Beginning in January 2014, Illinois joined a number of other states in legalizing the use and possession of small amounts of medical marijuana (or medical cannabis). But the statutes authorizing this limited use and possession (410 ILCS 130/1 and following) do not give free license to carry as much medical marijuana as one chooses or to use it wherever one desires.  Not only this, but the Medical Cannabis Pilot Program Act has caused the Illinois Legislature to amend some criminal statutes, most notably the driving under the influence statute and the creation of the crime of possessing medical cannabis in a motor vehicle. What follows is a run-down of some of the significant statutory provisions related to the use and consumption of medical cannabis in Illinois.

Basics of Compassionate Use of Medical Cannabis Pilot Program Act – 410 ILCS 130/1

The Compassionate Use of Medical Cannabis Pilot Program Act, found at 410 ILCS 130/1, has several important features:

• The Act is scheduled to be repealed on January 1, 2018;
• The Act requires those who possess and use medical cannabis (patients, dispensaries, etc.) to be registered with the State and to carry registration cards given by the State;
• A patient, caregiver, or doctor who is properly registered cannot be assessed a civil penalty or subject to disciplinary action by a professional licensing board (such as a medical licensing board, real estate licensing board, etc.) for using, prescribing or dispensing medical cannabis;
• In most cases, patients and caregivers cannot possess more than 2.5 ounces of medical cannabis at any one time;

There are certain situations when a patient may not use or possess medical cannabis:

• A patient may not undertake any task under the influence of cannabis if doing so would constitute negligence, professional malpractice, or professional misconduct (for instance, a doctor cannot perform a surgery under the influence of medical cannabis even if the doctor is herself entitled to use medical cannabis);

A patient may not possess or use medical cannabis:

• • In a school bus;
  • On the grounds of a preschool, primary school, or secondary school;
  • In any correctional facility;
  • In a vehicle (may not possess unless in a secured, sealed, tamper-evident container and reasonably inaccessible while the vehicle is moving) or in a motor vehicle (may not use); or
  • In a private residence used for licensed childcare or similar social service care.

A patient may not use medical cannabis:

• • In a “public place”; or
  • In close proximity to someone under the age of 18 years of age.

In addition, users of medical cannabis may not:

• Smoke medical cannabis in a public place where they can be observed by others, in a healthcare facility, or any other place where smoking is prohibited;
• Operate or be in actual physical control of a motor vehicle, aircraft, or motorboat while using or under the influence of cannabis;
• Use medical cannabis if they do not have a “debilitating medical condition” and are not registered;
• Allow others who are not allowed to use medical cannabis to use the person’s medical cannabis;
• Illegally transfer cannabis to another person;
• Use medical cannabis if the person is an active duty law enforcement officer, correctional officer, probation officer, or firefighter; or
• Use medical cannabis if a person has a school bus permit or commercial driver’s license.

Unclear from the act, is the potential education, employment,  or housing discrimination that users of this act may face.  On one hand, the statute provides for no discrimination by schools, employers or landlords solely due to ones status as a registered qualifying patient or caregiver 410 ILCS 130/40.  Yet, if the person or agency would lose federal benefits or licensing they are free to discriminate.  The landlord, school or employer can deny the use of cannabis on their premises.  Employers who maintain a zero-tolerance policy may continue to require testing and may discipline qualifying patients for violating a work-place drug policy 410 ILCS 130/50.

Changes to DUI and DUI-Related Laws – 625 ILCS 5/11-501 & 625 ILCS 5/11-501.1

The Compassionate Use of Medical Cannabis Pilot Program Act has also changed certain elements of the crime of driving under the influence and other related statutes. Important changes include:

• Under subsection (a)(6) of 625 ILCS 5/11-501, the law used to state that a person could not be in actual physical control of a vehicle in the State if that person had any amount of cannabis in the person’s breath, blood, or urine. But now a  qualified and licensed patient under the Act who has a valid registry card in his or her possession may have cannabis in his or her breath, blood, or urine and not be in violation of the DUI law, so long as the person is not impaired by the cannabis. In other words, whereas previously a driver who had cannabis in his or her system would have been considered under the influence, now a person who is authorized to use medical cannabis may have cannabis in his or her system while driving, so long as he or she is not actually impaired.
• Police officers cannot make a driver  submit to standardized field sobriety tests simply because a driver has a registry card issued to him or  her under the Act. Instead, officers must have an “independent, cannabis-related factual basis” that gives them reason to believe the person is impaired. Not only this, but officers must list the “independent, cannabis-related factual basis” in the officers’ reports.

Possessing Medical Cannabis in a Motor Vehicle is Now a Crime – 625 ILCS 5/11-502.1

Under 625 ILCS 5/11-502.1, a medical cannabis cardholder and certain other individuals are limited in how they may carry medical cannabis in a car. Specifically iIf you are a medical cannabis cardholder:

• And a driver of a car or motor vehicle, you may not use medical cannabis within the motor vehicle’s passenger compartment;
• And a driver (or a driver and a medical cannabis designated caregiver, medical cannabis cultivation center agent, or dispensing organization agent), you may not possess medical cannabis in any area of a motor vehicle unless the medical cannabis is in a sealed, tamper-evident medical cannabis container (no Ziploc baggies allowed!)
• And a passenger (or a passenger and a medical cannabis designated caregiver, medical cannabis cultivation center agent, or dispensing organization agent), you may not possess medical cannabis within the passenger area of a motor vehicle unless the medical cannabis is in a sealed, tamper-evident medical cannabis container.

All of the above prohibitions apply to motor vehicles that are “upon a highway” in Illinois, so presumably one would not be violating this law if he or she is sitting in his or her car on his or her private driveway.

A person who violates this statute is guilty of a class A misdemeanor. This can result in a sentence of up to one year in jail and up to $2,500 in fines. In addition, any medical cannabis card or special status one has under the Compassionate Medical Cannabis Pilot Program Act is in jeopardy of being revoked for up to two years.

As one can see, the Act creates new rights, privileges, and responsibilities for those who use medical cannabis in Illinois. This new area of the law is complex, and the assistance of an experienced criminal defense attorney is necessary to ensure the police follow the law and respect the rights and privileges the legislature has given to those who use or dispense medical cannabis. If you have been charged with DUI or possession of medical cannabis in a vehicle and you use or dispense medical cannabis, or if you are unsure of what you may and may not do under these new laws, contact criminal defense attorney JohnPaul Ivec at Ivec Law, P.C. today at (815) 439-9909 for a free consultation; or e-mail at jp@iveclaw.com.