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Legalized But Criminalized: David Gets Stuck in Illinois’ Cannabis Contradiction

In a recent interview, I had the opportunity to speak with a YouTube content creator who shared his experience of getting arrested in Illinois for a cannabis-related offense. The episode, which is currently available for streaming, details the events surrounding his arrest, which took place after a police raid on his property.

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The individual I spoke with goes by David. David hosts two YouTube channels: one dedicated to gardening, featuring everyday vegetables and cannabis cultivation, and the other focused on police body camera footage analysis, highlighting interactions and conduct by law enforcement officers. During the interview, David revealed his intention to release footage from his own raid and arrest in the near future.

David tells me that his passion for gardening and content creation, particularly featuring cultivating cannabis for personal use, led him down an unexpected path when law enforcement officers raided his home under the suspicion of running a large-scale cannabis operation. He suspects that he may have been doxxed and/or swatted. Doxxing is the practice of revealing private information about an individual online without their consent, often with malicious intent. In January, I had the opportunity to discuss this issue with Chicago Tribune journalist Jeremy Gorner, who highlighted that doxxing is now illegal in the state of Illinois. Swatting is a dangerous practice which usually involves an individual filing a false report to the police with the express purpose of luring them to a location.

David told me that the officers confiscated his personal stash and gardening equipment, including grow lights and a rosin press. The situation escalated as he found himself facing serious felony charges, including manufacturing and possession of cannabis, despite his compliance with state laws governing medical cannabis use and possession. David described months of legal proceedings, with court dates repeatedly postponed, adding to the emotional and financial strain on him and his family.

“They were trying to charge me with two felonies first being manufacturing [for my rosin press]. and the second [was] a class three felony… the second was going to be possession over 100 grams for the weed I had in my in my personal box here because it was not in a dispensary container”– quote from interview with David

I found this aspect of David’s story particularly intriguing, especially considering his assertion that he was a registered medical cannabis patient in Illinois at the time of his arrest. It’s noteworthy because I believe David should not have been charged with exceeding his possession limit. In the past, lawyers have informed me that medical cannabis patients do not have possession limits at home, as long as quantities exceeding 30 grams are “secured within the home”. It is also worth nothing that there is no requirement in the law to have the cannabis in a “dispensary container”. Cannabis must be in a container that is child-resistant, sealed(or closed), and odor-proof.

This is the language of the law that attorneys have pointed me towards to assure me that possession limits do not exist at home.

In the past, I reached out to the state of Illinois for clarification on this matter. Although they emphasized that they were not providing legal advice and intended to consult their legal team, they indicated that they would interpret the sections in the same manner as my attorneys have.

Question #7(from me, Cole Preston):Possession limits – In the past, attorneys have told me that the law allows you to cultivate and possess as much cannabis as you want at home[if you are a registered medical cannabis patient in the state of Illinois], provided that you stay within your 5 plant limit as a medical cannabis patient and provided that all amounts that exceed 30 grams are “secured in the home”. Is this a correct interpretation of the law? In other words, is Illinois a “keep what you grow” state? If not, should medical cannabis patients dispose of all quantities that exceed their possession limit?Answer #7(from Illinois Cannabis Regulation Oversight Office): I want to stress that this is not legal advice, but I would interpret both sections as you did. I will check with our legal team, but I can’t promise a definitive answer. I strongly recommend that individuals with questions about the legality of specific behavior consult with an attorney.This excerpt is from a follow up Q&A that I had with Illinois Cannabis Regulation Oversight Office.

While it sounds like David found himself in trouble due to his homegrown cannabis, it’s important to note that home-growing is not the only way that somebody might find themselves possessing an excess of 30 grams of cannabis. Registered Medical Cannabis patients are allotted an amount of 2.5 ounces of cannabis for every 2 weeks. This means that most registered medical cannabis patients can legally procure at least 5 ounces a month(~140grams) from medical cannabis dispensaries.

As detailed by the Illinois Medical Cannabis Pilot Program Annual Report to the General Assembly, the data shows a significant number of patients have been granted waivers to increase their allowable cannabis amount beyond the standard limit. In 2018, a total of 249 waivers were granted, with the increased allowable medical cannabis requested ranging from 2.6 ounces to 14 ounces. Similarly, in 2019, 455 waivers were granted, with requested increases ranging from 2.6 ounces to 15 ounces. The trend continued in 2020, with 608 waivers granted, and requested increases ranging from 2.6 ounces to 36 ounces. The 2021 report detailed ~701 waivers were granted with requested increases ranging from 2.8 ounces to 15 ounces.

