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Drug Charges

 

The Illinois Controlled Substances Act criminalizes possession (including possession with intent), manufacturing, delivering, and trafficking of controlled substances, counterfeit substances, analogs of controlled substances and cannabis. The most commonly prosecuted under the statute are simple possession, possession with intent to manufacture or deliver, manufacturing and delivering a controlled substance.

 

Possession

In Illinois, to secure a conviction for drug possession, the State must prove:

            (1)        the identity of the substance;
            (2)        the weight of the substance; and
          
(3)        that the individual knowingly possessed the substance

Under the Illinois Cannabis Control Act and the Illinois Controlled Substance Act, possession is defined as knowingly possessing the drug in question. Possession, however, does not require actual physical possession of the drug. Possession charges are typically prosecuted under theories of actual or constructive possession. Actual possession occurs when police find the controlled substance on your person, such as in your pocket or in your hand. Constructive possession occurs when you have knowledge of the drug and have the ability to exercise “dominion and control” over the drug. The State will often prove drug possession under the theory of constructive possession when the drugs are found in your home or in your car. The maximum penalty for possession depends on:

            (1)        the specific controlled substance involved, and
            (2)        the amount found in the individual’s possession

Possession of cannabis (i.e., marijuana) is often charged as a misdemeanor. In contrast, however, possession of a controlled substance is charged as a felony offense. The category of felony charged will again depend on the controlled substance and the amount. Controlled substances are classified as either Schedule I, Schedule II, Schedule III or Schedule IV substances. Schedule I substances are those that have a high potential for abuse and do not currently have an accepted medical use in treatment or lacks accepted safety for use in treatment under medical supervision. Common Schedule I substances include cocaine, methamphetamine, heroin, ecstasy, psychedelic mushrooms, LSD, and peyote. Substances categorized under Schedules II–IV are accepted for medical use in some manner, but still have high potential for abuse.

In some situations, the State will pursue possession charges against an individual who is in possession of a legal drug, but does not have authorized use for the drug (e.g., without a physician’s prescription). In these situations, possession of drugs such as codeine, methadone, morphine, Percodan, Vicodin and Percocet, without a physician’s prescription is a felony offense. Additionally, some cough syrups (those that contain codeine), tranquilizers, and sedatives will generally require a prescription, and possession of any of these items without a prescription is a felony offense.

Additionally, possession of drug paraphernalia is also illegal in Illinois. Drug paraphernalia includes pipes, water bongs, or other household items that may be used in association with drug use or distribution. Possession of drug paraphernalia is a Class A misdemeanor (less than one year in county jail); however, the penalty may be heightened if the State proves the individual intended to sell the paraphernalia.

 

 Possession with Intent to Deliver

Possession with intent to manufacture or deliver a controlled substance differs from mere possession of a controlled substance in that the former requires intent, and is punished more severely than simple possession.  Possession with intent to manufacture or deliver a controlled substance requires the State to prove:

            (1)    the identity of the substance;
            (2)    the weight of the substance;
            (3)    that the individual knowingly possessed the substance; and
            (4)    that the individual intended to manufacture or deliver the substance

To prove intent, the State will look specifically for the presence of large amounts of cash, baggies or scales, weapons, and any statements made to police or to any witnesses at the time of the arrest.   Similar to possession charges, the maximum penalty for possession with intent to manufacture or deliver will depend on:

            (1)    the specific controlled substance involved, and
            (2)    the amount found in the individual’s possession

Simple possession of a controlled substance, although charged as a felony offense, ranges between a Class 4 felony (1 to 3 years in the state penitentiary) and a Class X felony (6 to 30 years in the state penitentiary). In contrast, possession with intent to manufacture or deliver a controlled substance, typically ranges between a Class 2 felony (3 to 7 years in the state penitentiary) and a Class X felony (6 to 30 years in the state penitentiary).

Issues in defense of simple possession or possession with intent to manufacture or deliver a controlled substance include the possession itself, the intent and how law enforcement found the drugs.  It is important to consult with a skilled criminal defense attorney who will thoroughly review all of the evidence, identify all potential issues with the State’s case, and devise an aggressive defense strategy to help fight any drug charges.

 Manufacture or Delivery

Much like possession with intent to manufacture or deliver a controlled substance, the act of manufacturing and delivering a controlled substance is also harshly punished. Manufacturing is growing or cultivating a controlled substance. In Illinois, manufacturing includes the production, preparation, conversion, processing, packaging, repacking or labeling of a grown or cultivated controlled substance. Manufacturing charges can be brought if:

            (1)        the individual has a drug lab in his or her home; or
            (2)        the individual has a collection of chemicals commonly used to make a controlled substance; or
          
(3)        an individual is cultivating plants that are commonly used to produce controlled substances

Depending on the facts and circumstances, if the State moves forward with manufacturing charges based on the fact that the individual has a collection of chemicals commonly used to make a controlled substance, then the State would also have to prove that the individual:

            (1)        Knew that someone else intended to use the chemicals to manufacture illegal drugs and provided the chemicals to that person, or
            (2)        Intended to use those chemicals on his or her own to manufacture the illegal drugs

Delivery is transferring possession of the controlled substance. Transferring possession can be actual transfer of possession or constructive transfer of possession. Constructive transfer of possession requires conduct or declarations that effectively relinquish the right of control from the person who previously had that right to another person. Additionally, a delivery may occur with or without the transfer or exchange of money, or with or without the transfer or exchange of other consideration. Delivery of a controlled substance is commonly charged in cases involving hand-to-hand transactions to either an informant or to an undercover police officer.

Manufacturing or delivering a controlled substance will typically range between a Class 2 felony (3 to 7 years in the state penitentiary) and a Class X felony (6 to 30 years in the state penitentiary). Similar to possession charges, the maximum penalty for manufacturing or delivering a controlled substance will depend on the controlled substance and the amount.

Issues in defense of manufacturing or delivering a controlled substance include the transfer of possession, the intent, whether there was actual knowledge and how law enforcement found the drugs. It is important to consult with a skilled criminal defense attorney who will thoroughly review all of the evidence, identify all potential issues with the State’s case, and devise an aggressive defense strategy to help fight drug charges.

 

 

 

 

 

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Ana M. Mencini & Associates, P.C. represents clients throughout the Illinois, area, including the cities of Chicago, Rolling Meadows, Schaumburg, Des Plaines, Palatine, Mt Prospect, Rolling Meadows, Park Ridge, Oak Brook, Northbrook, Joliet, Naperville, Wheaton, Evanston, Lake Forest, Highland Park, Skokie, Niles, Hoffman Estates, Elmhurst, Cicero, Downers Grove, and Hanover Park, as well as the communities in and around Cook County, Lake County, DuPage County, Will County, Kane County and McHenry County.

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