Is It Illegal to Deliver or Possess with Intent to Deliver a Controlled Substance in Illinois?

Yes. The law for delivery of a controlled substances in Illinois is found at 720 ILCS 570/401. It states, “it is unlawful for any person knowingly to … deliver … or possess with intent to deliver a controlled substance.”

Is it a Misdemeanor or a Felony in Illinois?

Delivery or possession with intent to deliver a small amount of a controlled substance like heroin or cocaine is a felony. 720 ILCS 570/401(d). There are many exceptions to this rule, based on the drug and its weight. A felony is a crime that is punishable by more than 1 year of imprisonment.

Do I Need a Lawyer?

Yes. You should be represented by an attorney on any offense that can result in the loss of your freedom. This is a right guaranteed to you under the United States Constitution.

What if I Just Gave the Drug Away, and I Did Not Sell the Controlled Substance?

“A delivery may occur with or without the transfer or exchange of money, or with or without the transfer or exchange of other consideration.” Ill. Pattern Jury Instruction 17.05A and 720 ILCS 570/102(h).

What if I Did Not Actually Deliver the Drugs, But Just Left Them in a Location and Someone Picked Them Up from That Location?

“The word ‘deliver’ includes a constructive transfer of possession which occurs without an actual physical transfer. When the conduct or declarations of the person who has the right to exercise control over a thing is such as to effectively relinquish the right of control to another person, so that the other person is then in constructive possession, there has been a delivery.” Ill. Pattern Jury Instruction 17.05A and 720 ILCS 570/102(h).

Here is an example of a “constructive transfer of possession:” You left the drugs in your car, and you instructed someone that they can pick the drugs up from your car and leave the money. That person comes, takes the drugs, and leaves the money in your car. That would be a delivery of drugs.

Could I be charged with delivery of a controlled substance if someone else delivered the drugs and I was not even there?

Yes! You could be charged with Delivery of a Controlled Substance if you are legally responsible for the actions of the other person who actually did the delivery. “A person is legally responsible for the conduct of another person when, either before or during the commission of an offense, and with the intent to promote or facilitate the commission of an offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of an offense.” 720 ILCS 5/5-2(c).

Here’s an example: I call you for $100 worth of Cocaine, and you tell me to go to the train station because your cousin will bring me the drugs. Your cousin arrives at the train station, and he brings me exactly $100 worth of coke. I complete the deal with your cousin. Since I coordinated the deal with you, and you directed your cousin to do the deal with me, you could be held responsible for the drug deal your cousin did.

What level felony is Delivery of or Possession with Intent to Deliver a Controlled Substance?

Generally, Delivery of a Controlled Substance and Possession with Intent to Deliver a Controlled Substance are Class 2 felonies. 720 ILCS 570/401(d). However, there are many exceptions to this rule based on the type of drug and its weight. The order of felonies in Illinois from most to least serious goes: Class X, followed by Class 1, Class 2, Class 3, and then Class 4. 

Can I go to Prison? What is the Sentencing Range for Delivery of a Controlled Substance?

Yes, you could be sentenced to the Department of Corrections for Delivery of a Controlled Substance. The type and weight of the controlled substance you delivered or possessed with intent to deliver determines your sentencing range. The below charts show the possible sentences given the weights of different drugs:

Drug Type	Weight	Class of Offense	Sentencing Range	Statute
Heroin	Less than 1 gram	Class 2 Felony	3-7 years IDOC	720 ILCS 570/401(d)
	1 to 15 grams	Class 1 Felony	4-15 years IDOC	720 ILCS 570/401(c)(1)
	15 to 100 grams	Class X Felony	6-30 years IDOC	720 ILCS 570/401(a)(1)(A)
	100 to 400 grams	Super Class X	9-40 years IDOC	720 ILCS 570/401(a)(1)(B)
	400 to 900 grams	Super Class X	12-50 years IDOC	720 ILCS 570/401(a)(1)(C)
	900+ grams	Super Class X	15-60 years IDOC	720 ILCS 570/401(a)(1)(D)

Drug Type	Weight	Class of Offense	Sentencing Range	Statute
Cocaine	Less than 1 gram	Class 2 Felony	3-7 years IDOC	720 ILCS 570/401(d)
	1 to 15 grams	Class 1 Felony	4-15 years IDOC	720 ILCS 570/401(c)(2)
	15 to 100 grams	Class X Felony	6-30 years IDOC	720 ILCS 570/401(a)(2)(A)
	100 to 400 grams	Super Class X	9-40 years IDOC	720 ILCS 570/401(a)(2)(B)
	400 to 900 grams	Super Class X	12-50 years IDOC	720 ILCS 570/401(a)(2)(C)
	900+ grams	Super Class X	15-60 years IDOC	720 ILCS 570/401(a)(2)(D)

