'll have a chance to win or not based on that. So

Sam (57:16.716)
crazy.

David Drwencke (57:23.63)
Oh, sure. You and a few million other people. Absolutely. And there's actually something to be learned from that. But then at the same time, it's, you know, I Google stuff.

Sam (57:27.65)
Yeah.

David Drwencke (57:44.942)
Oh yeah, absolutely. And that's the Miranda thing. It's one of those, like we could have an entire episode just on Miranda where you expound a bit more because everyone's like, they didn't read my rights. The case is dismissed. I'm like, no, that is not gonna happen. That's not even in the, I'm not gonna file that motion. That's not based in reality in any way, shape or form. Or that it just doesn't matter. It's like, if they're not gonna use those statements, then even if they violated it, it doesn't matter because they're not using that against you.

So, like, so there's so many kind of weasel ways out of some of this for, from the state side too, that it's like that is, but you see it in every movie. You know, the Miranda rights are, you know, as soon as the cuffs are slapped on, they're being read rights. And it's like, nah, not really. This is back at the police station when they want to interrogate you, they will ask you quite. And then at that point, if they're reading you your rights, you know, you're in deep shit is really the response. You should not be answering any questions. You are in trouble now because you're at the police station and they're reading your rights that if that isn't, and then what's the other bit, uh, but a part of it, they actually say anything you say can and will be used against you. That is true because they will spin even honest, truthful statements against you in some way. So it's like, don't say anything. There's no, no upside. There's no benefit. You will only hurt yourself because you're not talking yourself out of it. So don't, don't do it.

Sam (58:45.14)
Mm.

Sam (59:11.788)
Wow.

David Drwencke (59:13.87)
And now cash bail. This is, uh, this one's not the only jurisdiction, but this is unique. And there are still attorneys who I'm not entirely sure understand this. So this is.

Sam (59:15.965)
Yeah.

Sam (59:22.88)
Okay.

David Drwencke (59:28.558)
Okay.

David Drwencke (59:32.942)
Yeah, I have to look, you say I pay attention here because obviously it affects me, but I know there are other jurisdictions, small, you know, maybe like there were cities, like I think Philadelphia tried to getting away with away from cash bail, but we are, this is statewide. It's everyone is not just a Chicago thing or Cook County thing. It's everywhere. Um, and now it's what we're into April. We're seven months into this and they're still feeling their way through it. For sure. The judges, attorneys.

There's a lot of misunderstandings with the clients, but it's interesting. And so this is one that I think if there's one that will get clicks for sure, this would be one, the safety act, pretrial fairness act as well as what it's known as that will this, there'll probably be attorneys who might learn something from this. I think the especially if they don't do this all the time.

Sam (01:00:00.588)
Okay.

Sam (01:00:24.684)
Exciting.

David Drwencke (01:00:26.99)
But I'm ready. I change. I apparently bluesy only color I wear. So this is

David Drwencke (01:00:35.822)
Yeah.

Yeah, no, let's avoid that if we can that'd be great. But yeah, I'm ready when when you guys are

Sam (01:00:43.66)
Cool. Yeah.

Sam (01:00:54.9)
Welcome to Defending the Windy City with David Druecki. I'm Sam Henninger and we are going to delve into two critical topics, the No Cash Bail Act and the Safety Act. These legislative measures have far reaching implications for the criminal justice system in Illinois and warrant a thorough examination. In fact, David, right before we started, you were explaining how even lawyers don't fully understand what this means for them and their practice. So let's dive in and can you give us a clear understanding of what the no cash bail and safety acts mean?

