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  • Writer's pictureAnn Marie Lampariello

First Drug Possession Arrest?

Updated: Jul 30, 2020

You may be eligible for a special sentence for first-time felony drug offenders to avoid a felony conviction on their record. This type of probation is commonly known as Section 410 or Section 1410 Probation (720 ILCS 570/410). To be eligible for this type of probation, you cannot have previously been convicted of, or placed on probation or court supervision, for any criminal offense related to cannabis or illegal drugs. If you are eligible for this type of Probation, here’s how it works:

  1.       At the time of sentencing, you will have to plead guilty to the charges. The court will accept your guilty plea but will not enter judgment. The court will place you on a period of Probation that will last 24 months. The only time you should have to go back to court before your Probation ends is if a Petition to Violate your Probation is filed or if the court schedules a check date to see how you are doing. While you are on Probation the court will require that you do not violate any criminal laws in any state. You will not be allowed to possess a firearm or any other dangerous weapon. The court will order that you submit to random and unscheduled drug testing. You will be required to pay the cost of the drug testing, but you should not have to take more than 3 drug tests during the period of your Probation. You will also be required to perform 30 hours of community service. In addition, the court may require additional conditions such as payment of additional fines and court costs, require that you continue with your education, undergo medical or psychiatric treatment, and may require that you appear in court periodically. The statute gives the court great latitude on imposing additional conditions on your 410 Probation. Since every case is different, any additional requirements will depend on your particular case.

2.       There are some drawbacks to this type of Probation. The main problem being that since you have pled guilty to the charges, if the court determines that you violated your 410 Probation for any reason, you cannot go back to that court and fight the case because you have already pled guilty. So if you violate this Probation, the only question before the court will be what your sentence should be. You will not be able to contest your guilt or innocence. If you violate your Probation, typically the court will convert the 410 Probation to a felony conviction which could result in a sentence of felony Probation or a jail sentence.

3.        However, if you successfully complete the Probation, you will go back to court after 24 months and the court will discharge you from the 410 Probation and will dismiss the charges against you. A background search will reveal the charges and will show that they were dismissed. If you do not get arrested for five years following the dismissal of the case, you can file a Petition to Expunge your record. This means that the case will be completely removed from the public record. If somebody does a background search, they will not even be able to see that you were arrested and charged with this crime. Be aware that you may be required to take, and pass, a drug test before the Petition to Expunge is granted.

4.      You are only allowed to have this type of Probation once in your lifetime. This is one of the many tools that I can use to do everything I can to avoid having a felony conviction appear on your criminal record.

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