Drug Type	Weight	Class of Offense	Sentencing Range	Statute
Fentanyl	Less than 1 gram	Class 2 Felony	3-7 years IDOC	720 ILCS 570/401(d)
	1 to 15 grams	Class 1 Felony	4-15 years IDOC	720 ILCS 570/401(c)(1.5)
	15 to 100 grams	Class X Felony	6-30 years IDOC	720 ILCS 570/401(a)(1.5)(A)
	100 to 400 grams	Super Class X	9-40 years IDOC	720 ILCS 570/401(a)(1.5)(B)
	400 to 900 grams	Super Class X	12-50 years IDOC	720 ILCS 570/401(a)(1.5)(C)
	900+ grams	Super Class X	15-60 years IDOC	720 ILCS 570/401(a)(1.5)(D)

Drug Type	Weight	Class of Offense	Sentencing Range	Statute
Morphine	Less than 10 grams	Class 2 Felony	3-7 years IDOC	720 ILCS 570/401(d)
	10 to 15 grams	Class 1 Felony	4-15 years IDOC	720 ILCS 570/401(c)(2)
	15 to 100 grams	Class X Felony	6-30 years IDOC	720 ILCS 570/401(a)(3)(A)
	100 to 400 grams	Super Class X	9-40 years IDOC	720 ILCS 570/401(a)(3)(B)
	400 to 900 grams	Super Class X	12-50 years IDOC	720 ILCS 570/401(a)(3)(C)
	900+ grams	Super Class X	15-60 years IDOC	720 ILCS 570/401(a)(3)(D)

Drug Type	Weight	Class of Offense	Sentencing Range	Statute
LSD	Less than 5 grams or Up to 10 pieces	Class 2 Felony	3-7 years IDOC	720 ILCS 570/401(d)
	5 to 15 grams or 10 to 15 pieces	Class 1 Felony	4-15 years IDOC	720 ILCS 570/401(c)(7)
	15 to 100 grams or 16 to 200 pieces	Class X Felony	6-30 years IDOC	720 ILCS 570/401(a)(7)(A)
	100 to 400 grams or 200 to 600 pieces	Super Class X	9-40 years IDOC	720 ILCS 570/401(a)(7)(B)
	400 to 900 grams or 600 to 1500 pieces	Super Class X	12-50 years IDOC	720 ILCS 570/401(a)(7)(C)
	900+ grams or 1500+ pieces	Super Class X	15-60 years IDOC	720 ILCS 570/401(a)(7)(D)

Drug Type	Weight	Class of Offense	Sentencing Range	Statute
Ecstasy	Less than 5 grams or Up to 10 pieces	Class 2 Felony	3-7 years IDOC	720 ILCS 570/401(d)
aka	5 to 15 grams or 10 to 15 pieces	Class 1 Felony	4-15 years IDOC	720 ILCS 570/401(c)(7.5)
MDMA	15 to 100 grams or 15 to 200 pieces	Class X Felony	6-30 years IDOC	720 ILCS 570/401(a)(7.5)(A)
	100 to 400 grams or 200 to 600 pieces	Super Class X	9-40 years IDOC	720 ILCS 570/401(a)(7.5)(B)
	400 to 900 grams or 600 to 1500 pieces	Super Class X	12-50 years IDOC	720 ILCS 570/401(a)(7.5)(C)
	900+ grams or 1500+ pieces	Super Class X	15-60 years IDOC	720 ILCS 570/401(a)(7.5)(D)

Drug Type	Weight	Class of Offense	Sentencing Range	Statute
Many Prescription Pills	Less than 50 grams	Class 3 Felony	2-5 years IDOC	720 ILCS 570/401(e-h)
	50 to 200 grams	Class 1 Felony	4-15 years IDOC	720 ILCS 570/401(c)(11)
	200+ grams	Class X Felony	6-30 years IDOC	720 ILCS 570/401(a)(11)

Am I eligible for probation?

In many cases, yes! Since delivery of a controlled substance can be a class 1, 2, or 3 felony in some cases, if you are charged with this offense, you are eligible for a sentence of probation of up to 30 months on the class 3 felony (730 ILCS 5/5-4.5-40(d)) or up to 48 months on a class 1 or 2 felony (730 ILCS 5/5-4.5-30(d)).