David Drwencke (01:01:32.334)
Absolutely. Well, Sam, thanks for having me. And this is a crucial topic because it is still so fresh and new. The Safety Act passed, I believe officially in 2022. It was then paused as it was going to go live on January 1st of 2023, but it had gone up to the Illinois Supreme Court and then came back after some argument and ultimately was upheld as constitutional and went live, so to speak, in September of last year. So it's only been not about a half a year of being live and doing these hearings and being under this new, new cash bail or with no cash bail law that I see it on almost a daily basis where there are attorneys and there are judges who are still really kind of feeling their way through this that there's some misconceptions. There's maybe some misunderstandings about the factors and what is even involved in this and the appellate process and everything else that's involved.

So it's something that I've spent an inordinate amount of time because I knew this was going to be not just new, but crucial and would touch effectively every case that I would have because I deal with a great deal of felonies and my clients can be detained and they're subject to the safety act. So really excited to talk about this. There's a lot to get into.

Sam (01:02:51.208)
Right. So why don't you explain for us what are the objectives and goals of the No Cash Bail Safety Act and how does that aim to address issues within the bail system?

David Drwencke (01:03:03.47)
Sure. Really at its core, one of the safety act or the pretrial fairness act as it's also known, really the foundational word that I would use, it was about fairness. That under the old cash bail system, if you had money and a judge determined that bail was appropriate, you could get out. You know, if it was $10,000 or $20,000, maybe even more, $100,000. If you were affluent or had friends and family who were, had money, You got to fight your case sleeping in your own bed and being in your own home. If you didn't have money, it meant you were staying because there wasn't, uh, there was no middle ground. It was either, you know, you're going to be detained or you're set out on some level of cash bail. So if you were not affluent, if you didn't have a lot of money in the bank or have access to funds, it meant you stayed in jail really just because you didn't have money. It was really that simple. And so the new system, try to eliminate that portion.

that the analysis isn't about how much money you have or you have access to, or how much you could scrounge up in the matter of a month or two or three or whatever it may be. It's an analysis of should you be released or should you be detained? So now there's no gray area with a monetary amount getting you out. It's if the judge determines that you should be released, it's with what conditions. If a judge determines that you are not to be released, that you're going to be detained, you stay in.

That's it. It's very binary. You're out or you're in. If you're out, it's with what conditions. But the foundational point was let's try to make this fair. That really is the word. And let's take money out of this. Like just because you have money doesn't mean you should be able to get out. And just because you don't have money, doesn't mean you should have to stay in. It should be about if you are a flight risk or if you're a dangerous individual, those are some of the factors that go into the safety act or a detention hearing. That was

really the biggest point of this. There's a bit more that goes into the law, but the one that really the biggest factor, the biggest change was eliminating cash bail for fairness.

Sam (01:05:12.288)
Hmm. So what benefits? I mean, it sounds like going for fairness is definitely something we want everyone to benefit from. But have there been any challenges that you've seen so far with implementing this no cash bail system? And in particular, I'm thinking about public safety and individual rights as we as it's being implemented.

David Drwencke (01:05:36.686)
Well, I can say certainly in a lot of the rhetoric and things that were being argued before this act passed and then before it actually started to be implemented was there were called a misconception or a belief that's, oh, there's no cash bail. Everybody's getting out. It's just going to be crime rampant in the streets because nobody is in jail until they're actually convicted. That's not exactly true because there are specific types of offenses, certainly anything that's violent, including misdemeanors. anything that's violent, you're going to have a detention hearing. Uh, there are other types of offenses, maybe a drug possession, uh, some other types of offenses that are nonviolent where you would be, you could kind of call them catch and release of source where you get caught, you get cited, you get a ticket, you'll have a court date. You're going to have to follow up with the case, but there's no risk that you're going to be detained or held in, in jail while that case is going on because the legislature is determined. You know, on its face, this isn't somebody. were necessarily worried about. So that was one misconception, just from murder to sex assault to gun possession to all kinds of domestic violence, that you're just out, there's no cash bail, you're just out. That's not exactly how it works, both in how it's written and then how in reality the law is being implemented. One of the issues that I'm running into is the interpretation of this case law by a lot of sitting judges that...

