Illinois Decriminalizes Minor Amounts of Marijuana

Earlier today, July 29, 2016, Governor Bruce Rauner of Illinois signed Senate Bill 2228 into law.

There are several main provisions to which particular attention should be paid to:

#1.  Under Section 99 of SB2228, the Act takes effect upon becoming law, which means it is effective immediately.

#2.  The Illinois Cannabis Control Act (720 ILCS 550/4) was amended to provide the following:

  • Unlawful Possession of Cannabis less than 2.5 grams became a civil law violation with a mandatory minimum fine of $100, and a maximum fine of $200. (Changed from <2.5 grams is a Class C Misdemeanor).
  • Unlawful Possession of Cannabis less than or equal to 10 grams became a civil law violation with a mandatory minimum fine of $100, and a maximum fine of $200. (Changed from 2.5 grams to 10 grams being a Class B Misdemeanor).
  • Unlawful Possession of Cannabis more than 10 grams but not more than 30 grams became a Class B Misdemeanor (Changed from 10 grams to 30 grams being a Class A Misdemeanor).
  • Unlawful Possession of Cannabis more than 30 grams but not more than 100 grams became a Class A Misdemeanor (Changed from 30 grams to 500 grams being a Class 4 Felony).
  • Unlawful Possession of Cannabis more than 100 grams but not more than 500 grams became a Class 4 Felony (Changed from 30 grams to 500 grams being a Class 4 Felony).

#3.  The Drug Paraphernalia Control Act (720 ILCS 600/3.5) was amended to provide that any paraphernalia seized along with a civil law amount of cannabis (less than or equal to 10 grams) also became a civil law violation with a minimum fine of $100 and a maximum fine of $200 (Changed from a Class A Misdemeanor with a minimum fine of $750 and a maximum fine of $2,500 along with the potential for 12 months imprisonment).  Paraphernalia which is seized along with a misdemeanor amount of cannabis (More than 10 grams) remains a Class A Misdemeanor.  *Interestingly enough, that means if you have paraphernalia on you, it is better to have 10 grams or less of cannabis on you too in case you get caught, because you will only face a civil ordinance violation.  If you have paraphernalia and no cannabis with you, it appears to still be a Class A Misdemeanor.  It is somewhat anomalous that a person possessing a pipe and a minor amount of cannabis is punished less than a person possessing the a pipe alone.

#4.  The Criminal Identification Act (20 ILCS 2630/5.2) was amended to provide that all civil law violations for the Cannabis Control Act or the Drug Paraphernalia Control Act are to be automatically expunged on January 1 and July 1 of each year starting 180 days from today (July 29, 2016).

#5.  Most Driving Under the Influence (625 ILCS 5/11-501) charges now have some additional minimum limitation on the usage of Cannabis.   For example, the previous statutory bar on driving while Cannabis is present within the system has been amended to testing positive for tetrahdydrocannabinol concentration of either 5 nanograms or more of delta-9-tetrahydrocannabinol per milliliter of whole blood, or 10 nanograms or more of delta -9-tetrahydrocannabinol per milliliter of other bodily substance.  The test must be conducted within 2 hours of the Defendant driving.  This could potentially lead to an odd result, because a person who takes the test 3 hours from driving and still over the limit would theoretically not be chargeable under the new DUI section.

#6.  CDL holders are still barred from having any amount of THC in their system.

#7.  Civil law ordinance violations for cannabis now have a lower burden of proof which admits cannabis into evidence based upon a properly administered field test or opinion testimony of a properly qualified peace officer (725 ILCS 5/115-23).

#8.  The Juvenile Court Act (705 ILCS 405/5-125) is amended to provide that records pertaining to municipal or County ordinance violations, is to be kept confidential.  There are quite a few “OV” cases where the Defendant was under the age of 18 that are currently openly displayed online.  If this act is to take effect immediately, than it appears any Circuit Clerk that keeps violations online may be in jeopardy of violating the Juvenile Court Act confidentiality provisions.

These are some of the main changes that SB2228 has implemented.  There are a few other changes that have not been mentioned in this post.  Attorneys who represent clients with pending cannabis or paraphernalia related charges should consult SB2228 carefully.

The next question is what effect on pending/previous charges does the new statute have?  Taking into consideration the holding of People v. Glisson, 782 N.E. 2d 251 (2002), section 4 of the Statute on Statutes probably saves DUI (a)(6) prosecutions because the (a)(6) prosecution is a vested right and the repeal of the section is substantive in nature.  However, the sentencing range for cannabis and paraphernalia charges is now likely in the civil violation range.

*Edit (8/19/2016):  Special thanks to Jeff Hall over at Hall, Rustom & Fritz and Sam Partida over at Illinois Case Law Updates for being the best people to work together through the implications of the new statute.  Jeff has a fantastic and detailed write-up of the new statute, and Sam has a great podcast that has a guest star of yours truly.*


5 thoughts on “Illinois Decriminalizes Minor Amounts of Marijuana

    1. Ken Wang Post author

      Generally speaking, as long as the legislature doesn’t specifically criminalize wax, the language is just whether a substance contains cannabis and how much does it weigh. The flip side to a little bit of cocaine in a bunch of toilet water counts as a lot of cocaine, a little bit of wax alone is not very heavy even if it contains huge amounts of THC. It doesn’t matter nearly as much as weight if the THC content in wax is a lot higher. Ditchweed, wax, brownies, etc, it all comes down to weight. But that also means cannabis in a brownie is much heavier than cannabis alone, and therefore punished more severely.

      Reply
    1. Ken Wang Post author

      It depends on your jurisdiction and the circumstances. For the most part, in Illinois, a person is unlikely to be “arrested” and have their car seized if they are in possession of less than 10 grams of marijuana. However, that does not mean they cannot be detained (seized) on probable cause that they have more than 10 grams – which is generally just the odor of cannabis.

      Reply

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