Not only are you eligible for probation, but Illinois law recommends it: “the court shall impose a sentence of probation or conditional discharge upon an offender unless, having regard to the nature and circumstance of the offense, and to the history, character and condition of the offender, the court is of the opinion that: his imprisonment or periodic imprisonment is necessary for the protection of the public; or probation or conditional discharge would deprecate the seriousness of the offender’s conduct and would be inconsistent with the ends of justice.” 730 ILCS 5/5-6-1(a).

Am I eligible for Court Supervision?

No. Court supervision is not a possible outcome in Delivery of or Possession with Intent to Deliver a Controlled Substance Cases. 730 ILCS 5/5-6-1(c).

When is Delivery of or Possession with Intent to Deliver a Controlled Substance non-probationable? When is Prison Mandatory for Delivery of a Controlled Substance?

There are many cases where prison is mandatory for Delivery of a Controlled Substance. You are not eligible for probation if you are charged with:

• a Class X felony 730 ILCS 5/5-4.5-25(d).
• a Class 1 felony, and you committed that offense while on felony probation 730 ILCS 5/5-4.5-30(d).
• Drug trafficking (bringing the drugs from out-of-state) 720 ILCS 570/401.1(b).
• a Class 1 felony involving more than 3 grams of heroin 730 ILCS 5/5-5-3(c)(2)(D)
• a Class 1 or 2 felony, and you delivered to a person under the age of 18 (a minor) 730 ILCS 5/5-5-3(c)(2)(D)
• a Class 1 felony, when you have already been convicted of a class 1 felony. 730 ILCS 5/5-5-3(c)(2)(F)
• a Class 1 or 2 felony, and you were within 500 feet of a protected property (church, school, park, nursing home or assisted-living center, a truck stop) 730 ILCS 5/5-5-3(c)(2)(D).

What is the Extended Sentencing Range for Delivery of a Controlled Substance? When does it apply?

Generally, under Illinois’ extended sentencing guidelines, if you have been convicted in the last 10 years of a felony, and that felony was of the same class or worse than your current charge, then the maximum allowable sentence is doubled. 730 ILCS 5/5-4.5-45(a). That means that the sentencing range for a class 3 felony would be 2-10 years in the Illinois Department of Corrections. The extended sentencing range for a class 2 felony is 3-14 IDOC; for a class 1 felony is 4-30 years IDOC; and for a Class X felony is 6-60 years IDOC.

With drug delivery cases, however, all second or subsequent offenses are extended sentencing. It does not matter if the first conviction occurred over 10 years ago, or if the first conviction occurred after the commission of the second crime. If this is your second conviction for the same offense, then you are looking at extended sentencing.

What if you Deliver Controlled Substances to a Pregnant Woman?

If you deliver drugs to a pregnant woman, even if this is your first offense, you are subjected to extended sentencing range. If you deliver drugs to a minor, then you’re looking at the extended sentencing range. 720 ILCS 570/407.2.

What if You Use a Minor to Deliver the Drugs for You?

A super-extended range applies in one scenario: If you use a minor to deliver drugs for you, then your extended sentencing range is triple not double. So for a Class 1 delivery, you’ll be looking at 4 to 45 years in the Illinois Department of Corrections. 720 ILCS 570/407.1.

How Much of Your Prison Sentence Do You Serve for Possession with Intent to Deliver or Delivery of a Controlled Substance?

Generally, Delivery of a Controlled Substance and Possession with Intent to Deliver a Controlled substance are both 50% sentences. Illinois’ Truth-in-Sentencing law states: “the rules and regulations shall provide that a prisoner who is serving a term of imprisonment shall receive one day of sentence credit for each day of his or her sentence of imprisonment.” 730 ILCS 5/3-6-3(a)(2.1). So if you received an imprisonment term of 4 years in the Illinois Department of Corrections, the most you would actually serve is 2 years assuming you do not receive any other credits.

What Are The Most Common Drugs that People Sell in Illinois?

Here is a list of the most common controlled substances that people sell in Illinois:

• Alprazolam (Xanax)
• Cannabis (Weed)
• Cocaine
• Fentanyl
• Heroin
• Hydrocodone
• Lysergic acid diethylamide (LSD)
• Methadone
• Methamphetamine (Crystal Meth)
• Methylenedioxymethamphetamine (MDMA – Ecstasy)
• Oxycodone
• Phencyclidine (PCP)
• Psilocyn/Psilocybin (Mushrooms)
• Suboxone (buprenorphine)

Why did the State charge me and not the pharmaceutical companies and doctors who sell millions of dollars’ worth of drugs?

