2016 Illinois Public Act 99-0697: SB2228: CANNABIS DECRIMINALIZATION AND REMOVAL OF ZERO TOLERANCE CANNABIS DUI
NEW CANNABIS PENALTIES AS OF 7/29/2016 IN ILLINOIS
- Sec. 4. It is unlawful for any person knowingly to possess cannabis. Any person who violates this section with respect to:
- (a) not more than 10 grams of any substance containing cannabis is guilty of a civil law violation punishable by a minimum fine of $100 and a maximum fine of $200. The proceeds of the fine shall be payable to the clerk of the circuit clerk. Within 30 days after the deposit of the fine, the clerk shall distribute the proceeds of the fine in accordance with 720 ILCS 550/4(1)(a)(1).
- (b) more than 10 but not more than 30 grams of any substance containing cannabis is guilty of a Class B misdemeanor;
- (c) more than 30 grams but not more than 100 grams of any substance containing cannabis is guilty of a Class A misdemeanor; provided, that if any offense under this subsection (c) is a subsequent offense, the offender shall be guilty of a Class 4 felony;
- (d) more than 100 grams but not more than 500 grams of any substance containing cannabis is guilty of a Class 4 felony; provided that if any offense under this subsection (d) is a subsequent offense, the offender shall be guilty of a Class 3 felony;
- (e) more than 500 grams but not more than 2,000 grams of any substance containing cannabis is guilty of a Class 3 felony;
- (f) more than 2,000 grams but not more than 5,000 grams of any substance containing cannabis is guilty of a Class 2 felony;
- (g) more than 5,000 grams of any substance containing cannabis is guilty of a Class 1 felony.
- Sec. 3.5 (a): If a person knowingly possess an item of paraphernalia with the intent to use it in ingesting, inhaling, or otherwise introducing cannabis or a controlled substance into the human body, or in preparing cannabis or a controlled substance for that use, is guilty of a Class A misdemeanor for which the court shall impose a minimum fine of $750 in addition to any other penalty prescribed for a Class A misdemeanor. This subsection (a) does not apply to a person who is legally authorized to possess hypodermic syringes or needles under Hypodermic Syringes and Needles Act.
- (b) In determining intent under subsection (a), the trier of fact may take into consideration the proximity of the cannabis or controlled substances to drug paraphernalia or the presence of cannabis or a controlled substance on the drug paraphernalia.
- (c) If a person violates subsection (a) of Section 4 of the Cannabis Control Act, the penalty for possession of any drug paraphernalia in violation of the cannabis control act seized during the violation for that offense shall be a civil law violation punishable by a minimum fine of $100 and a maximum fine of $200. The proceeds of the fine shall be payable to the clerk of the circuit clerk. Within 30 days after the deposit of the fine, the clerk shall distribute the proceeds of the fine in accordance with 720 ILCS 600/3.5(c)(1)(2)(3)(4)&(5).
- See below for problems with meaning, enforcement and interpretation of this statute.
Procedures for the Circuit Clerk
- If the new cannabis penalties are now “civil penalties” that are not criminal in nature, how does the statute explain section 720 ILCS 550/17.5 in that the new law does not invalidate “quasi-criminal” ordinance violations with a maximum fine that exceeds the $200 maximum “civil fee” that the new cannabis law commands?
- Here is an example to illustrate the problem: The City of East Peoria has a municipal ordinance violation under Section 10-1-4.17(d)(1) for possession of cannabis less than 2.5 grams with a minimum fine of $350 and maximum of $750, for possession of cannabis between 2.5 and 10 grams with a minimum fine of $400 and maximum of $750, and for possession of cannabis between 10 and 30 grams with a minimum fine of $500 and maximum $750. —–
- If an East Peoria Police Officer cites a citizen with possessing up to 2.5 grams of cannabis, he/she has the choice to write an ordinance ticket or a “civil fine” ticket. The problem is, the officer will most definitely be advised by their city attorneys to cite them with the much more costly ordinance ticket and then the citizen is not afforded the rights the legislature intended to extend with the “civil fine” that would be automatically expunged. Next thing you know, there will not be any municipality with cannabis possession laws citing individuals with the new statute’s “civil fine,” but rather, they will simply cite the ordinance violation that 1) requires a court appearance and 2) can lead to a criminal record that can prevent future offenses from being expunged (e.g. conviction for ordinance violation invalidates any future expungement of criminal offense even though otherwise eligible for expungement).
- Based on the current language, the statutes would be conflicting and it would be unclear if a person can expunge their cannabis ordinance conviction simply because the City directed its officers to cite citizens with the ordinance violation under each municipal code rather than the new “civil fine” law. This is something that will need to be fixed as I anticipate municipalities will continue citing with the more serious “ordinance violation” rather than the “civil fine” that is automatically eligible for expungement on January 1st and July 1st of each year.
