Illinois is Now a Marijuana State

Author: Jennifer J. Gibson

August 4, 2016

On July 29, 2016, Governor Rauner surprised the State by signing a bill into immediate effect that decriminalizes marijuana and marijuana paraphernalia.

Specifically, it is no longer a crime in Illinois to possess 10 grams or less of marijuana or any marijuana paraphernalia. Such persons are simply guilty of a “civil law violation” and can be fined between $100 and $200. The civil law violation may be proved by a field test or the opinion of a trained police officer.

The bill also provides for automatic expungements of persons cited for a civil law violation of possessing marijuana.  As it relates to municipalities, every law enforcement agency must automatically expunge on or before January 1 and July 1 of each year any law enforcement records, including police reports, of persons found to have committed a civil law violation of marijuana. Each police department must enact a procedure for automatic expungements and to confirm that the expungements have occurred.

The bill also makes it a lot more difficult to prove the offense of driving under the influence of marijuana. Formerly, there was a statutory presumption that a person was under the influence of marijuana for purposes of Illinois DUI laws, if a person’s urine contained any amount of THC (which can remain in a person’s urine for up to 30 days after using marijuana). Now, a marijuana DUI can only be proved 1) by a blood test revealing at least 5 nanograms per milliliter of blood; or 2) if the police officer is trained to detect impairment by marijuana versus impairment of alcohol or other drugs. The wrinkle to proving marijuana DUIs by blood test is that the State Police crime lab does not currently have the capability to test blood for marijuana level. There are private laboratories who do test for marijuana level in the blood, which can be costly.

We are recommending that, instead of writing civil law violations for marijuana use, municipalities write the offenses under their local ordinance and into adjudication court if they have one. For civil law violations written into circuit court, the first $45 of any fine will be divided between the circuit clerk, the county, the appellate prosecutor, and the state’s attorney. Municipalities will receive the entire fine if they write the marijuana offense as a local ordinance violation and into adjudication court. Additionally, if the offense is written under the local ordinance and into adjudication court, instead of as a civil law violation, then arguably the expungement requirement will not apply to that marijuana offense.  As for the more stringent standards to prove a marijuana DUI, we recommend drug recognition expert or “ARIDE” training for all police officers.