Thousands of Illinois residents are already taking advantage of the legalization of recreational marijuana that was enacted at the beginning of the year. Many people had already received a gift before the end of 2019: a pardon of their past marijuana possession conviction. Illinois Gov. JB Pritzker announced the pardons of more than 11,000 misdemeanor marijuana offenses, which are now eligible for automatic expungement. This number is only the beginning as Illinois estimates that there are 116,000 records that are eligible for automatic expungement. The stated goal of expungement is to help people whose opportunities have been limited by the stigma of a low-level marijuana conviction on their criminal record.

Expungement vs. Pardon

The terms “pardon” and “expungement” are being used interchangeably when talking about the Illinois marijuana law, but the two actions are different:

• A pardon is an executive order to forgive someone for a crime.
• An expungement is removing an arrest or conviction from someone’s criminal record.

Receiving a pardon is one way to become eligible for expungement. Another would be a court order to vacate a conviction. Expungement is a superior outcome as opposed to sealing a criminal record, which is what most criminal convictions in Illinois are limited to. Sealing limits who can see a conviction on a criminal record, while expungement treats the conviction like it never happened.

Many police departments have trained K-9 units that alert them to the presence of illegal drugs. In Illinois, dogs are trained to conduct sniff searches for heroin, cocaine, methamphetamine, and cannabis and to give the handler a response when there is a hit. Courts have ruled that using a K-9 unit is not an unreasonable search under the Fourth Amendment of the U.S. Constitution and can create probable cause to conduct a further search for the illegal substances. However, studies show a significant rate of false alerts by K-9 units, which creates doubt about whether an alert from a dog should be enough evidence to allow a police search.

Problem with K-9 Units

Illinois requires dogs in K-9 units to be retested annually to ensure that they are accurate in detecting illegal substances. However, handlers are part of the cause of false alerts in some cases. Dogs are eager to please their handlers and able to pick up on unintentional body language. When a handler is suspicious of a package or vehicle, the dog may give a positive alert in order to affirm that suspicion. The handler can also train the dog to give false alerts by giving it a treat only when it alerts the handler. Despite this potential bias during drug searches, many police departments have not trained their K-9 units to ignore unintentional cues from their handlers.

Court Rulings

The U.S. Supreme Court has consistently trusted the accuracy of K-9 unit searches and considered them unobtrusive in most cases:

Teenagers sometimes give in to the temptation of experimenting with illegal drugs. While teens may see no harm in trying drugs, being caught in possession of drugs has serious consequences. Your teen may not face the same jail sentence that an adult offender may receive. Courts focus on rehabilitation for juveniles who commit nonviolent crimes. However, a drug offense can limit some of the opportunities available to your teen. For instance, a person convicted of drug possession for the first time cannot receive government student aid for one year. Teens may also face discipline at school and difficulty getting into the college of their choice. Your teen may be able to avoid a costly drug conviction if your defense attorney can show that the circumstances did not meet the legal definition of drug possession.

Knowledge

Prosecutors must prove that the person charged with drug possession knew that they were in possession of an illegal drug. Saying that the teen did not know it was an illegal substance may not be a valid defense depending on the circumstances. Teens can be guilty of drug possession if it is reasonable to believe that they knew they were in possession of an illegal drug. Circumstances may include:

• How the teen came into possession of the substance;
• Who gave the drugs; or
• Whether the substance looks like drugs.

A judge will have difficulty believing that a teen did not know that a leafy substance, powder, or pills were drugs. It is a different matter if the drugs were hidden or disguised and the teen honestly did not understand the situation.

In a long-expected move, Illinois is on the verge of becoming the 11th state in the U.S. to legalize the recreational use of marijuana. The new law, which will go into effect on Jan. 1, 2020, shows that Illinois is changing tactics from criminalizing marijuana to creating a regulated industry. As with alcohol and tobacco, the state will control marijuana possession and use, with violations likely resulting in fines. Here are answers to common questions about how Illinois will regulate marijuana possession:

1. Who Can Possess Marijuana?: Marijuana possession will be limited to adults age 21 and older. Illinois residents will be allowed to possess as much as 30 grams of marijuana in leafy form, five grams of cannabis concentrate or 500 milligrams of THC infused in a product. Non-residents will be allowed to possess as much as 15 grams of marijuana.
2. Where Can You Use Marijuana?: Marijuana use will not be allowed in public places, including most businesses and places of work. Local governments will be able to decide whether they will allow marijuana use inside marijuana dispensaries. Marijuana use will mostly be limited to private residences.
3. Who Can Grow and Sell Marijuana?: You are not allowed to grow marijuana in your home unless you are a medical marijuana patient. Marijuana sales will be restricted to licensed dispensaries, similar to the medical marijuana dispensaries. This is how the state will try to keep the industry under control and generate revenue.
4. How Will the Change Affect Those Previously Convicted?: People previously convicted for possessing 30 grams or less of marijuana will be able to petition for a pardon from Illinois Gov. J.B. Pritzker. If you are pardoned, the Illinois Attorney General could expunge the conviction from your record. State’s attorneys on the county level will also be allowed to expunge convictions.
5. What Else Should You Know?: It will still be illegal to drive under the influence of marijuana. However, Illinois must determine how it will measure whether someone is impaired by marijuana. Unlike blood alcohol, traces of marijuana can remain in your body for weeks after use.

Contact a Crystal Lake Criminal Defense Attorney

After the law goes into effect, Illinois residents and law enforcement will need time to understand the limits of Illinois’ recreational marijuana policy. This may result in people being charged when they have not actually violated the law. A McHenry County criminal defense attorney at Botto Gilbert Lancaster, PC, can contest an unjust drug charge being brought against you. To schedule a free consultation, call 815-338-3838.

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A couple of years ago, Illinois changed its Cannabis Control Act to decriminalize the possession of small amounts of marijuana. Possessing less than 10 grams of marijuana is a civil law violation, punishable by a fine of $100 to $200. The change decreases the number of people who may face misdemeanor drug possession charges for what is a minor offense. However, decriminalization is not the same as legalization, a fact that recently prevented an Illinois defendant from suppressing evidence in a criminal case.

Recent Case

In People v. Rice, the defendant was charged, convicted and sentenced to 11 years in prison for possession of a controlled substance. A police officer had stopped the defendant’s vehicle for speeding and decided to conduct a search because he smelt burnt cannabis. During the search, police allegedly found:

• A small bag containing marijuana on the defendant;
• Two sealed envelopes containing $37,000 in the vehicle; and
• A box that contained 1,300 methamphetamine pills.

Probable Cause

The defendant argued that the evidence from the police search should be suppressed because the scent of marijuana did not give the officer probable cause to conduct a search. He cited the change to Illinois law that decriminalized the possession of small amounts of marijuana and a Massachusetts Supreme Court ruling. Massachusetts voters had passed a referendum that decriminalized the possession of one ounce or less of marijuana. The Massachusetts court determined that the scent of marijuana was no longer enough evidence of criminal activity to conduct a search because the amount that the suspect possesses may not be a criminal offense.