Exclusively Practicing Criminal Defense for
Two Decades
David Olshansky

Cannabis / Marijuana

The legislation surrounding marijuana has relaxed in recent years. With the legalization of medical marijuana in Illinois, the public perception has also softened regarding court cases where the defendant is charged with possession or consumption.

In most marijuana trials these days, the prosecution prefers to include additional offenses such as armed possession, resisting law enforcement or assault and battery. This happens because marijuana possession or consumption charges are quite weak on their own and the prosecution has a better chance of getting a conviction where the defended is charged with multiple offenses.

State Legislation

Legislation surrounding marijuana is covered by 720 ILCS 550. Marijuana is classified as a controlled substance and a schedule II drug.

Possession of marijuana is illegal except for people who are qualified to carry it. This means people such as marijuana patients, dispensaries or law enforcement officers who are in possession of apprehended unauthorized drugs.

Consumption is banned for everyone except qualified patients. Driving under influence of marijuana is strictly prohibited under the state laws.

Cultivation, selling and delivery of marijuana is prohibited except for authorized and licensed growers and medical dispensaries.


Punishment for marijuana depends on the severity of the crime. For example, possession of less than 10 grams is considered a minor violation with a fine but no jail time. Possession of 10 – 30 grams is a misdemeanor. Subsequent offense of similar amount can be charged as a Class 4 felony. Possession of a higher amount of marijuana could result in Class 1, 2, or 3 felony charges.

Sale and cultivation of marijuana are considered more serious than possession and could lead to higher charges, even for a smaller amount in question.

Medical Marijuana

Marijuana charges can be somewhat complex. Possession of most other controlled substances like Heroin and LSD is completely prohibited. However medical marijuana was legalized in Illinois a few months ago and a person is legally permitted to carry the drug as long as he or she can prove that they are a registered marijuana patient.

In order to be registered as a patient, the person needs to go through a doctor’s consultation and acquire a registration card.

Evidence of Possession

Most cases of marijuana possession rely on circumstantial evidence. The prosecution must prove that the defendant was in possession or control of the drugs and aware of their presence.

The circumstances surrounding how the drugs were found is also important. The police usually needs a search warrant before they can search a person’s residence or vehicle.

The police is allowed to stop and search someone if they believe the person is armed or in possession of controlled drugs. If the officers stop a motor vehicle and discover marijuana on the dashboard or seats, that can also be used as evidence in court.

However, the police cannot search inside the vehicle’s trunk without a warrant or probable cause. If an officer performs an unauthorized search on a person and finds marijuana in his or her possession, the evidence may not be permissible in the court because the search was not justified according to the law.

Examples and High Court Cases

Jared Borowsky, 20 from Buffalo Grove was recently arrested with 3.3 pounds of cannabis while he was headed to Naperville. He was charged with possession of 500 to 2,000 grams of cannabis with intent to deliver. Both charges are Class 3 felonies with 3 to 14 years’ prison terms.

The police began looking into the case when they were alerted by the U.S. Postal Inspection Service about a suspicious package that was delivered to the city. The police followed up the investigation to Borrowsky’s postal address and later arrested him while he was delivering the package.

Mark Lewis 58, from the Kane County was convicted in court recently for possession and cultivation of marijuana in his basement. The man, who was a former doctor, had pleaded guilty to unlawful possession of marijuana with intent to deliver. The man had also been charged with unlawful possession of a firearm.

The judge sentenced the man to 8 years in prison and a fine of $137,720. The police had found more than 11,000 grams of marijuana and 110 marijuana plants in his home. The prosecution had charged Lewis with a Class X felony, the highest charge that can be brought against a defendant.

Possible Legal Defenses

Defendants have a number of possible defenses in a cannabis possession court case. The first defense would be to go for an inadmissibility of evidence in court. Any evidence that is acquired illegally can be dismissed by the court.

This means that if the police performed a search of the vehicle or home without a warrant, and found controlled drugs on the property, these drugs could be removed as evidence from the case.

The second defense could be to deny possession. The prosecution must prove beyond all doubt that the defendant was in constructive possession of the illegal drugs during or before the arrest. A defendant may also be able to deny knowledge of possession by arguing that he or she was not aware about the drugs on his person or property.

Mere proximity to the drugs does not prove that the defendant was aware of or in control of the drugs. Consider the case of shared dwelling, such as a dormitory house sharing. In these cases if the police find drugs on the kitchen table for instance, that would not mean that they necessarily belonged to the defendant.

Another defense for drug possession is medical consumption. Marijuana is legally permitted for use by registered patients. A defendant with a medical record would be able to prove that he or she has the right to possession of the drugs.

A legal defense team that is experienced in handling marijuana charges can significantly improve the chances for a defendant charged with marijuana possession. Marijuana can be tried as anything from a Class X felony to Class 4 felony, depending on the amount of drugs in question, and could be punishable from 1 to 30 years in case of a conviction. This makes it very important to get a good, experienced team on your side.

To View the Penalties Under Illinois State Law Click on the Link Below:Possible Outcomes for First Time Offenders