For purposes of sealing, there’s an important distinction between possession of cannabis with intent to deliver and possession of controlled substance with intent to deliver

As the newly revised Illinois Criminal Identification Act presently reads, a person convicted of felony Class 3 possession of cannabis with intent to manufacture or deliver must petition the Illinois Prisoner Review Board for a certificate of eligibility to seal before preparing the standard Petition to Seal in the court of conviction, whereas an individual convicted of felony Class 3 possession of controlled substance (i.e., anything other than marijuana) with intent to manufacture or deliver can directly petition the court for his or her conviction to be sealed. Both of these offenses were previously not eligible for sealing relief until Public Act 098-0142 changed that, along with expanding other convictions eligible for sealing, as discussed in a previous blog entry.

I came across this illogical discrepancy while researching for a new client; I must have re-read the statutes, proposed legislation and legislative history four or five times before I realized that indeed, this is how the new law reads. I consulted with various colleagues who are extremely learned in this area of the law and sure enough, the effect of the language within the statute is to make the sealing process more difficult for someone with a possession of cannabis conviction with intent to manufacture or deliver than someone with a possession of heroin, ecstasy or cocaine, for example, conviction with intent to manufacture or deliver.

Before I became too disheartened with our state’s laws on this subject, I discovered that the legislature is already in the process of amending the newest version of the Illinois Criminal Identification Act to rectify this nonsensical result. Senator Kwame Raoul introduced Illinois Senate Bill 2941 on February 4, 2014 to amend the current law on sealing to allow for Class 3 convictions for possession with intent to manufacture or deliver cannabis to be addressed directly at the court level through a Petition to Seal, without the need of first obtaining a certificate of eligibility from our state’s Prisoner Review Board. I am hopeful this proposed legislation passes easily and quickly and soon becomes law in Illinois. The expungement and sealing laws, in my opinion, are already overly complicated and having a hair-splitting substantive distinction between possession with intent to manufacture or deliver of one type of drug versus another simply makes no sense at all. For now, however, if you do have a conviction for possession of cannabis with intent to manufacture or deliver you will need to petition the Illinois Prisoner Review Board for the above-referenced certificate of eligibility to seal before proceeding with your Petition to Seal that conviction. I strongly urge you to contact an attorney experienced in the field of criminal records laws to discuss the particulars of your situation.