As mentioned earlier, with a standard allotment, a medical cannabis patient can purchase approximately 140 grams of cannabis per month from medical cannabis dispensaries. These figures indicate that all medical cannabis patients require quantities exceeding the adult-use possession limit (30 grams). Medical cannabis patients are legally allowed to purchase larger quantities of cannabis with recommendations from their physicians and approval by the state. With all of this considered, it still remains unclear to me why David found himself in legal trouble. Whether he cultivated the cannabis or not, possession in excess of 100 grams of cannabis should not warrant legal intervention.

Irrespective of medical cannabis status, I believe that possession limits are an arcane concept. You might be wondering: why do we even have possession limits? Who do these limits protect?

“Safety was a critical dimension that needed to be addressed for Illinois families. As a parent myself, I had to know that all Illinois children would be safe if we moved forward with this. We brought together medical experts and stakeholders like the Children’s Hospital and Illinois Public Health Institute’s to develop regulations that protect the health of our children and our families. Adult-use cannabis will only include those 21 and over. The program also includes regulation on potency and possession limits.”Illinois Governor J.B. Pritzker speaks about possession limits, (May 4, 2019)

The state of Illinois seems to make the case the possession limits help to protect the children. It’s important to note that possession limits with a graduated set of penalties began as a concept in Illinois in 1978.

In 1978, the General Assembly crafted a law that gave “wide latitude in the sentencing discretion” to the courts and established penalties in a sharply rising progression based on the amount of substances containing cannabis involved in each case. This law is known as the Cannabis Control Act of 1978 (CCA) and is largely still in effect today.

Lawyers tell me that the CCA serves as the primary enforcement mechanism for the system established in 2019 to tax and regulate cannabis from a limited number of state-approved operators. In short, cannabis criminalization continues in Illinois due to the limited scope of the 2019 policy that is known as the Cannabis Regulation and Tax Act (CRTA).

You can watch a lawyer discuss how the state of Illinois and licensed operators have a vested interest in maintaining possession limits as a concept in this video.I also hosted this conversation with legal professionals where the topic of possession limits came up.

David informed me that he reached an agreement with prosecutors, resulting in his pleading guilty to the charge of possession over 100 grams of cannabis. However, the ordeal did not conclude there. David recounted that the Department of Children and Family Services (DCFS) launched an investigation into allegations of neglect and abuse stemming from the raid, despite the absence of evidence supporting such accusations, intensifying an already taxing situation. Specifically, David told me that DCFS raised concerns about his use of a locking system on the door of his grow room, questioning whether the lock was employed as a tool of abuse. David told me that his intention was simply to comply with the law. David also informed me that he is being required to seek out a “drug evaluation” as part of his please deal.

If you reference the home cultivation law, you’ll note that the guidelines specify that “cannabis cultivation must take place in an enclosed, locked space.” Note: some guidelines have been provided by the Illinois Cannabis Regulation Oversight Office in the past, they are available below.

Despite encountering obstacles in accessing footage of his arrest, David tells me that he remains determined to share his story with his audience on YouTube, hoping to raise awareness about the complexities of cannabis laws and law enforcement practices in Illinois.

Arrests continue in Illinois despite its legal status because the state’s “legalization” policy, implemented under the Cannabis Regulation and Tax Act (CRTA) in 2019, failed to address key issues established by the Cannabis Control Act of 1978. Rather than decriminalizing cannabis across the board, the legislation merely created narrow exceptions, leaving many aspects of possession, use, and cultivation subject to serious legal repercussions. This lack of comprehensive reform perpetuates the enforcement of outdated laws and regulations. In short, cannabis criminalization continues as a direct result of the shortcomings of the CRTA.

“Although the Illinois Cannabis Regulation and Tax Act of 2019 brought recreational adult-use cannabis to Illinois, its failure to eliminate the evils of prohibition has left the promise of cannabis reform unfulfilled.”– Evan Bruno, The Unfinished Work of Cannabis Reform in Illinois

So, what is meaningful cannabis reform? To loosely quote defense attorney Evan Bruno, meaningful cannabis reform begins with the recognition that personal cannabis use, possession, and cultivation need not be a criminal issue.

Below are the home-grow guidelines that were presented by the Illinois Cannabis Regulation Oversight Office (CROO) during a Medical Cannabis Working Group meeting in June 2022. As you can see, I was invited to speak at this event by the Illinois Cannabis Regulation Oversight Office. You can see the file below or you can find it on the Illinois CROO website here.


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