Articles Posted in Drugs

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Although most police officers are thoroughly trained in the signs of intoxication, their actions do not always comport with their training. For example, a woman in Phoenix, Arizona, was recently detained and charged with DUI despite the fact there was no evidence that she was intoxicated. The woman subsequently filed a complaint against the police department, shedding light on the concerning issue of inappropriate arrests. If you were charged with a DUI despite a lack of evidence that you were intoxicated while operating a vehicle, you should meet with a skillful Illinois DUI attorney regarding your case.

Factual Background of the Phoenix Arrest

It is reported that the Phoenix police pulled over a 29-year-old woman who was driving late at night with her boyfriend. The woman, who pulled over into a parking lot of a business, described the officer as having an intimidating attitude. The woman received a ticket for an unsafe lane change, a red light violation, and an improper turn. The officer reportedly observed an odor of alcohol coming from the car and therefore attempted to conduct a field sobriety test. The woman advised the officer that she had a severe fear of men and of the police and requested that a female officer come to the scene. The officer noted the woman’s anxiety in his report repeatedly. A female officer was not dispatched, however, but more male officers arrived.

It is alleged that the woman admitted to consuming sake four hours prior to being stopped, and a breathalyzer test indicated her blood-alcohol level was .02. Under Phoenix law, an officer cannot arrest a person with a blood-alcohol level of less than .05 unless it is suspected the person is under the influence of drugs. Thus, the officer then began questioning the woman regarding whether she consumed drugs, which she denied. The woman was ultimately arrested and charged with DUI for drugs and alcohol. The charges against her were dismissed two months later, and her case was closed, but the woman had to spend hundreds of dollars defending the claim, and the DUI arrest remains on her record. To help prevent similar occurrences in the future, the woman filed a complaint against the Phoenix police department and asked that the police receive more training in crisis prevention.

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As states throughout the country continue to decriminalize the use of marijuana, the laws regarding the operation of vehicles after ingesting marijuana continue to change as well. The changes in the law can drastically affect how marijuana-related DUI charges are prosecuted, as shown in a recent case arising out of an Illinois Appellate Court. If you are a resident of Illinois and are charged with a DUI arising out of your use of marijuana it is crucial to engage a proficient Illinois DUI attorney with experience handling marijuana-related DUI charges to help you set forth a defense.

Facts of the Underlying Case

Reportedly, the defendant was involved in a single-vehicle accident in which his car left the road, and his passenger was ejected from the vehicle. The passenger later died from his injuries. The defendant, who allegedly had marijuana in his system at the time of the accident, was charged with aggravated driving under the influence. He pleaded guilty and was sentenced to twelve years in prison. He subsequently appealed, arguing that the DUI statute was unconstitutional, and his sentence was unjust. On appeal, the court affirmed.

At the time of the defendant’s conviction, the DUI statute prohibited a person from driving if he or she had any marijuana in his or her blood. Under the statute, any amount of marijuana use was criminal, and the State only had to prove that the defendant used marijuana prior to driving to obtain a conviction. The statute was later amended to remove marijuana-related offense, and a new provision was added that established the elements of marijuana-related DUI crimes.

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Although the use of marijuana is legal in many states, drivers are still prohibited from operating a vehicle while impaired, which includes impairment due to marijuana. States across the country have struggled with the issue of how to test whether a person is under the influence of marijuana, with some states, including Illinois, choosing to employ blood tests. Recently, Michigan’s Impaired Driving Commission has recommended that the state bypass blood tests to prove a person is under the influence of marijuana, and choose to employ field sobriety tests instead. If you live in Illinois and were recently charged with a marijuana-related DUI charge it is vital to retain a skilled Illinois DUI attorney to assist you in planning your defense.

Michigan’s Impaired Driving Commission’s Findings

Following a two-year review, the State Impaired Driving Commission recommended that the state legislature not set a limit for how much THC a driver is permitted to have in his or her blood. Rather, the Commission recommended that police investing a driver for suspected intoxication due to marijuana employ filed sobriety tests to assess the person’s fitness to operate a motor vehicle. This recommendation was based on the fact that THC blood levels do not correlate to a person’s level of intoxication. THC, unlike alcohol, is fat soluble and stays in a person’s body well after a person is no longer affected by the marijuana he or she ingested. Further, the Commission found that THC limits set in other states are wholly arbitrary and are not based on sound evidence. Additionally, the State has been able to convict people of DUIs absent any chemical testing. While Michigan currently has a zero-tolerance level for any THC in a driver’s blood it will be interesting to see if the law changes based on the Commission’s recommendations.

