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Illinois Drug Possession Charges Explained

Article written by Attorney Kevin O'Flaherty
Updated on
August 28, 2020

In this article, we discuss Illinois drug possession laws and answer the following questions:


  • How does Illinois classify different controlled substances?
  • What constitutes a drug possession charge in Illinois?
  • What are the penalties for different drug possession charges?


Although recent changes in the law have made recreational marijuana legal in Illinois, there are still many other controlled dangerous substances (CDS) that are illegal and come with hefty fines and jail time. The Illinois Controlled Substances Act criminalizes the manufacture, possession, and delivery of controlled substances, counterfeit substances, and analog substances (analogs are substances that have a chemical makeup and effect similar to those found in Schedule I or II of the Act.)


How Does Illinois Classify Different Controlled Substances?


Illinois uses a scaled system that splits the different controlled dangerous substances into five schedules based on their potential for abuse, and whether they are approved for medical use. Schedule I drugs have the highest potential for abuse and no applicable medical use, while Schedule V drugs have the lowest potential for abuse with at least some degree of medical utility. Examples of drugs from each schedule can be found below:


Schedule I drugs: hallucinogenic substances, opiates, and opium derivatives

Schedule II drugs: methamphetamine, codeine, oxycodone, coca leaves

Schedule III drugs: ketamine, buprenorphine, certain steroids

Schedule IV drugs: tramadol, diazepam, alprazolam

Schedule V drugs: Certain medicines with limited amounts of narcotic effects


Each drug schedule has its own set of penalties and fines, although many overlap. To understand what charges you may face, you can look at the indictment document to determine what schedule a drug falls under. However, your lawyer should be able to easily answer this question for you.


What Constitutes A Drug Possession Charge In Illinois?


Illinois drug law splits potential possession crimes into two distinct categories:


  1. Possession of a controlled substance or analog; or
  2. Possession of a controlled substance or analog with the intent to manufacture and distribute


Most individuals who are brought in on drug charges are done so because the illegal substance was found on their person or within their property. However, drug possession charges are not always guaranteed. Securing a conviction for drug possession requires that the following be proven beyond a reasonable doubt:


  • The identity of the drug in question;
  • The defendant knowingly possessed the substance; and
  • The defendant had unobstructed access and control over the substance.


The last point can be proven through actual control or constructive possession. Constructive possession is the idea that even though the substance may not be on you at the time of the arrest, or within immediate reach, if you are in possession of a key, or have access to an area that holds the substance in question, you can still be charged with possession. This also includes the, “just holding it for a friend” defense. If the defendant can prove that he or she was given the drug by another person but had no intent to use or distribute the drug, and was supposed to return the drug to the original owner, possession charges may not be applicable.


What Are The Penalties For Different Drug Possession Charges?


The penalties for drug possession and crimes related to drug possession depend on the Schedule the controlled substance falls under and the amount of substance in possession. Illinois drug possession felonies can fall into Class 1, 2, 3, or 4, with Class 1 being the most serious.


Class 1 felony possession charges include drugs such as heroin, cocaine, morphine, LSD, and other hallucinogenic substances (mostly Schedule I and II) and come with jail time of one to fifty years depending on the amount of substance in possession. Fines can also be in excess of $200,000 for larger amounts of substances. Substances clearly in a form meant for distribution will have their own set of parameters and penalties based on the number of units in possession.


Illegal possession of Schedule III, IV, and V is considered a class 4 felony carrying potential jail time of one to three years and a fine of up to $25,000. Penalties will be enhanced for repeat offenders in all situations.


Possession of controlled dangerous substances can lead to long incarcerations periods and steep fines. One-time offenses don’t have to completely blow up your life, but repeat offenses will certainly make it very difficult to integrate back into normal work and society. The most important first step in dealing with a drug possession charge in Illinois is speaking to a qualified attorney.


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