Exclusively Practicing Criminal Defense for
Two Decades
David Olshansky

Possession of a Controlled Substance

Illinois has severe restrictions when it comes to controlled substances. Controlled substances can include drugs, or other materials that are prohibited for possession and use in the state.

The law enforcing agencies take offenses related to controlled substances very seriously. Illinois has had a history with violent gang-related crime. The general perception is that much of these gang activities are funded by money obtained through the trade of controlled substances.

Under certain circumstance the possession of controlled substances isn’t necessarily a crime. Take the case of medical marijuana which was legalized in recent years. A registered patient is allowed to possess marijuana based pills or vapes in a quantity that can be justified for personal consumption.

However, the same pills being in the possession of someone who isn’t a registered patient or medical marijuana dispensary can be an offense.

State legislation

The possession of controlled substances is covered under 720 ILCS 570 Articles I and IV of the Controlled Substances Act. The law states that it is unlawful for a person to be in possession of a controlled substance, a counterfeit substance or an analog.

The legislation allows exceptions for certain individuals such as law enforcing officers, medical dispensaries that are authorized to sell certain controlled substances or patients who are registered to buy and consume controlled drugs.

The law makes two distinctions when it comes to possession of a controlled substance. The mere possession of a controlled substance, possibly for personal consumption, is treated less severely than possession of the substance for manufacture or delivery to another person.

The Act identifies controlled substances through a list of five schedules that classify drugs on the basis of their effect on the consumer. Schedule 1 for example includes drugs like Ecstasy, LSD and Marijuana. Schedule 2 includes drugs like Cocaine and Morphine. Schedules 3 and 4 include drugs that are less severe, all the way to Schedule 5 which includes cough medication and suppressants.


Possession of more serious drugs is usually charged as either a Class 2 or Class 1 felony. Possession of counterfeit substances that are not listed in the statute can be charged as a Class 4 felony.

The punishment for possession of controlled substances varies based on the amount of drug that a person is caught with.

Consider Morphine which is a Schedule 2 controlled substance. A person charged with possession of 15g-99g of Morphine, is punishable by 4-15 years in prison. If the amount of Morphine is 100g-399g, the person can be sentenced for 6-30 years in prison. An amount between 400g-899g is punishable by 8-40 years in prison. An amount higher than 900g can lead to a punishment of 10-50 years in prison.


The authorities interpret the law in a way where they divide possession into two categories; Actual and Constructive Possession.

Actual possession occurs when a person is found to be in physical possession of the controlled substance. For instance if the person has a packet of Ecstasy in his pocket or a box of Xanax on the car’s dashboard, he is considered to be in actual possession of the drug.

Constructive possession occurs when the person is not in actual possession of the drug but does have some knowledge of it and an intent and ability to gain control over it or over the location where the controlled substance is kept.

For example if illegal drugs are kept at the residence of the suspect and they have the knowledge about their location, the person is considered to be in possession of the drugs even when they are not at their home.

Examples and Court Cases

In a recent case, a 71 year old store manager from Springfield was charged for possession of a controlled substance with intent to deliver.

Letha Dean is the eighth person who has been charged in connection with an on-going investigation in the distribution of synthetic cannabinoids commonly known as K2 or Spice.

An undercover officer purchased more than 500 packets of synthetic marijuana from Dean for over $5,000. Agents claim that they found more than 1,400 additional packets of the drug from the back officer of the store. The total weight of the suspected drugs is more than 11,800 grams, according to the police.

If convicted, Dean could be sentenced for 10 – 60 years in prison.

In another case, a man from Franklin County was sentenced to 3 years for possession of controlled substance.

Shane Estill 42, had pleaded guilty to multiple charges including first degree possession of the drug methamphetamine and third degree possession of the controlled substance, Xanax.

In many cases, a good defense team can get the defendant released by negotiating with the prosecution without admitting to any crime.

Consider the case where a police officer saw a man urinating in public on the sidewalk. When the officer tried to detain him, the men tried to flee the scene by scaling a fence.

The officers arrested him and searched his pockets to find a packet of ecstasy that he was carrying. The man was later charged with indecent exposure, possession of a controlled substance and resisting arrest.

His legal counsel negotiated with the prosecution to reach a deal. The charges were dropped by the prosecution without giving him a criminal record in exchange for the man agreeing to take classes on drug use.

Possible Legal Defenses

The defenses available to the accused person are dependent on the case circumstances. One of the most common defenses is to argue from lack of knowledge or intent about possession of the substance.

Consider a case of constructive possession where the drugs are found at the home or property of the defendant while he or she may not be present. The prosecution may argue that since the illegal drugs were on the property of the defendant, he or she must be held liable.

An experienced defense team can get the charges cleared if they can prove that the defendant was not the only person with access to the property. In such cases, it may be possible that the drugs actually belonged to someone else who had been present on the premises. This line of defense creates enough doubt and makes it difficult for the prosecution to get a conviction.

In a case of actual possession, the drugs are usually found on the defendant’s person, such as his pockets or a bag that he may be carrying. One possible defense in such cases is to question the authority of the law enforcing officer.

The fourth amendment protects all U.S. citizens from unlawful search and seizure. Any evidence obtained through an illegal search can be challenged in court and must be removed from the records.

Another defense is available to registered marijuana patients in cases specifically related to marijuana. The drug was recently legalized for medical consumption. We have seen a lot of police officers who are not clear on possession and even arrest registered patients.

An experienced team of defense attorneys can significantly improve the defendant’s chances of getting the case dismissed.