This post was written by Miriam Szatrowski, a criminal defense attorney at Appelman & Associates. Miriam has a wealth of experience in the criminal and civil courts, and she specializes in DUI, drug, and traffic offenses. She has also served as an Assistant Public Defender in Kane County. For more information about Miriam, check out her bio or give her a call at (630) 717-7801.
Recently, marijuana legalization has been a hot topic news articles, political debates, and casual conversations. This is largely due to rapidly changing attitudes toward marijuana in the United States. According to an April 4, 2013 article in the Chicago Tribune, the majority of American adults (52%) now support legalization of marijuana.
Though marijuana possession remains illegal under federal law, a number of states have legalized medical marijuana possession, and a few have even legalized it for recreational use. Despite these changes in public opinion, Illinois still criminalizes marijuana possession. I regularly defend people charged with violations of these laws, and in that process I have come across a number of questions from clients, as well as misconceptions about the law in Illinois. The following Marijuana FAQ can give you the information you need to avoid becoming my next client.
Is it ever legal to possess marijuana in Illinois? What about medical marijuana?
It is still a crime to possess marijuana in Illinois. There is no medical exception. There is no “personal use” exception. Possession of any amount of cannabis is illegal under Illinois law.
Aren’t there some cities and towns where you can only get a ticket?
Some towns and cities have local laws that allow police to write tickets instead of making arrests when people are caught in possession of small amounts of cannabis. Unfortunately, these local laws are often misunderstood. First of all, they are all different. An amount that is eligible for a ticket in one place may not be in another. The maximum amounts vary from 2.5g to 30g. In addition, there are many circumstances that can affect your violation, including:
- Your age
- The location you were caught (airport, school, park)
- Prior convictions
Finally, almost all, if not all, leave the decision of whether to arrest or ticket to the individual officer’s discretion. That means that even if you are eligible for a ticket only, the officer can decide to arrest you and have you charged under state law.
Can I be arrested just for being “high” or having marijuana/THC in my system?
Having marijuana or THC in your system is not a crime in and of itself. However, there are local ordinances in some places regarding being “intoxicated” in public, or in the roadway. Also, if you drive with THC in your system, whether or not you are actually impaired, you are committing a DUI.
What are the penalties for violating Illinois marijuana laws?
Illinois laws focus on two things: how much you have, and simple possession v. manufacture/delivery. Generally the more you have, the more serious the crime, and if you are manufacturing it, delivering it, or possessing it with the intent to deliver it, it is treated as a more serious crime than if you simply possess it. Also, the crime is not just possession of cannabis, but possession of a substance containing cannabis. This means that if you use a misdemeanor amount of cannabis to make a pan of pot brownies, you are now in possession of a much heavier substance containing cannabis, and could be charged with a felony!
The penalties are all laid out in two sections of the Cannabis Control Act: 720 ILCS 550/4 and 720 ILCS 550/5. The table below contains a summary of the laws and maximum penalties. However, most people do not get the maximum penalty. People charged with misdemeanor possession rarely go to jail, and even those with lower level felonies often get probation if they have no criminal history. However, even sentences that don’t involve serving time can include steep fines, classes or drug treatment, random drug tests, and community service. Also, repeat offenders often get harsher penalties than first-time offenders.
| Possession of x grams | Manufacture/ Delivery | Class | Maximum Penalty (Note: IL laws may have changed since this was written, and certain factors that were not included in this table may enhance the charge to a higher level crime.) |
| x ≤ 2.5 | C (Misdemeanor) | 30 days jail and $1500 fine | |
| 2.5 < x ≤ 10 | x ≤ 2.5 | B (Misdemeanor) | 6 months jail and $1500 fine |
| 10 < x ≤ 30 | 2.5 < x ≤ 10 | A (Misdemeanor) | 364 days jail and $2500 fine |
| 30 < x ≤ 500 | 10 < x ≤ 30 | 4 (Felony) | 1-3 years prison and $25,000 fine |
| 500< x ≤ 2000 | 30 < x ≤ 500 | 3 (Felony) | 2-5 years prison and $25,000 fine |
| 2000 < x ≤ 5000 | 500< x ≤ 2000 | 2 (Felony) | 3-7 years prison and $25,000 fine |
| 5000 < x | 2000 < x ≤ 5000 | 1 (Felony) | 4-15 years prison and $25,000 fine |
| 5000 < x | X (Felony) | 6-30 years prison and $25,000 fine |
How can I protect myself?
There are a number of things that you can do to avoid being charged with a violation of these laws. Here are some tips:
1. Don’t possess cannabis. This means don’t have it in your car, your home, or your pocket. Please, please, please don’t have it anywhere at school!!! Don’t agree to hold it for a friend. (Remember, possession is the crime, not ownership. “It isn’t mine,” is not a defense.) Unfortunately, this may not be enough to protect you, so read on.
2. Do not use cannabis in your car, or let anyone else use it in your car. Smoking marijuana leaves a strong, distinct odor that gets into the fabric in your car and doesn’t go away for a week or more. Every police officer knows the smell, and smelling it gives them probable cause to search your car.
3. Do not ride in anyone else’s car if it smells like someone has been smoking marijuana in it. If they get pulled over and the car is searched, and the police find something near where you are sitting, you could be blamed for it.
4. Never, EVER consent to a search of your body, your clothes, your bag, your car, or your home! This is important even if you are sure the police won’t find anything illegal. You never know if someone else has left something in your car that shouldn’t be there. (“I didn’t know it was there!” only works if the jury believes you.) Think it can’t happen to you? I have represented many clients who thought it couldn’t happen to them, either.
You don’t have to be rude, and you should never physically resist. Just say, calmly and politely, “I do not consent to a search.” Repeat if necessary. If they search anyway, your lawyer can fight it in court.
5. Do not answer police questions. Give your name and identification if asked for it. Other than that, if the police stop you and try to talk to you, ask them, “Am I free to leave?” If they say, “yes,” walk away. If they say, “no,” tell them you will not answer any questions without a lawyer present. Do not lie, or give a false name or identification card, or you could find yourself charged with more crimes.
Talking to police never makes things better, and often makes it worse, even if you are completely innocent. I can’t tell you how many times I have had a case that we could have easily won if my client had just followed this advice. Even worse, I have had several clients talk themselves into more serious charges.
6. Finally, if you or someone you know is charged with any crime, talk to an experienced criminal defense attorney right away to make sure that you get the best possible outcome for your case.
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