There are judges who have, I'll call it, not politically speaking, but a more conservative view on this. They go through the elements that we'll chat about a little later, and they can find pretty much everyone detainable. Like that's a conclusion that a judge who wishes to reach that type of conclusion basically can for everyone, meaning people in the past who would have gotten a modest bond. Maybe they have to post $500, and they would have gotten out. Now we're just being detained. There's no middle ground. The judges holding you, you're detained, the end. So that's one issue is you're getting into judges who are interpreting this in a pretty strict way. And then of course there could be the alternative and depending on your viewpoint, there could be judges who are viewing this a little more loosely and say, well, I can come up with a reason to release effectively everyone, if I so chose in my discretion. And because there is still, that would be the word that I think surprises a lot of both attorneys.

David Drwencke (01:08:01.518)
and clients is that at the end of the day, the judge has factors they go through, but it's a discretionary decision. It's in their experience, in their knowledge, their interpretation of this law, whether you're gonna get out or not. And that poses an issue because there are inconsistent applications of the law where the same charge, similar background, but two different judges, one person is in custody, the other person is out with reasonable conditions.

that goes back to that word discretion and how this is being implemented. Uh, but there's, there's a great deal that goes into this. And I think it's a lot of it's just misunderstandings. It being so new, uh, some attorneys don't deal with this every day. They've only seen a hearing or two at this point. I've done a hundred plus. Um, and I, and I stay up to date. There's already some interpretive case law that has come out from the court of appeals, uh, because.

there's some misunderstandings in how this is being applied, including by judges.

Sam (01:08:56.224)
Hmm.

Sam (01:09:00.905)
Wow. So David, standing at 6'9", you are literally a giant of criminal defense. And so I'm interested in hearing what your perspective, your experience has brought to this more recent development of the No Cash Bail and Safety Act and how it affects defendants in the legal process.

David Drwencke (01:09:24.366)
Well, I can tell you that I think in principle or philosophically, the safety act, I think is sound that it does. It makes sense that we should be making a determination on whether somebody should be out, you know, fighting a case from their home pretrial, or if they should be detained or held that it shouldn't be based on money. They again, just because you're wealthy, you get to go out. But somebody who does or is not has to stay in custody. That philosophical point I would agree with.

going back to our earlier part of this discussion when it comes to that discretion, is that there are inconsistent findings here. And that can be frustrating that we do want consistency. We do want some level of predictability, but we also aren't going to do something formulaic. And the way I'll describe it to a client, a detention hearing isn't a formula where it's one plus one equals two. I can tell you exactly what the result will be. It has to be this. This is what will happen.

there's some more art than science and a great deal of this. What judge do you have? Let's work through those factors that the judge is supposed to consider. And this inconsistency is what's frustrating from my perspective. Now, again, I think I've nailed down these factors and the persuasive arguments and now have done enough of them that I feel like the predictability has gone up a little bit now, but it's still not 100% that I can't guarantee or result to a client.

on the front end or even do so in maybe the high 90% at this point, because there are so many uncertainties from the judge and how they're going to apply these factors that how is this impacting clients? Well, the ones who are being detained, it's or they're being held in jail. Detention means you remain in Cook County Department of Corrections, the jail while your case is pending. You're not out. You're not at home. You're not working. You're not with your family.

you're meeting with your attorney over the phone or Zoom conferences primarily, you're seeing them every 30 days or so in court, physically more often than not, but sometimes on Zoom as well, that that is a really big deal. And I'm mindful of that, that if a client is being detained, I really hope it's because the judge is applying the factors appropriately and being judicious in how they're doing that. That these are real consequences. There's no middle ground. It's not that you set a number that maybe they can't pay today.

David Drwencke (01:11:48.59)
but they can pay in a month or in 60 days where eventually, yeah, they can go home. It just may not be immediate. Now it's, it's all or nothing. You're out or you are in, and that inconsistency is frustrating and the consequences are real when you're being detained and you're have to stay in jail while your case is being fought out.

