Driving Under the Influence of Cannabis in Chicago
In Illinois, Section 11-501 of the Motor Vehicle Code, known as Chapter 625 of the Illinois Compiled Statutes, Section 5/11-501, provides for the various ways and means that a person can commit the offense of Driving Under the Influence. One way to commit this offense is by operating a motor vehicle or by merely being in "actual physical control" of the vehicle (which can mean parked, but in a way that one could readily start the engine and drive away). One can be impaired by alcohol, illicit drugs, lawful drugs, intoxicating compounds, or a combination of any of these. A person can also be found to have a blood alcohol concentration at or above 0.08 mg/Dl based upon testing of one's breath, blood or other bodily fluids. Or, a person can be found to have illegal drugs in one's system. These are referred to as "Per Se" violations, meaning "on it's face." Recently, there have been changes to existing statutes that affect the way evidence will be collected by Law Enforcement and this will significantly affect motorists that are charged with DUI Cannabis.
Breath, Blood, Urine and Saliva Testing for Cannabis
In the past, testing was done of the breath, the blood, or the urine. Recently, the IL Administrative Code was amended to allow for testing of saliva as well, so the statutes now refer to "other bodily substance" to allow for these new methods. This change is highly relevant, in light of the U.S. Supreme Court's ruling in Birchfield v. North Dakota, et. al. In that case, the Court ruled that States may criminalize the refusal of breath or urine testing (but not blood), based upon probable cause without a search warrant, but the Court ruled that a warrant is still required absent proof of sufficient exigent (meaning emergency) circumstances.
Currently, Illinois does not have any criminal penalty for refusing any form of alcohol or drug testing following a DUI arrest. We only have the Statutory Summary Suspension of Driving Privileges, under Section 11-501.2 of the Vehicle Code. 625 ILCS 5/11-501.1. If Illinois decides to criminalize the refusal of testing, it appears that saliva will now also be a viable option for testing. Based upon the reasoning of the Birchfield decision, which discussed the intrusive nature of blood testing vs. breath testing, it appears that Police will not likely need a search warrant to obtain saliva evidence, which obviously is easier to collect than breath or urine, and cannot be reasonably viewed as being "intrusive" in the manner of a blood draw.
Illinois Must Prove Impairment Beyond a Reasonable Doubt
When it comes to a DUI based upon Cannabis or any other drug, whether it is lawfully taken pursuant to a prescription, or an illegal substance such as cocaine, heroin or methamphetamine, under Section 11-501 of the Illinois Vehicle Code, Subsection (a)(4) presently provides that it is illegal to drive while "under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving." This Section is not dependent upon any actual breath, blood, urine or other bodily fluid testing of the motorist.
Instead, the State must prove beyond a reasonable doubt that, as a result of the consumption of a drug, the person was incapable of exercising due care and caution in the operation of a motor vehicle (See Illinois Pattern Jury Instructions regarding definition of DUI). This has been the state of the law on this matter for a great many years, and has not in any way been changed by recent legislation. The State can present evidence of impairment through the observations of the officer(s) or other witnesses, video/audio evidence showing the motorist at the time of arrest, of the motorist's driving, performance of field sobriety tests, or statements of the accused, etc. to meet their burden of proof.
Medical Marijuana and Decriminalization
What recent laws have changed is the approach to DUI where there has been testing of one's breath, blood or other bodily fluids, and a positive result for an illegal drug presents itself. Until recently, it was illegal for anyone to drive with ANY amount of a drug, substance or compound in their system resulting from consumption of Cannabis, any other Controlled Substance (e.g. cocaine, heroin, LSD, etc.), an Intoxicating Compound (such as sniffing or huffing glue, paint, solvents or aerosol containers), or methamphetamine. The only exception was for anyone that qualified for Medical Cannabis, with a valid registry card, except when they were actually impaired by the Cannabis. So, unless you had a Medical Marijuana card, you could not have even a slight trace amount of Cannabis in your system without being in violation of Chapter 625 ILCS Section 5/11-501(a)(6).
This statutory scheme changed recently, thanks to a law signed by the Illinois Governor that decriminalized possession of small quantities of Cannabis. So presently, anyone who is found in possession of an amount less than 10 grams is no longer guilty of a Misdemeanor criminal offense; instead, they face a civil violation, with a civil money penalty. See Chapter 720, Illinois Compiled Statutes, Section 550/4(a) (2016).
