NOTE: There are updates to this page since original posting to explain the impact of the Cannabis Regulation and Tax Act (410 ILCS 705 et seq.). After this Act legalized marijuana for recreational use on January 1, 2020, there were corresponding changes to the Illinois laws governing possession of a controlled substance.

Possession of a Controlled Substance is a felony criminal offense under Illinois law. The penalties for this offense are set out in the Illinois Controlled Substances Act (720 ILCS 570/1 et seq). Police officers, lawyers, and judges refer to the offense of unlawful possession of a controlled substance, often abbreviated as “UPCS.” In Cook County, the abbreviation is usually “PCS.”

Before the Cannabis Regulation and Tax Act became effective, possession of cannabis (commonly known as marijuana) was almost always a misdemeanor offense. Since passage of this Act, however, it is no longer a crime to possess marijuana within legally established limits. See 410 ILCS 705/10-10.

By contrast, possession of a controlled substance is a felony offense, which means the sentence involves incarceration for one year or more. The typical possession of a controlled substance charge is a Class 4 felony offense for possession of cocaine, although heroin is becoming much more prevalent recently.

Possession of a Controlled Substance Sentencing & Penalties

A Class 4 felony has a possible sentence of 1-3 years in the Department of Corrections (prison). The fine can be up to $25,000. Most Class 4 felony drug charges permit the court to sentence the defendant to probation and substance abuse treatment, instead of a prison sentence.

All controlled substances are classified by the Act as either Schedule I, Schedule II, Schedule III, or Schedule IV substances.

A Schedule I controlled substance is defined as a substance that: 1) has high potential for abuse; and 2) has no currently accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision. See 720 ILCS 570/203.

The other types of controlled substances, Schedule II, III, and IV, are considered to be accepted for medical use in some manner. But these substances can still have a high potential for abuse.

Which Drugs Are Considered Controlled Substances?

The following are considered Schedule I controlled substances (drugs without accepted medical use):

• cocaine
• methamphetamine
• heroin
• ecstasy
• psychedelic mushrooms
• LSD
• peyote

Generally, all recreational drugs or “street drugs” are considered Schedule I controlled substances without accepted medical use.

Possession of cocaine constitutes probably 80% of all possession of controlled substance cases.

After Schedule I controlled substances, Illinois law makes possession of legal drugs a criminal offense for unauthorized use. In other words, possession is against the law without a physician’s prescription or similar authorization.

The following are pain medications for which possession without a doctor’s note can result in felony charges: Codeine, Methadone, Morphine, Percodan, Vicodin, and Percocet. These pills have an accepted medical use but are highly addictive.

Certain cough syrups may contain controlled substances and may require a doctor’s prescription. Cough syrups that contain Codeine are considered addictive. Examples of cough syrups that contain Codeine include Drixoral Cough Liquid Caps, Robitussin AC, Dectuss, Phenergan with Codeine, Phensedyl, and Pherazine with Codeine.

Tranquilizers are used to treat anxiety and generally require a doctor’s prescription. Possession of any of the following without a prescription can result in felony charges: Xanax, Ativan, Valium, and Librium.

Sedatives are used to induce sleep. Most sedatives require a physician’s prescription. Possession of a sedative, such as Nembutal, Seconal, Amytal, Restoril, Dalmane, Halcion, Placidyl, Miltown, Doriden, Noludar, or Quaaludes, without a prescription can result in a Class 4 felony offense.

Some amphetamines are prescribed for weight loss and hyperactivity disorders, such as attention deficit disorder or “ADD.” The following prescribed drugs can result in a criminal charge: Ritalin, Cylert, and Adderall.

Finally, possession of opiates is a felony criminal offense. OxyContin is the common name of the opiate oxycodone. Possession of oxycodone without a prescription is a felony offense.

Possession of cocaine or heroin is a Class 4 felony as long as the weight of the substance is less than 15 grams. If the weight is 15 grams or more, then the offense is enhanced to a Class 1 felony, which can involve 4-15 years in prison.

Is Probation Possible with Possession of a Controlled Substance?

Probation is possible for both a Class 4 and Class 1 felonies. But the critical issue is that a defendant who is on probation, if a violation occurs, is subject to re-sentencing. Re-sentencing for a Class 4 felony is 1-3 years. But a Class 1 felony can lead to 4-15 years in prison for a violation of probation. Thus, the issue for defense attorneys is to try to get a reduction of the charge to a lower-class felony.

The primary issue in the defense of possession of a controlled substance is actual and knowing possession. If the defendant was seated in a vehicle as a passenger, and the drugs were found on the floor, then the question is whether the defendant was in possession or someone else.

Possession is defined as physical dominion and control over something. That is, you are in possession of something if it is in your hand or locked in a safe for which you have the key.

Controlled substance cases are many times entirely about circumstantial evidence. The courts recognize constructive possession where circumstantial evidence shows you were in possession.

Constructive possession generally is found where a person knows of the presence of a controlled substance and has intent and capability to maintain control and possession of it or has exclusive control of the area where the controlled substance was located.

Another equally important issue in a controlled substance case is how the police found the drugs. Generally speaking, the police need a search warrant or a person’s consent to search a residence. Though the police can frisk a person if they reasonably believe that person to be armed. And the police can search a vehicle without a warrant, if they have probable cause.

The facts of each case need to be scrutinized. In the experience of the author, a search almost never goes down the way the police describe it in the police report.

At one time, the Chicago Police Department specifically trained its officers to approach people on the street and pat them down without warning or probable cause. If they got lucky and found a bag of crack cocaine, they would go back to the station and write up a report saying the defendant saw the police coming, got scared, and dropped the bag of cocaine on the street as though it belonged to someone else.

After a hearing hundreds of police officers testify in this way, Cook County judges took notice. Eventually, these judges started finding a lack of probable cause in these cases, resulting in the dismissal of hundreds of PCS charges.

It was once standard that possession of less than a gram of cocaine would result in a finding of no probable cause in Cook County. But this is not the case anymore. Now, it seems that judges in Cook County are like judges anywhere else in the state. They are reluctant to make a finding of no probable cause.