Sam (01:12:09.32)
It's so interesting. Tell me more about what cases have come up or events that in the implementation of this new act has influenced legal proceedings and their outcomes.

David Drwencke (01:12:24.974)
Well, one specifically that I think is very, I would argue is more pro defense. It's people V stock STOCK just like stocks and bonds. This came out in December of 2023. So at this point, it's just a couple of months old and it was re analyzing. One of the factors and quickly the factors that ultimately a judge will go through it and detention hearing is it's a detainable offense. First and foremost, that's factor. Number one, is this detainable? It's binary. It either is, or it is not.

Okay, it is detainable state. Are you wishing, are you filing a petition or a motion? Do you wish to have the defendant detained if it's detainable? Most of the time the state is moving for detention. So they file their petition. Second factor is that how strong is the case? Is the proof evident or conviction likely in that's very early in the case. I don't love that factor.

because I don't have the benefit of seeing all the evidence. I know what my clients charged with, but I don't even know everything the state has, but the state goes forward and talks to the judge, makes an argument, says, your honor, here's why our case is so strong. We have eyewitnesses or physical evidence, and we believe, believe the evidence will show X, Y, and Z. And of course the state always makes their case sound like the most open and shut, no brainer there, they're definitely going to get a conviction.

constantly yet I keep getting not guilty verdicts. So that makes me wonder if their proffers are always totally genuine and they're arguing in good faith, but I digress. So that's the second factor. How strong is the case? Can the state convince the judge that it's very likely that you're the one who committed this detainable offense and you should remain detained? Third factor, there's a three A and a three B. Are you either a danger to society or a particularized individual?

David Drwencke (01:14:43.598)
Or are you a flight risk? And again, the state has to go through an argument and say, well, their background indicates that they're a dangerous person. They'll go through your criminal background. Some of the elements of the case, obviously, if it's a murder charge or a gun discharge, they're gonna say, well, this is a violent offense and this is what he or she did. And they're a violent person. Or if they fled from the police as a part of the case, Your Honor, that shows that they're not gonna come to court or in their past again, getting into your criminal background.

Did they, that defendant or client fail to appear to court that a warrant or wasn't warrant issued? Do they have old cases that are still pending because they haven't come back to court. So three, a three B show that they're either a danger or that they're a flight risk. And then number four, this is the one that I think is most beneficial to the defense though. It depends on the judge and how they interpret it for, is there a less restrictive means than detention?

with some sort of mixture of conditions that could allow them to be released. If that's electronic monitoring or home confinement where you rather than being at jail, you're at your house 24 seven, 365 with an ankle monitor or a GPS global positioning unit where you can go places or effectively go anywhere you want except certain excluded zones, pre-trial release where you check in with an agent, you do drug testing or alcohol testing, things like that. The state has to meet

all for those conditions and convince a judge by clearing convincing evidence that all of those four things are true, that it's detainable, that they have a super strong case that like that has likelihood of conviction and that you're the one who convicted this offense, that you're either a danger or a flight risk and there is no less restrictive means they should remain detained. The stock case that I mentioned earlier came out and basically interpreted the law like I did that you can't just use this new case.

David Drwencke (01:17:06.734)
that a defendant is at this point, that especially early in the litigation a detention hearing usually happens right at the beginning of the case, they're presumed innocent. They're presumed not guilty to have not committed this offense in the states of alleging that you have, but just the facts of that case alone, even a violent one, even a very violent one, that should not be enough. The state cannot rely just on their proffer or their view of the facts that...

you are a dangerous person and that there is no less restrictive means, just kind of hand waving those last two elements by saying, well, it's a violent offense. They're a violent person. They should be detained. That's how some States attorneys were arguing this very early on. And stock came back, that opinion came back and said, Whoa, no, no, no, you still have to meet every one of these elements, every one of these factors. And you have to do so with clear, uh, articulable facts and convince the judge.

beyond just the elements of this new case, that they're a danger or a flight, and that there's less restrictive means. You don't get to the hand wave those things, which is again, how I always interpreted it, because I can read the English language and that's what the statute says, that there are all of these elements you have to prove, but that is proof, that case has proven to be persuasive and useful for the defense, because we're making sure the state has to go through every one of these elements and actually articulate.

