The law that makes it a criminal offense in the state of Illinois to possess cannabis (e.g., marijuana) with intent to deliver is the Illinois Cannabis Control Act, found at 720 ILCS 550/1 et seq.
Section 550/5 provides that it is illegal to manufacture, deliver, or possess with intent to deliver cannabis. To manufacture is to make a finished product of cannabis. Growing cannabis plants is a separate offense.
Thus the statute provides criminal penalties for packaging cannabis, distributing it, and possessing it with an intent to distribute it.
The law provides the following penalties for manufacture, delivery, and possession with intent to distribute:
- 2.5 grams or less is a Class B misdemeanor, which carries 180 days in jail and a possible fine of $1,500. Supervision for first offenders is available. Supervision is a special type of sentence that results in a dismissal without conviction and can be expunged. There is a mandatory assessment of $200 in addition to fines and court costs.
- 2.5 to 10 grams is a Class A misdemeanor offense. All Class A misdemeanor charges under Illinois law have a sentencing range of up to one year in jail and a fine of $2,500. A defendant who has no prior convictions is eligible for supervision. The mandatory assessment for a Class A misdemeanor violation of the Cannabis Control Act is $300.
- 10 to 30 grams is a Class 4 felony, which carries 1-3 years prison (served in the Department of Corrections) and a possible fine of $25,000. A Class 4 felony offense for cannabis has a statutory assessment of $500.
When the defendant is charged with manufacturing, delivering, or possessing with intent to deliver than the above weights, the fine is increased presumably because the defendant was engaged in a business of selling cannabis. The law provides:
- 30 to 500 grams is a Class 3 felony (2-5 years prison) for which the fine can be up to $50,000.
- 500 to 2,000 grams is a Class 2 felony (3-7 years Department of Corrections) and the fine can be up to $100,000.
- 2,000 to 5,000 grams is a Class 1 felony for which the sentence can be 4-15 years prison and the fine can be up to $150,000.
- 5,000 grams or more is a Class X felony. Probation is not possible for a Class X felony offense and the defendant must be sentenced to 6-30 years in the Department of Corrections. The fine can be $200,000.
The ordinary exchange of cannabis between friends is not charged as a criminal offense of delivery. Section 550/6 provides the following:
“Any delivery of cannabis which is a casual delivery shall be treated in all respects as possession of cannabis for purposes of penalties.”
The defendant is eligible for a special Section 550/10 probation for all manufacture, delivery, and possession with intent to deliver cannabis EXCEPT where the weight exceeds 30 grams. If the weight is 30 grams or less, the defendant can receive the special probation that allows the charge to be dismissed without a conviction after a period of two years. The record can also be expunged.
If the defendant is charged with a Class 3 felony for more than 30 grams, expungement is not possible.
For a defendant to have been charged with possession with intent to deliver, there must be evidence of intent to deliver. If the defendant made a verbal admission that he was selling marijuana, then that is enough evidence to convict.
However, where there is no confession, the State must prove intent to deliver with circumstantial evidence, such as excessive cash (US currency), individually wrapped, clear plastic baggies, a scale or weighing device, sandwich bags and rubber bands, multiple cell phones, etc. Many of these are common household items, and the defense lawyer should argue the client possessed cannabis for his own use.