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Illinois Senate Bill 2953 seeks to modify marijuana DUI law

In Illinois, DUI means Driving Under the Influence.  For instance, under 625 ILCS 5/11-501, it is illegal to drive under the influence of alcohol. It is illegal to drive under the influence of any illegal drug, including marijuana.

Although it is legal to drive while using a prescription medication that can affect your mind, it is illegal to drive if the medication so alters your mind that you cannot think and act with ordinary care while operating a motor vehicle.  It is also illegal to drive under the influence of any intoxicant (“huffing”).

Finally, it is illegal to drive if the percentage of alcohol in your bloodstream is .08 or higher, because there are scientific studies that suggest anybody with a blood alcohol ratio of at least .08 suffers from impaired driving. This is known as the “per se” law, meaning that the existence of that blood alcohol level, standing alone, is sufficient to prove a DUI and also to support a statutory summary suspension (SSS).

All of the above situations require the state to present evidence of diminished driving skills, either by directly showing your impaired ability to think or act with ordinary care, or in the case of per se violations, to prove that you have reached a certain blood alcohol level that science deems as evidence of intoxication. In short, unless you are under 21, the fact you had something to drink or had taken a medication does not make you automatically illegal to drive.

Then there is the “any amount” DUI law, or what is known at the “trace law’.  It is a violation of the Illinois Driving Under the Influence law to operate a vehicle with “any amount” of an illegal substance, including marijuana, in your “blood, breath or urine” even without the slightest proof of intoxication. This means that the “under the influence” part of the DUI equation is erased.

This can and has led to what many believe to be harsh results, as best exemplified by the case of People v. Martin, 2011 IL 109102.  There, the driver was involved in a collision that led to the death of two people. While there was no evidence that the driver was under the influence of any substance, routine emergency room blood tests revealed a trace amount of a drug in his system from use a few days earlier.  Due to the trace law, the driver was guilty of DUI.

Under the aggravated DUI laws in effect in Illinois, the state charged Mr. Martin with a felony because of a DUI violation involving death. (625 ILCS 5/11-501(d)(1)(F).  It is a class 2 felony under which the accused must serve a minimum of six years in prison and in which probation is prohibited absent “extraordinary circumstances”.  Martin was sentenced to six years in prison simply because he had at some point in the past used crystal meth and days later was involved in an accident with death.

Since January 1, 2014, Illinois has had in effect a medical marijuana law. Holders of medical marijuana cards are not subject to the trace law. However, they do agree to submit themselves to standardized field sobriety tests.  Furthermore, the standardized field sobriety tests are considered a valid indicator of marijuana intoxication even though there is no scientific evidence to support that proposition.

Senate Bill 2953 would remove the trace provisions from the DUI law for all drivers, even those who do not hold a medical marijuana card. Those users who did not have a card would face criminal penalties but the penalites would be unhinged from the DUI laws unless the evidence showed they were impaired from marijuana.

However, unlike alcohol, there is no agreed upon standard for how much marijuana needs to be in a person’s system to indicate intoxication. This is one of many unanswered questions in the bill, whose fate is uncertain.

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