Key Changes In Marijuana Enforcement For Criminal Defense, Dui.

Govenor Rauner signs Senate Bill with changes to marijuana  enforcement of note to criminal defense and dui attorneys.

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Effective immediately, Senate Bill 2228 removes criminal penalties for possession of up to 10 grams of marijuana. Govenor Rauner signed this long delayed bill after he had amendatorily vetoed  a similar proposal last year. https://www.illinoispolicy.org/rauner-signs-marijuana-decriminalization-bill/ Marijuana enforcement under 10 grams is now a civil penalty.

Public Act 99-0697 provides in synopsis;

“Amends the Cannabis Control Act. Provides that the possession of 10 grams or less of cannabis is a civil law violation punishable by a minimum fine of $100 and a maximum fine of $200. Creates the offense of unlawful use of cannabis-based product manufacturing equipment. Provides that a violation is a Class 2 felony. Provides that the provisions of any ordinance enacted by any municipality or unit of local government which imposes a fine upon cannabis other than as defined in the Cannabis Control Act are not invalidated or affected by this Act. Amends the Drug Paraphernalia Control Act. Provides that if a person is convicted of 10 grams or less of cannabis, the penalty for possession of any drug paraphernalia seized during the arrest for that offense shall be a civil law violation punishable by a minimum fine of $100 and a maximum fine of $200. Provides for distribution of these fines. Amends Illinois Vehicle Code. Provides that a person shall not drive or be in actual physical control of any vehicle, snowmobile, or watercraft within this State when the person has, within 2 hours thereof, a tetrahydrocannabinol (THC) concentration in the person’s whole blood or other bodily substance of 5 nanograms or more of delta-9-tetrahydrocannabinol per milliliter of whole blood or 10 nanograms or more of delta-9-tetrahydrocannabinol per milliliter of other bodily substance from the unlawful consumption of cannabis (rather than a cannabis THC concentration in any amount). Amends various other Acts to make conforming changes. Effective immediately.”

Two key changes are noteworthy to criminal defense and dui practitioners. In the past few years, various municipalities had already decriminalized small amounts of possession of cannabis. For example, the Cook County Sheriff’s office had already given their police discretion as to whether or not to ticket a violator or charge them with a misdemeanor. Link… Cook County police enforce laws in unincorporated areas of Cook County. However, at the time the Sheriff’s department took that initiative, bordering municipalities to an unincorporated area were still treating possession of small amounts criminally. This patchwork of differing enforcement levels led to some strange yet true situations.http://www.huffingtonpost.com/2015/04/23/illinois-marijuana_n_7128806.html For example if client x was arrested on the south side of Busse Highway bordering Elk Grove village, and client Y on the north side of the same street, client x on the south side-(unincorporated Cook County) could be ticketed while client Y arrested directly across the street (incorporated Elk Grove Villiage) had to be arrested and prosecuted criminally. Ultimately Cook County Board passed an ordinance allowing tickets to be issued for low level possession throughout Cook County.

Making the law uniform throughout the state is helpful to criminal defense lawyers in  ensuring uniformity of application and decreasing disproportionate  consequences for similarly situated offenders. While some may certainly argue that Govenor Rauner’s compromise  version using 10 grams rather than 15 as originally proposed by sponsor Kelly Cassidy, (and the standard used by Cook County ordinance)  did not go far enough, and others argue  no amount of marijuana possession should be decriminalized, this bill is a common sense  start in bringing Illinois more in line with the national trend of either decriminalizing marijuana  possession or legalizing it entirely as Colorado and Oregon and some other states presently do.

The other key portion of note to dui defense lawyers is the provision mandating a threshold amount of cannabis to be detected in a violator’s chemical test as opposed to the “any trace” standard previously in existence. For those lawyers representing clients charged with DUI (a)(6), -a person could be convicted for dui based on a trace amount of cannabis showing in his system cite….this is a welcome step in the right direction. If you had a client who was arrested for a driving infraction, perhaps with bloodshot eyes or some other “indicia” for example thus giving probable cause to arrest and he or she consented to a urine test showing traces of marijuana, they would be charged for dui despite the possibility that they were driving sober as a rock yet be convicted of Dui since cannabis remains in a person’s system for up to 28 days , leading to punishment for conduct that did not occur on the date charged or may not even have been in violation of any  law if the person had a medical marijuana card and had imbibed days earlier while not driving. This led to potentially unfair, or arguably unconstitutional convictions and extremely damaging collateral consequences.

This law also seems to attempt to reconcile the medical marijuana act provisions with contradictory provisions of the dui statute. But as those of us who practice DUI defense in cannabis cases know, much more work needs doing to make marijuana enforcement provisions uniform with new DUI statutes.


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