GOING TO SUMMER CAMP MUSIC FESTIVAL IN CHILLICOTHE, ILLINOIS? READ THIS FIRST!

By Jeffrey R. Hall of Hall, Rustom & Fritz LLC

SUMMER CAMP MUSIC FESTIVAL IS SCHEDULED FOR MAY 27, 28, & 29 IN CHILLICOTHE, IL (JUST OUTSIDE PEORIA, IL).

2022 UPDATE:   IF YOU OR A LOVED ONE/FRIEND IS/ARE ARRESTED AT SUMMER CAMP AND IS/ARE TAKEN INTO CUSTODY, CALL ATTORNEY JEFF HALL IMMEDIATELY.  

Remember:  AS OF JANUARY 1, 2020, POSSESSION OF UP TO 30 GRAMS OF CANNABIS IS LEGAL IN ILLINOIS.  Possession of over 30 grams of cannabis is still a crime in Illinois.  Attendees at the festival should be mindful of a few important factors regarding AGGRESSIVE law enforcement at and around Three Sister's Park, where Summer Camp Music Festival is held. Crimes still aggressively enforced under the THE CANNABIS CONTROL ACT (550/4) ARE: 

CANNABIS RELATED OFFENSES:

• NEW POPULAR CRIME FOR POLICE TO ENFORCE:  UNLAWFUL POSSESSION OF CANNABIS IN A MOTOR VEHICLE, CLASS A MISDEMEANOR:  625 ILCS 5/11-502.15
  
  
  
• If police smell cannabis in your vehicle as you travel to or leave the festival, this will give them the legal right to SEARCH your entire vehicle, take all of your camping gear out, sort through it, and then arrest, detain, and jail you until a judge sets your bond.  This means you will likely miss the entire festival as well since you'll be locked up in the county jail where you are detained.
• PRO-TIP #1:  Store your cannabis in the original, child-locked, resealable container AND PLACE IN YOUR TRUNK OR IN THE NON-PASSENGER AREAS, NOT ACCESSIBLE BY THE DRIVER.  
• PRO TIP #2:  THERE IS NO SUCH THING AS AN ODORLESS CANNABIS CONTAINER UNLESS YOU DOUBLE-VACUUM SEAL THE CANNABIS.  
• CANNABIS POSSESSION:  720 ILCS 550/4
• Between 30 grams and 100 grams:  Class A misdemeanor, punishable up to 365 days in jail and a $2500 fine, plus up to 2 years on probation.
• Between 100 and but not more than 500 grams of any substance containing cannabis, punishable up to 1-3 years in the Illinois Department of Corrections (prison). If this is your second time being charged with this offense, it's penalty is enhanced to a Class 3 Felony (720 ILCS 550/4(d)).
• More than 500 grams but not more than 2000 grams of any substance containing cannabis is a Class 3 Felony (720 ILCS 550/4(e)).
• More than 2000 grams but not more than 5000 grams of any substance containing cannabis is a Class 2 Felony (720 ILCS 55/4(f)).

OTHER POPULAR MUSIC FESTIVAL FAVORITES:  720 ILCS 570/402

• Unlawful Possession of a Controlled Substance (cocaine, LSD, psilocybin, Ecstacy/Molly, Heroin, Adderall, methamphetamine, etc):  Possession of ANY amount if a Class 4 Felony, punishable up to 1-3 years in prison, up to $25,000 in fines and costs, and you risk drug asset forfeiture. 

• Unlawful Possession of Cannabis with Intent to Deliver:  720 ILCS 550/5:  2.5 grams or less: Class B misdemeanor.  2.5 to 10 grams: Class A misdemeanor.  10-30 grams: Class 4 felony. 30-500 grams: Class 3 felony (2-5 years in prison). 500 grams to 2000 grams: Class 2 felony: (3-7 years in prison). 2000-5000 grams: Class 1 felony. More than 500 grams: Class X felony.

• Unlawful Possession of a Controlled Substance with Intent to Deliver: Usually a higher class felony (Class 2, 1 or X) punishable from 3 years in prison to 30 years (and even as high as 60 years depending on the amount of controlled substance and if a firearm is found in possession of the alleged offender).

WARNING:  CANNABIS TRAFFICKING!  720 ILCS 550/5.1

• CANNABIS TRAFFICKING is considered a "Super-X" Felony, meaning, if you come into the State of IL with 2500 grams or more with the intent to sell or distribute, the minimum sentence is 12 years and the maximum sentence is 60 years in prison! It's non-probationable. That means if you are caught, your fate is up to the prosecutors and whether or not they seek to charge you with the enhanced super-x felony.

IF YOU OR A LOVED ONE HAS BEEN ARRESTED:  CALL ATTORNEY JEFF HALL DIRECTLY AT (309) 699-4691!

COUNTIES TO LOOK OUT FOR WITH HEAVY POLICE PRESENCE

PEORIA

WOODFORD

TAZEWELL

HENRY

STARK

LASALLE

PUTNAM

MCLEAN

MARSHALL

ROADS TO BE CAREFUL TRAVELING ON:  Illinois Route 29, I-74, I-39, I-80, I-180, Route 89, Route 18, Route 71.

HALL, RUSTOM & FRITZ LLC WILL DISCOUNT LEGAL SERVICES BY 25% IF YOU WERE ARRESTED ON YOUR WAY, AT, OR LEAVING SUMMER CAMP MUSIC FESTIVAL.  EMAIL ATTORNEY JEFF HALL AT jhall@hallrustomfritz.com to inquire and/or set an appointment.**

During the weekend of last weekend of May, thousands of music lovers will transcend the beautiful lawns of Three Sisters Park in Chillicothe, Illinois and listen to their favorite bands.  

Having first been held in 2001 with around 1,000 in attendance, the festival has grown to over 15,000 attendees, hosting more than 100 bands on 6 stages over 4 days.  With any large crowds, you'll have many different types of people converge on the area.  While most are law abiding citizens, some choose to participate in illegal activities, such as drug usage, drug dealing, sexual abuse of minors, etc.  

In 2011, out of nearly 20,000 people, only 61 arrests were made - 31 resulted in felony charges.  To read more about 2011 arrests, click: Summer Camp Arrests 2011.  That is a significantly low number.  Nevertheless, it's still important to remember that Summer Camp has a police presence that you may not witness firsthand until it's too late.  

 In 2012 through 2019, there was an increased number of arrests.  2012 was an eventful year with arrests increasing exponentially.  To learn more about 2012 arrests, click:  2012 Summer Camp Arrest Numbers.  One of the 10 cases dismissed was a case that Hall, Rustom & Fritz LLC attorney Jeff Hall challenged and the judge dismissed four Class 3 Felony drug charges against a citizen visiting the Summer Camp Music Festival in 2011.  In 2017, there was a slight reduction in arrests since Cannabis was decriminalized on 7/31/16.

If you are planning on attending, whether you are from the area or a different State, there are certain things you must keep in mind if you choose to break the laws of Illinois.

First, I should state this article is not intended to teach you how to break the law and get away with it.  Its purpose is to inform you of the risk you are taking if you choose to attend the Summer Camp Music Festival and participate in illegal activities.

Police are increasing their presence each year at and around the festival.

If you are planning on driving to the festival, make sure your mode of transportation abides by all the laws in Illinois.  Route 29 is a state highway that is routinely patrolled by the Illinois State Police, Peoria County Sheriff's Department, Peoria Police Department, and Chillicothe Police Department. If you are driving a vehicle that draws attention, plan on being noticed by the police.  Moreover, be prepared to possibly stop through vehicle safety checkpoints.  Police strategically place checkpoints at locations that could lead to arrests.  If you are driving through one of these checkpoints, turning to avoid the checkpoint may draw attention to your vehicle.  It's best to remain law abiding and aware of your rights.


Remember the following: 

Update 8/16/2021:

IF YOU BRING MORE THAN 15 GRAMS OF COCAINE, MDMA, HEROIN, ETC. AND THERE IS EVIDENCE YOU INTEND TO DELIVER (POSSESS MORE THAN A PERSONAL AMOUNT, HAVE SCALES, SELL TO AN UNDERCOVER, ETC.) YOU WILL LIKELY GO TO PRISON EVEN IF YOU ARE A FIRST OFFENDER. Peoria County prosecutors do not take kindly to festival-goers bringing illicit drugs into Peoria County.  Even if you are a first offender, have never been arrested, or have no significant arrest/criminal history, if you are caught with over 15 grams of a controlled substance with the intent to deliver, it is a CLASS X FELONY and probation is NOT permitted by law. That means, the best offer prosecutors are usually willing to offer is BOOTCAMP (impact incarceration) but you will be convicted of a felony and your freedom will be taken away.