David Drwencke (01:17:48.028)
articulate facts and evidence to convince the judge that they've met their burden on all four factors rather than just kind of hand waving things and saying, Hey, it's a violent offense. Detain them.

Sam (01:17:48.028)
Now that sounds like a far cry from what you had explained earlier where people were worried about violent people just getting to go willy-nilly in the streets. So

David Drwencke (01:17:59.31)
Correct. Oh, absolutely right. That there is a lot more into this. And again, so many cases are or types of charges are subject to a detention hearing that no people are not just going, you know, being charged with murder and then going home the next day or a gun possession or domestic battery or anything like that. There is a process there is a hearing that we have to go through first, but, and then again, there are a lot of judges who are interpreting this in a

in a pretty strict way. And there's a good number of people who are being detained, though, as I've understood and read some of the articles and information, prison, or not prison, jail populations have shrunk a little bit. There are more people out than previously. And that's in large part, at least arguably, because now we're not worrying about people having to pay, which is how the system is supposed to work. So I suppose on that hand, it is.

Sam (01:18:55.076)
Yeah, what other misconceptions or misunderstandings might there be? Oh, okay. We're gonna have to pause. Hey, bud. He just got home from school. This is Patrick, by the way. Okay, come on, buddy. Let's let Daddy finish. Okay.

David Drwencke (01:19:04.494)
There he is. Mine's too young to do that. So that's he's only 20 months. There he is. I hi there.

David Drwencke (01:19:20.078)
Ten more minutes or something like that.

Sam (01:19:25.)
I was worried that would happen.

David Drwencke (01:19:27.182)
No, that's hilarious. I'm sorry. Mine's only 20 months. We can't do that yet, but he will. I mean, we're coming there. Or 20, I said 10, 20 months. Quiremany, 20 months.

Sam (01:19:35.656)
Yeah, see, my wife has to play goalie sometimes.

Sam (01:19:40.96)
But hey, that's all good, because we can just cut this all out. But yeah, I know. So, okay, we'll jump back in.

David Drwencke (01:19:43.566)
Oh, modern technology. Love it.

Sam (01:19:54.292)
Yeah, let me just restart that question.

David Drwencke (01:19:55.31)
You maybe re-ask the question, because actually I even kind of got lost on what the last question was.

Sam (01:19:59.432)
Yeah, we're at question seven here.

David Drwencke (01:20:01.582)
Okay. Oh, sure.

Sam (01:20:04.336)
Yep. I'll just jump in. So David, what common misconceptions or misunderstandings about this development do individuals have and how could they better understand their rights and options under this law?

David Drwencke (01:20:23.438)
There are a number. Some of the biggest ones when it comes from a client's perspective is that just because you're detained at that first hearing does not mean you will be detained for the entire case. I get calls from clients who are current or prospective clients who are currently in custody and are angry and are upset because the judge ruled that they should be detained at that first appearance hearing. So they got charged. There hasn't even been an indictment. There's a whole process for that.

But a judge has said, listen, you have to stay in jail for this. I've determined that the factors have been met. You're a danger or flight risk. You're staying in jail until this case is done. And not surprising they're upset about that. And they're worried that do I have to stay in for the rest of this case? Or is there any chance I'm going to be able to get out? The answer is yes. There's a chance you can get out that when you are assigned to a different judge later in the process, or it technically at every subsequent court date, that detention status is supposed to be reviewed.

