I have received several questions regarding the relationship between local city ordinances and the decriminalization of cannabis. For example, why can the City of Naperville charge $750 for an unlawful possession of drug paraphernalia ordinance violation, but the new law says the maximum fee is $200?
The standard defense lies in SB2228, now known as Public Act 099-0697.
(720 ILCS 550/17.5 new)
Sec. 17.5. Local ordinances.
The provisions of any ordinance enacted by any municipality or unit of local government which imposes a fine upon cannabis other than as defined in this Act are not invalidated or affected by this Act.
This is commonly cited as the provision by which all ordinance violations are unaffected. For example, Jeff Hall’s blog reads, “The provisions of any ordinance enacted by any municipality or unit of local government which imposes a fine upon cannabis other than as defined in this Act are not invalidated or affected by this Act. (emphasis Jeff’s)”. Indeed, even I have cited the exact same provision for the exact same proposition at Illinois Case Law Updates.
However, a close reading of PA 099-0697 is that this provision only saves fines which were imposed upon cannabis. Paraphernalia is not cannabis, and therefore 720 ILCS 550/17.5 does not apply to possession of drug paraphernalia. Does that mean the mandatory minimum fine is not $750?
I propose an alternative defense which begins with the question, from where does the local municipality derive its authority?
From 65 ILCS 5/1-2-1.1, which reads:
Sec. 1-2-1.1. The corporate authorities of each municipality may pass ordinances, not inconsistent with the criminal laws of this State, to regulate any matter expressly within the authorized powers of the municipality, or incidental thereto, making violation thereof a misdemeanor punishable by incarceration in a penal institution other than the penitentiary not to exceed 6 months. The municipality is authorized to prosecute violations of penal ordinances enacted under this Section as criminal offenses by its corporate attorney in the circuit court by an information, or complaint sworn to, charging such offense.
Here is the legal question – If a person is arrested with a low level amount of cannabis and drug paraphernalia, what is the maximum punishment the city can impose? Under 720 ILCS 550/17.5, the answer is $200. However, under 65 ILCS 5/1-2-1.1, the answer is the penalty set by the city ordinance. In Naperville’s case, the penalty is $750. (City of Naperville Code)
This is because the ordinance passed by Naperville is not “inconsistent with the criminal laws of this State”. It is merely inconsistent with the civil laws of this state, because paraphernalia found with cannabis is a civil law violation. Therefore, the penalty for ordinance violations of marijuana and drug paraphernalia is still appropriate when set by the local municipality. In other words, the authority to charge more for a drug paraphernalia or cannabis case is from the inherent power of the City to make its own ordinances.
As a practical matter, so long as it is a deferred prosecution agreement, you are not directly going through the court system and can thus “agree” to a fine of $750. Since deferred prosecution is better than any plea of guilty, criminal defense attorneys should leave this provision alone rather than argue that the provisions regarding the $200 maximum fine are part of the Illinois Criminal code.