POLICE ARE ACTIVELY PATROLLING THE FESTIVAL AND HAVE MANY UNDER COVER OFFICERS ASKING FOR DRUGS. If you walk around the festival yelling "doses," you are an idiot and will likely get caught. They will also try to entice you to sell to them saying, "come on man, I just need one for the day."  Don't be an idiot. Don't see drugs and especially do not sell to an undercover officer.  Many undercover agents take the ruse very seriously, not showering for a week, growing an excessive amount of facial/body hair, and smelling like Death needs a shower. Be wary of who you talk to and try really hard not to sell drugs.

SECURITY OFFICERS AT THE ENTRANCE WILL THOROUGHLY SEARCH YOU AND REPORT YOU TO POLICE IF THEY FIND ANYTHING ILLEGAL.  If they find something illegal, assert your right to an attorney as soon as possible and do not try to run from police. That will add another charge of "resisting arrest" to your rap sheet and it's a Class A misdemeanor with either 100 mandatory public service hours or 48 hours in jail and a permanent conviction on your record (court supervision is NOT eligible for resisting a police officer).

POLICE WILL PULL YOU OVER FOR ANY AMOUNT OF SPEED OVER THE LIMIT. Be aware of your speed at all times. If police pace your vehicle (drive at your speed to clock you) or clock your speed with a radar or LIDAR, that is typically very strong "reasonable suspicion" to justify a traffic stop. From there, if a drug dog is nearby, they will have it walk around your vehicle and the dog will likely signal to officers, allowing them to search your vehicle, even if it takes hours.


IF YOU SEE SIGNS FOR POLICE ENFORCEMENT ZONES AHEAD, IF YOU PULL OFF AT THE EXIT BEFORE, THERE WILL LIKELY BE POLICE AT THAT EXIT READY TO STOP YOU OR APPROACH YOU.  Law enforcement become more creative with ways to trick you to fall into their trap.  For example, they will set up "Safety Check Enforcement Zones" to make sure you are wearing your seatbelt and your car is properly equipped.  They'll put the signs up just before the exits for a REST AREA.  Not wanting to go through the safety zone, vehicles pull off to the rest area.  Here, the officers will have drug sniffing dogs that will walk directly up to your parked vehicle, signal to the officer the dog has sniffed narcotics, and they will search your vehicle EVEN WITHOUT YOUR APPROVAL.  Be smart.  DON'T TRAVEL WITH NARCOTICS.  Chances are, you will be caught.

Police may set a "ruse" checkpoint on the highway or interstate.  If you see signs that there is a safety checkpoint ahead, you should simply follow the traffic laws, drive through the checkpoint, and if they ask to search your vehicle, politely refuse and then calculate how long it takes for a canine to walk and signal to your vehicle. The timing is important. You should also try to record the entire incident on a cell phone camera or regular camera so we can have an accurate depiction of what happened to you.

Also, think twice before you decide to avoid a roadblock after driving a close proximity to it.   Recent case law in IL held that police can pull you over if they reasonably believe you are avoiding the roadblock. Courts perform a "totality of the circumstances" analysis in determining if the police stop was lawful.  Most judges find this type of traffic stop is perfectly okay so keep that in mind if you are trying to turn around, perform a U-turn, reverse away from the roadblock, etc. Police may have the right to pull you over without you violating any traffic law.  See the IL Supreme Court Case, People v. Timmsen by clicking the link:  http://www.illinoiscourts.gov/opinions/SupremeCourt/2016/118181.pdf 

MAKE SURE YOUR VEHICLE IS PROPERLY REGISTERED, THE DRIVER HAS VALID DRIVING PRIVILEGES, AND THE VEHICLE IS COVERED WITH A VALID INSURANCE POLICY.  Police officers can randomly check your driver's status.  If you are from out of town, they could access your information in their vehicle computer systems.  Even if you are obeying all other traffic laws, they can run your name in the computer and if they determine your vehicle is not properly registered, they can pull you over to investigate.  Prior to driving into Illinois, make sure you have all your relevant documentation in an easily accessible location, such as your glove box.  Place your valid registration and proof of car insurance together so you do not have to search for the documentation.  

MAKE SURE YOUR VEHICLE HAS PROPERLY WORKING EQUIPMENT, SUCH AS ALL HEADLIGHTS AND TAILLIGHTS WORKING PROPERLY.  In Illinois, the license plate must be securely fastened in a horizontal position so as to prevent the plate from swinging. Further, the plate must be fastened to your vehicle at a height not less than 12 inches from the ground, measuring from the bottom of the plate, in a place and position to be clearly visible and shall be maintained in a condition to be clearly legible, free from any materials that would obstruct the visibility of the plate, including, but not limited to glass covers and tinted plastic covers.  See 625 ILCS 5/3-413 of the Illinois Vehicle Code.  If your State does not require a front license plate, it would still be advisable to place a front and rear license plate since Illinois law requires both to be displayed.  Moreover, if your State allows for glass or plastic covers, it's advisable to remove them prior to entering Illinois.  It's likely not enough evidence to prove you guilty beyond a reasonable doubt; however, it's enough to get you pulled over and you want to get to the festival, not sit inside a jail cell all weekend and then venture back to Peoria County for numerous court dates.

MAKE SURE ALL YOUR PASSENGERS, INCLUDING THE DRIVER, ARE WEARING THEIR SEAT BELTS PROPERLY.  It is perfectly lawful for a police officer to pull a vehicle over if the officer reasonably believes any of the passengers are not wearing their seat belt properly.  This means the belt must be properly affixed with the shoulder harness across the chest and the waist belt properly buckled. REMEMBER:  BUCKLE UP ALL PASSENGERS!

DO NOT HAVE ANYTHING DANGLING FROM YOUR REAR-VIEW MIRROR.  In Illinois, an officer has lawful authority to pull your vehicle over if he/she suspects that whatever you have dangling from your rear-view mirror is obstructing your view.  While it may not be enough evidence for the State to prove their case beyond a reasonable doubt that a pine-tree air freshener obstructed your view, it is enough to justify the stop.  After they stop you, if they suspect other crimes are afoot, they can and will investigate. 

DO NOT HAVE ANY TRAILER BALL HITCHES THAT COULD OBSTRUCT A POLICE OFFICER'S VIEW OF YOUR REAR LICENSE PLATE GIVES POLICE AUTHORITY TO PULL YOU OVER TO "INVESTIGATE" AND COULD LEAD TO A SEARCH OF YOUR VEHICLE. 

LICENSE PLATE COVERS ARE NOT LEGAL IN ILLINOIS. If you have a clear cover over your plate, police will pull you over for it.  Remove anything from covering your license plates.  

ILLINOIS LAW REQUIRES VEHICLES TO HAVE FRONT LICENSE PLATES AS WELL AS REAR LICENSE PLATES.  If you have an out-of-state vehicle and your home-state does not require front license plates, police in IL can still pull you over to investigate "why" you do not have a front license plate.  Don't give them a reason to pull you over. 

OBEY ALL TRAFFIC CONTROL DEVICES.  Remember the following laws when driving into Illinois.  If you forget these laws, you are simply giving the police reasons to pull you over.

• Do not enter an intersection or cross over the stop line if the light is red.  Police can pull you over if your vehicle is as much as 1 inch over the stop line while the light is red. 
• Do not speed in excess of the posted speed limits, even if it's 1-2 mph over the limit.  This is discussed above. Speeding is a strict liability offense, meaning, if the police observe your vehicle traveling even 1 mph over the limit, that is enough to pull you over to investigate.
• Signal at least 100 feet before turning at an intersection. This is an easily forgotten law.  It's better to signal early than too late.
• Make a complete stop for at least 2 seconds at the stop line before a stop sign.  No rolling stops!  
• Make sure to signal EVERY lane change.  
• Make sure you are not following another vehicle too closely.
• Remember Scott's Law:  If you see a police or emergency vehicle on either side of the roadway, you must, prior to passing, reduce your speed and, if able to be done safely, change lanes into the adjacent lane furthest away from the emergency vehicle.
• If you are making a right turn, IL law requires you to turn into the right lane, closest to the right-side curb. You cannot turn right into the left lane of travel. That is an offense that gives law enforcement the right to pull you over.

Police Canine Units will be patrolling and they will walk around your vehicle to alert police to illegal drugs or contraband.

