Exclusively Practicing Criminal Defense for
Two Decades
David Olshansky

Attempted Possession

The state of Illinois has a strict control program for illegal substances. Reports have shown that drugs and narcotics have been widely used by criminals to fund their operations. Substance abuse can also lead to death and social problems. Drug abuse becomes more problematic when minors are involved.

This is why the public in general and the law enforcement agencies in particular are very strict when it comes to illegal substances.

Possession of drugs like LSD, Heroin and Amphetamine etc is completely illegal. While the state has relaxed the laws surrounding medical marijuana consumption for personal use of patients, possessions of higher amounts or possession by unlawful persons is still considered a civil offense.

State Legislation

Possession of illegal substances, such as marijuana, is covered by the 720 ILCS 570/100. According to Illinois Controlled Substances Act, any person who is in unlawful possession of controlled substances or in possession of such substances with intent to manufacture or deliver such substances is guilty of a Class 1 felony.

Illegal substances include Heroin, Cocaine, Morphine, Peyote, Amphetamine, LSD, Barbituric Acid, Pentazocine, Phencyclidine, Ketamine, Anabolic steroids and other substances that may not be listed in the statute at this time.

The severity of the offense can increase if the person is also in possession of a weapon such as a firearm.


As a Class 1 Felony, possession of illegal drugs carries prison term and fines. The severity of punishment is dependent on the amount in possession of the suspect.

For example, possession of 15g – 99g of most illegal substances results in a prison term of 4 - 15 years but possession of more than 900g of the same substance could lead to a prison term of 10 - 50 years.

Considerations for Attempted Possession

Controlled substances are classified on the basis of their potency and likelihood of abuse. The state of Illinois divides controlled substances into five categories.

  1. Schedule I drugs have the highest abuse potential and no accepted medical use. These are considered unsafe for use, even under supervision.
  2. Schedule II drugs are also highly abusive and result in psychological side effects. These drugs, like marijuana, do have an accepted medical usage.
  3. Schedule III drugs have a lower potential for abuse. These drugs have an accepted medical usage although they can cause moderate psychological or physical loss of senses.
  4. Schedule IV and V drugs have relatively lower psychological dependence problems and accepted medical use.

Most drugs under schedule I and II fall under controlled substances, although there are some exceptions for possession of a very small amount for personal, medical use, as in the case of marijuana.

In order to get a conviction, the prosecution must prove three things.

  1. First, they must prove the identity of the substance.
  2. Second, they must show that the defendant was knowingly carrying the substance.
  3. Third, the prosecution must also show that the substance was in the defendant’s control.
Examples and High Court Cases

A man from Wilmington, Illinois was recently charged on several accounts including attempted possession.

The man was identified as Kennith, 28. He had hit another car while speeding through the city. The police began a pursuit and tried to get him to stop by pulling in front of his Dodge Ram Truck. The man rammed his truck into the police car, causing it to almost crash on the center median.

Kennith fled through the scene through heavy traffic until he was later caught in his truck at a gas station. During the search of the vehicle, police found illegal narcotics and a hypodermic needle in his vehicle. He has been charged with resisting law enforcement, traffic violation and aggressive driving as well as attempted possession. If convicted, he could be looking at a minimum sentence of 4 years in prison.

In another case, Kimberly Zinke, 40, who had pleaded guilty in January to charges of attempted possession, was sentenced to one year in prison. She was initially charged in 2015 after a police investigation showed that she was holding onto medication drugs that she was meant to deliver to her department’s evidence room.

Zinke’s husband formerly worked as the undersheriff for the McHenry County while Kimberly worked as a deputy in Kane County. She was indicted after the police searched her home on suspicion and found 2,000 to 3,000 pills in her possession.

Kimberly had pleaded guilty to the charges of attempted possession as an Alford plea. Under this plea, the defendant asserts innocence and does not admit to the intent of the criminal act.

The defense had argued that Kimberly had a long history of prescription medication. They presented a 76-page list of prescriptions that doctors had prescribed their client.

The prosecution argued that Kimberly had lied to the court, failed to take responsibility for her actions and should not be treated preferentially because she was a police officer. Although they did not ask for incarceration, they did ask the judge to order the defendant probation and drug abuse counseling.

The judge ruled for one year in prison, with conditional discharge, drug use evaluations and prohibited the defendant from employment anywhere that she would come in contact with controlled medication.

Possible Legal Defenses

The defense for attempted possession is based on the circumstances of the case. For instance, a defendant could argue that while he or she was in possession of the drugs, they did not have the knowledge about their presence in their home. In case of a shared residency, it is possible that the drugs belong to a different tenant and this is one option.

The fourth amendment guarantees the right of due process to citizens. A defendant may be able to argue against unlawful search and seizure. For example, drugs present in the dashboard of a car are in “plain view” and admissible in court. However, if an arresting police officer pries opens the trunk of a car with a crowbar, without getting permission first, the evidence can be challenged in court.

In case of marijuana, the defendant may also have the option to go for legalized marijuana usage. The defendant would need to have a qualified medical record and the quantity of banned substance must be below a certain amount.

Attempted possession charges are slightly difficult to prove for the prosecution team and they usually try to combine it with other charges, such as resisting arrest or possession of firearms, to increase the seriousness of the crime. A good legal defense team can consider the circumstances and provide their client the best options for success.