Is It Illegal to Possess a Controlled Substance in Illinois?

Yes. The law for possession of small amounts of a controlled substances in Illinois is found at 720 ILCS 570/402 (c). It states, “it is unlawful for any person knowingly to possess a controlled substance.”

How can they charge me with Possession of a Controlled Substance if it is not my drugs? Will the case get dismiss if the drugs belonged to someone else?

The crime is not that you “owned” the drugs. Also, it is not that you were going to consume or use the drugs. The crime is that you had the drugs in your possession. It is not a defense to possession of drugs that it was for someone else. So, saying that the drugs belong to your brother, cousin, or friend will still result in you being charged with the drugs. Explaining that you do not use cocaine or heroin is also not a defense to this charge.

What does “possess” mean in the possession of a controlled substance statute?

Possession may be actual or constructive. If the drug is in your pocket, then that is “actual” possession. “A person has actual possession when she has immediate and exclusive control over a thing.” If you have money in your bank account, then that is “constructive” possession. You know that the money exists, and you have a bank card that gives you access to that money. “A person has constructive possession when she lacks actual possession of a thing but she has both the power and the intention to exercise control over a thing either directly or through another person.” Illinois Pattern Jury Instruction 4.16.

Is Possession of a Controlled Substance a Misdemeanor or Felony in Illinois?

Possession of a Controlled Substance is a felony. 720 ILCS 570/402(c). A felony is a crime that is punishable by more than 1 year of imprisonment.

What level felony is Possession of a Controlled Substance?

Generally, possession of a small amount of a controlled substance like heroin or cocaine is a class 4 felony. 720 ILCS 570/402(c). If you possess 15 grams to 100 grams, however, then it is a class 1 felony. Anything over 100 grams would also be a class 1 felony offense, but with a special sentencing range. 720 ILCS 570/402(a).

Do I need a lawyer if I am charged with Possession of a Controlled Substance?

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.

The police found the drugs after a search of my car. They said that they could search my car because it smelled like weed. Is that true?

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

Yes. Since Possession of a Controlled Substance is a Class 4 felony, you could be sentenced to the Illinois Department of Corrections. Generally, the sentencing range for Possession of a Controlled Substance is 1 to 3 years. 730 ILCS 5/5-4.5-45(a). As the weight of the substance increases, however, possession of a controlled substance can be a class 1 felony with a special sentencing range. Please see the expandable chart below:

Can You Get Probation for Possession of a Controlled Substance?

Yes. Since possessing small amounts of cocaine or heroin is a class 4 felony in Illinois, if you are charged with this offense, you are eligible for a sentence of probation of up to 30 months. 730 ILCS 5/5-4.5-45(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).

Can I Get Court Supervision on a Possession of Controlled Substance Case?

No. Court supervision is not a possible outcome in felony cases. 730 ILCS 5/5-6-1(c). But keep reading as I’ll discuss First Time Drug Offender probation and second chance probation.

What is the Extended Sentencing Range for Possession of a Controlled Substance? – 730 ILCS 5/5-4.5-45(a)

Under Illinois’ extended sentencing guidelines, if you have previously been convicted of a class 4 felony or higher in the last 10 years, then the sentencing range for a class 4 Possession of a Controlled Substance is 1 to 6 years in the Department of Corrections. 730 ILCS 5/5-4.5-45(a).

What if I am pregnant and continue using controlled substances?

You risk losing your current child (and any other children you already have) to the Department of Children and Family Services (DCFS). In Illinois, children who are born with drugs in their bodies are neglected minors under the Juvenile Court Act. 705 ILCS 405/2-3(1)(c).

What if I choose to drive after using controlled substances?

Driving Under the Influence is no longer just for alcohol. You can now catch a DUI for drugs. Illinois traffic law states: “A person shall not drive or be in actual physical control of any vehicle within this State while under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving.” 625 ILCS 5/11-501(a)(4).

What Percentage of a Prison Sentence must you serve for Possession of a Controlled Substance? 730 ILCS 5/3-6-3(a)(2.1)

Possession of a Controlled Substance is a 50% sentence. 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 the minimum imprisonment term of 1 year in the Illinois Department of Corrections, the most you would actually serve is 6 months assuming you do not receive any other credits.

