HB1205 103RD GENERAL ASSEMBLY

LRB103 00018 RLC 45120 b

103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
HB1205

Introduced 1/31/2023, by Rep. Curtis J. Tarver, II

SYNOPSIS AS INTRODUCED:

720 ILCS 550/4	from Ch. 56 1/2, par. 704
725 ILCS 5/108-1	from Ch. 38, par. 108-1
725 ILCS 5/114-12	from Ch. 38, par. 114-12

Amends the Cannabis Control Act. Provides that, in calculating the weight of cannabis for the purpose of imposing a penalty against an individual, the weight of the amount of cannabis that may be legally possessed by the individual under the Cannabis Regulation and Tax Act or the Compassionate Use of Medical Cannabis Program Act shall be subtracted from the total weight used in determining the offense class or applicable fine. Amends the Code of Criminal Procedure of 1963. Provides that if a motor vehicle is driven or occupied by an individual 21 years of age or over, a law enforcement officer may not search or inspect the motor vehicle, its contents, the driver, or the passenger solely because a law enforcement officer or a police dog trained in the detection of cannabis smelled that cannabis is present in the private motor vehicle. Provides that a defendant aggrieved by such an unlawful search and seizure may move the court for the return of property and to suppress as evidence anything so obtained.

A BILL FOR

AN ACT concerning criminal law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Cannabis Control Act is amended by changing Section 4 as follows:

(720 ILCS 550/4) (from Ch. 56 1/2, par. 704)

Sec. 4. Except as otherwise provided in the Cannabis Regulation and Tax Act and the Industrial Hemp Act, it is unlawful for any person knowingly to possess cannabis.

Any person who violates this Section with respect to:

(a) not more than 10 grams of any substance containing cannabis is guilty of a civil law violation punishable by a minimum fine of $100 and a maximum fine of $200. The proceeds of the fine shall be payable to the clerk of the circuit court. Within 30 days after the deposit of the fine, the clerk shall distribute the proceeds of the fine as follows:

(1) $10 of the fine to the circuit clerk and $10 of the fine to the law enforcement agency that issued the citation; the proceeds of each $10 fine distributed to the circuit clerk and each $10 fine distributed to the law enforcement agency that issued the citation for the violation shall be used to defer the cost of automatic expungements under paragraph (2.5) of subsection (a) of Section 5.2 of the Criminal Identification Act;

(2) $15 to the county to fund drug addiction services;

(3) $10 to the Office of the State's Attorneys Appellate Prosecutor for use in training programs;

(4) $10 to the State's Attorney; and

(5) any remainder of the fine to the law enforcement agency that issued the citation for the violation.

With respect to funds designated for the Illinois State Police, the moneys shall be remitted by the circuit court clerk to the Illinois State Police within one month after receipt for deposit into the State Police Operations Assistance Fund. With respect to funds designated for the Department of Natural Resources, the Department of Natural Resources shall deposit the moneys into the Conservation Police Operations Assistance Fund;

(b) more than 10 grams but not more than 30 grams of any substance containing cannabis is guilty of a Class B misdemeanor;

(c) more than 30 grams but not more than 100 grams of any substance containing cannabis is guilty of a Class A misdemeanor; provided, that if any offense under this subsection (c) is a subsequent offense, the offender shall be guilty of a Class 4 felony;

(d) more than 100 grams but not more than 500 grams of any substance containing cannabis is guilty of a Class 4 felony; provided that if any offense under this subsection (d) is a subsequent offense, the offender shall be guilty of a Class 3 felony;

(e) more than 500 grams but not more than 2,000 grams of any substance containing cannabis is guilty of a Class 3 felony;

(f) more than 2,000 grams but not more than 5,000 grams of any substance containing cannabis is guilty of a Class 2 felony;

(g) more than 5,000 grams of any substance containing cannabis is guilty of a Class 1 felony.

In calculating the weight of cannabis for the purpose of imposing a penalty against an individual under this Section, the weight of the amount of cannabis that may be legally possessed by the individual under the Cannabis Regulation and Tax Act or the Compassionate Use of Medical Cannabis Program Act shall be subtracted from the total weight used in determining the offense class or applicable fine.

(Source: P.A. 101-27, eff. 6-25-19; 101-593, eff. 12-4-19; 102-538, eff. 8-20-21.)

