Recreational Marijuana Comes to Illinois

By:  Kal Issa

Governor Pritzker, who has long touted marijuana reform as one of his concerns when running for the gubernatorial seat, will finally have the opportunity to enact a law long desired by a large number of Illinois citizens. The Illinois General Assembly has passed House Bill 1438 and it now awaits Governor Pritzker’s signature.

House Bill, known as The Cannabis Regulation and Tax Act set out a guideline of how marijuana sales and marijuana possession will be regulated.  It also completely decriminalizes the possession of certain amounts of Cannabis. Prior to the effective date of the new law, which is January 1, 2020, possession of less than 10 grams of Cannabis is a civil offense punishable by fine only, more than 10 grams but less than 30 grams is a Class B Misdemeanor and more than 30 grams could be charged as Class A Misdemeanor or a Felony depending on the amount actually possessed.

The new Cannabis law allows an Illinois resident 21 years of age or older to lawfully possess up to 30 grams of the Cannabis flower, up to 500 milligrams of THC contained in Cannabis related products and up to 5 grams of Cannabis concentrate. If you are not an Illinois resident, the law will still allow possession of Cannabis or THC, but at half of the above amounts.

While the new law removes many of the obsolete criminal penalties for possession of small amounts of Cannabis, it also creates new laws regarding the punishment of Cannabis when used, possessed or delivered in a manner inconsistent with the law.

Possession of Cannabis by anyone under the age of 21 remains unlawful, but will only be punished as a city ordinance violation and not with any criminal charges. Additionally, anyone under the age of 21 who is caught in possession of Cannabis may have their driver’s license suspended or revoked, even if they were not using the Cannabis. This mirrors the underage possession of alcohol law, as a violation of that law has long led to possible suspension of a minor’s driver’s license.

Additionally, anyone under the age of 21 who attempts to use a false or fraudulent ID to attempt to purchase, or even enter a Cannabis business establishment, commits a Class A Misdemeanor, punishable by jail time. The Secretary of State is also authorized to suspend or revoke the individual’s driver’s license based on a violation of this law.

Also, parents may also face criminal penalties based on their child’s use or possession of Cannabis. A parent who knowingly allows their residence or vehicle to be used by a minor to consume Cannabis can be charged with a Class A Misdemeanor. If the use by the minor leads, directly or indirectly, to great bodily harm or death to any person, the parent can then be charged with a Class 4 Felony. Interestingly enough, a reading of this portion of the bill appears to not include the parent’s own child as an essential element of the offense, but rather an invitee of the parent’s child.

Moreover, while adults are now free to consume Cannabis, it does not allow an adult to do so under any circumstance they wish. The possession of Cannabis can still be punished if the individual does possesses the Cannabis on a school bus, on the grounds of any preschool, primary school or secondary school, any correctional facility, any motor vehicle, any public place, or anywhere that is in “close physical proximity” to an individual under the age of 21, amongst other areas. This, however, does not apply to those who are medical marijuana patients.

While this new law may free up the Court systems in ridding it of having to deal with individuals charged with possessing small amounts of marijuana, it does create a new host of questions that will most likely be left for the Court system to decide, as is the case with any new law. How the Court system will interpret the new laws will be left to be seen. However, The Cannabis Regulation and Tax Act is undoubtedly a victory in scaling back what many believe to be the failed war on drugs.

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