Possession of Cannabis Lawyer Answers Frequently Asked Questions
Possession of Cannabis Lawyer Serving Cook, DuPage, DeKalb, Grundy Kane, Kankakee, Kendall, La Salle, Ogle and Will Counties
Yes, people are still getting charged with cannabis-related offenses after Illinois legalized the recreational use of cannabis by adults. If you or someone you know is facing criminal charges related to the possession of cannabis, then you have come to the right place. Possession of Cannabis lawyer Clyde Guilamo is a former drug prosecutor with over 12 years of criminal law experience, and he wrote this up-to-date guide on the latest developments in cannabis law.
Comprehensive Guide to Illinois Cannabis Possession Laws – 720 ILCS 550/4 and 625 ILCS 5/11-502.15
In Illinois, there are 2 ways that the State can charge you with possession of cannabis: 1) you have too much; or 2) you do not have it in an approved container while outside of your home.
Is It Illegal to Possess Cannabis in Illinois?
Yes and no, let me explain. The law for possession of cannabis in Illinois is found at 720 ILCS 550/4. It states, “Except as otherwise provided in the Cannabis Regulation and Tax Act and the Industrial Hemp Act, it is unlawful for any person knowingly to possess cannabis.”
Since the general rule is that cannabis is illegal, the question becomes “when is possessing cannabis legal?” That’s where the Cannabis Regulation and Tax Act comes into play. That law allowed for the “use of cannabis … for persons 21 years of age or older.” But this did not make all possession by adults lawful.
The Illinois Vehicle Code makes it unlawful for any driver or “passenger to possess cannabis within any … motor vehicle … except in a secured, sealed or resealable, odor-proof, child-resistant cannabis container that is inaccessible.” 625 ILCS 5/11-502.15. In short, even if you are an adult, the State can still charge you if your cannabis is not properly packaged.
How can they charge me with Possession of Cannabis if it is not mine? Will the case get dismiss if it belonged to someone else?
The crime is not that you “owned” the marijuana. Also, the crime is not that you were going to consume or use it. The crime is that you had weed in your possession. It is not a defense to possession of cannabis that it was for someone else. So, saying that the weed belong to your brother, cousin, or friend will still result in you being charged with this offense. Explaining that you do not use cannabis is also not a defense to this charge.
What does “possess” mean?
There are two ways to possess something; actual or constructive. If the weed 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 Cannabis a Petty, Misdemeanor, or Felony in Illinois?
Possession of Cannabis can be a petty, a misdemeanor or a felony, depending on the amount of cannabis. For amounts up to 10 grams, it is a petty offense. 720 ILCS 550/4(a). For amounts over 10 grams and under 100 grams, it is a misdemeanor. For amounts over 100 grams, it is a felony.
Even if you possess a small amount of cannabis, the State could charge you with a misdemeanor if you are actively in a vehicle. 625 ILCS 5/11-502.15. The law says that no driver or passenger “may possess cannabis within any passenger area of any motor vehicle upon a highway in this State except in a secured, sealed or resealable, odor-proof, child-resistant cannabis container that is inaccessible.”
Do I need a lawyer if I am charged with Possession of Cannabis?
Absolutely, because you should be represented by an attorney on any offense that can result in the loss of your freedom. Specifically, the Sixth Amendment to the United States Constitution gives you the right to a lawyer, and the Supreme Court case of Gideon v Wainwright, 372 U.S. 335 (1963) provides state appointed lawyers (public defenders) for indigent people.
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?
I get this question so often that I actually created a video addressing this very issue. People wanted to know whether the decriminalization of possession and use of small amounts of cannabis prevents police from using the odor of cannabis as a basis for car searches. In short: People v. Stribling is a case from this year that says that police cannot use the smell of cannabis alone as the basis for the search of a vehicle.
Could I go to prison? What is the Sentencing Range?
Surprisingly, you can go to prison for a weed case! Since Possession of a Cannabis in large amounts is a felony, you could be sentenced to the Illinois Department of Corrections. The below charts show the possible sentences given based on the amount possessed:
| Weight | Class | Sentence | Statute |
|---|---|---|---|
| Less than 10 grams | Petty | Fine only | 720 ILCS 550/4(a) |
| 10-30 grams | Class B Misdemeanor | Up to 6 months jail | 720 ILCS 550/4(b) |
| Any amount while in a car | Class A misdemeanor | Up to 1 year jail | 625 ILCS 5/11-502.15 |
| 30-100 grams | Class A Misdemeanor | Up to 1 year jail | 720 ILCS 550/4(c) |
| 30-100 grams (2nd offense) | Class 4 Felony | 1 to 3 years IDOC | 720 ILCS 550/4(c) |
| 100-500 grams | Class 4 Felony | 1 to 3 years IDOC | 720 ILCS 550/4(d) |
| 100-500 grams (2nd offense) | Class 3 Felony | 2 to 5 years IDOC | 720 ILCS 550/4(d) |
| 500-2,000 grams | Class 3 Felony | 2 to 5 years IDOC | 720 ILCS 550/4(e) |
| 2,000-5,000 grams | Class 2 Felony | 3 to 7 years IDOC | 720 ILCS 550/4(f) |
| 5,000+ grams | Class 1 Felony | 4 to 15 years IDOC | 720 ILCS 550/4(g) |
Can you get probation?