- If you do not want to commit a criminal offense, simply possess less than 10 grams of cannabis and you can carry a hitter pipe with you. That should not be considered a Class A misdemeanor, but rather, 2 civil violations with maximum fines of $200.
- If you are found with just a hitter pipe, the statute is unclear on what sentence to impose: First, if they can prove their elements (that you were going to use the pipe for the purposes of introducing cannabis to your body), even though they do not have any traceable amount of cannabis in the pipe, it will likely be considered a Class A misdemeanor because the paraphernalia statute making it a civil violation is only “triggered” if the person violates subsection (a) of Section 4 of the Cannabis Control Act (possessing no less than 10 grams of cannabis). It does not seem the legislature meant to make possessing a hitter pipe with no cannabis more serious than possessing a hitter pipe with cannabis, but alas, these are the problems that we see thus far with this language in the new law.
- A point of practice will be this: If you are caught with a hitter pipe and no cannabis and they charge you with a Class A misdemeanor, you should get the hitter pipe tested by the crime lab so they can find a traceable amount of cannabis so the civil violation will “kick in” since the hitter pipe was found with less than 10 grams of cannabis (the residue).
- For example: A city police officer searches you (lawfully) and finds 6 grams of cannabis and a hitter pipe (the pipe has no testable residue inside it). The officer, not having an ordinance violation to reap the benefits of the fines and costs that total around $1000 (for the ordinance violation in other cities with cannabis possession ordinances), decides to not cite you with the cannabis possession, but simply sites you with a Class A misdemeanor for Possession of Drug Paraphernalia in violation of 720 ILCS 600/3.5. This MAY be legal and you MAY have to face the criminal Class A misdemeanor in court (and not the $200 civil violation from the new statute) since the officer is not alleging you violated subsection (a) of Section 4 of the Cannabis Control Act, thereby not “triggering” the new statute’s “civil offense” provision. This would be a stretch but nothing surprises me when it comes to police officers collecting revenue for their employer (i.e. the City they work for).
- Using that example but changing the facts a little: If there is a municipal ordinance for cannabis, say, in East Peoria, IL for a maximum fine of $500 for 2.5 grams of cannabis possession, the officer could use his/her discretion to cite you with the ordinance violation ($500 fine) plus the Class A misdemeanor Paraphernalia ticket and give you two separate court dates: One court date in Ordinance Violation Court (OV Court) and one in criminal court for the paraphernalia case. This way, they could say since they did not cite the citizen with a violation of subsection (a) of Section 4 of the Cannabis Control Act, the “civil violation” provision was not “triggered.” Therefore, they can still get their criminal offense for the paraphernalia and also get their money for the city from the OV for possessing the 2.5 grams of cannabis. See the problems?
- I would likely argue the intent of the legislature was to trigger the civil provision if there was a “violation” of subsection (a) of Section 4 of the Cannabis Control Act and if a citizen possessed less than 10 grams of cannabis in any fashion, that is enough to trigger the “civil violation” into effect.
- If you are presently facing a Class B or C misdemeanor for possessing cannabis (under 10 grams) and you are also facing a Class A misdemeanor for possession of drug paraphernalia, the State should dismiss your case and they can choose to cite you with a new violation of the law under the new statute so long as the statute of limitations has not run. Should they choose to not dismiss, they could always amend the charging instrument (called an “information”) to cite the new law and its penalties. Your defense attorney should consider filing a “Motion for Re-Admonishment of Rights” so the judge can explain to you the new “civil penalties” and also file a “Notice of Election,” to inform the court and prosecution that you elect (or choose) to be sentenced under the new sentencing range of the “civil penalty” ($100-$200).
- If you are presently facing a Class A misdemeanor for possession of cannabis (10-30 grams) and a Class A misdemeanor for Drug Paraphernalia, under the new statute, you will still face the Class A possession of Drug Paraphernalia and you will now face a Class B misdemeanor for possessing Cannabis (under the new law, 720 ILCS 550/4(b)). Remember: The changes to the paraphernalia statute arguably only apply to those possessing drug paraphernalia when they are possessing less than 10 grams of cannabis. Your defense attorney should consider filing a “Motion for Re-Admonishment of Rights” so the judge can explain to you the new sentencing range (since the Class A possession of cannabis case is now a Class B possession case under the new law) and also file a “Notice of Election,” to inform the court and prosecution that you elect (or choose) to be sentenced under the new sentencing range of the possession of cannabis being a Class B misdemeanor under the new law.
Illinois Supreme Court Interpretation and Rule Changes (Updated as of 9/7/16)
On September 1, 2016, the Illinois Supreme Court implemented new rules directing the courts to assess a $120 total fine under Rule 580 to 584. See http://www.illinoiscourts.gov/SupremeCourt/Rules/Amend/2016/090116.pdf
- Circuit Clerks shall file these cannabis related civil violations as “Miscellaneous Remedy” (MR) cases.