Section 10. The Code of Criminal Procedure of 1963 is amended by changing Sections 108-1 and 114-12 as follows:

(725 ILCS 5/108-1) (from Ch. 38, par. 108-1)

Sec. 108-1. Search without warrant.

(1) When a lawful arrest is effected a peace officer may reasonably search the person arrested and the area within such person's immediate presence for the purpose of:

(a) protecting the officer from attack; or

(b) preventing the person from escaping; or

(c) discovering the fruits of the crime; or

(d) discovering any instruments, articles, or things which may have been used in the commission of, or which may constitute evidence of, an offense.

(2) (Blank).

(3) A law enforcement officer may not search or inspect a motor vehicle, its contents, the driver, or a passenger solely because of a violation of Section 12-603.1 of the Illinois Vehicle Code.

(4) If a motor vehicle is driven or occupied by an individual 21 years of age or over, a law enforcement officer may not search or inspect the motor vehicle, its contents, the driver, or the passenger solely because a law enforcement officer or a police dog trained in the detection of cannabis smelled that cannabis is present in the private motor vehicle.

(Source: P.A. 93-99, eff. 7-3-03.)

(725 ILCS 5/114-12) (from Ch. 38, par. 114-12)

Sec. 114-12. Motion to Suppress Evidence Illegally Seized.

(a) A defendant aggrieved by an unlawful search and seizure may move the court for the return of property and to suppress as evidence anything so obtained on the ground that:

(1) The search and seizure without a warrant was illegal; or

(2) The search and seizure with a warrant was illegal because the warrant is insufficient on its face; the evidence seized is not that described in the warrant; there was not probable cause for the issuance of the warrant; or, the warrant was illegally executed; or .

(3) The search and seizure without a warrant was conducted in violation of subsection (4) of Section 108-1.

(b) The motion shall be in writing and state facts showing wherein the search and seizure were unlawful. The judge shall receive evidence on any issue of fact necessary to determine the motion and the burden of proving that the search and seizure were unlawful shall be on the defendant. If the motion is granted the property shall be restored, unless otherwise subject to lawful detention, and it shall not be admissible in evidence against the movant at any trial.

(1) If a defendant seeks to suppress evidence because of the conduct of a peace officer in obtaining the evidence, the State may urge that the peace officer's conduct was taken in a reasonable and objective good faith belief that the conduct was proper and that the evidence discovered should not be suppressed if otherwise admissible. The court shall not suppress evidence which is otherwise admissible in a criminal proceeding if the court determines that the evidence was seized by a peace officer who acted in good faith.

(2) "Good faith" means whenever a peace officer obtains evidence:

(i) pursuant to a search or an arrest warrant obtained from a neutral and detached judge, which warrant is free from obvious defects other than non-deliberate errors in preparation and contains no material misrepresentation by any agent of the State, and the officer reasonably believed the warrant to be valid; or

(ii) pursuant to a warrantless search incident to an arrest for violation of a statute or local ordinance which is later declared unconstitutional or otherwise invalidated.

(3) This amendatory Act of 1987 shall not be construed to limit the enforcement of any appropriate civil remedy or criminal sanction in actions pursuant to other provisions of law against any individual or government entity found to have conducted an unreasonable search or seizure.

(4) This amendatory Act of 1987 does not apply to unlawful electronic eavesdropping or wiretapping.

(c) The motion shall be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion. If the motion is made during trial, and the court determines that the motion is not untimely, and the court conducts a hearing on the merits and enters an order suppressing the evidence, the court shall terminate the trial with respect to every defendant who was a party to the hearing and who was within the scope of the order of suppression, without further proceedings, unless the State files a written notice that there will be no interlocutory appeal from such order of suppression. In the event of such termination, the court shall proceed with the trial of other defendants not thus affected. Such termination of trial shall be proper and shall not bar subsequent prosecution of the identical charges and defendants; however, if after such termination the State fails to prosecute the interlocutory appeal until a determination of the merits of the appeal by the reviewing court, the termination shall be improper within the meaning of subparagraph (a)(3) of Section 3-4 of the Criminal Code of 2012 and subsequent prosecution of such defendants upon such charges shall be barred.

(d) The motion shall be made only before a court with jurisdiction to try the offense.

(e) The order or judgment granting or denying the motion shall state the findings of facts and conclusions of law upon which the order or judgment is based.

(Source: P.A. 97-1150, eff. 1-25-13.)