How Long Is the Mandatory Supervised Release or Parole Period for Possession of a Controlled Substance?

Previously, a person sentenced to the Illinois Department of Corrections for Possession of a Controlled Substance would have a Mandatory Supervised Release term of 1 year. That is no longer the case. Currently, there is no Mandatory Supervised Release period for Possession of a Controlled Substance. However, the Prisoner Review Board has the discretion to impose a supervised release period for up to 1 year. 730 ILCS 5/5-8-1(d)(3).

What are the most common drugs that people in Illinois possess and use?

Here is a List of Common Drugs that People in Illinois Possess:

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

Why was I originally charged with possessing one drug, and then charged with possessing another drug?

In order to increase profits, street drugs are often cut with other substances. Some substances used as additives have no effect on the body (inositol), others modify the high that people experience from the drug (LSD), while others can kill you (fentanyl). Sometimes, people think that they have 1 drug in their possession, but they actually had a completely different drug. When the suspected drug is sent to the crime lab, we find out the substance that was actually being possessed. In my 11 years of practice, I’ve seen people who 1) think they have heroin, but they actually have fentanyl, 2) think they have ecstasy, but they actually have methamphetamine, 3) think they have Xanax, but they actually have flualprazolam, and 4) think they have crack cocaine, but they actually have crystal meth.

What to do if you or your friend is overdosing? Will the police arrest me or my friend for possession 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.

What 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 Drug Possession Case Off Your Record?

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

How to Win a Possession of a Controlled Substance Case at Trial?

At trial, the State must show that you knowingly possessed the controlled substance. It is not enough that you were close to where the drug was recovered, they must show that you knew it was there. Challenging whether the State can prove that you knew about the drug is one of the best ways to beat a drug possession charge.

How to Win a Possession of a Controlled Substance Case at Motion?

If there was no probable cause to stop and search you, a motion to suppress might be the solution. A criminal defense attorney can challenge the lawfulness of the stop and search. If the Court finds that it was a bad stop or a bad search, the Court can prevent the State from using what was recovered from the bad stop or search as evidence. This could result in a dismissal of your case.

How to Keep a Possession of a Controlled Substance Conviction off your record with First-time Drug Offender Probation (720 ILCS 570/410)?

People charged with possession of a controlled substance with no prior felony convictions are eligible for a first-time offender disposition. Under Section 410 of the Illinois Controlled Substances Act, or Section 70 of the Methamphetamine Control and Community Protection Act, no felony conviction will enter if you successfully complete a period of probation. The minimum requirements of section 410 probation (or Section 70 probation for Methamphetamine) are:

• 24 Months of Probation;
• 30 hours of Community Service;
• Remaining free from controlled (non-prescribed) substances which is monitored by random drug testing; and
• Completion of a Drug Abuse Evaluation and following any recommended treatment.

How to Keep a Possession of a Controlled Substance Conviction off your record with Second Chance Probation (730 ILCS 5/5-6-3.4)?

People charged with possession of a controlled substance with no prior felony convictions are also eligible for second chance probation. Second Chance Probation has the same minimum conditions as First-time Drug Offender Probation, the only difference is that disposition requires the prosecutor’s consent. You might be thinking to yourself, then why do we need second chance probation if it’s the same as First-time drug offender probation. A person can only get First-time Drug Offender Probation once every 4 years. 730 ILCS 5/5-6-3.4(h). So, if you relapse and pick up a new case before the 4-year mark, the second program is a great way to get back into treatment and keep your criminal record clean.

How to Keep a Drug Possession 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 concur 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 Drug Possession 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, 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 Possession of a Controlled Substance 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 Possession of a Controlled Substance 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 Possession of a Controlled Substance to a misdemeanor possession of drug paraphernalia 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 Cannabis, then check out our guide to Possession of Cannabis cases in Illinois.
• Delivery of a Controlled Substance, then check out our guide to Delivery of a Controlled Substance cases in Illinois.
• Possession of Methamphetamine, then check out our guide to Possession of Methamphetamine cases in Illinois.

Hire Illinois Drug Possession Lawyer Clyde Guilamo

I offer this Illinois Possession of a Controlled Substance 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.