Legal Issues In the News

Marijuana in Illinois


Andrew Bequette from the University of Illinois College of Law University of Illinois College of Law

Marijuana has been illegal in the State of Illinois since 1931, but after nearly ninety years of prohibition, on May 31, 2019, Governor J.B. Pritzker signed legislation which legalized recreational cannabis, and marijuana, which is a variety of the cannabis plant.  Illinois is the 11th state to legalize marijuana.

The Illinois Economic Policy Institute estimates up to $1.6 billion dollars in revenue will be created annually in Illinois through legal marijuana sales with $525 million dollars in accompanying tax revenue each year. 

Under the new law, adults 21 years and older will be able to buy and possess a combination of

30 grams of raw cannabis, cannabis-infused product or products containing a total of no more than 500 milligrams of THC (the compound in marijuana which gives it its effect); or 5 grams of cannabis product in concentrated form. Non-residents will be able to purchase half those amounts.

It will continue to be illegal to grow marijuana except that medical marijuana patients can grow up to five plants.  Individuals with medical conditions have been able to purchase and use medical marijuana under certain circumstances in Illinois since 2013.  An organization which can sell medical cannabis may also sell to an individual under 21 years of age with a medical condition in some instances. 

For the most part, individuals will not be able to use cannabis in public.  People will not be able to consume cannabis in public within eyesight of others, on a school bus, on school grounds, in correctional facilities, in a daycare even when in a private residence, or near anyone under 21 years of age.  It will not be permitted to smoke cannabis in any location where smoking is not otherwise allowed.  Universities and colleges can prohibit cannabis use on their property.

It will still be unlawful to use cannabis in a motor vehicle, but it can be possessed in a vehicle not open to the public if the cannabis is in a secured, sealed, inaccessible container while the vehicle is moving.

Despite these restrictions, an effort is being made to find a balance.  For example, in Chicago, Mayor Lori Lightfoot and Police Superintendent Charlie Beck have said that no residents should be arrested or ticketed solely for using cannabis in their own backyard or on their balcony.

For those already serving sentences for cannabis or marijuana related convictions, there will be a process for seeking pardons and the expungement of convictions.

Employers are still allowed to maintain a zero-tolerance policy to maintain a drug free workplace or for employees who may be on call.  Employers can engage in drug testing under certain circumstances to ensure employees are not using cannabis while on the job.  Public employers can require that police officers, correctional officers, probation officers, paramedics, or firefighters not use cannabis even when off duty.

It will still be illegal to use or be under the influence of cannabis or marijuana while driving.  The legislature has set a level of THC which can exist in a person’s blood at which the person will be presumed to be under the influence of cannabis.  A lower level of THC can be used to consider whether a person is under the influence of cannabis even if that person is not presumed to be under the influence.  Failure to submit to a chemical test at the request of law enforcement will result in sanctions including the suspension of a driver’s license.

Despite shifting attitudes in Illinois, cannabis is still illegal as a matter of federal law.  The federal government classifies marijuana as a Schedule 1 drug, which is the same category as heroin.  Possession or use of cannabis can compromise a person’s ability to reside in subsidized public housing.  Non-US citizens such as undocumented individuals could face deportation or other immigration issues if they possess or use cannabis.  Individuals served by the veteran’s administration cannot access medical marijuana through the VA and risk some of their veteran’s benefits if they use cannabis.  Due to marijuana being illegal federally, many banks will not accept funds which can be linked to cannabis sales.

Under Illinois law, each municipality, city, or village can enact an ordinance to prohibit the sale of cannabis with their limits.  Some municipalities which have chosen affirmatively to allow the sale of cannabis in their limits include Carbondale, Champaign, Chicago, Collinsville, Danville, Edwardsville, Effingham, Joliet, Mt. Vernon, Peoria, Rockford, Springfield, and Urbana.  Some municipalities which have chosen to ban the sale of cannabis include Decatur, Naperville, and Savoy.  However, no municipal entity can ban the possession or use of cannabis within its limits. 

Even if a municipality chooses to allow the sale of cannabis, that does not mean cannabis will be sold in that municipality.  Each facility, or dispensary, selling cannabis has to be licensed by the state and those licenses will be limited so obtaining a license will be competitive.  Some municipalities will continue to be without a dispensary selling cannabis even if that municipality is willing to allow cannabis to be sold.

Questions remain about how all of this is going to work and it is likely that there will continue to be legislative updates in the future to address issues that arise.  For now, we are  left to wonder, as always, how long it will take for government to fill the pot holes.