The crime is the “unlawful” delivery of drugs, so not all drug deliveries are illegal. The State chose to make certain actions okay for doctors and companies, but not okay for individuals. The prescription-drug industry is heavily regulated. For example, a pharmaceutical company is required to present proof that a drug is safe for human consumption to the Food and Drug Administration (FDA). Also, they must have insurance and/or cash reserves for claims of negligence or product mistakes. Street dealers, however, operate outside of that regulation. Drug addicts can file insurance claims with drug dealers.

What Happens If You Deliver Drugs Mixed with Fentanyl?

In Illinois, there is an additional penalty for dealing “dirty drugs” or drugs that have been mixed with fentanyl. The law states: “any person sentenced to a term of imprisonment [for delivering a controlled substance containing] any amount of fentanyl, 3 years shall be added to the term of imprisonment imposed by the court, and the maximum sentence for the offense shall be increased by 3 years.” 720 ILCS 570/401(b-1). So if you delivered a class 1 felony amount of heroin that was mixed with fentanyl, instead of the regular 4 to 15 years IDOC sentencing range, your new sentencing range is 7 to 18 years IDOC.

What to do if you or your friend is overdosing? Will the police arrest me or my friend for delivery of a controlled substance?

Recently, Illinois enacted a law that gave people immunity from prosecution if you are seeking help for a drug overdose. 720 ILCS 570/414. That protection applies to both the person who is experiencing the overdose and the friend who is trying to save that person’s life. The goal of this law was to save lives by removing the one fear that makes most people not call the police (the fear of being arrested and charged with a crime). There are many conditions to this law so we will go over many of the things you should know.

Which Crimes Does Illinois Drug Overdose Immunity cover?

If you call the police to save the life of someone who is overdosing, both you and that person who is overdosing are immune from the following offenses:

• Possession of a Controlled Substance (720 ILCS 570/402)
• Possession of Drug Paraphernalia (720 ILCS 600/3.5)
• Delivery of a Controlled Substance (720 ILCS 570/401)
• Aggravated Battery Caused by Delivery of a Controlled Substance (720 ILCS 5/12-3.05(g)(1))
• Possession with Intent to Deliver a Controlled Substance (720 ILCS 570/401)
• Manufacturing a Controlled Substance (720 ILCS 570/401)
• Possession of Methamphetamine (720 ILCS 646/60(a))
• Possession with Intent to Deliver Methamphetamine (720 ILCS 646/55(a))
• Delivery of Methamphetamine (720 ILCS 646/55(a))
• Drug Induced Homicide (720 ILCS 5/9-3.3)

What Crimes Are Not Covered By Illinois Drug Overdose Immunity?

If you call the police to seek help for someone who is actively overdosing, the Drug Overdose Immunity only applies to drug offenses. That means that the police can still prosecute you for non-drug related offenses. Those crimes include, but are not limited to:

• Gun Crimes (like Aggravated Unlawful Use of a Weapon or Unlawful Possession of a Weapon by a Felon)
• Theft Crimes (like Possession of Stolen Property or Possession of a Stolen Motor Vehicle)
• Property Crimes (like Criminal Damage to Property or Burglary)
• Identity Crimes (like Possession of a Fake I.D. or Obstructing Identification)
• Crimes Involving Police (like Resisting a Peace Officer or Eluding a Peace Officer)
• Violent Crimes (like Robbery or Vehicular Hijacking)

Does Illinois Drug Overdose Immunity have a drug weight limit?

Yes. The chart below has the type of substance and the maximum limit you can possess. That means that if you have an amount over that limit, then the immunity from prosecution does not apply:

Type of Drug	Drug Overdose Immunity Limits
Heroin	Less than 3 grams
Cocaine	Less than 3 grams
Morphine	Less than 3 grams
Peyote	Less than 40 grams
Barbituric Acid	Less than 40 grams
Amphetamines	Less than 40 grams
Lysergic Acid Diethylamide (LSD)	Less than 3 grams
Pentazocine	Less than 6 grams
Methaqualone	Less than 6 grams
Phencyclidine (PCP)	Less than 6 grams
Ketamine	Less than 6 grams
Narcotic Drug in Schedules I or II	Less than 40 grams

Why was I arrested if the Drug Overdose Immunity Applies?

There are three big reasons for this: 1) you are being prosecuted for a crime that is not covered by the Drug Overdose immunity; 2) the police officer and/or state’s attorney did not know about this immunity; or 3) evidence of the crime you committed was not acquired as a result of the person seeking or obtaining emergency medical assistance in the event of an overdose.