- All civil law violations may be satisfied without a court appearance by admitting to the violation, with the exception of electronic admissions authorized by the Supreme Court and payment of a “civil fine” of $120, inclusive of all penalties, fees, and costs.
- If the cannabis & paraphernalia cases are filed in conjunction with another violation, the court appearance is required.
- If the defendant fails to appear and does not respond to the citation, the court may continue the case or enter a default judgment while assessing a fine, inclusive of costs, as prescribed in Rule 588 ($120 total fine and cost).
- The circuit clerk shall expunge the entire case on January 1st and July 1st of every year.
- A defendant may contest the violation by notifying the circuit court at least 10 work days before the date set for the first appearance. Contesting may result in the court imposing additional fines (up to $200 by statute) and fees. A new appearance will be set, and the defendant will be notified of the time and place of the required appearance to contest the offense.
- A defendant may demand a trial by jury, which would occur at a later date, but additional fees may apply.
Sample Motion to Re-admonish and Notice of Election:
DUI CANNABIS AND THE NEW “PER SE” LIMIT OF 5 NG/ML OF THC IN WHOLE BLOOD UNDER 625 ILCS 5/11-501(a)(7):
TEXT OF THE NEW CANNABIS/DUI UNDER 625 ILCS 5/11-501(a)(7) AND ANALYSIS
- Officer notices the driver is weaving within its own lane and driving much slower than the posted speed limit. He notices the driver approach a stop sign where he stops for longer than what is normal. Once the driver crosses the center dividing line, the officer, based on his reasonable suspicion the driver violated the statute against “improper lane usage,” initiates a traffic stop.
- Upon approaching the vehicle, the officer smells the faint smell of cannabis. The driver appears to have bloodshot, slightly closed eyes, and his speech is slow and calculated.
- The officer, a trained Drug Recognition Expert (DRE), decides to initiate the battery of tests to make sure the driver is not under the influence of, what he suspects is, cannabis.
- After completing the 12 steps of the DRE process, the officer decides the driver is impaired so he places him under arrest for a violation of 625 ILCS 5/11-501(a)(4).
- The officer reads the driver the “Warning to Motorist” that specifies if the driver submits a blood specimen and it reveals that his THC level is 5ng/ml or more in whole blood, his driving privileges will be suspended for a period of 6 months. If he refuses the test and it’s his first offense (never had a prior DUI arrest or his last DUI arrest/disposition was more than 5 years ago), his driving privileges will be suspended for 12 months.
- In order for the Officer to ask for the test, the Officer must have reason to believe the driver was driving a motor vehicle or in actual physical control of a motor vehicle within two hours prior to the test being taken.
- The driver agrees to submit a blood sample so the officer takes him to the local hospital and the officer gives the nurse the DUI kit for which the officer observes her take the blood and then seal it in the DUI kit and immediately return it to the officer.
- The officer then takes the driver to jail for processing and concludes his investigation, mailing the DUI kit to the state crime lab.
- Months later, the lab results come back and the person has 6ng/ml in his blood.
- The Officer then mails the driver (now defendant) a new ticket citing 625 ILCS 5/11-501(a)(7) as being violated, a Class A misdemeanor, punishable up to $2500 fine and up to 365 days in jail.
- The Officer also mails with the new ticket a “Notice of Summary Suspension” stating the results of the blood test revealed that his whole blood had 6ng/ml present, thus triggering the Statutory Summary Suspension of his driving privileges for 6 months commencing 46 days from the date the Officer mails/serves the notice on the driver.
PROBLEMS WITH THE NEW STATUTE UNDER 625 ILCS 5/11-501(a)(7):
- 5ng/ml is not truly indicative of impairment and we run the risk of convicting and sending to jail citizens who are sober. Levels of THC rise drastically immediately upon ingestion and quickly lower as minutes and potentially an hour or so passes. The studies showed that 15 ng/ml was a more reasonable level.
- If the police do not test the driver within 2 hours of his/her driving or being in actual physical control of the vehicle, under the law, does it invalidate the test results? Say an officer conducts his investigation and he gets the test performed within 2 hours and 15 minutes. Would that test be invalidated due to not being timely obtained? My answer under the plain meaning of the statute would be, “yes, it would invalidate it. Why else would the legislature approve of the 2-hour language?” Maybe courts will agree but we do not know at this point since it’s too early to be tested. It does seem odd that a person could test positive for 10ng/ml of THC in whole blood 4 hours after driving and prosecutors could not (theoretically) charge them under the new statute. Essentially: Timing when administering the test is key for successful arrest and prosecution.