• POLICE OFFICERS WILL ASK TO SEARCH YOUR VEHICLE.  If you are pulled over for a traffic offense, the police officer may have suspicions and will likely ask you if he/she can search your vehicle.  Please click HERE to learn more about your rights in Illinois if a police officer asks you if they can have permission to search your vehicle.  Police officers can search your vehicle under certain circumstances.  It is your job to know your rights and what response to give the police.  Under present Illinois law as of 2012, police officers can search your vehicle if they:

• Have a valid search warrant
• Notice something illegal in plain view in your vehicle -- this includes the police officer saying he/she smells raw or burnt cannabis from your vehicle.  Unlawful Possession of Cannabis in a Motor Vehicle is a Class A misdemeanor and they'll arrest you for this.
• Have valid consent from the driver or someone with the authority to grant consent
• Arrest and detain you for a crime.
• The drug sniffing canine positively alerts to your vehicle 

HERE IS A VIDEO DEMONSTRATING SOME TACTICS USED BY OFFICERS TO FORCE A SEARCH OF YOUR VEHICLE.  NOTE:  In May, 2012, the driver in this video filed a federal lawsuit against the police officer involved here.  Learn more by clicking:  http://www.stltoday.com/news/local/crime-and-courts/collinsville-traffic-stop-video-results-in-federal-lawsuit/article_126347ca-992e-11e1-a621-0019bb30f31a.html

 

The conversation to search the vehicle occurs around the 7:30 minute mark.  The entire video is educational to watch but it is rather long (nearly 18 minutes).

 

• IF YOU CONSENT TO THE SEARCH, IT IS INCREDIBLY DIFFICULT TO SUCCESSFULLY CHALLENGE THE SEARCH IN COURT.  For example, a typical interaction goes like this:  Officer:  "You don't have any bombs, weapons, or anything illegal in your vehicle, do you?"  You:  "No, nothing like that or illegal."  Officer:  "Then you wouldn't mind allowing me to search your vehicle?"  You: "No, I don't mind."  This is a consensual search and you will likely be unsuccessful in court if you challenge the search.

• MAKE SURE THE DRIVER AND PASSENGERS PAY ATTENTION TO THE DRUG SNIFFING DOG WHEN WALKING AROUND THE VEHICLE.  According to a recent study, drug sniffing dogs would only signal accurately 44% of the time. Read the article summarizing the study done by the Chicago Tribune. You will want as many eyes watching that dog as you can.  If you choose to challenge the dog's signal, you will want witnesses to testify at the hearing on your behalf.  The more SOBER witnesses, the better for your case.

• PAY ATTENTION TO HOW LONG IT TAKES FOR THE CANINE OFFICER AND THE DRUG SNIFFING DOG TO ARRIVE AT THE SCENE.  While a police officer is allowed to have a drug sniffing dog walk around your vehicle, they cannot do so if it "unreasonably prolongs the stop."  Courts have not set a fine-line time limit as to how long is "unreasonably prolonging."  Courts will look to see when the "business portion" of the stop concluded.  For example:  If you are pulled over and the officer gives you a warning ticket and says you are free to leave, then he asks if you will consent to a search, you then say "no" and they say they are calling the canine to the scene, a court would likely conclude the business portion of the stop ended when he gave you the warning.  Depending on when the business portion of the stop is concluded, the courts routinely give minutes on the clock.  If it goes beyond 10-20 minutes, you could likely be successful if you challenge on that basis.

• ALWAYS REMAIN CALM, BE POLITE, AND ASK IF YOU ARE UNDER ARREST.  Under Illinois law, you have the right to remain silent and not answer any questions if you are placed under arrest.  Therefore, it is best that you establish whether or not you are under arrest as early as possible.  If the officer is not allowing you to leave, ask the officer if you are under arrest.  If he/she says you are not under arrest, then ask "Am I free to leave?"  If the officer says "no," you are arguably under arrest and your constitutional rights attach. Politely tell the officer that if you are not free to leave, then you'd like to speak to your attorney.

HERE IS A VIDEO DEMONSTRATING A PROPER WAY TO DEAL WITH A TRAFFIC STOP.  Note, most police officers do not act like this police officer in the video; Pay attention to the driver of the vehicle and watch how he acts and responds.  Disclaimer:  Not every stop will be exactly like this video demonstrates. Also, this video is cheesy.

Note the driver made no admissions of guilt and asked early on whether or not he was under arrest and/or free to leave.  Most police officers will check the identification of the passengers and run them for warrant checks as well.  This could take time depending on how quickly it takes the officer to locate each person in his/her computer system.  During this time, remain silent and obey lawful orders.

IF POLICE OFFICERS SEARCH YOUR VEHICLE AND FIND ILLEGAL DRUGS, THEY CAN DETAIN YOUR VEHICLE AND THE COUNTY STATE'S ATTORNEY'S OFFICE COULD AND LIKELY WILL INITIATE VEHICLE FORFEITURE PROCEEDINGS.  

 

• Under Illinois' Drug Asset Forfeiture Statute, authorities can forfeit and take over ownership of your vehicle if you are found in violation of the Statute.  The statute can be read at:  Illinois Drug Asset Forfeiture Act.  It is fairly difficult to win your vehicle back in these hearings because there are only a certain number of defenses you can raise.  In Peoria County, they typically initiate vehicle forfeiture proceedings on nearly all vehicles seized under the law.

UNDERCOVER POLICE OFFICERS WILL BE PATROLLING INSIDE THE FESTIVAL.

• BE AWARE OF YOUR SURROUNDINGS AND DO NOT TRUST PEOPLE YOU DON'T KNOW.  Summer Camp is a safe place.  Violent crimes are few and far between.  Drug crimes are more prevalent and you should be aware that an undercover police officer could catch you doing something illegal without you knowing.  Be careful as to who you interact with and try to enjoy the music in the company of people you personally know.

• YOU HAVE THE RIGHT TO REMAIN SILENT.  ANYTHING YOU SAY WILL BE USED AGAINST YOU IN COURT.  Always remember your right to remain silent.  Nothing you say typically helps you.  Remain polite but do not forget your rights.  

• IF SOMEONE YOU KNOW IS ARRESTED AROUND THE FESTIVAL, THEY WILL LIKELY BE TAKEN TO THE PEORIA COUNTY JAIL.  If they are arrested on felony charges, they will likely spend the night in jail, depending on when bonding court is scheduled that day.  After the arrest takes place and the person is booked, the Peoria County Prosecutors review the police reports to determine if they are going to charge the case as a felony or a misdemeanor. If they charge it as a misdemeanor, they will likely be released at a pre-determined bond or on a Notice to Appear (NTA).  These bond amounts range between $100 and $500.  A Notice to Appear is basically a personal recognizance bond.  There is also a "Sheriff's Fee" around $22.50 that will be added to the total.  The jail is located at 301 North Maxwell Road, Peoria, IL 61604.  If you are going to bond out your friend or family member, you will need to go to the "bonding" part of the jail. There will be signs posted to direct you.

• PEORIA COUNTY JAIL INFORMATION
• ADDRESS:  301 NORTH MAXWELL ROAD, PEORIA, IL 61604
• PHONE:  (309) 697-8515 (Switchboard)
• WEBSITE:  www.peoriacounty.org/sheriff

• IF YOU ARE ARRESTED IN A NEIGHBORING COUNTY CLOSE TO PEORIA, HERE IS OTHER JAIL CONTACT INFORMATION FOR YOUR QUICK REVIEW:

• PUTNAM COUNTY JAIL INFORMATION
• ADDRESS: 120 NORTH 4TH STREET, HENNEPIN, IL 61327
• PHONE: (815) 925-7015
• WEBSITE:  http://www.co.putnam.il.us/county-offices/sheriff-s-office

• STARK COUNTY JAIL INFORMATION
• ADDRESS: P.O. BOX 610, 130 WEST JEFFERSON, TOULON, IL 61483
• PHONE: (309) 286-2551 (Non-Emergency)
• WEBSITE: http://www.starkco.illinois.gov/countyOffice.php?officeID=60

• WOODFORD COUNTY JAIL INFORMATION
• ADDRESS:  115 N. MAIN STREET, EUREKA, IL 61530
• PHONE: (309) 467-2375
• WEBSITE:  http://www.woodford-county.org/index.php?section=84

• TAZEWELL COUNTY JAIL INFORMATION
• ADDRESS:  101 S. CAPITOL STREET, PEKIN, IL 61554
• PHONE:  (309) 478-5600
• WEBSITE:  http://www.tazewell.com/Sheriff/Sheriff'sOffice.html

• LASALLE COUNTY JAIL INFORMATION
• ADDRESS:  707 E. ETNA ROAD, OTTAWA, IL 61350
• PHONE: (815) 433-2161 (Non-Emergency)
• WEBSITE:  http://www.lasallecounty.org/frm_set_index.htm

• HENRY COUNTY JAIL INFORMATION
• ADDRESS: 311 W. CENTER STREET, CAMBRIDGE, IL 61238
• PHONE:  (309) 937-3940
• WEBSITE:  http://www.henrycty.com/Departments/SheriffsOffice/Corrections/tabid/304/Default.aspx

• MARSHALL COUNTY JAIL INFORMATION
• ADDRESS: 620 6TH ST. LACON, IL 61540
• PHONE:  (309) 246-2115
• WEBSITE:  http://www.marshallcountyillinois.com/home/ElectedOfficials/Sheriff.aspx

• IF YOU ARE ARRESTED AND CHARGED WITH A FELONY, YOU WILL NOT BE RELEASED FROM JAIL UNTIL A JUDGE SETS YOUR BOND.  The authorities can hold you up to 48 hours without charging you.  Typically, a decision is made within 48 hours and you go before a judge - usually on video transmission from the jail to the courthouse.  Depending on the severity of the crime, you should plan on bonding out of jail between $500 and $10,000.  Make sure you have emergency contacts memorized in case your phone is not accessible.  You can obtain more bonding information about the Peoria County Sheriff's Department by visiting:  http://www.peoriacounty.org/sheriff.

