ARRESTED FOR HEROIN? WHAT ARE YOU LOOKING AT?
In Illinois, Heroin is a Schedule 1 drug. Possession of any amount of Heroin is a felony. That means if you get convicted for Heroin, not only could you go to prison, at the very least, you could become a felon. An arrest for any type of Heroin case is a serious criminal offense. If you or a loved one is arrested on heroin charges, you have a lot of questions. You need to know what you’re facing and if you can beat it? At Robert Callahan & Associates, a Chicago criminal defense law firm, we’ve got answers.
Let’s get down to business:
Heroin Possession Defined
“It is unlawful for any person knowingly to possess a controlled or counterfeit substance or controlled substance analog.” 720 ILCS 570/402.
What does it mean to knowingly possess something under the law?
Knowledge is defined by the Illinois Supreme court as the conscious awareness that circumstances exist and/or the awareness of the substantial probability that the fact exists. This legalese basically boils down to the ordinary concept of awareness. Was the person aware of the illegal contraband? More importantly, how can this awareness be proven?
Under Illinois law, a person can control something in two ways: actual possession or constructive possession. Actual possession is exactly how it sounds. The item is on your person in some exclusive and immediate manner, be it in your pocket, in your wallet, or in a body cavity, etc. Constructive possession is defined by one’s ability and intent to control an item. Most significantly, if two or more persons share the power to control a thing, each person can be charged with possession of the contraband. A common example of this is when contraband is found in a vehicle with multiple occupants, all occupants can be charged with possession.
What Am I Facing For a Possession of Heroin arrest?
Amount Sentence Probation-Eligible? % of Time
| 0-15 grams | Cl. 4 Felony 1-3 years IDOC | YES | 50% |
| 15-100 grams | Cl. 1 Felony 4-15 years IDOC | YES | 50% |
| 100-400 grams | Cl. 1 Felony 6-30 years IDOC | YES | 50% |
| 400-900 grams | Cl. 1 Felony 8-40 years IDOC | YES | 50% |
| 900+ grams | Cl. 1 Felony 10-50 years IDOC | YES | 50% |
Possession with Intent/Manufacture/Delivery of Heroin
“It is unlawful for any person knowingly to manufacture or deliver, or possess with intent to manufacture or deliver, a controlled substance.” 720 ILCS 570/401.
What Am I Facing For a Possession with Intent/Manufacture/Delivery of Heroin arrest?
Amount Sentence Probation-Eligible? % of Time
| 0-1 grams | Cl. 2 Felony: 3-7 years IDOC | YES | 50% |
| 1-15 grams | Cl. 1 Felony 4-15 years IDOC | YES-for 0-3 grams NO-for 3+ grams | 50% |
| 15-100 grams | Cl. X Felony 6-30 years IDOC | NO | 75% |
| 100-400 grams | Cl. X Felony 9-40 years IDOC | NO | 75% |
| 400-900 grams | Cl. X Felony 12-50 years IDOC | NO | 75% |
| 900+ grams | Cl. X Felony 15-60 years IDOC | NO | 75% |
What is Heroin Trafficking?
Any person who knowingly brings or causes to be brought into this State for the purpose of manufacture or delivery or with the intent to manufacture or deliver a controlled substance other than methamphetamine or counterfeit substance in this or any other state or country is guilty of controlled substance trafficking.” 720 ILCS 570/401.1(a).
What Am I Facing For a Heroin Trafficking arrest?
The sentence for Heroin trafficking is simple, and scary. Take the above table for Possession w/Intent/Delivery and double the minimum. “A person convicted of controlled substance trafficking shall be sentenced to a term of imprisonment not less than twice the minimum term. . .” 720 ILCS 570/401.1(b).
What Am I Facing For a Possession of Fentanyl arrest?
