Attention Cannabis Enthusiasts: Set your clocks. In less than 6 months, Illinois will join Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington as the 11th state to legalize marijuana. Though not a state, we can’t also forget about D.C., which legalized marijuana in 2015. However, Illinois’s marijuana legalization is distinct from all others in one significant aspect: how we got here. Illinois is the first state to legalize recreational marijuana via the legislative process rather than a ballot initiative.[1] All other states legalized marijuana through an official vote by residents at the ballot box. No such vote occurred in Illinois. Our politicians finally got something done down in Springfield.
How and why did they get it done? Bluntly, Illinois wants in on the green rush. Colorado legalized cannabis in 2014. Since then they’ve made over $6 Billion dollars in tax revenue.[2] Though Illinois politicians hope to cash in on the cannabis boom with high taxes on cannabis sales and consumption, they also offer another compelling reason: “we’re hitting the ‘reset’ button on the war on drugs.” That’s how the cannabis legalization bill’s lead sponsor describes the true intent of the law. Governor Pritizker describes the need for this “reset” button on the war on drugs in more detail, stating, “[t]he war on cannabis has destroyed families, filled prisons with nonviolent offenders, and disproportionately disrupted black and brown communities . . . [l]aw enforcement across the nation has spent billions of dollars to enforce the criminalization of cannabis, yet its consumption remains widespread.”
But before you get too excited about legally lighting that joint next new year’s day, you need to understand exactly what the new law will and won’t permit when it comes to marijuana possession and consumption.
NEW LAW: House Bill 1438: Cannabis Regulation and Tax Act (“CRTA”)
BECOMES LAW/LEGAL: January 1, 2010 (1/1/2020)
- Illinois Residents: (Section 10-10(a))
- Must be 21 years old or older
- Can possess:
- Up to 30 grams of Cannabis flower
- no more than 500 milligrams of THC contained in cannabis-infused product
- Up to 5 grams of cannabis concentrate
- Out of State Residents: (Section 10-10(b))
- Must be 21 years old or older
- Can possess:
- Up to 15 grams of cannabis flower
- 250 milligrams of THC contained in a cannabis-infused product
- Up to 2.5 grams of cannabis concentrate
- WHERE CAN YOU GET MARIJUANA?
- ONLY AT LICENSED DISPENSARIES
- DELIVERY NOT LEGAL. (Section 15-70(n)(7))
- NO WEED VENDING MACHINES. (Section 15-70(n)(8))
- ONLY AT LICENSED DISPENSARIES
- Penalties for underage (under 21) possession of Cannabis:
- A person under 21 years of age with cannabis in his or her possession is guilty of a civil law violation as outlined in paragraph (a) of Section 4 of the Cannabis Control Act” (Section 10-15(a))
- Driver’s License consequences: Suspension/Revocation: (Section 10-15(c)): If the person under the age of 21 was in a motor vehicle at the time of the offense, the Secretary of State may suspend or revoke the driving privileges of any person for a violation of this Section under Section 6-206 of the Illinois Vehicle Code and the rules adopted under it.
- Parents & Guardians: Parents and Guardians who “knowingly authorizes or permits consumption of cannabis by underage invitees. Such parents risk facing a class A misdemeanor, unless the use of cannabis “directly or indirectly” causes great bodily harm, bumping the crime up to a class 4 felony. (Section 10-15)).
- Where Can’t You Smoke or Possess Cannabis? (Section 10-35(a)&(b))
- CAN’T POSSESS:
- in a school bus, unless permitted for a qualifying patient or caregiver pursuant to the Compassionate Use of Medical Cannabis Pilot Program Act;
- on the grounds of any preschool or primary or secondary school, unless permitted for a qualifying patient or caregiver pursuant to the Compassionate Use of Medical Cannabis Pilot Program Act
- in any correctional facility;
- in a vehicle not open to the public unless the cannabis is in a reasonably secured, sealed container and reasonably inaccessible while the vehicle is moving; or
- in a private residence that is used at any time to provide licensed child care or other similar social service care on the premises;
- CAN’T USE:
- In a school bus
- At a school
- In a correctional facility
- In a private residence also used for childcare
- In any public place
- Public Place = “where a person could reasonably be expected to be observed by others.” Additionally, all property owned by the government qualify as a public place.
