The Journal of The DuPage County Bar Association

Back Issues > Vol. 29 (2016-17)

The Decriminalization of Cannabis and How it Affects Criminal Practice
By Christopher Holland

On July 29, 2016, Governor Rauner signed Public Act 099- 0697 and, by altering or creating a total of thirty-eight statutes, initiated a sea change in how the State of Illinois prosecutes criminal offenses involving cannabis. This article will focus on how the act affected offenses involving the possession of cannabis, the possession of drug paraphernalia, operating cannabis-related businesses, and driving under the influence.

Previously, the Cannabis Control Act1 divided misdemeanor possession of cannabis into three categories based on the amount of the substance possessed. Possessing below 2.5 grams was a class C misdemeanor, 2.5 grams to 10 grams was a class B misdemeanor, and 10 grams to 30 grams was a class A misdemeanor. The P.A. 099-0697 abolishes the class C offense and replaces it with a civil violation punishable by a fine in an amount between $100 to $200. Possession of 10 to 30 grams of cannabis is now a class B offense, while more than 30 grams and less than 100 grams is now a class A offense. With respect to felony offenses, an individual charged with possession of between 30 and 100 grams for a second or subsequent time is now subject to class 4 felony penalties. Class 4 felony amounts for first time offenders fall between 100 and 500 grams. A second or subsequent possession of between 100 and 500 grams of cannabis is a class 3 felony. Class 3 possession also covers 500 to 2000 grams. Between 2,000 and 5,000 grams will result in a class 2 felony and anything over 5,000 will be a class 1. In short, an individual can no longer face jail time for possessing less than 10 grams of cannabis. The P.A. 099-0697 also creates a statute2 that reserves the right of different municipalities to impose fines for cannabis possession beyond those established by the Cannabis Control Act.

The penalties for possession of drug paraphernalia have also been modified to mirror the cannabis penalties. Previously, it was common to see a class A paraphernalia charge along with a class C cannabis charge. Conventional wisdom would suggest that the drug charge itself would be more serious, but this was not always the case. Under P.A. 099-0697,3 this will no longer happen. Any drug paraphernalia seized along with less than 10 grams of cannabis will also be punished as a civil law violation resulting in a fine ranging from $100 to $200.

Legislating drug paraphernalia logically leads to regulating the operations that cultivate and market the cannabis, especially given that legal medical cannabis dispensaries are beginning to operate in Illinois. Under the Compassionate Use of Medical Cannabis Pilot Program Act,4 certain businesses can legally sell cannabis and cannabis-related products so long as they comply with the laws and regulations set forth by the Illinois Departments of Health and Agriculture. Those operations that do not meet these guidelines can be found guilty of a class 2 felony. Specifically, unlawful use of cannabis-based product manufacturing equipment occurs when one “knowingly engages in the possession, procurement, transportation, storage, or delivery of any equipment used in the manufacturing of any cannabis-based product using volatile or explosive gas…with the intent to manufacture, compound, convert, produce, derive, process, or prepare either directly or indirectly any cannabis-based product.5”

The last major change to criminal violations comes in the form of carving out a cannabis limit for driving under the influence. Previously, any amount of cannabis in one’s blood or urine was enough to warrant a charge of driving under the influence of drugs. Going forward, a threshold amount of at least 5 nanograms of delta-9-tetrahydrocannibinol per milliliter of blood or 10 nanograms per milliliter6 of urine within two hours of driving or being in actual physical control of a vehicle7 is sufficient to sustain a charge of driving under the influence of drugs.

As a final interesting note, the P.A. 099-0697 also requires the local circuit clerk’s offices and law enforcement agencies to (twice yearly, on January 1st and July 1st) automatically eliminate and expunge the records of those who satisfactorily complete their sentences for civil violations of either possession of cannabis or drug paraphernalia.8 This requirement is set to begin on January 25, 2017, 180 days after the act took effect on July 29th, 2016.

1. For our purposes, 720 ILCS 550/4.
2. 720 ILCS 550/17.5
3. 720 ILCS 600/3.5(c)
4. 2013 ILL. P.A. 122
5. 720 ILCS 550/5.3
6. 625 ILCS 5/11-501.2(a)(6)
7. 625 ILCS 5/11-501(a)(7)
8. 20 ILCS 2630/5.2(a)(2.5)

Christopher Holland has been an Assistant Public Defender in DuPage County since 2008, and currently serves on the board for the DCBA Criminal Law Section. He graduated from John Marshall Law School in 2007, and earned his undergraduate degree in political science and psychology from Illinois Wesleyan University in 2004.

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