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Marijuana Odor Enough to Permit Vehicle SearchA 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.

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How Marijuana Possession Can Be Both Legal and IllegalIn many states, the difference between state and federal marijuana laws creates a bizarre contradiction. Possessing marijuana can at the same time be legal and illegal, depending on which level of government you are dealing with. The federal government is strict in its ban of buying, selling and possessing marijuana. Many states are more liberal with their marijuana laws and allow possession for medicinal and recreational purposes. However, state laws will not protect you against federal charges for marijuana possession.

Drug Schedules

The federal government’s classification of drugs is based on the Controlled Substances Act, which groups drugs into five schedules:

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Recreational Marijuana Would Create New Criminal ChargesIllinois will have a referendum question on the November 2018 election ballot asking whether the state should allow the production and sale of recreational marijuana for people age 21 and older. The results of the referendum will not be binding, but asking voters the question shows that lawmakers are seriously considering legalization. If Illinois does decide to legalize recreational marijuana, the state will have a lot of work to do in order to regulate it, including changing the state’s criminal drug laws. There are several complicated factors involved with legalizing marijuana on a state level:

  1. Quantity Limits: States that allow recreational marijuana put limits on how many plants a person may cultivate and how many ounces they may possess. People using marijuana for medical purposes are generally allowed to grow and possess more.
  2. Public Use: States with legalized marijuana generally do not allow people to use it in public places, including designated smoking areas. The infraction can be a misdemeanor, depending on how much the person has in his or her possession.
  3. Distribution: As with medical marijuana or liquor, only licensed vendors would be allowed to sell recreational marijuana. Selling or delivering marijuana without a license would be a criminal offense.
  4. Underage Possession: Illinois has signaled that there would be an age minimum of 21 in order to possess marijuana. Unlike with underage possession of alcohol, the amount of marijuana that the underage person possesses could change the severity of the charges.
  5. Driving While High: Driving under the influence of marijuana is already a crime in Illinois, with a zero-tolerance policy because the substance is illegal. Driving while high on marijuana would still be a crime. However, lawmakers would need to come up with a new standard for determining when a person’s marijuana use has impaired his or her driving.
  6. State vs. Federal Law: Unless the U.S. Congress changes the law, it will still be a federal crime to possess and distribute marijuana. States have jurisdiction over people who use or sell the substance within their borders. Transporting marijuana over a state line is a federal offense, even if both states allow recreational marijuana.

Growing Pains

Local law enforcement would need time to adjust to the new laws if Illinois legalizes recreational marijuana. There would likely be several arrests as police and the public learn what constitutes legal marijuana possession. A McHenry County criminal defense attorney can help you contest your drug charges, regardless of whether Illinois’ laws change. To schedule a free consultation, call 815-338-3838.

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Illinois law, marijuana possession, Crystal Lake Criminal Defense AttorneysA new Illinois law has been proposed that seeks to decriminalize the possession of small amounts of marijuana, allowing for fines instead of imprisonment for possession of up to 10 grams of marijuana. Additionally, if the proposed fine is paid, the fined person would eventually have the record and the nature of the fine expunged. The changes proposed under the new law are aimed at reducing jail and prison overcrowding, and also helping people possessing small amounts of marijuana avoid the stigma of a criminal conviction.

Currently, Illinois law provides for a fine of $1,500 and between 30 days to six months in jail for possession of less than 10 grams of marijuana. Amounts over 10 grams carry prison terms of one to 15 years. The change from prosecuting to fining people for possession of small amounts of marijuana is not an entirely new concept, and cities like Chicago already have such systems in place. The proposed law would provide a uniform benchmark for how possession of small amounts of marijuana would be handled statewide.

The proposed law would also affect what would trigger a person to be charged with DUI based on marijuana. Currently, the DUI law is considered zero tolerance when it comes to marijuana and driving. Any amount of marijuana detected on a person's breath, blood, or urine can be sufficient to charge a person with DUI. This means that a driver who smoked or used marijuana weeks before being stopped by police may be charged with a DUI upon testing positive for the drug, without necessarily being impaired. The proposed law would base a charge of DUI involving marijuana on the amount detected, taking into consideration that marijuana can be detected for at least 30 days after use.

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