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I got arrested for possessing cocaine. What is going to happen?

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Lewis Gainor

Criminal defense attorney in Chicago concentrating in felony and DUI defense.

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Possession of cocaine is a serious criminal offense in Illinois. Cocaine is not like marijuana, which is generally a misdemeanor offense.

It would take a lot of marijuana to get charged with a felony. Possession of 30 grams of marijuana or less is a misdemeanor offense, but anything more than that is a felony. 30 grams is equal to just over one ounce of pot.

But any amount of cocaine is a felony. There is no misdemeanor charge for possession of cocaine in Illinois, regardless of how small an amount.

Less than a gram? Felony. Residue? Felony.

This may seem disproportionate, like the punishment doesn't fit the crime. But state lawmakers won't be campaigning on a promise to reduce penalties for cocaine any time soon. Or, at least not until Illinois courts are completely taken over by possession of controlled substance cases. Some may say we are already there, but this is a debate for another time and place.

The difference between a felony and misdemeanor is the sentence. A misdemeanor charge has a maximum penalty of up to one year imprisonment. By comparison, felonies are criminal offenses for which the sentence is more than one year.

The other important distinction is where you would serve your sentence. All misdemeanor sentences are served in the county jail. Felony sentences are served in the Illinois Department of Corrections. Persons in custody in the county jail are generally serving a sentence for a misdemeanor offense or awaiting trial.

Possession of cocaine is generally a Class 4 felony. The legal term for the offense is possession of a controlled substance. In Chicago courts, the acronym is PCS (possession of a controlled substance). In other counties, the offense is called UPCS (unlawful possession of a controlled substance), but we're all talking about the same thing.

A Class 4 felony has a potential sentence of 1-3 years in the Department of Corrections. However, it is a probationable offense, meaning the court can sentence the defendant to probation rather than imprisonment.

The fine can be $25,000. However, I've never seen anyone get a fine of even $1,000 for this type of offense.

The minimum sentence for a felony is a conviction. A felony conviction cannot be expunged, and generally cannot be sealed, either. It is a permanent criminal record. Moreover, a felony conviction will disqualify all other offenses on your background from expungement.

There is a special type of probation that is available to first offenders. It is called 410 probation, or, 1410 probation. What everybody is referring to is the section of the Illinois Controlled Substances Act that allows for probation for first-timers.

If you've had no previous controlled substance cases, you're eligible for 410 probation.

410 probation is a 24-month sentence of probation that results in the dismissal of the charge without a conviction. 410 probation can be expunged.

The court can sentence a first offender to 410 probation regardless of whether the State objects. The sentence requires substance abuse treatment and 30 community service hours.

If the amount of cocaine was 15 grams or more, then you're looking at a different case. 15 grams or more of coke is a Class 1 felony, which is 4-15 years prison.

410 probation is available for this offense, but it is not a certainty.

Every arrest for cocaine will result in a bond hearing before a judge. The judge will set a bond amount that you'll need to post in order to get out of jail. If you're unable to post the money, then you'll be held in jail until your next court date.

The bond amount varies so much it is almost impossible to predict. In some counties, the bonds are set with jail overcrowding as the concern. That is, the bond will be low because there's no room in the jail.

Bond will always be 10% of a certain amount. A $15,000 cash bond requires $1,500 cash to walk. I would estimate that is a typical bond in the Chicago collar counties.

The next court date is a preliminary hearing. The purpose of the hearing is to determine whether there is probable cause to support the charge. The preliminary hearing is not about guilt or innocence - just probable cause.

You should get a lawyer as soon as possible because the preliminary hearing is a chance to win the case on a finding of no probable cause.

There is an urban legend that Cook County judges won't find probable cause for less than one gram of coke. Urban legends make people believe funny things.

So go get a lawyer on the phone. You're going to need one.

Lewis Gainor, the author of this blog, is a lawyer whose practice is devoted exclusively to criminal defense. If you have been charged with a felony offense in the Chicago area, call him immediately at (224) 688-9118 for a free, confidential review of your controlled substance case.



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