Amount Sentence Probation-Eligible? % of Time
| 0-200 grams | Cl. 4 Felony: 1-3 years IDOC | YES | 50% |
| 200+ grams | Cl. 1 Felony: 4-15 years IDOC | YES | 50% |
What Am I Facing For a Possession with Intent/Manufacture/Delivery of Fentanyl?
Amount Sentence Probation-Eligible? % of Time
| 0-1 grams | Cl. 2 Felony 3-7 years IDOC | YES | 50% |
| 1-15 grams | Cl. 1 Felony: 4-15 years IDOC | YES- 1-5 grams No- 5+ grams | 50% |
| 15-100 grams | Cl. X Felony 6-30 years IDOC | NO | 75% |
| 100-400 grams | Cl. X Felony 9-40 years IDOC | NO | 75% |
| 400-900 grams | Cl. X Felony 12-50 years IDOC | NO | 75% |
| 900+ grams | Cl. X Felony 15-60 years IDOC | NO | 75% |
PRIOR FELONY RECORD
If you have prior felony convictions and you’re convicted of a Heroin offense, you could be subject to extended term sentencing.
“When a defendant is convicted of any felony, after having been previously convicted in Illinois or any other jurisdiction of the same or similar class felony or greater class felony, when such conviction has occurred within 10 years after the previous conviction, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts…” 730 ILCS 5/5-5-3.2(b)(2).
LEGAL DEFENSES
In any type of drug case, possession or delivery, there are certain things the State will need to establish to prevail. These are what an experienced criminal defense attorney attacks. Why were you stopped/seized/arrested? What is the reasonable suspicion or probable cause? How can the police justify their search under the 4th amendment? Beyond that, at trial, the State has to prove knowledge and control of the alleged drugs beyond a reasonable doubt. These concepts, or rather the absence of them, are the main defenses to defeat a drug case. Just as a successful prosecution for a possession charge revolves around proving the defendant’s knowledge and control, a successful defense proves they don’t exist. At Robert Callahan and Associates, we thoroughly investigate every case by examining not only how the State will prove our client had knowledge and control, but how we can prove our client didn’t. We use a proactive, aggressive approach to identify exactly what evidence the State will use, how they will use it, and how to defeat it. If the case involves a search warrant, we thoroughly analyze it. If it involves a witness, we have an investigator who can interview them.
*Heroin Immunity Statute:
In 2017, Illinois passed the so called “Good Samaritan Overdose Law.” Basically, this law provides immunity from prosecution for people caught with heroin while trying to obtain emergency medical services.
“A person who, in good faith, seeks or obtains emergency medical assistance for someone experiencing an overdose shall not be charged or prosecuted for Class 4 felony possession of a controlled, counterfeit, or look-alike substance or a controlled substance analog if evidence for the Class 4 felony possession charge was acquired as a result of the person seeking or obtaining emergency medical assistance and providing the amount of substance recovered is within the amount identified in subsection (d) of this Section.” 720 ILCS 570/414(b).
For Heroin, 3 grams or less enjoy protection from this statute.
Let’s say you overdose with 2 grams of heroin in your pocket. You’re passed out on the street, the cops and paramedics come, and while administering some Narcan, they discover the 2 grams. Under this new law, you would be immune from prosecution. Now if you had 3.1 grams on you…..sorry.
CONCLUSION
If you have been arrested for Heroin, you have a serious legal problem, no matter if you are possessing or selling heroin. A problem that could end in you going to IDOC. Clink, close the cell door. There are no misdemeanor Heroin charges. Whether or not you have a criminal history, if you get arrested for Heroin, at the very least, you’re looking at becoming a felon if you get convicted. Want to avoid that? You need an experienced criminal defense firm with extensive experience in criminal drug cases including litigation. At Robert Callahan & Associates, we have handled thousands of drugs cases. We know how to get you or your loved one the best option in the face of serious, life changing consequences. Call us at 312 322 9000 to discuss your case right now. Heroin charges don’t just go away, unless you want them to follow you for the rest of your life. Robert Callahan & Associates is here to help. Call us.