A recent article in the Chicago Tribune (“Vacation pot smokers should beware back home“) warned readers how a perfectly legal activity a few states over might not translate well back at work.
I’d like to take this one step further. A big step. A step into potential criminal court, using the State of Illinois as an example. Here’s how it might go down.
You were traveling in [insert various legal marijuana use domestic or international destination here] where you had a nice vacation which happened to include a brief step outside your at-home habits to indulge in just a one-time, recreational partaking in some marijuana use where consuming is perfectly legal.
Fast forward two weeks. You have returned from your trip and find yourself back in your daily routine. It is just another Tuesday evening as you are driving home from work, obeying all traffic laws, when… BANG!
You are t-boned when another driver ran a red light and plowed into your passenger side. The impact knocks your vehicle on its side and you go unconscious, only to wake up four hours later in a local hospital bed. You are hooked up to monitors and a drip. Your body aches. You’re a little dizzy. Your wife hops to her feet from the bedside chair, “Heyyyy… how do you feel? You gave us a scare.” The hospitalist doctor explains you’re lucky to have only suffered bruising, and they are keeping you overnight for observation since you did hit your head.
Unfortunately, you later learn that the other driver was not wearing his seatbelt. He did not survive. And since it was an accident that resulted in a death, a blood draw was conducted on you (while you were unconscious), even though you were not at fault and not issued any tickets.
A subsequent toxicology test showed a trace amount of THC or inactive metabolites in your system. It was from your vacation. Two weeks ago. The one and only time (since your college days) that you have used any drugs including marijuana in several years.
But that was two weeks ago, so that shouldn’t matter. Right? Besides, you are not at-fault in the accident. You were not impaired. The now deceased driver caused the accident. Your legal use of recreational weed has absolutely no actual or proximate cause to this poor stranger’s death. Right? … Wrong.
You are charged with Aggravated DUI. Illinois is a zero-tolerance state when it comes to a drug (non-alcohol) DUI. Actual impairment is not an element of this offense as all that is required is “any amount of a drug, substance, or compound in the person’s breath, blood, or urine resulting from the unlawful use or consumption of [cannabis or a controlled substance].” 625 ILCS 5/11-501(a)(6). Cannabis metabolites can be detected in a person’s body a month after use, thus it is possible to be convicted of this offense weeks after a person last ingested cannabis by smoking or eating it.
You are now a felon. The felony conviction demands a a term of imprisonment of not less than 3 years and not more than 14 years if the violation resulted in the death of one person; or a term of imprisonment of not less than 6 years and not more than 28 years if the violation resulted in the deaths of 2 or more persons.
Too farfetched? Think again
My simple example is not too farfetched. Numerous cases in Illinois alone have resulted in felony convictions and years in prison for circumstances similar to those above.
Take the heartbreaking case of Scott Shirey in Kane County, Illinois (just outside Chicago) as just one example. Similar to my example above, Shirley had no impairment at the time of the car accident, but admittedly had smoked marijuana a month beforehand. He, too, was not at fault when a distracted driver ran a red light and hit his car.
But the other driver was not the death involved in this crash. It was one of Mr. Shirley’s own 10-year-old twin sons in the back of his car, while his other twin survived serious injuries. They did not make it to swim practice that day.
Yes, even though the other driver caused the accident, and even though Mr. Shirley had no impairment, the grieving father was facing up to 14 years in jail as a felon for the death of his own son. He had trace amounts of marijuana in his blood.
Until the law is changed, is there any hope?
Various attempts have been made in Illinois to “carve out” this no-impairment, drugs in one’s system DUI, but it has yet to succeed. A likely factor is the confusion of legislators and the public of not wanting to look “weak” on combating DUI arrests, convictions, and sentences.
Look back at the statute quoted above and its use of the word “unlawful.” Under the plain language of the statute, one can be convicted under the statute only if the State proves that the drug, substance, or compound in the person’s blood, breath, or urine resulted from the unlawful consumption of cannabis. In other words, if someone in Illinois drives with any amount of a drug, substance, or compound in their breath, blood, or urine resulting from the use or consumption of cannabis in a place where it is legal (Washington, Colorado, various foreign territories, etc.), that would not be a violation of the strictly construed statute. If the statute is unambiguous, the strict language applies.
If the language of the statute is ambiguous, legislative intent matters. Did Illinois legislators intend to prevent impaired driving to put drivers and others in danger on Illinois roads? Or was there a legislative intent to restrict operating a vehicle after any ingesting at any time of illegal substances based on “moral standards of a community norm” or otherwise?
It is worth noting that since Illinois recently began its pilot program for medical marijuana, the statute was amended to expressly state that it is not a defense to any such DUI charge. 625 ILCS 5/11-501(b). But this would not apply to an outside jurisdiction consumption of marijuana. However, I am not yet aware of a case in Illinois that has put this argument to the test.
A survey of other states’ THC Per Se DUI Laws
So, but for prosecutorial discretion, states like Illinois will continue to enforce such laws until a statutory change is made or a reviewing court interprets the law for an impairment intent (e.g. Illinois’ Supreme Court affirmed the zero tolerance application, while Arizona’s highest court did not).
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