FREQUENTLY ASKED QUESTIONS

Cannabis Regulation and Tax Act (410 ILCS 705) 

PUBLIC VERSION 2 - October 22, 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. 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.


WORKFORCE ISSUES

1.       Can I prohibit off-duty use of marijuana? Can I discipline for on-duty impairment?

The ability of an employer to prohibit on-duty use of cannabis seems to be clearly permitted.  The statute recognizes the ability of employers to maintain a drug-free workplace and/or have a zero-tolerance policy.  Departments can continue to take employment actions for on-duty impairment. 

With respect to off-duty use the language of the statute is less clear.  The law amends the existing “Right to Privacy in the Workplace Act” (820 ILCS 55/5) to prohibit employers from taking any employment action or decision (including hiring or discipline) based on an individual’s consumption of any lawful product.  “Lawful” is defined in terms of legality under Illinois law.  The intent of the law seems to permit universal adult usage.  This would seem to include off-duty law enforcement officers.

It may be possible that off-duty use can be prohibited if such a prohibition is provided for in an existing Collective Bargaining Agreement. At this time, without that language in a contract, you cannot prohibit off-duty use in a policy. It may also be possible to prohibit off—duty use if the prohibition can be related to federal funding received by an agency. However both of these theories regarding prohibition of off-duty use remain untested and will likely result in a legal challenge if they are applied to personnel decisions.

It may also be possible for employers to take action for off-duty use where an employer has a work rule that prohibits employees from engaging in a violation of federal law.  Some agencies have rules that prohibit employees from engaging in conduct that violates “federal, state, and local laws.”  However, given the express language of an Illinois statute which seems to provide exculpation for such conduct (with respect to off-duty cannabis usage), action based of a violation of federal law would almost certainly result in legal action with unclear results.

The Chiefs and Sheriffs are seeking to change the law in a “trailer bill” so that law enforcement can prohibit intentional off-duty use.

2.       What rights do employers have?

Section 10-50.  Employment; employer liability:

“(a) Nothing in this Act shall prohibit an employer from adopting reasonable zero tolerance or drug free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call provided that the policy is applied in a nondiscriminatory manner.

(b) Nothing in this Act shall require an employer to permit an employee to be under the influence of or use cannabis in the employer's workplace or while performing the employee's job duties or while on call.

(c) Nothing in this Act shall limit or prevent an employer from disciplining an employee or terminating employment of an employee for violating an employer's employment policies or workplace drug policy.”

ENFORCEMENT AND TRAINING ISSUES 

3.       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.   

4.       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 do not have someone on that task force at this time, but we asking that the trailer bill put us on that task force.

5. 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.

6.       You mentioned a “trailer bill” above. What changes in the law are the Chiefs and Sheriffs asking for right away?

We are in discussion with the bill sponsors and governor’s office. They will not revisit the entire bill, but they are open to fixing some things in the law that are technical in nature and will help with smoother implementation. With that in mind, here is what we hope to change as soon as possible – but there are no guarantees our issues will be heard:

    • Prohibit off-duty use for law enforcement
      As written now, the law makes it difficult, even illegal, for a law enforcement agency to prohibit off-duty use. We want that option to be clear, with new language. There will be considerable problems if an officer uses cannabis off-duty and would still have THC in one’s system when involved in a serious use-of-force incident or officer-involved shooting. We want the ability to restrict intentional use for sworn officers.

    • Include Chiefs, Sheriffs on DUI Task Force
      Please add the Illinois Association of Chiefs of Police and Illinois Sheriffs’ Association with official appointments to the DUI Task Force, which is being overseen by the Illinois State Police. That task force will consider such critical issues as saliva tests, and we want to be part of the discussion.

    • Clarify definition of “possession”
      The law allows possession of 30 grams of raw cannabis; cannabis-infused product or products containing a total of no more than 500 mg of THC; and 5 grams of cannabis product in concentrated form. Was your intention and or or? We suggest not allowing possession of the maximum amounts of each type.  The restrictions of vehicle transport (container type and limit) should apply to all transport.

      Also the law seems to allow smoking cannabis on front porches. Was that the intention? We seek clarification in the “public place” language.

    • Possession for youth
      The law makes possession for youth a civil offense. We believe this should be strengthened so that use by youth is penalized similar to the way alcohol use results in more severe penalties.

    • Expungement questions and issue
      After a cannabis offense is expunged:
    • How does that that relate to other charges in the same incident? How can records with multiple offenses be expunged if they are on paper, microfilm or microfiche? The other record needs to be preserved.
    • How can you determine if a person qualifies for a cannabis program if there is no longer a record of their conviction?
    • Language should be added to remove liability from law enforcement for unintentional or inadvertent failure to comply.
7.       What are the possession limits?
  • For Illinois residents who are 21 years or older:
  • 30 grams of raw cannabis;
  • Cannabis-infused product or products containing a total of no more than 500 mg of THC; and
  • 5 grams of cannabis product in concentrated form;
  • Non-residents who are 21 year of age or older are limited to half of possession limit

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.

8.       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.

9.       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.

10. 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.

11.   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.  But growing marijuana plants outdoors is not permitted.

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.

12.   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 and not a violation of the law. We suggest that a person file a complaint with the landlord.

13.   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. 

14.   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]

15.   What does the new law say about paraphernalia?

Nothing. Enforcement with regard to paraphernalia does not change.

EXPUNGEMENT

16.   What are the basics about the expungement process?

Sorry, this response coming soon. This is complicated and technical.

17.   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:

  1. one year or more has elapsed since the date of the arrest or law enforcement interaction documented in the records 
  2. no criminal charges were filed relating to the arrest or law enforcement interaction or criminal charges were filed and subsequently dismissed or vacated or the arrestee was acquitted

"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.

18.   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:

  1. Records created prior to the effective date of the Act, but on or after Jan. 1, 2013, shall be automatically expunged prior to Jan. 1, 2021.
  2. Records created prior to Jan. 1, 2013, but on or after Jan. 1, 2000, shall be automatically expunged prior to Jan. 1, 2023.
  3. Records created prior to Jan. 1, 2000, shall be automatically expunged prior to Jan. 1, 2025.

19.   What about 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.

20.   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. 

21.   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

22.   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, and the Department of Revenue has not released JCAR rules that would provide guidance to municipalities.

The amount that local governments will receive for law enforcement cannot be known at this time. The law says that 8% of revenue  is for law enforcement – but that means 8% of whatever is left after funding is distributed to numerous state agencies responsible for oversight and administration of the new law. 

LOCAL CONTROL

23.   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. Many municipalities are now having this conversation. 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. These limits must be reasonable and may not conflict with the requirements of the Act. 

24.   Can local governments permit on-site consumption at private businesses within their municipalities?

Public consumption was not supposed to be allowed, and the law says consuming marijuana is not allowed in any place where smoking is already banned under the Smoke Free Illinois Act. But there is a contradiction in the new law, which also says local governments can indeed decide whether to permit on-site consumption at businesses. We are seeking clarification about this. 

25.   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. 

26.   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
Illinois Sheriffs’ Association

Ed Wojcicki, Executive Director
Illinois Association of Chiefs of Police