Illinois Marijuana Law

Currently, under Illinois law, a person is not permitted to drive while under the influence of any drug, including marijuana, that affects the person to the point where he is or she is incapable of driving safely. Thus, a person can be charged with DUI for the use of marijuana. Illinois has set a threshold of 5 nanograms of THC in whole blood for the level at which it will be presumed a driver was under the influence of marijuana. For cases where the defendant’s blood concentration of THC is less than 5 nanograms, the person’s THC blood level can be considered along with other competent evidence to determine if the person was under the influence of marijuana. While the Michigan Impaired Driving Commission’s recent findings will not affect Illinois law, they may be persuasive as to whether Illinois and other states should continue to employ THC blood levels in the prosecution of DUIs.
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In response to the legalization of marijuana in states throughout the country, some states have considered enacting laws restricting the use or possession of marijuana while in a vehicle, similar to the laws restricting the use of alcohol. For example, the Massachusetts Special Commission on Operating Under the Influence and Impaired Driving (the Commission) has recommended that the legislature enact laws to prohibit open containers of marijuana in vehicles. While currently, Illinois’ open container law only applies to open containers of alcohol, the Commission’s recommendations could be a sign of changes to come throughout the country. If you are charged with a DUI or violation of Illinois’ open container law, you should speak with an experienced Illinois DUI attorney as soon as possible to discuss the facts of your case.

The Commission’s Findings

Reportedly, the Commission recommended passing a law prohibiting drivers from traveling with open containers of marijuana, making it a civil infraction. The Commission further recommended that a person found to be in violation of the law face a $500.00 fine. The Commission also recommended that a person who refused to submit to a roadside drug test suffer a six-month license suspension, similar to the penalty for refusing to submit to a breath test. Further, the Commission recommended instituting electronic warrants to allow police officers to obtain blood tests in an expedient manner.

Notably, the Commission voted on extending the open container law to marijuana, despite valid concerns regarding how the law would be implemented. One of the main concerns was the lack of clarity as to how the law would apply to a bag of marijuana or edible forms of cannabis. The Commission also set forth recommendations regarding education as to the intoxicating effects of marijuana. Specifically, it was recommended that police officers undergo more extensive training regarding signs of drug impairment. It also recommended launching a public awareness campaign regarding the dangers of driving while under the influence of marijuana.

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Police officers in Delray Beach, Florida recently responded to a car accident in which a man driving a pick-up truck collided with a minivan, resulting in the death of all four occupants of the minivan. In investigating the crash, the driver of the pick-up truck submitted to blood testing and was ultimately charged with DUI manslaughter. While DUI-related car crashes are an unfortunately common occurrence, this one is distinctive because the driver did not consume any alcohol or any illicit drugs. Instead, the blood test revealed the driver was under the influence of difluoroethane, a liquefied gas used as a propellant. Upon further investigation, the police uncovered that the driver had huffed Dust-Off, a household cleaner, prior to the crash to get high.The driver’s attorney has set forth the argument that since Florida does not have a defined legal limit of inhalants a driver can consume before he or she is considered impaired, the DUI charge is improper. The driver has pleaded not guilty and is awaiting a jury trial. While the pick-up truck driver’s case is the first case since 2014 in which a driver was charged with DUI manslaughter due to intoxication by inhalants, there were other instances in which drivers caused fatal crashes after inhaling intoxicants, but those drivers were not charged with DUI. The increase in charges due to intoxication by inhalants is evident throughout the country as well, including in Illinois DUI cases.

Unlike Florida, Illinois has a broader DUI statute that allows a person to be charged with DUI for reasons other than impairment due to the consumption of alcohol. Specifically, the Illinois DUI statute states that a person shall not drive if they are under the influence of an “intoxicating compound” to a degree that renders him or her unable to drive safely. These catchall provisions are specifically aimed at preventing people from driving while under the influence of non-traditional intoxicants, such as paint, markers, and aerosol spray. As a result, an Illinois license holder who inhales household intoxicants and then drives can be charged with DUI.

There have been multiple cases prosecuted in Illinois criminal courts in recent years in which drivers were charged with and convicted of DUI due to huffing. Unlike the signs of intoxication due to alcohol, such as odor, bloodshot eyes, and stumbling, the signs of intoxication due to inhalation of intoxicating substances are not always easily observable. In some cases, a person who has inhaled intoxicants may not exhibit any symptoms of intoxication at all. As a result, the prosecution may face an uphill battle in proving an individual who drove after inhaling intoxicants was impaired. Additionally, defense attorneys have questioned the constitutionality of the provision of the Illinois DUI statute regarding “intoxicating compound,” arguing it is vague.