IF YOU ARE ARRESTED, YOU SHOULD SPEAK TO AN ATTORNEY AS SOON AS POSSIBLE.  Action can be taken immediately on your behalf so it's imperative you act quickly.

HALL, RUSTOM & FRITZ LLC SUMMER CAMP CLIENT UPDATE:

CASE DISMISSED!  4 Counts of a Class 3 Felony DISMISSED.

FACTS:  A client stopped on his way to the Summer Camp Music Festival had his vehicle searched and drugs were found.  Client was charged with 4 counts of Class 3 felonies (Unlawful Possession of Controlled Substances).  Attorney Jeff Hall filed a motion to quash and suppress evidence and a hearing was held.  Attorney Hall argued the following:  The State Trooper that pulled over the driver unreasonably prolonged the stop and detention longer than the time reasonably necessary for the trooper to conduct the legitimate activities normally associated with a routine traffic stop (trooper waited 24 minutes for the drug sniffing dog to arrive at the scene).  The judge agreed and granted the motion.  Based on that ruling, the prosecutors had to dismiss the case.  The Summer Camper was looking at a maximum 5 year sentence in the Illinois Department of Corrections. 

If you have further questions, please visit our website at www.centralillinoislawyers.com and complete our online submission form. Or, you can call our office at 309-699-4691 or email us JEFF HALL at jhall@hallrustomfritz.com.

LEGAL DISCLAIMER: 

The use of the Internet or this form for communication with the firm or individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form nor should the reader rely on the information listed above as true in all circumstances. This information is provided generally and any similarity between the information listed above and an individual reader's case is purely coincidental.

The attorneys at Hall, Rustom & Fritz LLC represent clients throughout the entire state of Illinois, including, but not limited to, the cities of Peoria, Morton, Washington, Pekin, Eureka, East Peoria, Dunlap, Metamora, Bartonville, Bloomington, Normal and any legal matter located in Peoria County, Tazewell County, Woodford County, Marshall County, Stark County, Henry County, Knox County and McLean County.

Article Author: Jeffrey R. Hall

Jeff Hall is managing partner at Hall, Rustom & Fritz LLC and concentrates his law practice in Criminal Law, DUI & Traffic law, driver's license reinstatement hearings and criminal record expungements.

If you have a legal question, email Jeff Hall.

Jeffrey R. Hall

2020 & 2016 NEW CANNABIS LAWS FOR ILLINOIS! WHAT YOU NEED TO KNOW FROM ONE OF THE AUTHORS OF SB2228.

By Jeffrey R. Hall of Hall, Rustom & Fritz LLC

2020 Update:  Cannabis Possession up to 30 grams is legal, effective 1/1/2020.

On 6/25/19, Illinois Governor J.B. Pritzker signed the Cannabis Regulation and Tax Act ("Cannabis Act") under Public Act 101-27, a groundbreaking piece of legislation that not only legalized the possession of personal amounts of cannabis/marijuana ("cannabis") up to 30 grams.  

The Act expanded cultivation and dispensary rules regarding the production and sale of cannabis ("seed to sale").  The Act included language that would allow communities adversely impacted by strict cannabis laws in the past and favors said communities for additional benefits from the proceeds of the law. 

Possession limits are defined under 410 ILCS 705/10-10:

For Illinois Residents:  A person who is 21 years of age or older and a resident of the State, the possession limits are: 410 ILCS 705/10-10(a)(1).

• Up to 30 grams of cannabis flower.  
• Possession of up to 500 milligrams of THC-infused products
• 5 grams of cannabis concentrate; and
• for registered qualifying patients, any cannabis produced by cannabis plants grown under subsection (b) of Section 10-5, provided any amount of cannabis produced in excess of 30 grams of raw cannabis or its equivalent must remain secured within the residence or residential property in which it was grown.

For Non-Illinois Residents:  For a person who is 21 years of age or older and who is not a resident of this State, the possession limit is: 

• 15 grams of cannabis flower;
• 2.5 grams of cannabis concentrate; and 
• 250 milligrams of THC contained in a cannabis-infused product.

The possession limits found above are to be considered cumulative.

2016 Illinois Public Act 99-0697:  SB2228:  CANNABIS DECRIMINALIZATION AND REMOVAL OF ZERO TOLERANCE CANNABIS DUI

On Friday, July 29, 2016, Governor Rauner signed SB2228 into law, effective immediately.  As one of the drafters who assisted in writing this law, I wanted to share my experience with getting involved, the changes the bill made when going through the process, and how we ended up with certain language in the statute.

My main focus was to assist in drafting the DUI-Cannabis section of the code as I did not provide input on the cannabis penalties for possession. I will summarize the most relevant sections but my involvement and behind-the-scenes accounting will mainly cover the DUI language, the purpose behind adding the language, and my interpretation as one of the many authors of the bill.

I believe the statute is a "work in progress" and definitely has its flaws; however, it is the best compromise, at this point, all parties could make to decriminalize cannabis possession less than 10 grams and to remove zero tolerance for DUIs involving cannabis and the presence of THC in the blood.  I will discuss the problems below my summary of the laws where it is listed: "PROBLEMS WITH THE STATUTE..."

Here is a summary of the bill and I will discuss more in depth below. The bill is sometimes hard to read and I made small changes with the intent of the legislature in mind. I should note that the 5ng/ml language adopted by the Governor is NOT supported in science and we made that as clear as we could to the Governor. In becoming involved, I did not seek to make laws easier on impaired driving. I have a family and we have to drive these roads too. Rather, I wanted to remove a law that sent sober drivers to jail and/or suspended/revoked their driving privileges. As a former prosecutor, I did not like prosecuting cannabis possession cases and I am glad the Governor signed the decriminalization bill. Minor cannabis possession cases did not always send people to jail. BUT, what it would do is convict them of a criminal offense that would disqualify many poor people from public aid, such as housing, financial aid, etc. They would then be arrested for a subsequent crime and that prior cannabis conviction would "aggravate" their sentence on the subsequent crime...that is when they go to jail, lose their job, aid, and many times, the custody of their children. Had that cannabis conviction not been there, depending on the facts, they would likely not have been sentenced to jail at all and they may not have lost everything.

NEW CANNABIS PENALTIES AS OF 7/29/2016 IN ILLINOIS

720 ILCS 550/4

• Sec. 4.  It is unlawful for any person knowingly to possess cannabis.  Any person who violates this section with respect to:

• (a) not more than 10 grams of any substance containing cannabis is guilty of a civil law violation punishable by a minimum fine of $100 and a maximum fine of $200.  The proceeds of the fine shall be payable to the clerk of the circuit clerk. Within 30 days after the deposit of the fine, the clerk shall distribute the proceeds of the fine in accordance with 720 ILCS 550/4(1)(a)(1).
• (b) more than 10 but not more than 30 grams of any substance containing cannabis is guilty of a Class B misdemeanor;
• (c) more than 30 grams but not more than 100 grams of any substance containing cannabis is guilty of a Class A misdemeanor; provided, that if any offense under this subsection (c) is a subsequent offense, the offender shall be guilty of a Class 4 felony;
• (d) more than 100 grams but not more than 500 grams of any substance containing cannabis is guilty of a Class 4 felony; provided that if any offense under this subsection (d) is a subsequent offense, the offender shall be guilty of a Class 3 felony;
• (e) more than 500 grams but not more than 2,000 grams of any substance containing cannabis is guilty of a Class 3 felony;
• (f) more than 2,000 grams but not more than 5,000 grams of any substance containing cannabis is guilty of a Class 2 felony; 
• (g) more than 5,000 grams of any substance containing cannabis is guilty of a Class 1 felony.