Now, of course I would, in a perfect world would have something new to say. If you're being detained, I want to be able to point the judge to some new evidence or some argument they haven't heard before about why you should be released beyond the fact that, well, it's been another month or 30 days or whatever it may be. I don't like that my client is in custody. He or she does not like that they are in custody. Please let them out. Like that's not really a legal argument, even though I'm empathetic.

that feeling. So that's definitely one misconception is that you're in and you're going to stay in the other one is that you're out and you're going to stay out. I implore my clients that if you're out and if you have whatever those conditions may be, abide by them. If the judge is so you have to check in with somebody on a daily or weekly or monthly basis, please do that. You know, don't commit a new offense. Don't get arrested for a new offense. That's a basis of comment.

David Drwencke (01:22:41.934)
Don't leave the state without permission. These are some of the, even the small things that can happen. And the state's gonna find out about it eventually. Maybe not immediately, but they're gonna find out and they're going to let the judge know, you have violated your release conditions and now you should go in. And that's a real possibility because the judge will look at the client, say, listen, release is not a right. It's effectively a privilege. I gave you a chance to be out. You violated it in A, B and C way.

Now you're going to be detained as the case is going on. Cases in Cook County specifically, though this is true throughout most of the American criminal justice system, are not fast. You know, that's another misconception that relates to the Safety Act is that, I'm in, the case will be done fast, I may not like it, but I'm going to be done in 60 days or 90 days. The reality is, almost no case has done that fast. It takes usually months to get discovery, which is another word for evidence.

It takes time to review that, to see if there's motions, to get a trial together, that it is in your best interest if you're out to stay out. And if you're in, have an attorney who knows how to attack the Pretrial Fairness Act, these detention hearings, the Safety Act, to put you in the best light possible and to give you the best chance to get out. There's plenty of others that we may be able to talk about, but I think those are the big ones that I run into every day.

Sam (01:23:37.312)
From your perspective, what would you say this, the pre-trial Fairness Act, the Safety Act, how does this piece of the puzzle play into the broader landscape of criminal justice reform?

David Drwencke (01:23:51.982)
Well, the big portion of this is to have fewer people in custody, at least until there's a reason for them to be in custody, that they've actually been convicted of an offense and a judge has determined that the sentence should include either prison or jail time. That we do have in America, generally speaking, but it's true in Cook County as a microcosm, that we do have an epidemic of individuals who are in custody. And when they're in custody, they aren't working.

They're not paying bills. They're not there for their family. You got another guy. No, you're good. Hey you, he's the only one he at least he wants to see you. That's a good thing.

Sam (01:24:24.964)
Yep, sorry, I gotta pause again. Hey, bud.

David Drwencke (01:24:34.414)
You tell I wasn't staring at you because I didn't notice it right away. Do you want to just what's best? Maybe just repeat the question. Okay. No, that's fine. No, it's good. I hope my son wants to hang out with me too when he gets home.

Sam (01:24:40.26)
Let's just, you know, let's just restart the question. Sorry about that, goodness. He's so excited right after school.

Sam (01:24:49.128)
Yeah. Here, we'll go again now.

All right, David, thinking about the broader landscape of criminal justice reform, how do you see this, the Pretrial Fairness Act, playing into all this, especially when it comes to fairness and equity?

David Drwencke (01:25:06.158)
I think one of the biggest components that the pretrial safety or fairness act and safety act tries to address is just the overpopulation and epidemic of in custody individuals, especially before they have to be, you know, I can appreciate even my clients oftentimes can appreciate, listen, I've been convicted or that person's been convicted, jail time is a part of this. They may not love it, but they understand it. But to be...

in custody, be in jail, and you haven't even been convicted of anything yet. There there's merely a charge. There's an allegation. And for some of these cases, that is the evidence. It's someone says you did something. It maybe it's a sex assault. Uh, maybe it could be even a murder cases sometimes, other offense. Someone says you did something. There's no other evidence whatsoever. And it might be a very serious offense, but now you're going to be in custody or there's wide swaths of

our population that are in custody and they're in jail, they're not working, they're not paying bills, they're not with their family, they're not watching their children, they're not helping raise their children, they're not around for mom and dad. These have impacts as on a global scale, on a national scale, on a city-wide scale that you're not here to help raise your family or provide for your family and that just foundationally, is that fair to excise someone out, to pull them away from their family?