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Language barriers frequently arise in every day life. While apps and websites that provide quick translations to and from English and other languages are convenient, they are not suitable for all purposes. In a recent case heard in the United States District Court of the District of Kansas, U.S. v. Omar Cruz-Zamora, the court ruled that Google translate was insufficient for obtaining proper consent from a non-English speaking suspect prior to searching the suspect’s vehicle. The court held the language barriers between the suspect and arresting officers were not overcome by Google translate, and therefore the consent to search a vehicle was not given freely and intelligently and was invalid. As such, the search of the car was unconstitutional and the evidence against the suspect was suppressed. While the ruling in Omar Cruz-Zamora does not have precedential value in Illinois, it may be viewed as persuasive if the issue of adequate translation arises in Illinois DUI cases.

The suspect in Omar Cruz-Zamora was stopped for a traffic violation. Under the Fourth Amendment of the Constitution individuals are protected against unreasonable search and seizure. As such, since the officers did not have a warrant, they were required to make sure the suspect understood he could refuse to allow them to search the vehicle and obtain the suspect’s consent to search the vehicle.  The suspect spoke very limited English and could not understand the officers’ questions. The officers did not know they had access to a live human translator and used Google translate to advise the suspect of his rights and obtain his consent. The translations provided did not accurately communicate the information the officers were trying to convey and there was no evidence the suspect understood his right to refuse to allow his vehicle to be searched or the purposes for which his consent was requested. The suspect ultimately consented to the search, and upon searching the vehicle the officers found illicit drugs and arrested the suspect.

At the trial, the suspect testified he was confused as to what the officers were asking and did not know he had the right to refuse to allow them to search the vehicle. Translators called upon to assess the accuracy of Google translate testified it often provided a literal but nonsensical translation, and therefore was not a reliable translation tool. The suspect argued that any evidence obtained during the search was obtained without his consent and should be suppressed. Upon reviewing the evidence, the court found it was clear the suspect did not understand what the officers were asking when he consented to the search. Further, the court found the good-faith exception the exclusionary rule of evidence obtained via unlawful searches did not apply because it was unreasonable for the officers to rely on Google translate. As such, the court granted the suspect’s motion to suppress.

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This fall, the Massachusetts Supreme Judicial Court considered whether field sobriety tests (FSTs) could be admitted as evidence when a police officer suspects the driver has been driving while under the influence of marijuana. In determining whether a suspect is driving under the influence of alcohol, police typically administer three FSTs — the “walk and turn test,” the “horizontal gaze nystagmus test,” and the “one leg stand test.” These tests were specifically developed to measure alcohol consumption, and there is agreement in the scientific community that a strong correlation exists between insufficient performance on the FSTs and a BAC (blood-alcohol content) of over .08% (the legal limit). By contrast, there is no scientific agreement yet that FSTs, or some FSTs, can determine marijuana intoxication.

In 2016, the Illinois governor signed SB 2228, dictating that drivers will be subject to Illinois marijuana DUI charges only if they have at least 5 ng of THC in their blood, or at least 10 ng of THC in their saliva. Prior to the law, the state could bring DUI charges even when the subject had just trace amounts of THC in their system. This meant that someone who smoked marijuana weeks prior could still test positive and be charged with a misdemeanor. The fact that people could face DUIs for trace THC in their systems “was making a crime without any criminal intent,” said an Illinois public defender.

The new Illinois law did not change the pre-existing law making it a DUI to drive while under the influence of cannabis. At trial, the state must prove by the arresting officer’s expert testimony that the person was impaired due to the consumption of cannabis. As with a DUI for alcohol, a person can be found guilty even if he or she is under the “legal limit” if the court finds that he or she was impaired to the point that he or she was unable to safely operate a motor vehicle.

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A man was killed in a car crash caused by a driver who huffed 1,1-difluoroethane, or DFE, immediately before and while driving. Based on her prior history of becoming unconscious after huffing DFE, the Pennsylvania Supreme Court concluded that her conduct constituted the high level of recklessness required for a finding of malice sufficient to support her convictions of third-degree murder and aggravated assault. It therefore affirmed the superior court’s decision. This decision may be relevant to Illinois drug DUI cases in the event that the courts in this state consider a similar situation.

The Commonwealth charged the driver with numerous offenses, including aggravated assault, aggravated assault with a deadly weapon, aggravated assault while DUI, homicide by vehicle, third-degree murder, and homicide by vehicle while DUI.

At her October 2014 jury trial, the evidence showed that the driver and her then-fiance drove to a Walmart store. They purchased two cans of Dust-Off and some other items and then returned to the car. (Dust-Off contains DFE, a colorless gas commonly used as a refrigerant or as a propellant for aerosol sprays and in gas duster products.) Before exiting the parking lot, she opened the Dust-Off, and both she and her ex-fiance huffed.