Driving Under the Influence of Cannabis

I have had a chance to consider the new DUI Cannabis statute.    There appears to be several flaws which should be corrected.  The flaws are revealed when a real-life example of “What if?” is used.

As described in my DUI section, under the old Illinois Supreme Court case of People v. Martin, 2011 IL 109102 (2011), any amount of THC in the system was enough to prove a DUI.  The State did not have to prove impairment at all.  The old (a)(6) DUI citations were a statutory per-se bar against driving while any amount of cannabis was in the system.  Under the new (a)(7) provision, the State must now show that the concentration of THC in the whole blood of a driver was equal to or over 5 ng/ml within two hours of driving.  The per-se bar has been moved upwards from “0” to “5” ng/ml under the new statute.

Hypothetically speaking, suppose a driver is under the influence of marijuana in Naperville, Illinois.  The local Naperville Police Department stops the driver on Ogden Avenue and believes there is probable cause to perform a forced blood draw.  The police diligently read the new Warning to Motorist to the allegedly intoxicated driver.  The driver slowly considers (due to recently consuming pot) his options and eventually decides to refuse permission for the police to put a needle in his arm.  The Naperville City prosecutor duly prepares a warrant and wakes up the on-call Dupage County Judge for a signature.  The Court finds there is probable cause to believe a warrant should issue.  The police then transport the Defendant to the local Edwards Hospital.  Everybody waits for a licensed phlebotomist to be available.  Eventually, a person qualified to perform blood draws becomes available and a test is administered.  The total time that has elapsed since the Defendant last drove is two hours and one minute.  The Defendant tests positive, with 15 ng/ml in his whole blood.  The City charges the Defendant with the (a)(7) DUI ticket.  The Defendant hires an attorney.  What happens?

The new DUI cannabis provision reads:

625 ILCS 5/11-501(a) A person shall not drive or be in actual physical control of any vehicle ithin this State while:  (7) the person has, within 2 hours of driving or being in actual physical control of a vehicle, a tetrohydrocannabinol 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 Act who is in possession of a valid registry card issued under that Act, unless that person is impaired by the use of cannabis. (Emphasis added)

The new Section 11-501.2 provision now reads:

6. Tetrahydrocannabinol (THC) concentration means either 5 nanograms or more of delta-9-tetrahydrocannabinol per milliliter of whole blood or 10 nanograms or more of delta-9-tetrahydrocannabinol per milliliter of other bodily substance.

Under this scenario, the City of Naperville is unable to prove the (a)(7) DUI violation because it took longer than two hours to administer the drug test.  The law requires the test to have been administered within two hours of the driving.  The City’s only way to prosecute is to show impairment under the old (a)(4) provision.  In other words, it actually benefits certain DUI drivers to refuse, hold out, and be marginally obstructive because the prosecution only has two hours to get a search warrant for blood.  A search warrant for blood is required under the U.S. Supreme Court Opinion of Birchfield v. North Dakota.  Under the Birchfield opinion, the Supreme Court held that the State could not criminalize the refusal to give blood because a blood test was more intrusive than a breath test.  Phrased differently, Illinois cannot criminalize the refusal to give blood.

In certain circumstances, the entire process to perform a DUI test, including the refusal, will be so inefficient and lengthy that the new (a)(7) cannabis prosecution will be impossible.  The hypothetical intoxicated driver will not be the first person left waiting to see a health care professional at the hospital, and they will not be the last person left waiting.  Two hours is not a particularly lenient amount of time to initiate a traffic stop, perform standardized field sobriety testing, read the warning to motorist and be refused, seek a search warrant, get the search warrant granted, transport a driver to the hospital, find a licensed health care provider who can draw blood, and actually test the blood.  The traffic stop alone, and the performance of SFST’s usually takes at least 30 to 45 minutes.

A second loophole appears to be a drafting oddity.  The key words to focus on are, “Within two hours of driving”.   As a hypothetical, suppose a local Naperville driver is driving along Rt-59.  Rt-59 has one of the highest rates of accidents in Illinois.  The not-impaired driver’s car crashes into the pedestrian, killing said pedestrian.  In a panic, not-impaired-driver races home and smokes a bowl of weed to settle down.  The DuPage County Sheriff’s Department arrives, arrests the driver, and tests the driver within the two hour time limit.  The driver tests positive because cannabis metabolizes into THC very quickly.  The Sheriff’s Department issues the driver the (a)(7) citation.  What then?

Experienced lawyers will recognize this as the classic and not uncommon DUI-alcohol defense where the defense is that the alcohol was consumed after the driving.  Using such a defense, the State must prove the Defendant was drunk at the time he was driving.  However, the new wrinkle is that it appears to be possible to prosecute a new DUI cannabis charge by first driving while sober, then smoking cannabis, and then later testing positive.  The new statute only seems to require the driving to have occurred within two hours of the positive drug test, not that there was cannabis in the Defendant’s system while driving.  Phrased another way, the State does not have to prove the Defendant was under the influence of cannabis at the time of driving, they must only show the Defendant had a positive blood test within two hours of driving.  The Defendant could have been completely sober while driving and still be legally and legitimately given a DUI ticket.

In such a situation, the proper course of action for the experienced criminal defense lawyer may be to file a motion challenging the constitutionality of the new DUI law.  The challenge would be an “as applied” challenge, and not a facial challenge to the statute.  The standard of proof would probably be the rational basis test.  Ultimately, it would have to be established that there is a rational relationship between using cannabis two hours after driving, and the safety of citizens on the road.

That may be extremely difficult to show.

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