As part of a continuing statewide trend, Illinois Governor Bruce Rauner signed a law that ended jail sentences for most marijuana possession cases.
Instead of a Class B misdemeanor, possession of 10 grams or less is now a maximum $200 fine. A medical marijuana law is already on the books, as is a Chicago city ordinance that gives police officers the option of issuing citations instead of arresting people who have 15 grams or less of marijuana. Advocates on both sides were quick to respond. Chris Lindsey of the Marijuana Policy Project said the governor did the right thing by replacing the “needlessly draconian marijuana possession laws” with “commonsense legislation.” On the other hand, the Illinois Family Institute lamented that Governor Rauner “only succeeded in removing a significant deterrent to drug use and addiction.”
The new law also ends the zero-tolerance policy regarding marijuana and DUI. Going forward, prosecutors must establish that defendants had at least five nanograms of THC in their blood or ten nanograms in their saliva.
DUI and Marijuana Evidence
Statistics vary on just how much five or ten nanograms of marijuana is in practical terms, but it is not much more than a trace amount. Most scientists agree that there is this much THC in blood or saliva between 2 and 2.5 hours after consumption; given the different absorption rates in the different liquids, the actual amount is about the same.
Like alcohol intoxication, marijuana impairment can be established either by direct or circumstantial evidence. Given the recent holding in Birchfield v. North Dakota, in 11-501(a)(6) cases, authorities need search warrants to administer marijuana blood tests, and probably need search warrants to administer saliva tests, assuming that the test involves giving a sample and not just swabbing a cheek.
Prosecutors can also use 11-501(a)(4), which makes it unlawful to operate a motor vehicle if “the person [is] incapable of safely driving.” Circumstantial evidence in DUI cases nearly always involves the three National Highway Traffic Safety Administration-approved field sobriety tests, which are:
- Walk and Turn (walking a straight line),
- One Leg Stand, and
- Horizontal Gaze Nystagmus.
- Officers often administer unapproved tests as well, such as the fingertip-to-nose test, but these test typically do not carry as much legal weight as the approved FSTs.
Arrest and License Suspension
Persons who are arrested for DUI –marijuana, submit to a saliva or blood test, and have a THC level that is above the legal limit may have their driver’s licenses suspended for up to six months for a first failure and one year for a subsequent failure; drivers who refuse to submit face a maximum 12-month suspension for a first refusal and three year suspension for a subsequent refusal. To receive a restricted license, the driver must use a breath alcohol ignition interlock device (BAIID) even though this gadget does not measure THC levels.
It is always important to fight administrative license suspension in DUI cases because even if the suspension period is not reduced or the matter is not thrown out, the officer must give sworn testimony, so the hearing serves as free discovery for the defendant.
Rely on Experienced Attorneys
The DUI-Marijuana laws have changed, but our commitment to a vigorous defense in this area remains the same. For prompt assistance with a DUI or other criminal case, contact an experienced criminal defense attorney in Schaumburg from Glasgow & Olsson. We routinely handle matters in Cook County and nearby jurisdictions.
(photo courtesy of Jane M. Sawyer)