Possession of a controlled substance is a felony criminal offense under Illinois law. The penalties for this offense are set out in the Illinois Controlled Substances Act at 720 ILCS 570/1 et seq. Police officers, lawyers, and judges refer to the offense of unlawful possession of a controlled substance as UPCS. In Cook County, the term is PCS.
Possession of cannabis (commonly known as marijuana), is almost always a misdemeanor offense. A misdemeanor offense is punishable by no more than one year in jail.
By contrast, possession of a controlled substance is a felony offense, which means the sentence is one year or more incarceration. The typical possession of a controlled substance charge is a Class 4 felony offense for possession of cocaine, although heroin is becoming much more prevalent recently.
A Class 4 felony has a possible sentence of 1-3 years in the Department of Corrections (prison). The fine can be $25,000. Most Class 4 felony drug charges permit the court to sentence the defendant to probation and substance abuse treatment.
All controlled substances are classified by the Act as either Schedule I, Schedule II, Schedule III or Schedule IV substances.
A Schedule I controlled substance is defined as a substance that: 1) has high potential for abuse; and 2) has no currently accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision. See 720 ILCS 570/203.
The other types of controlled substances, Schedule II, III, and IV, are considered to be accepted for medical use in some manner, but still have a high potential for abuse.
The following are considered Schedule I controlled substances (drugs with no accepted medical use):
- psychedelic mushrooms
Generally, all recreational drugs or “street drugs” are considered Schedule I controlled substances that have no accepted medical use.
Possession of cocaine constitutes probably 80% of all possession of controlled substance cases.
After Schedule I controlled substances, Illinois law makes possession of legal drugs a criminal offense if there is unauthorized use. That is, possession is against the law without a physician’s prescription.
The following are pain medications for which possession without a doctor’s note can result in felony charges: Codeine, Methadone, Morphine, Percodan, Vicodin, and Percocet. These pills have an accepted medical use but are highly addictive.
Cough syrups contain controlled substances and may require a doctor’s prescription. Cough syrups that contain Codeine are considered addictive. Examples of cough syrups that contain Codeine include Drixoral Cough Liquid Caps, Robitussin AC, Dectuss, Phenergan with Codeine, Phensedyl, and Pherazine with Codeine.
Tranquilizers are used to treat anxiety and generally require a doctor’s prescription. Possession of any of the following without a prescription can result in felony charges: Xanax, Ativan, Valium, and Librium.
Sedatives are used to induce sleep. Most sedatives require a physician’s prescription. Possession of a sedative, such as Nembutal, Seconal, Amytal, Restoril, Dalmane, Halcion, Placidyl, Miltown, Doriden, Noludar, or Quaaludes, without a prescription can result in a Class 4 felony offense.
Some amphetamines are prescribed for weight loss and hyperactivity disorders (attention deficit disorder, or ADD). The following prescribed drugs can result in a criminal charge: Ritalin, Cylert, and Adderall.
Finally, possession of opiates is a felony criminal offense. OxyContin is the common name of the opiate oxycodone. Possession of oxycodone without a prescription is a felony offense.
Possession of cocaine or heroin is a Class 4 felony as long as the weight of the substance is less than 15 grams. If the weight is 15 grams or more, then the offense is enhanced to a Class 1 felony (4-15 years prison). Probation is possible for both a Class 4 and Class 1 felony, but the critical issue is that a defendant who is on probation, if a violation occurs, is subject to re-sentencing. Re-sentencing for a Class 4 felony is 1-3 years, but a Class 1 felony has 4-15 years prison for violation of probation. Thus the issue for defense attorneys is to try to get a reduction of the charge to a lower class felony.
The primary issue in the defense of possession of a controlled substance is possession. If the defendant was seated in a vehicle as a passenger and the drugs were found on the floor, then the question is whether the defendant was in possession or someone else.
Possession is defined as physical dominion and control over something. That is, you are in possession of something if it is in your hand, or locked in a safe for which you have the key.
Controlled substance cases are many times entirely about circumstantial evidence. The courts recognize constructive possession where circumstantial evidence shows you were in possession.
Constructive possession generally is found where a person knows of the presence of a controlled substance and has intent and capability to maintain control and possession of it, or has exclusive control of the area where the controlled substance was located.
Another equally important issue in a controlled substance case is how the police found the drugs. Generally the police need a search warrant or a person’s consent to search a residence. The police can frisk a person if they reasonably believe that person to be armed. And the police can search a vehicle without a warrant if they have probable cause.
The facts of each case need to be scrutinized. In the experience of the author, a search almost never goes down the way the police describe it in the police report.
At one time, the Chicago Police Department specifically trained its officers to approach people on the street and pat them down without warning or probable cause. If they got lucky and found a bag of crack cocaine, they would go back to the station and write up a report saying the defendant saw the police coming, got scared, and dropped the bag of cocaine on the street as though it belonged to someone else.
After a hearing hundreds of police officers testify in this way, Cook County judges wised up and started finding no probable cause in these cases, resulting in the dismissal of hundreds of PCS cases.
It was once standard that possession of less than a gram of cocaine would result in a finding of no probable cause in Cook County, but this is not the case anymore. It seems that judges in Cook County are like judges anywhere else in the state, and they are reluctant to make a finding of no probable cause.