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FREQUENTLY ASKED QUESTIONS PUBLIC VERSION 3 - December 16, 2019 A GUIDE FOR ILLINOIS CHIEFS AND ILLINOIS SHERIFFS DISCLAIMER This document is intended to serve as a guide to chiefs of police and sheriffs in Illinois. The Illinois Sheriffs’ Association and Illinois Association of Chiefs of Police relied on multiple sources to put this together, and this latest version was revised by the Illinois Chiefs. Some information is straightforward. Other parts of the law require interpretation, and so we consulted attorneys. We are grateful to Donald Zoufal, ILACP Legal Counsel; Stewart Weiss, Holland & Knight; and Ben Gehrt and Yvette Heintzelman, Clark Baird Smith. Nothing in this document is intended to be legal advice. It is a guide so that the Chiefs and Sheriffs are speaking to their members and educating the public with the same language. As agencies develop policies for the matters addressed in this document they should consult with attorneys and state’s attorney for definitive legal advice.
1. Can I prohibit off-duty use of marijuana? Can I discipline for on-duty impairment? New answer. Yes, as a law enforcement agency, you can prohibit off-duty use. This was made clear in the trailer bill signed into by Governor Pritzker. And you can still discipline for on-duty impairment. ENFORCEMENT AND TRAINING ISSUES 2. How will we determine impairment of marijuana during a traffic stop? The short answer is that you will continue to conduct them as you are doing so now. The biggest difference is that possession of less than 30 grams in a sealed odorless container will be legal in vehicles. If a driver has 5 nanograms of THC in in the blood, there is a presumption of impairment. 3. Is there a reliable, generally accepted device for testing for marijuana impairment on the roadways? Not yet. Indications are that law enforcement is moving in the direction of using a saliva test to test drivers. This is under review by the new DUI Task Force created by the law. The Chiefs and Sheriffs will each get a person on that task force. 4. What training should we be providing to officers? DRE (Drug Recognition Expert) training is highly recommended. But we recognize there are not nearly enough trained DREs in Illinois, and we informed the legislators about this as the bill was being debated. The state’s intent – longer term – is to provide funding for more DRE training. The Advanced Roadside Impaired Driving Enforcement (ARIDE) program was developed by the National Highway Traffic Safety Administration (NHTSA) and is also highly recommended. Check with your MTU to see when this might be available. The Chiefs and Sheriffs are looking to provide this training as well. 5. You mentioned a “trailer bill” above. What changes in the law did the Chiefs and Sheriffs get right away? Here were our requests and how they turned out in the veto session in the fall of 2019:
A person can possess the maximum amount in each category. It is important to distinguish the differences in “possession” rules whether a person is in a home, on private property, walking, or being in a vehicle. For example, a person can have a baggie of marijuana within the legal limits while walking around, but inside a vehicle, the cannabis should be in a sealed, odorless container. 7. What about plants grown in homes by medical marijuana patients? The limit is 5 cannabis plants and the cannabis produced from those 5 plants, secured within the residence or dwelling unit, and not accessible to people under the age of 21. 8. Will it be possible for law enforcement to check if someone bought more than 30 grams in a certain period of time (e.g., a person made several purchases of 15 to 30 grams from different dispensaries in the course of a few hours)? No. There is no registration program. 9. Can people smoke marijuana in public places such as parks and on sidewalks? No. The general rule is that public use is prohibited as outlined in the Smokefree Illinois Act. 10. Can people smoke marijuana on their front porch and in their back yard? The language of the statute seems ambiguous on this point. However, the answer seems to be yes. Some jurisdictions are interpreting this differently and believe that smoking and using on front porches is prohibited. We were disappointed not to get clarity on this in the trailer bill. The Senate Democrats' legal staff believes the language in the law is clear and that smoking on front porches is OK. Use of marijuana is legal in your home if you own it, or if the owner approves of marijuana use, as long as a person makes a reasonable effort not to partake in proximity to a person under the age of 21. 11. Can landlords prohibit use on their property? What should law enforcement do if someone calls and says a neighbor in an apartment is smoking marijuana? Yes, landlords can prohibit marijuana use on their property. If someone calls the police about a violation, and you respond and discover the smell of marijuana smoke, we view this as a violation of the landlord’s policy. We suggest that a person file a complaint with the landlord. 12. What about canines? If my dog is imprinted for marijuana, do I have to retire that dog? No. While the dog does not have to be retired, its utility will be impaired because it is imprinted to recognize a substance which is no longer contraband per se in all circumstances. Canines imprinted for cannabis can only be used in circumstances where the possession of cannabis is considered contraband per se. The statute does seem to make provisions to permit the continued use of canines in connection with vehicle stops because it requires cannabis in vehicles to be transported only in “odor proof” containers. Thus, if the canine sniffs cannabis it can be argued it is contraband per se (because it is not in an odor proof container). However, the if it can be demonstrated by defense counsel that the placement of cannabis in an odor proof container leaves sufficient residue on the exterior of the container for a well-trained dog to detect, then any vehicle search using that dog would be in jeopardy. The canines can be used in other places where possession is expressly prohibited, those circumstances seem to have limited utility. 