720 ILCS 600/3.5:  Unlawful Possession of Drug Paraphernalia

• Sec. 3.5 (a):  If a person knowingly possess an item of paraphernalia with the intent to use it in ingesting, inhaling, or otherwise introducing cannabis or a controlled substance into the human body, or in preparing cannabis or a controlled substance for that use, is guilty of a Class A misdemeanor for which the court shall impose a minimum fine of $750 in addition to any other penalty prescribed for a Class A misdemeanor. This subsection (a) does not apply to a person who is legally authorized to possess hypodermic syringes or needles under Hypodermic Syringes and Needles Act.
• (b) In determining intent under subsection (a), the trier of fact may take into consideration the proximity of the cannabis or controlled substances to drug paraphernalia or the presence of cannabis or a controlled substance on the drug paraphernalia.
• (c)  If a person violates subsection (a) of Section 4 of the Cannabis Control Act, the penalty for possession of any drug paraphernalia in violation of the cannabis control act seized during the violation for that offense shall be a civil law violation punishable by a minimum fine of $100 and a maximum fine of $200.  The proceeds of the fine shall be payable to the clerk of the circuit clerk. Within 30 days after the deposit of the fine, the clerk shall distribute the proceeds of the fine in accordance with 720 ILCS 600/3.5(c)(1)(2)(3)(4)&(5).

• See below for problems with meaning, enforcement and interpretation of this statute.

Expungement & Sealing Changes under 20 ILCS 2630/5.2(a)(2.5)

Procedures for Law Enforcement

Commencing 180 days after the effective date of this amendatory act of the 99th General Assembly, the law enforcement agency issuing the citation shall automatically expunge, on or before January 1 and July 1 of each year, the law enforcement records of a person found to have committed a civil law violation of subsection (a) of Section 4 of the Cannabis Control Act or subsection (c) of Section 3.5 of the Drug Paraphernalia Control Act in the law enforcement agency's possession or control and which contains the final satisfactory disposition which pertain to the person issued a citation for that offense. The law enforcement agency shall provide by rule the process for access, review, and to confirm the automatic expungement by the law enforcement agency issuing the citation.

Procedures for the Circuit Clerk

Commencing 180 days after the effective date of this amendatory Act of the 99th General Assembly, the clerk of the circuit clerk shall expunge, upon order of the court, or in the absence of a court order on or before January 1 and July 1 of each year, the court records of a person found in the circuit court to have committed a civil law violation of subsection (a) of Section 4 of the Cannabis Control Act or subsection (c) of Section 3.5 of the Drug Paraphernalia Control Act in the clerk's possession or control and which contains the final satisfactory disposition which pertain to the person issued a citation for any of those offenses.

DISCUSSION & MY INTERPRETATION OF THE CHANGES TO THE LAW FOR POSSESSION OF CANNABIS AND PARAPHERNALIA:

The legislature intended to decriminalize small amounts of Cannabis (less than 10 grams) as well as drug paraphernalia (in certain circumstances and I explain more below), by way of assessing a "civil fine" that will be disbursed to various government agencies.   The intent was to 1) save the State of Illinois money due to the cost to prosecute and incarcerate, and 2) prevent citizens from being convicted of a criminal offense that could affect their future job prospects, ability to provide for their families, etc.

PROBLEMS WITH THE STATUTE CONCERNING POSSESSION OF CANNABIS AND PARAPHERNALIA:

Problems with Municipal Police Enforcement/Officer Discretion to cite a violation:  While the statute calls for a maximum "civil fine" of $200 under 720 ILCS 550/4(a), it conflicts with 720 ILCS 550/17.5:   Local Ordinances:  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 this Act are not invalidated or affected by this Act. (emphasis mine)

• If the new cannabis penalties are now "civil penalties" that are not criminal in nature, how does the statute explain section 720 ILCS 550/17.5 in that the new law does not invalidate "quasi-criminal" ordinance violations with a maximum fine that exceeds the $200 maximum "civil fee" that the new cannabis law commands?   
• Here is an example to illustrate the problem:  The City of East Peoria has a municipal ordinance violation under Section 10-1-4.17(d)(1) for possession of cannabis less than 2.5 grams with a minimum fine of $350 and maximum of $750, for possession of cannabis between 2.5 and 10 grams with a minimum fine of $400 and maximum of $750, and for possession of cannabis between 10 and 30 grams with a minimum fine of $500 and maximum $750.  -----   
• If an East Peoria Police Officer cites a citizen with possessing up to 2.5 grams of cannabis, he/she has the choice to write an ordinance ticket or a "civil fine" ticket.  The problem is, the officer will most definitely be advised by their city attorneys to cite them with the much more costly ordinance ticket and then the citizen is not afforded the rights the legislature intended to extend with the "civil fine" that would be automatically expunged.  Next thing you know, there will not be any municipality with cannabis possession laws citing individuals with the new statute's "civil fine," but rather, they will simply cite the ordinance violation that 1) requires a court appearance and 2) can lead to a criminal record that can prevent future offenses from being expunged (e.g. conviction for ordinance violation invalidates any future expungement of criminal offense even though otherwise eligible for expungement).   
• Based on the current language, the statutes would be conflicting and it would be unclear if a person can expunge their cannabis ordinance conviction simply because the City directed its officers to cite citizens with the ordinance violation under each municipal code rather than the new "civil fine" law.  This is something that will need to be fixed as I anticipate municipalities will continue citing with the more serious "ordinance violation" rather than the "civil fine" that is automatically eligible for expungement on January 1st and July 1st of each year.

Problems with application of Drug Paraphernalia Statute:  There is ambiguity and even confusion as to what the law is against possessing drug paraphernalia under 720 ILCS 600/3.5.   I'll try to explain:  The statute still has the former law against possessing drug paraphernalia a class A misdemeanor but in a subsequent subsection, it makes possessing it a civil offense if, during the arrest, police discover you are in violation of the civil offense of possessing cannabis up to 10 grams. That means: If you are possessing a hitter pipe and you have less than 10 grams of cannabis, it will be two "civil violations" and you will face a maximum fine of $200 on each.  However, if you are caught with 10-30 grams of cannabis and you have a hitter pipe with you, that will be a Class A misdemeanor.  It will also be a Class B misdemeanor for possessing 10-30 grams of cannabis (under the new law).   

• If you do not want to commit a criminal offense, simply possess less than 10 grams of cannabis and you can carry a hitter pipe with you. That should not be considered a Class A misdemeanor, but rather, 2 civil violations with maximum fines of $200.
• If you are found with just a hitter pipe, the statute is unclear on what sentence to impose:  First, if they can prove their elements (that you were going to use the pipe for the purposes of introducing cannabis to your body), even though they do not have any traceable amount of cannabis in the pipe, it will likely be considered a Class A misdemeanor because the paraphernalia statute making it a civil violation is only "triggered" if the person violates subsection (a) of Section 4 of the Cannabis Control Act (possessing no less than 10 grams of cannabis).  It does not seem the legislature meant to make possessing a hitter pipe with no cannabis more serious than possessing a hitter pipe with cannabis, but alas, these are the problems that we see thus far with this language in the new law.
• A point of practice will be this:  If you are caught with a hitter pipe and no cannabis and they charge you with a Class A misdemeanor, you should get the hitter pipe tested by the crime lab so they can find a traceable amount of cannabis so the civil violation will "kick in" since the hitter pipe was found with less than 10 grams of cannabis (the residue).

Another problem involves "Police Officer Discretion" in deciding which law to cite a citizen with violating intending on avoiding the civil offense provisions of the new law:  (Illinois Attorneys Samuel Partida and Kenneth Wang spotted these problems)

• For example:  A city police officer searches you (lawfully) and finds 6 grams of cannabis and a hitter pipe (the pipe has no testable residue inside it).  The officer, not having an ordinance violation to reap the benefits of the fines and costs that total around $1000 (for the ordinance violation in other cities with cannabis possession ordinances), decides to not cite you with the cannabis possession, but simply sites you with a Class A misdemeanor for Possession of Drug Paraphernalia in violation of 720 ILCS 600/3.5.  This MAY be legal and you MAY have to face the criminal Class A misdemeanor in court (and not the $200 civil violation from the new statute) since the officer is not alleging you violated subsection (a) of Section 4 of the Cannabis Control Act, thereby not "triggering" the new statute's "civil offense" provision.  This would be a stretch but nothing surprises me when it comes to police officers collecting revenue for their employer (i.e. the City they work for). 
• Using that example but changing the facts a little: If there is a municipal ordinance for cannabis, say, in East Peoria, IL for a maximum fine of $500 for 2.5 grams of cannabis possession, the officer could use his/her discretion to cite you with the ordinance violation ($500 fine) plus the Class A misdemeanor Paraphernalia ticket and give you two separate court dates: One court date in Ordinance Violation Court (OV Court) and one in criminal court for the paraphernalia case.  This way, they could say since they did not cite the citizen with a violation of subsection (a) of Section 4 of the Cannabis Control Act, the "civil violation" provision was not "triggered."  Therefore, they can still get their criminal offense for the paraphernalia and also get their money for the city from the OV for possessing the 2.5 grams of cannabis.  See the problems?
• I would likely argue the intent of the legislature was to trigger the civil provision if there was a "violation" of subsection (a) of Section 4 of the Cannabis Control Act and if a citizen possessed less than 10 grams of cannabis in any fashion, that is enough to trigger the "civil violation" into effect.

