As of January 1, 2020, Illinois became the 11th state to legalize recreational cannabis. Many regulations remain to be written and there will be many opportunities for courts to interpret the law.
The Cannabis Regulation and Tax Act (the Act) allows people 21 and older to possess up to 30 grams of cannabis flower for recreational purposes. For those that don’t know, 30 grams is roughly the amount of raw cannabis one person can cup in two hands. Further possession limits are no more than 500 milligrams of a cannabis-infused product or 5 grams of cannabis concentrate. That is if you are a resident of Illinois. If not, those limits are halved. Employers and landlords can ban cannabis from their properties and it cannot be smoked or otherwise consumed in public.
One of the areas that will become increasingly litigated concerns driving while under the influence of drugs, in this instance, cannabis. Prior to the State making medicinal marijuana legal, Illinois was what was called a “per se” state, meaning driving with any amount of THC (the active ingredient in cannabis) resulted in the motorist being prosecuted for DUI. With the passage of medicinal marijuana, the State also changed that law and created a limit for the amount of cannabis that can be in a person’s system similar to the blood alcohol content limit of 0.08. When it comes to cannabis, that limit is 5 nanograms in the blood or 10 nanograms in other bodily substances. However, this is only for those with the medical marijuana card. When it comes to recreational use, those limits do not apply. In other words, the recreational user is subject to an under the influence standard. What does it mean to be driving under the influence? Illinois law means that the person is incapable of safely driving. One can expect the proof to be similar in an alcohol DUI case where the motorist did not subject to testing. Currently, the National Highway and Safety Administration (NHTSA) has not developed field sobriety tests to determine if someone is under the influence of cannabis. Most police officers are not trained to recognize symptoms of cannabis impairment which do not always mirror symptoms of alcohol impairment. NHTSA has developed a program for officers to detect drug impairment and that is called a Drug Recognition Evaluation. There are about 40,000 law enforcement officers in Illinois but very few are trained DRE officers, about 159 statewide, or about 0.004%. However, there are three in Macon County. Interestingly, while a person can refuse a field sobriety test when under suspicion of driving under the influence of alcohol without any consequences to his or her license, Illinois law now provides that a motorist who refuses validated roadside chemical testing or standardized field sobriety tests approved by NHTSA will have their license suspended. Currently, no validated roadside testing or standardized field sobriety testing exists.
It is additionally worth noting, that under the Act, persons under the age of 21 may not possess cannabis, and if they do so in a vehicle, the law further provides that their license can be suspended. A parent or guardian who allows a person under the age of 21 to use cannabis on their private property is guilty of a Class A Misdemeanor subject to a minimum fine of $500.00. If death or great bodily harm directly or indirectly results, such as a car crash, that offense is a Class 4 Felony.
There are additional limitations when it comes to recreational cannabis use. A user cannot undertake any task under the influence of cannabis when doing so would constitute negligence, professional malpractice, or professional misconduct. One cannot lawfully possess or use cannabis unless permitted for a qualifying patient or caregiver pursuant to the medical cannabis law in a school bus, on the grounds of any preschool or primary or secondary school, or in any correctional facility. Further, you can’t have it in a vehicle not open to the public unless the cannabis is in a reasonably secured, sealed container and reasonably inaccessible while the vehicle is moving, or in a private residence that is used at any time to provide licensed child care or other similar social service care on the premises.
You cannot use cannabis in a motor vehicle or in any public place or knowingly in close physical proximity to anyone under 21 years of age who is not a registered medical cannabis patient under the Compassionate Use of Medical Cannabis Program Act. In other words, if you have kids under 21, you can’t use in your own house when they are home. Obviously, smoking cannabis in any place where smoking is prohibited is likewise prohibited.
A “public place” means any place where a person could reasonably be expected to be observed by others. “Public place” includes all parts of buildings owned in whole or in part, or leased, by the State or a unit of local government. “Public place” includes all areas in a park, recreation area, wildlife area, or playground owned in whole or in part, leased, or managed by the State or a unit of local government. “Public place” does not include a private residence unless the private residence is used to provide licensed child care, foster care, or other similar social service care on the premises.
When it comes to employment-related issues, employers can adopt 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. This means that many employers probably need to update their drug use and possession policy manual. It will take more than a positive drug test to fire an employee suspected to be under the influence of cannabis while on the job. The law provides that an employer may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee's performance of the duties or tasks of the employee's job position, including symptoms of the employee's speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery; disregard for the safety of the employee or others, or involvement in an accident that results in serious damage to equipment or property; disruption of a production or manufacturing process; or carelessness that results in any injury to the employee or others. If an employer elects to discipline an employee on the basis that the employee is under the influence or impaired by cannabis, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.
Illinois has, of course, addressed this issue and said yes, but with limitations. The cultivator must be an Illinois resident 21 years of age or older and a registered qualifying patient under the Compassionate Use of Medical Cannabis Program Act. Those individuals may cultivate up to 5 cannabis plants that are more than 5 inches tall, per household without a cultivation center or craft grower license.
Cannabis cultivation must take place in an enclosed, locked space. Seeds may be purchased from a dispensary for the purpose of home cultivation. Seeds may not be given or sold to any other person. The plants cannot be stored or placed in a location where they are subject to ordinary public view and reasonable precautions must be taken to keep the plants secure from unauthorized access, including to persons under 21.
Cannabis cultivation may occur only on residential property lawfully in possession of the cultivator or with the consent of the person in lawful possession of the property. An owner or lessor of residential property may prohibit the cultivation of cannabis by a lessee. Cannabis plants may only be tended by registered qualifying patients who reside at the residence, or their authorized agent attending to the residence for brief periods, such as when the qualifying patient is temporarily away from the residence.
A registered qualifying patient who cultivates more than the allowable number of cannabis plants, or who sells or gives away cannabis plants, cannabis, or cannabis-infused products produced under this Section, is liable for penalties as provided by law, including the Cannabis Control Act, in addition to loss of home cultivation privileges as established by rule.
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