Transportation and Use of Cannabis

Once upon a time, drugs were legal. But very few people alive today were around before drugs such as Cannabis (commonly known as Marijuana) were declared to be against the law to use or possess in every State and on all Federal lands. Most of us can remember that people used to go to jail or prison just for possessing even the smallest amounts of a drug. During the “Just Say No” War on Drugs, it was even commonplace for ordinary people to be required to give a urine sample as a pre-condition for getting a job and then to be subject to random testing just to keep their job.

New Marijuana Laws in Illinois

But times have changed. Under the new law which took effect in January of 2020, for persons 21 and over, it is no longer a criminal or civil offense to possess, consume, use, purchase, receive, or transport cannabis, as long as it is within limits as specified by the new law and under the conditions and limitations of that law. One can now even grow up to 5 plants over 5” tall within the rules and regulations as long as the grower is a registered, qualifying patient under the Compassionate Use of Medical Cannabis Program, without having to be licensed as a cultivator.

Sounds simple. It seems like there’s a new Cannabis dispensary opening up in every city. So how exactly does one run afoul of the new law? The same way that people who violated laws regarding consumption/possession of alcohol have in the past, and the same way that people who violated gun laws have: by breaking the rules about who may so possess, where one may use/possess, and how one may use/possess the substance.

Who May Use or Possess Cannabis? Can I Grow my Own?

Just as there are laws that regulate who may use or possess a firearm or consume or possess alcohol, so too do the new Cannabis laws regulate who may use or possess cannabis, as well as where, when, and how much.  Persons under the age of 21 may not use or possess cannabis, or cannabis related paraphernalia for recreational use, ever, anywhere, or under any circumstances. They may, however, use and possess Medical Cannabis pursuant to the Compassionate Use of Medical Cannabis Act, which has strict guidelines for their said use and possession. Possession of any amount of Cannabis by a minor is otherwise punishable as a civil law violation under the Cannabis Control Act.

If the minor possessed the cannabis while in a motor vehicle, then the Secretary of State may in its discretion (which means that they almost certainly will) suspend or revoke the driving privileges of said minor. Parents and Legal Guardians cannot give overriding consent to allow invitees of their minor (their friends) who are under 21 to possess or use in their home or vehicles and can be charged with a Class A misdemeanor for doing so. Persons 21 and over however may use, possess, and transport cannabis, so long as they comply with the rules and regulations that govern the where, when, and how much cannabis they have.

The cultivation or growing of cannabis plants for personal recreational use is still prohibited by law, unless one is a licensed cultivator, in accordance with the guidelines regulating this new industry. So, no planting a “Victory Garden” just yet. Of course, if you possess a medical marijuana card, you may grow as many as 5 plants taller than 5” at one time.  But again, you must comply with the rules regarding where you do the growing. They cannot be grown in a conspicuous place where they can be seen by, or accessible to the general public, and so on.

When Use or Possession of Cannabis is Prohibited

The Cannabis laws do not allow anyone to perform any task under the influence of cannabis, and the law does not prevent the imposition of any criminal, civil, or administrative penalty, when doing so would be an act of negligence, professional malpractice, or professional misconduct. This is plain common sense, which is why it was made part of the law. But the law does not necessarily prohibit engaging in an activity after having consumed cannabis, unless said consumption has impaired your ability to perform that task at the required level under certain circumstances. Obviously, driving an automobile is a given, but what about a judge, police officer, lawyer, or other professional? It would require a showing that said consumption so impaired one’s abilities that they did not meet the standards within their profession.

For instance, there’s nothing against the law about playing Frisbee Golf or Xbox while under the influence of marijuana. Will your skills be the best they can be? Probably not, but that’s nobody business than yours. On the other hand, should a surgeon be performing brain surgery after picking up some legal “Kush” on the way to the hospital? Absolutely not. If he does, he later may find himself the subject of a lawsuit or possibly sitting in jail for doing so.

Where Use or Possession of Cannabis is Prohibited

The law that allows for the recreational possession of cannabis and/or cannabis related paraphernalia has certain provisions that still make it a crime to be in such possession. Most of these are based upon common sense and include prohibitions involving use/possession:

• in a school bus (unless exempted by the Compassionate Use of Medical Cannabis Act);
• on the grounds of any preschool, grade school, junior high, or high school, unless so exempted as above;
• in any correctional facility, such as a county jail or prison;
• in a “vehicle not open to the public, unless the cannabis is in a reasonably secured, sealed container while the vehicle is moving”;
• in a private residence being used at any time as a licensed childcare or other like social service on the premises.

Rest assured, there will be other places where you will not be permitted to possess cannabis or paraphernalia, such as court houses and other government buildings, and these places will likely have signs posted telling you what items are prohibited from being brought in. Note the emphasis added on the phrase “reasonably secured, sealed container.” This means that the law does permit the possession and transportation of cannabis within a personal vehicle, but there are specific requirements about the manner in which it must be carried.

What is a Reasonably Secured, Sealed Container?