If you have a pending cannabis possession case or paraphernalia case in court, what effect, if any, will this law have on your case? Presently, we represent many clients who are facing misdemeanor charges for possessing cannabis and paraphernalia.  Since the law changed to a civil violation, can the defendant still be prosecuted under the old statute?  The answer is: It depends on the facts:

• If you are presently facing a Class B or C misdemeanor for possessing cannabis (under 10 grams) and you are also facing a Class A misdemeanor for possession of drug paraphernalia, the State should dismiss your case and they can choose to cite you with a new violation of the law under the new statute so long as the statute of limitations has not run. Should they choose to not dismiss, they could always amend the charging instrument (called an "information") to cite the new law and its penalties.  Your defense attorney should consider filing a "Motion for Re-Admonishment of Rights" so the judge can explain to you the new "civil penalties" and also file a "Notice of Election," to inform the court and prosecution that you elect (or choose) to be sentenced under the new sentencing range of the "civil penalty" ($100-$200).  
• If you are presently facing a Class A misdemeanor for possession of cannabis (10-30 grams) and a Class A misdemeanor for Drug Paraphernalia, under the new statute, you will still face the Class A possession of Drug Paraphernalia and you will now face a Class B misdemeanor for possessing Cannabis (under the new law, 720 ILCS 550/4(b)). Remember: The changes to the paraphernalia statute arguably only apply to those possessing drug paraphernalia when they are possessing less than 10 grams of cannabis.  Your defense attorney should consider filing a "Motion for Re-Admonishment of Rights" so the judge can explain to you the new sentencing range (since the Class A possession of cannabis case is now a Class B possession case under the new law) and also file a "Notice of Election," to inform the court and prosecution that you elect (or choose) to be sentenced under the new sentencing range of the possession of cannabis being a Class B misdemeanor under the new law.

Illinois Supreme Court Interpretation and Rule Changes (Updated as of 9/7/16)

On September 1, 2016, the Illinois Supreme Court implemented new rules directing the courts to assess a $120 total fine under Rule 580 to 584.  See http://www.illinoiscourts.gov/SupremeCourt/Rules/Amend/2016/090116.pdf  

To summarize:

• Circuit Clerks shall file these cannabis related civil violations as "Miscellaneous Remedy" (MR) cases.  
• All civil law violations may be satisfied without a court appearance by admitting to the violation, with the exception of electronic admissions authorized by the Supreme Court and payment of a "civil fine" of $120, inclusive of all penalties, fees, and costs.
• If the cannabis & paraphernalia cases are filed in conjunction with another violation, the court appearance is required.
• If the defendant fails to appear and does not respond to the citation, the court may continue the case or enter a default judgment while assessing a fine, inclusive of costs, as prescribed in Rule 588 ($120 total fine and cost).
• The circuit clerk shall expunge the entire case on January 1st and July 1st of every year.
• A defendant may contest the violation by notifying the circuit court at least 10 work days before the date set for the first appearance.  Contesting may result in the court imposing additional fines (up to $200 by statute) and fees.  A new appearance will be set, and the defendant will be notified of the time and place of the required appearance to contest the offense.  
• A defendant may demand a trial by jury, which would occur at a later date, but additional fees may apply. 

Sample Motion to Re-admonish and Notice of Election:

STATE OF ILLINOIS

IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT

ANYWHERE COUNTY

           

PEOPLE OF THE STATE OF ILLINOIS,     )

                                                                        )

Plaintiff,                                                          )          

                                                                        )          

vs.                                                                   )           Case No.  2016CM12345

                                                                       )                          

JOHN DOE,                                                   )                                                                                                                                                                                                     

Defendant.                                                      )                                              

                                                                       

                                                                       

MOTION FOR ADMONISHMENTS OF RIGHTS UNDER NEW LAW 720 ILCS 550/4(a) AND NOTICE OF ELECTION TO BE SENTENCED UNDER NEW SENTENCING PROVISIONS SET FORTH IN 720 ILCS 550/4(a)

NOW COMES the Defendant, JOHN DOE, by his attorneys, HALL, RUSTOM & FRITZ LLC, and hereby moves this court to admonish the Defendant of the new sentencing provisions set forth under Public Act 99-0697 (SB2228, 2016) as required by Supreme Court Rule and serves Notice of Election on this Court and the State to be sentenced under the new sentencing provisions of 720 ILCS 550/4(a), and if applicable, 720 ILCS 600/3.5, and in support offers the following:

1.     On 6/27/16, two counts were filed by the ANYWHERE County State’s Attorney’s office alleging the Defendant committed the offenses of (count 1) Possession of Drug Paraphernalia in violation of 720 ILCS 600/3.5(a), a Class A misdemeanor and (count 2) Unlawful Possession of Cannabis, between 2.5 grams and 10 grams in violation of 720 ILCS 550/4(a), a Class B misdemeanor.

2.     On 7/29/16, Governor Rauner signed SB2228, EFFECTIVE IMMEDIATELY, that decriminalized and made a “civil offense” the violation of possession of cannabis less than 10 grams and also decriminalized and made a “civil offense” the possession of drug paraphernalia, if the paraphernalia was found when the Defendant is in violation of the new “civil offense.”  Both offenses are no longer considered misdemeanors as of 7/29/16 and are now “civil offenses” with a fine not lower than $100 and not to exceed $200.  See Defense Exhibit A & B

3.     Since a new sentencing range has been passed by the General Legislative Assembly (GLA), the Defendant will need to be admonished as to the new sentences.

4.     Pursuant to Section 4 of the Statute on Statutes (5 ILCS 70/4), “if any penalty, forfeiture or punishment be mitigated by any provisions of a new law, such provision may, b the consent of the party affected, be applied to any judgment pronounced after the new law takes effect.” See 5 ILCS 70/4. See Exhibit C

5.     Where a defendant has the right to choose between sentencing provisions, due process requires that he be advised of that right. See People v. James, 46 Ill.2d 71, 263, N.E. 2d 5 (1970).

6.     If the applicable sentencing provisions have been changed by an amendment which took effect after the offense was committed but before the sentencing hearing, defendant may elect to be sentenced under the law in effect at the time of sentencing. See People v. Gancarz, 228 Ill.2d 312, 888 N.E.2d 48 (2008) and People v. Jackson, 99 Ill.2d 476, 459 N.E.2d 1362 (1984); People v. Hillenbrand, 121 Ill.2d 537, 521 N.E.2d (1988); People v. West, 142 Ill. App.3d 876, 492 N.E.2d 566 (1^st Dist. 1986).

7.     The recent changes to the law via Public Act 99-0697 are procedural changes to the sentences imposed (i.e. mitigation of punishment), not substantive changes and the Defendant can therefore elect which version of sentence to be imposed. Gancarz, citing People v. Glisson, 202 Ill.2d 499, 270 Ill.Dec. 57, 782 N.E.2d 251 (2002).

8.     Failing to properly admonish the Defendant of his/her right to elect is a denial of due process and is reversible error. People v. Malin, 359 Ill. App.3d 257, 295 Ill.Dec. 607, 833 N.E. 2d 440 (2005) and People v. Hollins, 51 Ill.2d 68, 280 N.E.2d 710 (1972).

9.     The Defendant moves to be admonished of the new sentencing ranges set forth in 720 ILCS 550/4(a) and expressly elects to be sentenced under the new sentencing provisions should he plead guilty to or be found guilty of the new “civil violation” set forth in 720 ILCS 550/4(a).

WHEREFORE, the Defendant moves this honorable court to:

1.     Admonish him of the new sentencing provisions set forth under Public Act 99-0697 (SB2228, 2016) as required by Supreme Court Rule and;

2.     Grant his Notice of Election to be sentenced under the new sentencing provisions of 720 ILCS 550/4(a) and for any other relief the court deems appropriate.