New Cannabis Laws and Nanograms
Given that Cannabis can remain in one's system for an extended period even though the intoxicating effects of the drug have worn off, the DUI law was amended to accommodate (somewhat) the idea that there should be more than a mere trace of Cannabis to justify a DUI. As a result, the Legislators amended subparagraph 6 of Section 11-501(a) to remove Cannabis as a drug that can cause a DUI based on just a trace amount. That subsection still applies to any other illegal drug or compound, just not Cannabis. But now instead, the Legislators created subsection 7. 11-501(a)(7) provides:
"(7) The person has, within 2 hours of driving or being in actual physical control of a vehicle, a tetrahydrocannabinol concentration in the person's whole blood or other bodily substance as defined in paragraph 6 of subsection(a) of Section 11-501.2 of this Code. Subject to all other requirements and provisions under this Section, this paragraph 7 does not apply to the lawful consumption of cannabis by a qualifying patient licensed under the Compassionate Use of Medical Cannabis Pilot Program (with a valid registry card) unless that person is impaired by the use of cannabis."
Section 11-501.2(a)(6) presently defines Tetrahydrocannabinol concentration as "either 5 nanograms or more of delta-9-tetrahydrocannabinol [THC 9] per milliliter of whole blood, or 10 nanograms or more of [THC 9] per milliliter of other bodily substance.
A Nanogram is a weight measurement, equal to one billionth (0.000000001) of a gram. A milliliter is a thousandth (0.001) of a liter. A liter is about 33.8 ounces. Therefore, to be guilty of DUI Cannabis based upon the presence of the drug, there need only be 5 Billionths of a gram in one thousandth of a liter of whole blood. This is a miniscule amount of the substance that would trigger a violation. It is very likely that any consumption of cannabis will cause an amount of THC 9 greater than that to be in one's system. Of interest is the 2 hour timeframe: the clear intent of the Legislators seems to be that any such testing be performed within 2 hours of the arrest in order to be considered valid.
Should One Submit to Cannabis Testing or Refuse?
Of course, one may refuse to comply with alcohol or drug testing, as contemplated under Illinois' Implied Consent laws, and receive a Statutory Summary Suspension of 12 months if a first offender (as defined under Section 11-501.1) or for 3 years if a multiple offender. The refusal to comply is admissible in the prosecution of the DUI charge(s). Still, given the insignificant amount of drug that can trigger the presumptive DUI under Subsection 7, if one has been smoking or otherwise ingesting Cannabis recently prior to the arrest, one might do well to politely refuse to perform any tests of any kind, including field sobriety tests, unless they have a valid Medical Card. This of course, is not legal advice as every situation is different.
If you have such a card, you stand in a slightly different relationship to other motorists when it comes to a DUI investigation: by receiving the card, you are deemed to have given consent to standardized field sobriety tests approved by the National Highway Traffic Safety Administration (NHTSA), which are multitasking tests that gauge one's ability to think clearly, and perform several tasks at once. Failure of these tests, if properly administered according to set guidelines, is considered evidence of impairment that could justify an arrest, summary suspension, or DUI conviction.
Mere possession of a Registry Card is NOT a sufficient basis to require compliance with these tests though. An officer must have "an independent, cannabis-related factual basis giving reasonable suspicion that the person is driving...while impaired by the use of cannabis" before conducting these tests. Failure of the tests will result in a 6 month summary suspension for a first offense or 12 months for a subsequent offense. Refusal meets with a 12 month first time suspension, 3 years for a non-first offender. It is not a criminal offense to refuse such field sobriety testing, the penalty is the summary suspension of driving privileges for a longer period than if you submitted but failed. If you suffer from a medical or physical condition that might hinder your ability to perform such testing, you should explain that condition to the officer, as a reason why you refused testing, or as an advance explanation in the event that you fail the tests.
If you have been stopped by Police, and are being investigated for a DUI offense, remember that you always have the option, in Illinois, to refuse any and all testing requested by the Officers, unless the officers have a warrant authorizing the withdrawal of blood or other bodily fluids (you must comply with a warrant or face an obstruction charge).
Even if you have a Medical Marijuana card, remember that the purpose of field sobriety tests are to establish not only probable cause to arrest, but are also used as evidence to seek a conviction at trial, and you have the right to refuse to comply with them, knowing that the your refusal will result in a longer summary suspension, and can be used as evidence in court at trial. This is why we generally recommend that you politely refuse all tests (although every case is different and this is a personal decision), and maintain a polite and compliant attitude with the officers upon arrest.
Call Our Experienced Cannabis DUI Legal Team in Chicago
If you have been arrested and charged with any DUI-related offense in Chicago, you need the help of an experienced attorney to ensure that your rights are protected, and to carry the fight for you in court against the Police and the State. At Mitchell S. Sexner & Associates LLC, we have a great deal of combined experience in defending these charges for our clients, with proven results. Call us for a free initial consultation at (800) 996-4824 to discuss your case with an experienced lawyer today!