David Drwencke (01:27:07.529)
before they've been convicted of anything, when it can be as simple as someone just says you did something. And maybe you did, maybe you didn't, but let's work through the process. That's why we have a judicial system, why we have jury trials and bench trials before the judge. But the Pretrial Fairness Act is trying to get more people home, which I think it's been successful in doing so, while also minding the public safety and not just letting everyone out, because there certainly are some that meet the criteria to remain detained.

But then at the same time, understand these are allegations. This is a charge. You are presumed innocent or presumed not guilty. Why are let's not pull you away from your family. That isn't fair. That's not justice until something later in the process says that you actually are guilty, which is a finding a guilt at a trial.

Sam (01:27:20.148)
And so you've dug into this, what specific provisions or aspects of this do you think are particularly important for listeners to be aware of?

David Drwencke (01:27:29.934)
Well, I think the most important portion of this is there are a great deal of offenses that are not detainable. Now, that list is long. We don't have enough time to go through every one of those cases, but that not every offense is going to be detainable. So this may not apply to you, at least as far as the detention hearing. So you can get cited, get your next court date. There's no risk that you're going to go to jail or be held unless you were to violate in some other way. If you pick up another case.

That is the fastest way of being held detained or in custody. The other one is not to give up all hope. You know, if you're listening to this and you have a family member or a loved one or a friend who's detained, they may not be in there the entire time. Get ahold of an attorney who can help, who can listen to your situation, who understands the applicable factors in case law that are interpreting this. This is new. There's going to be new case law. I'm certain of it on a monthly basis.

until we've really settled in on the factors, what the, what the state needs to prove, how the judge is supposed to interpret those factors and guide the judge. And is this sufficient to detain? Is this insufficient to detain? You know, what is it that the judge needs to look at? What is enough evidence? What is clear and convincing? What is a flight risk if, you know, somebody drives two blocks away and then pulls over? Is that, is that fleeing and looting? Is that, is that show they're not?

going to come to court is having one violent offense and nothing else in your background. Is that enough? You know, is that the state just relying on this charged defense that you're presumed not guilty of? So there's a lot that goes into this and because it's still so new and people are learning again, this is the entire system from the judges who are interpreting this law to the attorneys who are practicing under this law to the clients who are either benefiting from or suffering from this law. This is new.

David Drwencke (01:29:57.07)
And we're still learning. I dig into it every day. I have about a dozen different alerts that if there's anything new by way of case law or interpretive, uh, uh, kind of legal opinions or, or analysis as it relates to the safety act, I get news alerts, I get, uh, legal updates on new cases so I can stay on top of this. Unfortunately, I can't say that every attorney is doing that. Some attorneys have no idea about the stock case yet. They'll eventually hear it because they're probably going to hear me argue about.

go and look it up and say, man, that's great. That's great law. I should be using this. And the answer is yes. And you should have been using it since December, because that's when the case law came out. That's one benefit of dealing or working with me specifically in my law firm is that we stay up to date on this so that we can get the best results for our client.

Sam (01:30:16.252)
Well, and on that, let me ask you, I mean, you're keeping a pulse on these types of things. What are you seeing that could be a potential future development or change that could really impact how this gets implemented?