Respectfully submitted,

HALL, RUSTOM & FRITZ LLC

For the Defendant

Prepared by:

Jeffrey R. Hall

Hall, Rustom & Fritz LLC

316 SW Washington Street, Suite 1A

Peoria, IL 61602

Phone: (309) 699-4691

Fax:  (309) 699-4693

Direct email: jhall@hallrustomfritz.com

DUI CANNABIS AND THE NEW "PER SE" LIMIT OF 5 NG/ML OF THC IN WHOLE BLOOD UNDER 625 ILCS 5/11-501(a)(7):

In this section, I will discuss my involvement with the law's changes and why we arrived at the compromise with adding "per se" language rather than requiring the State to prove drivers are actually impaired like 34 other states require. Even though the Governor signed this law and I am pleased, it is only bittersweet. I do not agree with "per se" limits as a better choice of law. I believe we should require evidence of impairment to be able to punish for "impaired driving." I believe the studies support my position, but more studies are needed other than the most recent study from the National Highway and Traffic Safety Administration that I discuss below. If 34 other states can do it without having higher incidents of cannabis related traffic fatalities, why can't we?

I became involved with the changes in the law after I represented a 16-year-old girl who caused a traffic fatality the first time she drove at night.  I believed the evidence showed that she was not impaired (she had cooperated with officers, performed field sobriety tests to the satisfaction of the officers, and did not exhibit signs of impairment) but since her blood tests resulted in the presence of THC in her system, the law at the time said that she is guilty of aggravated driving under the influence of cannabis and she must be sentenced to prison unless "extraordinary circumstances exist for probation." Finding no extraordinary circumstances existed (I disagreed), the judge sentenced her to 6 years in prison which required her to serve 85% of the sentence (5 years and 1 month).  I did not believe this was fair and I strongly believed the law should change.

I began working on changing the law by researching other states and their requirements to prove impairment. I was shocked to see that 34 other states require prosecutors to present evidence of impairment.  Why was our State so strict requiring there be no trace of THC from cannabis? Are our police any less capable of gathering evidence of impairment? Are our prosecutors any less capable of proving their case beyond a reasonable doubt like the other 34 states?

I then began discussions with attorney Larry Davis (who was so important in the drafting and formulation of these changes to the law) and, at his suggestion, we should remove the "zero tolerance" statute and replace it with a separate, non-DUI related statute under a new section entitled "Driving with Drugs in System" that would be designated as 625 ILCS 5/11-508, a class B misdemeanor, that would not be related to DUI but would still be a criminal offense promoting zero tolerance while driving vehicles.

Our opposition (various police lobbying groups and the Illinois Appellate Prosecutor's office) opposed but suggested a compromise for us to add language setting a limit of THC in whole blood.  Based on studies abroad and at home, other states such as Nevada, Washington, Oregon and Colorado, moved forward by setting per se limits.  However, in Colorado, their "per se" limit is actually not a "presumption" but rather an inference. That means, a prosecutor in Colorado can submit evidence that the driver was operating their vehicle with 5 ng/ml THC in whole blood, but the defense could rebut that with evidence the driver was NOT impaired.

Fearing that language sets the standard to high, (since many regular cannabis users consistently have 5ng/ml or more in their system at all times but are NOT impaired, we opposed until a new study came out by the National Highway Traffic Safety Administration (NHTSA), that concluded 15 ng/ml of whole blood showed similar signs of impairment than someone who had a BAC of .07/.08  Click the link for the study:  Cannabis Effects - NHTSA Study

Here is a graphical illustration from the study demonstrating their conclusions:

With that new study, we all agreed on the language to set the limit at 15 ng/ml rather than 5 ng/ml since this study superseded the studies used by Colorado when passing their "per se" law.

Our first law proposal (625 ILCS 5/11-508: Driving with Drugs in System) failed to gain traction so it was suggested to add our language to remove zero tolerance to the new HB218 law from 2015.  This law set the limit for possession of cannabis as a civil violation up to 15 grams and the DUI limits were 15 ng/ml in whole blood.

Fearing severe backlash from law enforcement groups and interest groups, Governor Rauner executed his "amendatory" veto powers and on 8/16/15, he vetoed the bill. However, he made suggestions rather than fully vetoing it.  He suggested we lower the amount able to be possessed to 10 grams (comparing Chicago's ordinance allowing for up to 10 grams to possess without penalty), and he suggested we lower the "per se" limit to 5 ng/ml to come in line with Colorado's law.

It seemed apparent that he did not read Colorado's law closely because, as I explained above, their law calls for an inference limit of 5ng/ml that can be presented as evidence of impairment, but it allows the defense to admit evidence the person was sober and not impaired.  Our law allows for no such defense to be presented.  It is the same as a BAC result of .08. If you test over, you are GUILTY.

In the NHTSA study, it concluded that a limit of 5ng/ml showed similar signs of impairment than someone with a BAC of .02 to .03.  Under our laws, anyone with a BAC of .049 or below is PRESUMED SOBER.

Not wanting to pass a law that was not scientifically supported, I, Larry Davis, and our other members of the various ISBA Councils decided to not recommend this law for passage to the Governor.  However, the Senate, under SB2228, called the bill for vote and it passed, then was also passed by the House of Representatives on 5/18/16.  It was then sent to Governor Rauner on 6/16/16 and he signed it into law on 7/29/16.

TEXT OF THE NEW CANNABIS/DUI UNDER 625 ILCS 5/11-501(a)(7) AND ANALYSIS

625 ILCS 5/11-501 provides: (underlined means new language added and strikethrough means old language removed).

Sec. 11-501. Driving while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds or any combination thereof.

    (a) A person shall not drive or be in actual physical control of any vehicle within this State while:

        (1) the alcohol concentration in the person's blood or breath is 0.08 or more based on the definition of blood and breath units in Section 11-501.2;

        (2) under the influence of alcohol;

        (3) under the influence of any intoxicating compound or combination of intoxicating compounds to a degree that renders the person incapable of driving safely;

        (4) under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving;

        (5) under the combined influence of alcohol, other drug or drugs, or intoxicating compound or compounds to a degree that renders the person incapable of safely driving; or

        (6) there is any amount of a drug, substance, or compound in the person's breath, blood, other bodily substance, or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act, a controlled substance listed in the Illinois Controlled Substances Act, an intoxicating compound listed in the Use of Intoxicating Compounds Act, or methamphetamine as listed in the Methamphetamine Control and Community Protection Act; or 

        (7) the person has, within 2 hours of driving or being in actual physical control of a vehicle, a tetrahydrocannabinol concentration in the person's whole blood or other bodily substance as defined in paragraph 6 of subsection (a) of Section 11-501.2 of this Code. Subject to all other requirements and provisions under this Section, this paragraph (7) (6) does not apply to the lawful consumption of cannabis by a qualifying patient licensed under the Compassionate Use of Medical Cannabis Pilot Program Act who is in possession of a valid registry card issued under that Act, unless that person is impaired by the use of cannabis.

               (b) The fact that any person charged with violating this Section is or has been legally entitled to use alcohol, cannabis under the Compassionate Use of Medical Cannabis Pilot Program Act, other drug or drugs, or intoxicating compound or compounds, or any combination thereof, shall not constitute a defense against any charge of violating this Section.

625 ILCS 5/11-501.2(a)(6) (as referenced by 625 ILCS 5/11-501(a)(7) above):

6. Tetrahydrocannabinol concentration means either 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.

ANALYSIS OF 625 ILCS 5/11-501(a)(7)

Through our negotiations with our opponents on the bill, their strong position was that they wanted language added that would set a "per se" limit.  Their fear was that if it wasn't introduced now, it would be a long time before it could be introduced later.  Fearing the law would not make it out of committee, we agreed to the changes in adding a "per se limit" mostly because the present law was so categorically unfair in convicting sober drivers and sentencing them to prison and any such change would be better than the status quo. 

After Governor Rauner vetoed 15ng/ml and suggested 5ng/ml, we on the Traffic Laws and Courts Section Council for the ISBA, voted to oppose the change because it was not based in science and was basically an arbitrary number that was assigned that could still CONVICT SOBER DRIVERS.

Sponsors of the bill then adopted language the Governor suggested thus requiring 1) a driver to be tested within 2 hours of driving or being in actual physical control of a vehicle, and 2) setting that limit at 5ng/ml in whole blood or other bodily substances.

"Other bodily substances" was added because law enforcement wanted to preserve their ability to arrest based on test results from the 'yet to be approved' DRAGER drug test, a machine that tests small samples of saliva and can, according to its manufacturer, provide law enforcement with an entire drug screen within 10-13 minutes of testing.  This machine has not been approved for usage in IL but we may likely see it in the future. I have personally witnessed the machine in use and I can tell you, it's slightly terrifying (my opinion).