The law that permits us to carry and possess cannabis in its different forms, from “flower” (the smokable plant form), to “edibles” that contain a certain amount of THC9 (the active ingredient in cannabis), to concentrated forms of cannabis, not only regulate the amounts you can carry, but the manner in which you may do so. Part of the new set of laws includes Section 11-502.15 of the Illinois Vehicle Code, which addresses both the use of and possession of cannabis by an adult while in a motor vehicle. Possession of the cannabis in the trunk of the car, or any other area of the car that is not the passenger area, is permitted without apparent restriction, other than the quantity. So, you could potentially transport cannabis in a non-passenger area of your vehicle in a clear plastic baggie, or wrapped in foil, or whatever.

In the passenger area of the vehicle though, all of that changes. The statute specifies that the cannabis be kept in a “sealed, odor-proof, child resistant cannabis container.” In court proceedings, there will likely be issues and arguments from time to time in particular cases about what exactly constitutes such a container. The law that allows for the packaging and labeling of cannabis to be sold legally through a dispensary, as well as the pre-existing medical cannabis, requires that:

Any product containing cannabis shall be packaged in a sealed, odor-proof, and child-resistant cannabis container consistent with current standards… (Chapter 410, Illinois Compiled Statutes, Section 705/55-21.

Does the Weed Need to be in its Original Container?

So, the question will be: does the Illinois Vehicle Code require that the cannabis be in the original container that it was packaged in by the distributor, or will any similar container do? As the vehicle code does not specify that the container come from the manufacturer, or distributor in its original form, it seems that any similar container would do, as long as one cannot see or smell the cannabis within and it is sealed as well as child resistant. The old law, which applied to medical cannabis, required that the container also be “tamper evident”, meaning it could not have been opened, but that part of the law was removed when the new law was written. Incidentally, the new law applies equally to recreational users, and medical cannabis card holders. A violation is a class A misdemeanor, but for medical cannabis users, revocation of their card as well.

It should be further noted that the law against possessing cannabis within a passenger compartment of a vehicle applies equally to the driver, as well as any passengers within. However, the same statute that makes the possession unlawful (except when properly packaged) makes it a crime for the driver to use cannabis while the vehicle is in operation, but (strangely) not for the passengers within. It will therefore likely be a subject of contention in court cases where a passenger in a vehicle is charged with a crime where no cannabis is recovered, yet the odor indicates a passenger was using cannabis within the vehicle.  Similarly, court arguments will likely occur in situations where the driver is charged with a crime in connection with a passenger using cannabis while he or she is driving. It would seem that there is presently no law against a passenger using cannabis in a vehicle, unless they are also still in possession of cannabis that hasn’t been properly sealed in an odor proof, child resistant, container, while within the passenger area of the vehicle.

Can I Transport Paraphernalia?

In the past, it was a class A misdemeanor to merely possess any type of drug paraphernalia (bong, pipe, papers), including that which was associated with the packaging, breaking down, and/or consumption of cannabis. The law was at times actually more severe in its punishment than the possession of the cannabis itself. For example, it used to be a class C misdemeanor, punishable by no more than 30 days in jail and/or a fine up to $1,500.00 to possess less than 2.5 grams of cannabis. To be in possession of the pipe that you would use to smoke it though, was punishable by up to 364 days in jail, and a minimum fine of $750.00 up to a maximum of $2,500.00, or both. Now that possession of cannabis is legal, the laws regarding paraphernalia were amended so that any reference to items specific to the manufacturing, packaging, planting, cultivating, consuming, etc. of cannabis were completely stricken. So, it is now legal to possess, carry, or transport what was once illegal to even have in one’s home.

Of course, the laws that make possession of paraphernalia illegal still apply to anything that could be used specifically for other controlled substances or methamphetamine. If other controlled substances are found with the paraphernalia, or if there are traces of other controlled substances found in the paraphernalia, then it will likely be consider to be possessed illegally, even if it was also used for cannabis consumption.

Where Can I Smoke Marijuana?

If you are under 21, you cannot smoke anywhere (except Medical Cannabis in compliance with the Compassionate Use of Medical Cannabis Act). If you are 21 or over, you can smoke or consume cannabis in your own residence (provided that you are not a nuisance to your neighbors or if you live in a building where smoking is prohibited, that’s a different lease issue). You can smoke on any private property where it is allowed by the landowner or premises keeper, other than that which may be deemed a public place of amusement (bar, restaurant, club, movie theater, etc. or where smoking of any kind is prohibited by law). You cannot go out into public spaces and openly smoke without running afoul of State and Local laws, such as at the beaches, parks, forest preserves, public buildings, stadiums, and so on.

In fact, the law defines a public place as anywhere that one might reasonably expect to be visible to the public. You cannot smoke in close proximity to minors, unless they are Compassionate Cannabis users, or while operating a motor vehicle, watercraft, or snowmobile. Of course, people will be tempted to violate these restrictions. Law enforcement officials will have to determine for themselves how best to enforce the laws when confronted with such rule breakers. They can issue warnings, confiscate cannabis being illegally used or possessed, and/or make arrests. The penalties range from local ordinance civil penalties, all the way up to criminal misdemeanors, so one should remember to use sound judgement when using or possessing cannabis.

Speak to our Experienced Cannabis Legal Team

Since 1990, the Chicago marijuana possession lawyers with Mitchell S. Sexner & Associates LLC have been assisting those clients charged with criminal and traffic related matters as well as those charged with cannabis and drugs related offenses. Our phone lines are open 24/7 for your convenience. Call us at (312) 644-0444 or contact us online for a free initial consultation.