David Drwencke (01:30:31.278)
I think I don't know if we're gonna have structural changes to this because it is still so new. It's not even an old a year old at this point. We are feeling our way through it. One of the unintended consequences though, I think maybe we should have been able to predict this was just the mass of appeals on just detention hearings. So it's not a substantive about guilt or innocence or the factors or your facts of your case. It's this client, John Doe client or Jane Doe client was detained.

and they are upset about that, understandably. So, they are going to appeal the trial level or the state court decision to the court of appeals. Well, the Illinois court of appeals has been inundated. There are tens of thousands of these now. There have been multiple articles that have come forward where they are overwhelmed with these and now they're trying to find ways to either have fewer appeals or to clean up the process. And that is something that just this month, I believe on the 22nd.

there's a new procedure coming through on how do you appeal? What's the next step? If you get the decision that you don't like, if you're being detained. And the first step is really is to go before your trial level judge, the judge who said you're detained, have file a motion to reconsider, deal with them first. And then if you still don't like the decision, if they've doubled down and said, nope, you're staying detained, my original decision was correct, then go to the court of appeals because they're trying to slow the flux.

David Drwencke (01:32:57.774)
of or influx of so many appeals. And again, that is both predictable, but was also not totally planned for. So the court of appeals is slammed up. The next bit is just as more people work their way through the system, these appeals work their way through the system, there's going to be the legal phrase, interpretive case law. So like the stock case I mentioned before, where they get into analyzing factor three and four about what does the state really have to prove and show beyond the

the facts of the underlying offense, there's gonna be new cases that come out that greater refine and focus what is appropriate to detain what is enough evidence and what isn't. This type of background is appropriate and this isn't. These types of things are gonna come through so that the predictability I think, and I hope will go up. Well, we know, we now know how these factors are supposed to be appropriately interpreted. And because we know how they're supposed to be interpreted and I can apply my...

clients factors in background in history and facts of the case to a better set of known factors in interpretive case law. I can now predict the outcome a lot better. And then in turn, there should be a lot less appeals because we all kind of know what's going to happen heading into this because we better understand the law. This is just so new for everyone that there still are uncertainties unknown. And the court of appeals hasn't ruled on every bit of this just yet. As far as how to guide.

maybe that's the best way of wording to guide trial court judges in making the appropriate decision to avoid things needing to be appealed or being reversed later. That comes with time, but I, again, I don't see substantive change. I think the factors will remain the same. We'll just learn better how they're supposed to be interpreted so that both the state's attorney and defense counsel can argue that in front of a judge and then have some better predictability on what that result will be. Like we used to have under the old cash bail system, I would go in having a very good

understanding like, okay, the judge is likely to set a bond. I may not know exactly what that cash number will be, but I feel comfortable they're going to do it or the alternative say, Hey, this is not the type of case you're likely to get a bond on. Here's why. And I can explain that the new system is still so new and we're feeling our way through that, that I can't always predict ahead of time and that that's frustrating for clients.

Sam (01:34:20.648)
Well, David, you have so much insight and you offer it so generously. I want to thank you again for another great conversation.

David Drwencke (01:34:28.43)
My pleasure. Love this stuff. Undoubtedly, there'll be something new, but that's part of the job is staying up to date on the law and knowing what's going on. And I pride myself on doing it.

Sam (01:34:39.796)
Well, there we go.

David Drwencke (01:34:41.806)
Perfect. There we go. We made it.

Sam (01:34:49.484)
Ah, shoot, yeah, no worries. I think someone got a bump or a bruise.

David Drwencke (01:34:55.822)
Oh boy, well, that's inevitable.

Sam (01:34:59.624)
Yeah. Okay. So, yeah. Okay.

Christine, what do you want to do?

Sam (01:35:09.502)
Sure, sure.

Yep, yep, cool.

Sam (01:35:18.964)
Well, David, you have so much insight and I really appreciate you offering it so generously. So I wanna thank you again for coming on the show and I wanna encourage everybody, please like and subscribe for more conversations like this.

David Drwencke (01:35:36.846)
Awesome, guys, a lot of fun.