The Law Offices of William Margolin

How Is A Drug Charge Determined To Be A Misdemeanor Or A Felony?


Two issues determine if a drug charge is either a misdemeanor, or felony. The weight of the drugs and the intentions of the individual, if the person are intending to possess them for his own use that is always going to be a much lighter sentence and crime. If the person has the same amount of drugs, whether it is cannabis, or intends to distribute it, it is always going to be a severe penalty, or crime. The general rule is that whatever the classification is for possession only, if you have that same amount of weight with possession with intent to deliver, or the actual delivery of it is one level up. Possession is one thing, and possession with intent, would be one level above that.

Those are the two things that make the determination if it is a misdemeanor, a felony. The severity of the case comes into play with how much the drugs weigh. The question is the intention of the individual when he was caught with possession.

What Are The Penalties Associated With Possession and Possession With Intent To Distribute Charges?

The majority of people are not distributing, or possessing drugs, with intent to deliver drugs, they are charged with possession. In the state of Illinois, the most common possession charge at least for illegal controlled substances, such as cocaine, heroin, methamphetamines, and less than 15 grams of the substance containing cocaine or heroin, is called a Class 4 felony. Under Illinois law, this is punishable by up to three years in the Illinois Department of Corrections, or prison. However, the law does have a special provision for first time offenders called 4 10 probation.

A 4 10 is probation in Illinois, for first time offenders of a Class 4 felony. Any other drug felonies that fall under a 4 10 probation, and less than 15 grams of cocaine, then the intent can be shown you were just planning on using it for yourself. You were not dealing, so you are eligible for this 4 10 probation. This 4 10 probation actually means that for two years, if you stay out of trouble, do drug, and alcohol counseling, a minimal amount of public service, pay minimal fines, then the law states that after two years the charges are dismissed. In the state of Illinois, the minimal fine is $500 with court costs.

It is the same if you stay out of trouble for two years, do minimal amount of programs, and then the felony charge is dismissed. As it relates to third offenses, it is an open-ended type of question from this perspective. The more drug offenses you have, the more severe the penalty is going to be if the prosecution can prove the case. As I mentioned before, that delivery, or intent to deliver is a much stiffer penalty. The law says under some circumstances, if you have had a couple of severe type felony charges, then you are not even eligible for probation, which means you must go to prison.

Many times, you will have a charge in and of itself. If you have never been arrested for that charge, it is a probation-able charge. If you are guilty, you get probation, no jail, but if you have a couple of those in your criminal record, then it makes this particular charge non-probation-able, even though you had none in the past, it is probation-able. In the state of Illinois you cannot go to prison for any less than one year, and it goes from one year to a lifetime sentence for serious crimes other than what they call a calculated drug conspiracy. There are no drug charges that have a lifetime sentence in Illinois.

Even with a drug conspiracy, it is not lifetime. It is not like a murder charge, where you may get life without the possibility of parole. Your history is taken into consideration in terms of what the overall sentence is going to be.

Are Any Diversion Programs Available For Drug Offenders In Illinois?

I strongly believe in diversion programs, because for a first time offender, possibly even a second time individual, there is an alternative to having a criminal conviction on record. We want to give somebody who makes a “mistake” that this particular event does not affect his or her lives forever. In today’s society, having a criminal conviction, let alone a felony conviction on your record, is a damning prospect.

Every place you apply for a job, school, they do a records check, even if you apply for a loan, any type of security clearances, they will check on you. You would hate to have a situation when you were younger, affects you later on in life. As I mentioned, supervision, or this type of 410 probation keeps your record spotless after one or two years, as long as you successfully complete the programs I think are good, but it all comes down to the person making a mistake once possibly, two times.

Once, we had a situation where someone had been arrested for the same thing several times. There was history there, and the court looks, as this is a pattern of a criminal lifestyle, and not a mistake. If a person is motivated, and they feel like they screwed up and they never want to be in this position again, then these special probations, these alternative sentences are an excellent remedy. Illinois has expanded these alternative or second based probations to include different types of theft charges nowadays.

Under the Illinois compiled statutes, which are the Illinois criminal law, there is a special section, which deals with all the different types of offenses, if the person stays out of trouble, and completes these special types of probation, and then their record is wiped clean.

For more information on Misdemeanor And Felony Drug Charges, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (847) 623-2424 today.

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