- If knowingly in close physical proximity to someone under 21
- Smoking cannabis in any place where smoking prohibited
- While driving, flying, or boating
- Condo
- Condominium Association can prohibit the smoking of cannabis within a unit, but cannot prohibit any other means of cannabis use within a unit, but can completely prohibit cannabis use in common areas.
- Leased residents:
- Can prohibit smoking but not other forms of cannabis use-check
****Private Businesses can prohibit cannabis use, but it is at their discretion. (Section 10-30(c))
- LEGAL PROTECTIONS FOR CANNABIS USERS IN CRTA
Outside of legalization, one of the most significant aspects of the CRTA is the legal protections it provides for cannabis users who are or want to be parents. Previously, the use of cannabis, possession of cannabis, or presence of cannabis in one’s blood or urine could cost you your children. Arrests for cannabis possession and/or a positive drug test for cannabis could result in legal action against you by DCFS or in family court. DCFS could use the fact you had a cannabis arrest or cannabis in your system to declare you an unfit parent. It could stop you from adopting or fostering a child. No more. The CRTA specifically addresses this in Section 10-30, titled “Discrimination prohibited.” 10-30. This section prohibits finding a parent unfit solely on the basis of cannabis, unless the parents cannabis related actions created “an unreasonable danger to the safety of the minor or otherwise show the person to not be competent.” 10-30(a). The protections expand outside of parental rights, also shielding adverse findings simply based on cannabis use or possession in guardianship, conservatorship, trusteeship, and estate management.
- EMPLOYERS/EMPLOYMENT:
Private employers, like private businesses, can decide whatever workplace and employment policies they want despite legalization. The CRTA does not provide the protections against drugs testing for and at will firing due to marijuana use while not working. That’s means they can fire you for a positive cannabis drug test. To date, only Nevada protects against employment screening for marijuana use or arrests.[3] (Section 10-50(d))
- CULTIVATION/GROWING: (Section 10-5(b))
- AMOUNT:
- Up to 5 plants
- RULES:
- Registered Qualifying Patients
- NOT FOR RECREATIONAL USERS
- Resident of illinois (domiciled in illinois for 30 days prior)
- Cultivator must own property or have permission of owner
- Lessors can prohibit cultivation in leases.
- Cannabis Cultivation must take place in an enclosed, locked space
- Seeds must be purchased from licensed dispensary only
- Only Registered Qualifying Patients allowed to tend cannabis plants
- Unless out of town, an example specifically discussed in the statute, can have “authorized agent” tend plants
- Cannabis plants cannot be cultivated or stored in place “subject to ordinary public view.”
- Ordinary public view “means within the sight line with normal visual range of a person, unassisted by visual aids, from a public street or sidewalk adjacent to real property, or from within an adjacent property” (Section 1-10)
- Cultivator must take reasonable precautions to ensure plants secure from unauthorized access.
- Registered Qualifying Patients
- VIOLATIONS:
- Registered Qualifying Patients:
- Inside the residence where growing, you can keep what you grow. Outside-30 gram limitation applies.
- If grow more than 5 plants or sell the cannabis: See below.
- Everyone else: 720 ILCS 550/8
- 5 plants of less: CIVIL violation. Min. fine $100 and maximum fine $200.
- 5-49: cl. 4 felony
- 40-199: cl. 2 felony
- 200+: cl. 1 felony
- Registered Qualifying Patients:
- AMOUNT:
- EXPUNGEMENTS:
The CRTA provides for automatic expungements of all prior cannabis cases where the weight was less than 30 grams. That includes not just possession cases, but also the sale of cannabis, so long as it’s under 30 grams. The new law specifically defines these types of offenses as “Minor Cannabis Offense.” In addition to the weight requirement, to qualify as a Minor Cannabis Offense, the case cannot have any additional counts constituting a crime of violence. 20 ILCS 2630/5.2. with Interestingly, the expungements will be automatic because technically it is the Governor’s clemency process that provides the statutory vehicle for erasing these records. It is estimated that approximately 770,000 cannabis cases will be eligible for expungement.[4] For those convicted of selling cannabis or possessing over 30 grams,but under 500 grams, expungement is still possible, you will just have to petition the Illinois Prisoner Review Board.