- Presently, THC levels can only be ascertained by measuring blood. Urine will no longer be a good specimen for testing so more hospital visits mean more hospital visits, time, money, and effort spent by nurses, doctors, driving to and from the hospital, etc.
- Presently, (as of 7/30/16), there is no lab in Illinois that tests for ng/ml. One such lab that can test for these results is called NMS Labs, located in Pennsylvania. If a lab technician is in Pennsylvania, do they fly here to IL to lay foundation for the evidence to be admitted? Seems in-efficient.
- According to 625 ILCS 5/11-501(a)(7), a medical cannabis user is only exempted unless they are impaired. Problem is, what does an officer cite the medical cannabis user with if he/she is arrested for impaired driving from cannabis? 625 ILCS 5/11-501(a)(4)? That statute requires impairment, but under (a)(7)(b), “the fact that any person charged with violating this Section is or has been legally entitled to use alcohol, cannabis under the Compassionate Use of Medical Cannabis Pilot Program Act, other drug or drugs, or intoxicating compound or compounds, or any combination thereof, shall not constitute a defense against any charge of violating this Section.” This language conflicts with the first part of (a)(7) where it exempts them. This language could’ve been drafted better but there was opposition every step we took.
Other important changes that may affect you:
- Changes that affect juveniles and confidentiality (705 ILCS 405/5-125): Certain juvenile records related to civil amounts of cannabis, including municipal ordinance violations, are now confidential. This is important if you had prior ordinance violations while you were a juvenile. If those records are still shown in Circuit Clerk databases or accessible by the public, clerks will need to immediately remove those public entries from the public databases or else they could be found in violation of 705 ILCS 405/5-125.
- What effect does section 4 of the Statute on Statutes (5 ILCS 70/4) have on the new cannabis decriminalization law and DUI sections?
- Section 4 states:
(5 ILCS 70/4)
(from Ch. 1, par. 1103)
No new law shall be construed to repeal a former law, whether such former law is expressly repealed or not, as to any offense committed against the former law, or as to any act done, any penalty, forfeiture or punishment incurred, or any right accrued, or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued, or claim arising before the new law takes effect, save only that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding. If any penalty, forfeiture or punishment be mitigated by any provisions of a new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect. This section shall extend to all repeals, either by express words or by implication, whether the repeal is in the act making any new provision upon the same subject or in any other act.
- Would a person facing a DUI(a)(6) (zero tolerance violation) be able to force a dismissal of their charges if the prosecutor does not have in evidence an ng/ml result? This is unclear because there may be a question of whether the (a)(6) prosecution is a vested right. Prosecutors could argue the repeal of cannabis from (a)(6) is substantive in nature. Conversely, one could argue that it was the intent of the legislature to repeal that “zero tolerance” aspect if they do not have blood result of 5ng/ml or more. If allowed to apply retroactively for (a)(6) DUI charges, I do not believe they can prosecute due to lack of evidence since that law’s zero tolerance provisions do not apply to cannabis related DUIs. This will likely be litigated and our firm represents many clients with pending (a)(6) “zero tolerance for cannabis” DUIs and it will be interesting to see how courts interpret it. However, the courts will likely hold that since we substantively changed the elements of the offense, that is a substantive change and therefore should not be applied retroactively unless expressly allowed by statute that expressly describes the temporal reach of the statute. See People v Hunter, http://www.illinoiscourts.gov/Opinions/AppellateCourt/2016/1stDistrict/1141904.pdf.
- The Rule of Lenity will likely command Defense arguments and it is, in my opinion, the stronger and best argument. (Rule of lenity: When construing criminal statutes, the rule of lenity requires that any ambiguity must be resolved in that manner which favors the accused; however, this rule must not be stretched so far as to defeat the legislature’s intent). Moreover, if presently charged with possession of cannabis less than 10 grams and paraphernalia, you should request the judge to re-admonish you on the new sentences changed by the new statute signed into law on 7/29/16 and “elect” to be sentenced under the new “civil law violation” if you plead guilty or are found guilty. Judges in the 10th and 11th Circuit are already doing this for clients of ours as we’ve had hearings since the law changed on 7/29/16.
- There is a good discussion on this in the case of People v. Glisson, 202 Ill.2d 499.
- Section 4 states:
- CDL Holders still cannot have any traceable amount of Cannabis in their system when they are operating a commercial motor vehicle.
- Under 725 ILCS 5/115-23, in prosecuting civil law or ordinance violations for cannabis, evidence can be admitted based upon 1) a properly administered field test; or 2) opinion testimony of a peace officer based on the officer’s training and experience as qualified by the court.
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Jeff Hall is managing partner at Hall, Rustom & Fritz LLC and concentrates his law practice in Criminal Law, DUI & Traffic law, driver’s license reinstatement hearings and criminal record expungements.
If you have a legal question, email Jeff Hall.