Wrongful Arrests and Convictions for Cannabis Only DUI? Is this taking the place of the death penalty debate?

Cannabis - The Secret DUI

CHICAGO, ILLINOIS – Ok, so maybe the headline was a little melodramatic.  Ok, a lot melodramatic.  But it seems that we have developed a problem here: it seems that just about any police officer at any time can charge anyone with a suspected DUI.  Think I’m exaggerating?  Here are some facts, myths, laws and recent developments.

Question: Is it really true that you can be convicted of DUI if you have any amount of a drug in your system while driving?

Answer: Absolutely, and it’s getting worse.  Illinois has a few different versions of this law on the books.  The most commonly charged, and arguably the most draconian, is 625 ILCS 5/11-501(a)(6) – the “trace” law.

The law reads as follows:

(a) A person shall not drive or be in actual physical control of any vehicle within this State while: (6) there is any amount of a drug, substance, or compound in the person’s breath, blood, or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act, a controlled substance listed in the Illinois Controlled Substances Act, an intoxicating compound listed in the Use of Intoxicating Compounds Act, or methamphetamine as listed in the Methamphetamine Control and Community Protection Act.”

What does this mean?  If you are pulled over for, say, swerving within your lane (a common reason for pulling a suspected DUI driver over to “investigate”) and you agree to take a urine or blood test, if you are found to have any amount of cannabis above 0mg in your system, you are guilty of this offense and can be permanently branded with a DUI.  Does Illinois have a set limit, as they do with alcohol, as to how much cannabis renders you “under the influence?”  Nope.  Can someone who smoked cannabis a week prior to driving be convicted?  Yep.  Ironically, there is an often overlooked provision in the law which pops up in other parts of the DUI code (but not the “trace” section) which requires that the amount of intoxicating substance renders you unsafe to operate a motor vehicle. And no, they do not need to find any drugs in your car or on you to charge and convict you of this type of DUI.  So throw that argument out the window before it starts.

Let’s take a look at our DUI law 625 ILCS 5/11-501 again:

(a) A person shall not drive or be in actual physical control of any vehicle within this State while: (3) under the influence of any intoxicating compound or combination of intoxicating compounds to a degree that renders the person incapable of driving safely; (4) under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving; (5) under the combined influence of alcohol, other drug or drugs, or intoxicating compound or compounds to a degree that renders the person incapable of safely driving.

Is that a part of our “trace” law requiring “any amount of a drug…resulting from the unlawful use or consumption of cannabis…”?  Nope.  But, you say, how do the cops know that you are under the influence of cannabis?  They must have a battery of Field Sobriety Tests designed to measure how much cannabis is in your system, right?  Wrong again! (You need more practice at this game).  The Standardized Field Sobriety Tests (SFSTs) that we have all come to know and love – the walk 9 steps and turn, the one legged stand, the horizontal gaze nystagmus (eye) test and the lean back and touch your nose test have never been scientifically shown to be dispositive of cannabis or other drug use.  There are a few not-so-widely accepted tests, such as the Romberg Balance Test, but they are extremely subjective and are only supposed to be administered by officers with extensive training in DUI drug detection.  Technically, officers must prove thier qualifications as drug DUI experts before they are allowed to testify about whether or not they believed you were under the influence of cannabis or other drugs, but many judges simply let that slide.  They’re cops, they must be experts.  Not exactly, but I don’t want to bog this article down with technicalities.  There will be plenty of time to discuss those technicalities as they pop up in my cases and irritate me enough to warrant another article.

QUESTION: WHY DOESN’T THE LAW REQUIRE THESE “TRACE” CASES OF CANNABIS OR OTHER DRUGS TO “RENDER A PERSON INCAPABLE OF SAFELY DRIVING?”

ANSWER: Your guess is as good as mine.  It’s just another weapon in the arsenal that police offficers in Illinois have to arrest citizens for DUI without any real probable cause.  And the judges, whether they are good judges or terrible judges, know that they must follow the letter of the law or risk being overturned on appeal.  The letter of the law says that any cannabis in your system renders you “under the influence” and subjects you to the penalties of the other guy on the road who is driving on the wrong side of the street and has a blood alcohol level of 0.23.  A jury may not be so easily convinced, but you can be sure the prosecution will do everything they can to try to persuade those jurors that 1 picogram of cannabis in a urine test is sufficient to brand someone for life with a DUI.  Again, we don’t know the difference, scientifically, between 1 picogram, 1 nanogram, 1 milligram, or even 1 kilogram of cannabis as far as its effect on the ability to drive safely, but it doesn’t matter.  The law is the law.

Heck, let’s go out on a limb and say that you take prescription medication for anxiety – your Klonopins and Xanax XR (extended release) – which are designed to stay in your system longer than a fast acting drug and provide you with a consistent, lower dose.  Or, let’s go even further back.  Let’s pretend that you took an Ambien to help you sleep the night before.  (All medications are registered trademarks of their respective owners – you’re welcome, big pharma lawyers).  You may be completely safe to drive and have been safely driving while prescribed those drugs for years.  But in the eyes of the law, if there is “any amount of any substance” in your breath, urine or blood, you are under the influence.  So where do we draw the line?  How much prescription medication is enough to render you incapable of safely driving?  It varies from person to person, of course.  Not to mention many people mistakenly assume that if they have a prescription, they are safe.  Not in our wonderful state.  You are GUILTY.

Whoever made the law had an agenda and the political support to pass the law.  The question now is, is this law constitutional?  I would argue that it is vague and overbroad and is not narrowly tailored enough to allow for an intrusion into your Constitutional rights to be free from government intrusion into your life, liberty and property.  But, as you know, I’m just a lawyer who deals with these cases in the trenches every day.  What do I know?

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