Here is a picture of the machine:

Thus, here will be a typical example of a traffic stop where the new DUI law will govern:

1. Officer notices the driver is weaving within its own lane and driving much slower than the posted speed limit.  He notices the driver approach a stop sign where he stops for longer than what is normal.  Once the driver crosses the center dividing line, the officer, based on his reasonable suspicion the driver violated the statute against "improper lane usage," initiates a traffic stop.
2. Upon approaching the vehicle, the officer smells the faint smell of cannabis. The driver appears to have bloodshot, slightly closed eyes, and his speech is slow and calculated. 
3. The officer, a trained Drug Recognition Expert (DRE), decides to initiate the battery of tests to make sure the driver is not under the influence of, what he suspects is, cannabis. 
4. After completing the 12 steps of the DRE process, the officer decides the driver is impaired so he places him under arrest for a violation of 625 ILCS 5/11-501(a)(4).  
5. The officer reads the driver the "Warning to Motorist" that specifies if the driver submits a blood specimen and it reveals that his THC level is 5ng/ml or more in whole blood, his driving privileges will be suspended for a period of 6 months.  If he refuses the test and it's his first offense (never had a prior DUI arrest or his last DUI arrest/disposition was more than 5 years ago), his driving privileges will be suspended for 12 months.
6. In order for the Officer to ask for the test, the Officer must have reason to believe the driver was driving a motor vehicle or in actual physical control of a motor vehicle within two hours prior to the test being taken. 
7. The driver agrees to submit a blood sample so the officer takes him to the local hospital and the officer gives the nurse the DUI kit for which the officer observes her take the blood and then seal it in the DUI kit and immediately return it to the officer.
8. The officer then takes the driver to jail for processing and concludes his investigation, mailing the DUI kit to the state crime lab.  
9. Months later, the lab results come back and the person has 6ng/ml in his blood.  
10. The Officer then mails the driver (now defendant) a new ticket citing 625 ILCS 5/11-501(a)(7) as being violated, a Class A misdemeanor, punishable up to $2500 fine and up to 365 days in jail. 
11. The Officer also mails with the new ticket a "Notice of Summary Suspension" stating the results of the blood test revealed that his whole blood had 6ng/ml present, thus triggering the Statutory Summary Suspension of his driving privileges for 6 months commencing 46 days from the date the Officer mails/serves the notice on the driver.

PROBLEMS WITH THE NEW STATUTE UNDER 625 ILCS 5/11-501(a)(7):

 

Had the legislature adopted our original language to remove "per se" requirements for ng/ml limits, we would not have potential problems with this bill.  Here is a short summary of problems I see thus far:

1. 5ng/ml is not truly indicative of impairment and we run the risk of convicting and sending to jail citizens who are sober.  Levels of THC rise drastically immediately upon ingestion and quickly lower as minutes and potentially an hour or so passes.  The studies showed that 15 ng/ml was a more reasonable level. 
2. If the police do not test the driver within 2 hours of his/her driving or being in actual physical control of the vehicle, under the law, does it invalidate the test results?  Say an officer conducts his investigation and he gets the test performed within 2 hours and 15 minutes.  Would that test be invalidated due to not being timely obtained? My answer under the plain meaning of the statute would be, "yes, it would invalidate it. Why else would the legislature approve of the 2-hour language?"  Maybe courts will agree but we do not know at this point since it's too early to be tested.  It does seem odd that a person could test positive for 10ng/ml of THC in whole blood 4 hours after driving and prosecutors could not (theoretically) charge them under the new statute.  Essentially:  Timing when administering the test is key for successful arrest and prosecution.
3. Presently, THC levels can only be ascertained by measuring blood.  Urine will no longer be a good specimen for testing so more hospital visits mean more hospital visits, time, money, and effort spent by nurses, doctors, driving to and from the hospital, etc.
4. Presently, (as of 7/30/16), there is no lab in Illinois that tests for ng/ml.  One such lab that can test for these results is called NMS Labs, located in Pennsylvania.  If a lab technician is in Pennsylvania, do they fly here to IL to lay foundation for the evidence to be admitted?  Seems in-efficient.
5. According to 625 ILCS 5/11-501(a)(7), a medical cannabis user is only exempted unless they are impaired.  Problem is, what does an officer cite the medical cannabis user with if he/she is arrested for impaired driving from cannabis?  625 ILCS 5/11-501(a)(4)?  That statute requires impairment, but under (a)(7)(b), "the fact that any person charged with violating this Section is or has been legally entitled to use alcohol, cannabis under the Compassionate Use of Medical Cannabis Pilot Program Act, other drug or drugs, or intoxicating compound or compounds, or any combination thereof, shall not constitute a defense against any charge of violating this Section." This language conflicts with the first part of (a)(7) where it exempts them.  This language could've been drafted better but there was opposition every step we took.

There will be more "Problems" I will add as they come to me. In the meantime, this should be a good start for you when trying to learn about the new law. I will likely start to present on this topic in late 2016 and into 2017 and I will try to update this blog as time goes by.

Other important changes that may affect you:

1. Changes that affect juveniles and confidentiality (705 ILCS 405/5-125):  Certain juvenile records related to civil amounts of cannabis, including municipal ordinance violations, are now confidential. This is important if you had prior ordinance violations while you were a juvenile.  If those records are still shown in Circuit Clerk databases or accessible by the public, clerks will need to immediately remove those public entries from the public databases or else they could be found in violation of 705 ILCS 405/5-125.
2. What effect does section 4 of the Statute on Statutes (5 ILCS 70/4)  have on the new cannabis decriminalization law and DUI sections?  
1. Section 4 states:  (5 ILCS 70/4) (from Ch. 1, par. 1103) Sec. 4. No new law shall be construed to repeal a former law, whether such former law is expressly repealed or not, as to any offense committed against the former law, or as to any act done, any penalty, forfeiture or punishment incurred, or any right accrued, or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued, or claim arising before the new law takes effect, save only that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding. If any penalty, forfeiture or punishment be mitigated by any provisions of a new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect. This section shall extend to all repeals, either by express words or by implication, whether the repeal is in the act making any new provision upon the same subject or in any other act. 
2. Would a person facing a DUI(a)(6) (zero tolerance violation) be able to force a dismissal of their charges if the prosecutor does not have in evidence an ng/ml result? This is unclear because there may be a question of whether the (a)(6) prosecution is a vested right.  Prosecutors could argue the repeal of cannabis from (a)(6) is substantive in nature. Conversely, one could argue that it was the intent of the legislature to repeal that "zero tolerance" aspect if they do not have blood result of 5ng/ml or more.  If allowed to apply retroactively for (a)(6) DUI charges, I do not believe they can prosecute due to lack of evidence since that law's zero tolerance provisions do not apply to cannabis related DUIs.  This will likely be litigated and our firm represents many clients with pending (a)(6) "zero tolerance for cannabis" DUIs and it will be interesting to see how courts interpret it.  However, the courts will likely hold that since we substantively changed the elements of the offense, that is a substantive change and therefore should not be applied retroactively unless expressly allowed by statute that expressly describes the temporal reach of the statute. See People v Hunter, http://www.illinoiscourts.gov/Opinions/AppellateCourt/2016/1stDistrict/1141904.pdf.
3. The Rule of Lenity will likely command Defense arguments and it is, in my opinion, the stronger and best argument.  (Rule of lenity: When construing criminal statutes, the rule of lenity requires that any ambiguity must be resolved in that manner which favors the accused; however, this rule must not be stretched so far as to defeat the legislature's intent). Moreover, if presently charged with possession of cannabis less than 10 grams and paraphernalia, you should request the judge to re-admonish you on the new sentences changed by the new statute signed into law on 7/29/16 and "elect" to be sentenced under the new "civil law violation" if you plead guilty or are found guilty.  Judges in the 10th and 11th Circuit are already doing this for clients of ours as we've had hearings since the law changed on 7/29/16.
4. There is a good discussion on this in the case of People v. Glisson, 202 Ill.2d 499.
3. CDL Holders still cannot have any traceable amount of Cannabis in their system when they are operating a commercial motor vehicle. 
4. Under 725 ILCS 5/115-23, in prosecuting civil law or ordinance violations for cannabis, evidence can be admitted based upon 1) a properly administered field test; or 2) opinion testimony of a peace officer based on the officer's training and experience as qualified by the court. 

This law is definitely a work in progress and it needs fixing.  However, it is obviously better than the prior law and for that, we should be appreciative.

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Article Author: Jeffrey R. Hall

Jeff Hall is managing partner at Hall, Rustom & Fritz LLC and concentrates his law practice in Criminal Law, DUI & Traffic law, driver's license reinstatement hearings and criminal record expungements.

If you have a legal question, email Jeff Hall.

Jeffrey R. Hall