Yes. 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?
Yes, you can receive court supervision if the State charged you with a petty or misdemeanor offense. But if they charged you with a felony version of Possession of Cannabis, then court supervision is not a possible outcome in felony cases. 730 ILCS 5/5-6-1(c). TIP: Keep reading as I’ll discuss First Time Drug Offender probation and second chance probation.
What is the Extended Sentencing Range for Felony Possession of Cannabis?
Under Illinois’ extended sentencing guidelines, if you have been convicted of a felony in the last 10 years, and that felony was of the same class or worse when compared to your current charge, then the maximum allowable sentence is doubled. Therefore, the extended sentencing range for a class 4 felony is 3 to 6 years in the Illinois Department of Corrections, 730 ILCS 5/5-4.5-45(a), for a class 3 felony is 5 to 10 years IDOC (730 ILCS 5/5-4.5-40(a)); and for a class 2 felony is 7 to 14 years IDOC (730 ILCS 5/5-4.5-35(a)).
What if I continue to smoke cannabis while pregnant?
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 substance-exposed are neglected minors under the Juvenile Court Act. 705 ILCS 405/2-3(1)(c).
Can I drive after smoking cannabis?
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 Cannabis?
Possession of a Cannabis 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 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 Cannabis?
Previously, a person sentenced to the Illinois Department of Corrections for Possession of Cannabis 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 a class 4 felony Possession of a Cannabis. 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).
Why was I originally charged with possessing cannabis, and then charged with possessing another drug?
Because there is no quality control for street drugs. If you are buying cannabis from the streets, then there is no telling what other ingredients were mixed in with the weed. I’ve seen cannabis laced with 1) hallucinogens like LSD, 2) stimulants like cocaine, and even 3) opioids like fentanyl. Sometimes, people think that they have only cannabis in their possession, but the chemist’s lab report shows that they actually had a completely different drug.
In drug cases, the police send the drug to a forensic laboratory. Thus, a chemist will determine if the cannabis contains other substances.
What to do if you or your friend is overdosing?
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).
How to keep a Cannabis Possession Case off of Your Record
There are several ways to keep a felony conviction for possession of cannabis off your criminal record. Here are some of the ways:
Ways to win at trial?
At trial, the State must show that you knowingly possessed the cannabis in question. It is not enough that you were close to where the weed was recovered, they must show that you knew it was there. Challenging whether the State can prove that you knew about it is one of the best ways to beat a cannabis possession charge.
Ways to win with a 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 Conviction off your record with First-time Drug Offender Probation (720 ILCS 550/10)?
People charged with possession of a Cannabis with no prior felony convictions are eligible for a first-time drug offender disposition. Under Section 10 of the Illinois Cannabis Controlled Act, no felony conviction will enter if you successfully complete a period of probation. The minimum requirements of section 10 probation 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.
Avoiding a conviction with Second Chance Probation (730 ILCS 5/5-6-3.4)?
People charged with possession of cannabis 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. 720 ILCS 550/10(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.
Keeping Your Record clean 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.
Avoiding a Conviction with Probation Under the Substance Use Disorder Act (Previously TASC Probation – 20 ILCS 301/40-10)?
Under the Substance Use Disorder Act, the judge can sentence you 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 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.
Possession of Cannabis Plea Agreements (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 Cannabis to a misdemeanor possession of drug paraphernalia is a very good disposition.
Many cannabis cases result from traffic stops. We often get offers where the State would dismiss the cannabis charge, in exchange for a plea on the traffic charge. When the cannabis charge is a class A misdemeanor, and the traffic charge is a petty offense, this is a great resolution.
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.
- Delivery of a Controlled Substance, then check out our guide to Delivery of a Controlled Substance cases in Illinois.
- Possession of a Controlled Substance, then check out our guide to Possession of Controlled Substance cases in Illinois
- Possession of Methamphetamine, then check out our guide to Possession of Methamphetamine cases in Illinois.
Hire Illinois Possession of Cannabis Lawyer Clyde Guilamo
I offer this Illinois Possession of Cannabis 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.
