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The marijuana DUI conundrum in Illinois

As far as Illinois DUI law is concerned, there are three general categories of offenses. The first and most common is DUI alcohol.

Alcohol-related DUI can arise from impaired driving evidence due to alcohol. That would come about by the police officer’s observations of your driving, your conduct during the arrest and your performance on what is known as Standardized Field Sobriety Tests (SFTS). 625 ILCS 5/11-501
DUI alcohol can also apply if a driver provides a chemical test that shows a blood alcohol level (BAL) of .08% or greater. This is known as “per se” (Latin for automatic) DUI. In a per se case, the state does not have to prove actual impairment but merely operation of a motor vehicle while having a BAL of .08% or higher.

The per se law can cause a great temptation for a driver to refuse to submit to testing. Since in Illinois a refusal is not a criminal offense, that can in some instances be a good strategy if you think you may fail.

The downsides of refusing are two. First of all, the judge will allow the prosecutor to argue to the jury that your refusal is evidence that you were afraid you were drunk and that is why you refused.

Secondly, a refusal will result in a longer driver’s license suspension than would be the case if you submitted to the test. In the case of a first offense, the suspension would be one year versus six months if you tested. For a second or later offense, the refusal suspension would be three years instead of one year.

A second category of DUI concerns “huffing”. This involves breathing in intoxicants such as paint fumes. The state must prove that your driving was impaired as a result of doing so.

The third category is drugs other than alcohol. Proof of impairment by drugs other than alcohol is straightforward enough. But the tricky part comes into play because Illinois has an “any amount” law which states that if there is “any amount” of an illegal drug in your blood, breath or urine, you are guilty of DUI even absent any evidence of actual impairment.

Under existing Illinois Supreme Court law, a person with any amount of a drug, even though that person took the drug and it remained in his system for weeks and in no way impaired his driving at the time of a crash in which someone died, is guilty of a felony and subject to prison time. People. v. Martin, 2011 IL 109102
Oddly enough, the effect of this case is to treat a casual marijuana user more harshly than a user of hard drugs. Marijuana can stay in a person’s system for several weeks. Heroin and other hard drugs will not.

So if a heroin user and a marijuana user use and are involved in separate accidents a week after using, the marijuana user will face DUI penalties but not the heroin user, even though the latter is almost certain more dangerous to society than the former. This is an unjust result.

Moreover, Illinois now recognizes compassionate use of marijuana. The issue of how this will interplay with the marijuana-DUI law is not clear at the present time.

Related posts:

Accused claims that Illinois DUI law is unconstitutional December 23, 2011, Illinois DUI Lawyer Blawg
Drugs and Driving Under the Influence in Illinois, October 25, 2013, Illinois DUI Lawyer Blawg

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