13. In canine training from now on, should canines be imprinted for marijuana? It is now optional, as of June 2019. The Illinois Law Enforcement Training and Standards Board (ILETSB) has statutory authority for the certification of canines (50 ILCS 705/10.12). That section provides: "All police dogs used by State and local law enforcement agencies for drug enforcement purposes pursuant to the Cannabis Control Act, the Illinois Controlled Substances Act, or the Methamphetamine Control and Community Protection Act shall be trained by programs that meet the minimum certification requirements set by the Board." (Source: P.A. 101-27, eff. 6-25-19.) ILETSB has provided the following guidance with respect to the imprinting of canines: Effective June 25, 2019, the Police Training Act was changed to allow agencies to opt out of imprinting drug dogs on various drugs. Prior to this change, the law required all four drug odors be used. Some agencies have opted not to imprint their drug dogs on the odor of cannabis as a result of that change. ILETSB created a comprehensive new web page about its canine program this fall. Go to Canine Program. Questions concerning the Illinois State Police’s policy on drug dog training can be directed to Illinois State Police Academy Commander Josh Ward. His email address is: [email protected]. 14. What does the new law say about paraphernalia? The trailer bill added language that says it is now legal to possess and use paraphernalia with marijuana. EXPUNGEMENT 15. What do local law enforcement agencies have to pay attention to now? This from Holland & Knight: The Act mandates that the Illinois State Police and other law enforcement agencies automatically expunge all criminal history records of an arrest, charge not initiated by arrest, order of supervision, or order of qualified probation for a "minor cannabis offense" if:
"Minor cannabis offenses" are violations of Section 4 or 5 of the Cannabis Control Act concerning not more than 30 grams of any substance containing cannabis, provided the violation did not include a penalty enhancement under Section 7 of the Cannabis Control Act and is not associated with an arrest, conviction or other disposition for a violent crime as defined in subsection (c) of Section 3 of the Rights of Crime Victims and Witnesses Act. Because "minor cannabis offenses" are defined as violations of the Cannabis Control Act, the automatic expungement mandate does not appear to include local ordinance violations. 16. What are the deadlines for law enforcement to expunge records? The Act provides that law enforcement agencies must automatically expunge qualifying records pursuant to the following schedule:
17. What about expungement of ordinance tickets over 10 grams? What does the law say about these? We believe this is a part of past practice that lawmakers overlooked or didn’t know about. An ordinance violation is not a criminal conviction, and the new law does not direct local law enforcement to expunge for ordinance violations. Therefore, we recommend not expunging these records. 18. What if my records are on microfilm or microfiche? Under the law, you are required to expunge these records. We realize it can be difficult to expunge just a portion of these documents, and so we are still exploring this one. 19. What if there are multiple offenses in a single document or record, a record that includes an expungeable marijuana offense? Under the law, you are required to expunge these records. We realize it can be difficult to expunge just a portion of these documents, and so we are still exploring this one. NEW FUNDS FOR TRAINING AND ENFORCEMENT 20. How much money will my agency get and how will I get it? It was the General Assembly’s intent for law enforcement funds to be distributed the same way as the formula in the current Local Government Distributive Fund. However, the Illinois Municipal League already is asking for some changes. LOCAL CONTROL 21. When it comes to implementation of the law, what authority does my local government have? A municipality may "prohibit or significantly limit" the location of cannabis businesses by ordinance. The Act explicitly authorizes municipalities to impose limits on the "time, place, manner, and number" of cannabis business by requiring the businesses to obtain conditional or special use permits. 22. Can local governments permit on-site consumption at private businesses within their municipalities? No. On-premises consumption can only be authorized at a licensed dispensing organization or a retail tobacco store. Units of local government are not permitted to authorize the on-premises consumption at any other type of business establishment. 23. Can my municipality adopt ordinances that are similar to language in the state law – which we give us more flexibility in enforcement? Yes. The Act provides municipalities with the authority to locally regulate possession and consumption of cannabis by private citizens in a manner consistent with the Act. Accordingly, municipalities should evaluate whether to adopt the prohibitions and penalties of the Act into their local codes. This will give the local governments the ability to enforce and prosecute these offenses (with the exception of DUIs) through local adjudication or the circuit court, so long as the penalties do not exceed those provided for in the Act. 24. Regarding the question above, does a county government have the same flexibility? This response is coming soon. Have additional questions? Sent them to [email protected] and [email protected]. Jim Kaitschuk, Executive Director Ed Wojcicki, Executive Director |