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What New Laws Have Been Passed In Illinois Regarding Marijuana & DUI?


In the past, any trace amount of controlled substance in someone’s bloodstream was enough to result in a charge of DUI in Illinois. This was very troublesome for marijuana users since marijuana is a substance that remains detectable in a person’s system for approximately 28 days after use. This means that if a person smoked marijuana four weeks prior to being pulled over for a traffic infraction and the officer chose to have a blood test performed on them, they would likely show positive for marijuana and receive a DUI—regardless of having been sober when they were pulled over. This is an example of what is known as a per se violation.

Under current Illinois law, the presumption of impairment can only come about if someone is found to have a certain quantity of marijuana in their system, similar to the threshold of 0.08 for alcohol. For cannabis, an individual must have a concentration of five nanograms per milliliter of whole blood, 10 nanograms or more per milliliter of other bodily substance, or a trace amount of a controlled substance in order to receive a DUI. While it can’t be said precisely how much marijuana a person would have to smoke in order for a test to show those concentrations, it can be said that people who have not smoked within 24 or 48 hours of being tested would probably not have that amount of marijuana in their system.

The statutory summary suspension component of a DUI case in Illinois would take effect if an individual was found to have more than the defined quantities of marijuana in their system. Under the statutory summary suspension, a person would be subject to a six-month suspension period and entitled to a restricted license assuming they obtain an interlock device or breath device in their car. Many people wonder why a breath device would be required in a marijuana-related DUI case, which is a legitimate inquiry. In my opinion, it makes absolutely no sense and is only required because there is no test for determining the level of marijuana in someone’s system in the same way that breath test devices detect alcohol.

Before long, new legislation will be coming into effect in Illinois that will make it easier to obtain a license for medical marijuana. As it currently stands, an individual would need to have a very serious illness or disease in order to qualify, such as cancer. Chronic pain from conditions such as arthritis would not suffice for a person to qualify for a medical marijuana license. The new governor in Illinois has made it one of his priorities to overhaul the medical marijuana laws, which are simply archaic compared to nearly every other state in the union. Most people are in support of this, as marijuana is generally seen as less detrimental than alcohol. In addition, it is a huge revenue maker for the state, with Colorado and other states bringing in between $350 million and $750 million in marijuana taxes. The new program is called the Opiate Pilot Program and it states that if someone has pain sufficient for a doctor to prescribe any opiate (Vicodin, Norco, OxyContin, etc.) within the last year and the individual still has pain and a valid prescription, then they will be able to receive a permit for medical marijuana.

In Illinois, a person who has a medical card is entitled to have up to 70 grams of marijuana every two weeks, which is a significant amount. For example, there are ten marijuana gummies in a one-gram packet, and most people who I know start off with one half of a gummy; heavier uses might have one full gummy, which is the equivalent of one-tenth of a gram. Products purchased from a marijuana dispensary come in sealed containers. If someone is driving and a container with marijuana in it is within reach and the seal has been broken, then the driver could receive a Class A misdemeanor, which can be accompanied by a one-year jail sentence and a $2,500 fine. In addition, they could be charged with possession of marijuana. It would be much better for a person to get supervision on possession of marijuana as opposed to an unsealed container, because the former would not result in the revocation of their medical marijuana license. It is very important for people to realize that if they are found guilty of an offense or plead guilty to an offense, they could lose their marijuana card for two years. If the seal of a container has been broken, then the container needs to be stored somewhere in the vehicle where the driver cannot access, such as a locked trunk compartment.

Prior to this year, under two and a half grams of cannabis in someone’s possession was a Class C misdemeanor, carrying a $500 fine and up to 30 days in jail. Any amount over two and a half and under ten grams was a Class B misdemeanor, carrying up to six months in jail and a $1,500 fine. If someone was found in possession of 10 to 30 grams of cannabis, they would receive a Class A misdemeanor and face up to one year in jail and up to a $2,500 fine. Possession of 30 to 500 grams was a felony.

As the law currently stands, under 10 grams is a civil law violation, with a maximum fine of $200. Possession of more than 10 grams but less than 30 is a Class B misdemeanor. Possession of more than 30 grams but less than 100 grams is a Class A misdemeanor instead of a felony, as it used to be. This was an important change due to the seriousness of felony convictions and the fact that anyone who receives one—regardless of whether it is dismissed at some point—will receive a permanent FBI record reflecting that felony conviction.

Possession of more than 100 grams but less than 500 grams is a Class 4 felony, carrying three years in prison and up to a $50,000 fine. If it’s a second offense for the same thing, then it becomes a Class 3 felony, which carries two to five years in prison and higher fines. Possession of 500 to 2,000 grams is a Class 3 felony, and possession of just under 10 pounds is a Class 2 felony; possession of any amount over 10 pounds is a Class 1 felony. If someone is found with close to one pound or 500 grams of marijuana, then they might be charged with possession with intent to deliver, which carries more serious penalties than simple possession.

It’s important for people to realize that according to the statute, a casual delivery—which can be evidenced with a simple statement such as, “I was going to split it with my friends”—will be treated in the same way as regular possession. If someone is found in possession of a log book that shows a list of people who were sold marijuana, then they will be charged with intent to deliver and will face additional penalties. Delivery of under two and a half grams is a Class B misdemeanor, which carries a $1,500 fine and six months in jail. Delivery of two and a half grams to 10 grams is a Class A misdemeanor, which carries a sentence of up to one year in jail and a $2,500 fine. Delivery of more than 10 grams but under 30 is a Class 4 felony. Delivery of 30 to 500 grams is a Class 3 felony, carrying a sentence of up to five years in prison and up to a $50,000 fine. Selling over 500 grams but less than 2,000 grams is a Class 2 felony, which carries a fine of up to $100,000 and up to seven years in prison. Selling 2,000 grams to 5,000 grams is a Class 1 felony, and anything over 5,000 grams with intent to deliver is a Class X felony, which carries six to 30 years in prison with no probation possible and up to a $200,000 fine.

It’s important for people to know that if their vehicle smells like pot, that will give officers probable cause to search the passenger areas in addition to locked compartments in the vehicle. I always tell people that if they are going to smoke marijuana, they should use a cartridge that doesn’t smell like pot. If an officer is scanning someone’s driver’s license and sees that they have a medical marijuana card, they will likely ask the driver whether they have any medical marijuana in the vehicle. Under such circumstances, the driver does not have an obligation to talk to the officer; they should simply ask if they are free to leave, and if not, state that they would like to speak to their attorney prior to consenting to a search of their vehicle.

For more information on New Marijuana Laws In Illinois, a free initial consultation is your best next step. Get the information and legal answers you’re seeking by calling (847) 244-4636 today.

Barry Boches, Esq.

Get your questions answered - call me for your free phone consultation (847) 244-4636.

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