- LAW ENFORCEMENT
Historically, law enforcement unions are/were vehemently opposed to cannabis legalization. In Illinois, they were certainly one of the loudest voices in the room against it. That didn’t stop them from demanding a piece of the pie however. In fact, law enforcement will see about 8% of all cannabis tax revenues. 30 ILCS 105/6z-107(3)
Plus, don’t think that just because marijuana is going to be legal you can light up with impunity just yet. At least in the suburbs, cops will continue arrest people for cannabis. Arlington Heights Acting Police Chief Nicholas Pecora recently told the suburban newspaper the Daily Herald that “We’re not going to let it go . . . As far as I’m concerned, it’s still a violation of the law.”[5] Westchester, Illinois Police Chief Steven Stelter, president of the Illinois Chiefs of Police Association doubled that sentiment bluntly explains, “We’re not changing anything until Jan. 1.” He further adds, “I feel sorry for society.” Seemingly confirming the well known secret that nothing fun happens in Westchester, Illinois.
Not every jurisdiction feels that way, however. Joilet, Illinois will now issue city ordinance violations for anyone caught with less than 30 grams of marijuana.[6]
After legalization takes effect, law enforcement’s chief concern is a rise in cannabis related DUI accidents. Data from the Insurance Institute for Highway Safety and Highway Loss Data Institute showed that the number of crashes rose as much as 6% in Colorado, Nevada, Oregon and Washington, compared with states nearby that didn’t legalize recreational use
- What If You’re Caught With More Than The Legal Amount or Unlicensed Selling?
The old cannabis laws still apply.
Possession: 720 ILCS 550/4
30-100 grams: cl. A misdemeanor
100+-500 grams: cl. 4 felony
500+-2,000 grams: cl. 3 felony
2,000+-5,000 grams: cl.2 felony
5K+: cl. 1 felony
Sale: 720 ILCS 550/5
Less than 2.5 grams Class B misdemeanor;
2.5 grams-10 grams a Class A misdemeanor;
10 grams b- 30 grams- Class 4 felony;
30 grams-500 grams Class 3 felony
500- 2,000 grams Class 2
2,000 – 5,000 grams Class 1 felony
5,000+ grams Class X felony
Cannabis Trafficking offenses also remain on the books. Even though cannabis will now be legal product, that legality means regulation. Alcohol is a legal substance. And Alcohol is actually no different in this regard. Did you know that if you buy a bottle of booze from the store and then sell it without a license that’s a crime? You also can’t make your own liquor, though you can brew your own beer. That being said, it’s hard to see that police are going to spend time and resources busting people for selling a dime bag on the street.
CONCLUSION
The green rush & revolution is upon us. Come January 1, 2020, marijuana will be just like alcohol in Illinois. It won’t be like you can purchase it at your local convenience store, but you will be able to purchase legal amounts of cannabis.
At Robert Callahan and Associates, a Chicago Criminal Defense law firm, we welcome the legalization of cannabis and applaud Gov. Pritzker’s apparent commitment to criminal justice reform. We’ve been fighting against cannabis convictions for decades. Call us at 312 322 9000.
[1] https://www.illinoispolicy.org/illinois-becomes-11th-state-to-legalize-recreational-marijuana/
[2] https://www.cnbc.com/2019/02/12/colorado-pot-industry-sales-top-6-billion-since-adult-use-began.html
[3]https://www.usatoday.com/story/news/nation/2019/06/12/nevada-first-state-employment-marijuana-testing/1440037001/;
[4] https://www.mpp.org/states/illinois/overview-of-the-illinois-cannabis-regulation-and-tax-act/
[5]https://www.dailyherald.com/news/20190705/legal-pot-is-coming-but-until-then-were-not-going-to-let-it-go-suburban-cops-say
[6]https://www.chicagotribune.com/news/breaking/ct-met-illinois-marijuana-law-enforcement-20190603-story.html