In the made-up scenario where you and a friend rob someone of their car using a firearm, get in a high-speed chase with the police and get away, go into an abandoned building to shoot up, and your friend has an overdose; the immunity to prosecution will only cover the small amount of drugs that you and your friend have left and any pipes/spoons/needles/baggies you used to take the drug. You can still be prosecuted for all that other bad stuff (i.e. armed robbery, possession of a stolen motor vehicle, aggravated fleeing and eluding, and criminal trespass.

Sometimes, however, police get it wrong. Police officers receive some legal training in the academy, but they are not lawyers. It is very possible that the officer did not know about this law, as it was passed very recently. An experienced Criminal Defense Lawyer can file a motion to dismiss if the drug overdose immunity applies in your case.

How to Keep a Delivery of or Possession with Intent to Deliver a Controlled Substance Case Off Your Record?

There are several ways to keep a felony conviction for delivery of a controlled substance off your criminal record. Here are some of the ways:

Ways to Win a case at trial?

At trial, the State must show that you knowingly possessed with intent to deliver or delivered the controlled substance. Challenging whether the State can prove that the drug they have were drugs you intended to sell, or drugs that you actually delivered, is one way to beat a drug delivery charge.

Ways to Win a case at motion?

If there was some issue with the recovery of evidence in your case, a motion to suppress might be the solution. A criminal defense attorney can challenge the lawfulness of police conduct. If the Court finds that police failed to follow proper procedure, the Court can prevent the State from using what was recovered from the improper procedure. This could result in a dismissal of your case.

How to Keep a Conviction off Your Record with Drug Court (730 ILCS 166/20)?

Drug Court is one of the most intensive programs available to help treat people who suffer from drug addiction. Any given week, a participant in drug court could have 7 different obligations (2 random drug test, court, probation meetings, NA/AA meetings, and medication-assisted treatments). Drug Court is definitely for the high risk/high need population, because it has one goal in mind: Until you conquer your addiction, nothing else matters. Everything (i.e. work, family, friends) takes a back seat to the program, or you’ll find yourself sitting in jail due to non-compliance. Despite how tough it is, it also has one of the best rewards available. Successful completion means that your case may be dismissed. That’s right, no criminal conviction at the end of the program is possible.

How to Keep a Conviction off Your Record with Probation Under the Substance Use Disorder Act (Previously TASC Probation – 20 ILCS 301/40-10)?

Under the Substance Use Disorder Act (previously known as T.A.S.C.), a person can be sentenced to treatment as a condition of probation. Unlike First-time Drug Offender Probation and Second Chance Probation, a felony conviction does enter against people who receive this resolution. The good news, however, is that “upon successful fulfillment of the terms and conditions of probation the court shall discharge the person from probation. If the person has not previously been convicted of any felony offense and has not previously been granted a vacation of judgment under this Section, upon motion, the court shall vacate the judgment of conviction and dismiss the criminal proceedings against him or her.” 20 ILCS 301/40-10(e).

How to Keep a Controlled Substance Delivery Conviction off Your Record with Diversion or Deferred Prosecution Programs?

Many counties have diversion or deferred prosecution programs which are alternatives to the criminal justice system. Essentially, you and the prosecutor enter into an agreement that if you comply with the terms of the program (which usually include treatment, classes, and/or community service) the case that brought you to court would be dismissed. If the prosecutor is offering a diversion program, accepting and complying with the program is almost always the best possible result.

How to Keep a Controlled Substance Delivery Conviction off Your Record with a Plea Agreement (Reduction on the Charge)?

Although rare, prosecutors sometimes clear backlogs and move cases by giving defendants “a bargain.” A reduction from a felony Delivery of a Controlled Substance to First-Time Drug Offender Probation or Second-Chance Probation on a possession of a controlled substance is a very good disposition.

Other Drug Related Guides

If you are looking for information about:

• Delivery of Methamphetamine or Possession with Intent to Deliver Methamphetamine, then check out our guide to Delivery of Methamphetamine cases in Illinois.
• Drug Induced Homicide, then check out our guide to Drug Induced Homicide cases in Illinois.
• Possession of a Controlled Substance, then check out our guide to Possession of a Controlled Substance cases in Illinois.
• Possession of Cannabis, then check out our guide to Possession of Cannabis cases in Illinois.
• Possession of Methamphetamine, then check out our guide to Possession of Methamphetamine cases in Illinois.

Hire Illinois Drug Delivery Lawyer Clyde Guilamo

I offer this Illinois Drug Delivery guide as free legal education. #notlegaladvice. If you found this article helpful, then consider giving us a review on Google! And if you have specific questions about your case, give me a call.