Illinois Drugged-Driving Law: Unbending and Complex

June 03, 2011 (Press-News.org) Illinois drugged-driving law is very tough to beat if you are charged with a violation. On April 21, 2011, the Supreme Court of Illinois in People v. Martin clarified important aspects of that law. Because the Supreme Court does not often decide DUI-drug cases, Illinois criminal defense attorneys and law enforcement are taking a close look at this major court opinion.

Basically, Martin enunciates that four of the six provisions of the law require that to be guilty of alcohol or drugged driving the prosecution must prove that the ingestion of alcohol or drugs caused the defendant's impairment to the point that he or she could not safely drive. And it is not a defense that the drug was legal for the individual to use.

In a major pronouncement, the Supreme Court clarified that although three of the four drug-related DUI provisions require causation, the fourth DUI-drug provision is a strict liability crime, meaning that if any amount of a prohibited substance is found in a driver's body pursuant to a blood or urine test, the state must not prove that the drug actually caused impairment.

A Rising Trend, and Not Just in Illinois

According to the federal government, the percentage of fatally injured drivers with drugs in their systems is on the rise nationally. The National Highway Transportation Safety Administration, part of the U.S. Department of Transportation, announced in November 2010 the results of an important five-year study.

Of drivers killed in accidents nationally, those testing positive for drugs rose from 13 percent in 2003 to 18 percent in 2009. In Illinois, the 2009 figure was 23 percent, slightly above the national average that year of 18 percent.

The NHTSA cautions, however, that it is difficult to draw strong conclusions from these numbers for several reasons. For one, the presence of drugs in the body of a dead driver does not necessarily mean that the person was impaired by those drugs or that any impairment resulting from the drugs caused the fatal accident. Also, the states vary widely in their drug-testing practices and procedures.

Illinois DUI-Drug Law

The Illinois law that makes driving under the influence, or DUI, a crime encompasses driving under the influence of alcohol or drugs, or of various combinations of substances. A drugged-driving conviction is normally a misdemeanor, but if the driver is in an accident where someone else dies, the crime is considered aggravated and becomes a felony.

Defendants can be charged with driving under the influence of drugs under any of four provisions. Of the three that require proof that the defendant was impaired by the ingested substance, most of the drugged-driving charges are made under either one of these two subsections making it illegal to drive.

- "[U]nder the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving"

- "[U]nder 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"

A third, more rarely used provision for charging a DUI-.drug crime requiring impairment makes it illegal to drive:
- "[U]nder the influence of any intoxicating compound or combination of intoxicating compounds to a degree that renders the person incapable of driving safely"

A Zero-Tolerance Crime

As the Illinois Supreme Court recently explained in Martin, the fourth drugged-driving provision under which a defendant can be charged is a strict-liability crime that does not require proof of actual impairment.

If a driver tests positive for any amount -- even just a trace -- of marijuana, methamphetamine, a controlled substance or an intoxicating compound (certain chemicals like acetone not meant to be drugs that are illegal to ingest to create an altered state), the state presumes that the driver was under the influence of that substance and should not have been driving. This differs from alcohol test results, where the DUI presumption requires a blood alcohol concentration of 0.08.

Chemical Testing of Drivers

In Illinois, the police can order chemical testing under the "implied consent" law providing that if you drive on Illinois roads, you imply to the state that you automatically consent to such a test as a privilege of driving. Refusal will result in automatic license suspension.

Law enforcement can also order chemical testing when they have "probable cause" to suspect a driver is under the influence of alcohol, drugs or a combination; and who has caused death or injury to another person. Testing must be done according to legal police procedures and by authorized persons.

The Problem With Marijuana

In Illinois, marijuana is the second most common chemical, after alcohol, under the influence of which people drive. This is not surprising, since according to the National Institute on Drug Abuse, pot is the most abused illegal drug across the country.

The most dangerous substance in marijuana is delta-9-tetrahydrocannabinol, usually called THC. THC passes easily from the lungs to the blood stream, which carries the drug to the brain. THC can cause:
- Coordination problems
- Confusion
- Impaired ability to solve problems
- Altered perception
- Memory problems

Given those side effects, it is no surprise that pot can severely impede safe driving capacity. It is surprising to some, however, that traces of marijuana can remain in the body for days, even weeks, after ingestion. Since it is not a water-soluble substance, it can linger in body fat for a long time after any initial intoxication has worn off. So potentially a driver, especially a heavy marijuana user, could test positive for pot -- in urine or hair for example -- after a traffic stop without having ingested it for weeks.

Tests for marijuana are quite accurate; false positives are very rare as compared to other drugs. Contrary to popular belief, the test for pot cannot be fooled by tampering or by taking vitamin B2 supplements.

An interesting legal situation may arise around the Martin case's emphasis on the strict-liability aspect of having even a trace of drugs in the body and driving. Sixteen states and D.C. have passed some type of medical-marijuana law. Certainly a patient who legally ingested marijuana in another state could drive in Illinois and be found to have a trace of pot in his or her system. Michigan is the closest medical-marijuana state to Illinois, and people from all over the country come to Chicago for business or pleasure.

If You Make a Mistake, Talk to a Lawyer Right Away

If you choose to do drugs and drive in Illinois, and you are stopped by the cops, you will likely have severe, even life-changing ramifications. Once police have your positive drug test, the only ways to fight a DUI drug charge normally are to prove you weren't driving, show the test was wrong, prove the testing procedures were not followed or were administered by an unauthorized person, or show that there was a weakness in the chain of custody of the physical sample taken.

Illinois penalties for DUI drug offenses are ominous and can include license suspension, prison time, stiff fines, community service and other consequences, depending on the circumstances.

The Illinois Secretary of State website says that the state considers DUI to be a violent crime. If you are involved in a traffic stop, chemical test or arrest for drug-impaired driving, don't face the authorities alone. The state of Illinois takes allegations of driving while chemically impaired extremely seriously, and you need an experienced DUI attorney by your side to defend you and protect your rights.

Article provided by The Law Offices of Thomas Glasgow, Ltd.
Visit us at www.glasgowlaw.net