Probably due to the proliferation of powerful opioid pain relievers, and the corresponding increased strength of many over-the-counter pain relievers, many law enforcement agencies now prosecute more DUI drug cases than in previous years, and in some cases, the number of cases may even eclipse the number of DUI alcohol cases.
In one way, this crackdown may be misplaced because drivers under the influence of alcohol are about nine times more likely to cause a fatal crash than drivers under the influence of a non-alcohol drug. Yet, in another way, the shifting influence makes sense because this same study showed that the number of drug-impaired drivers significantly exceeded the number of alcohol-impaired drivers.
Legally and procedurally, what is the difference between a DUI drug case and a DUI alcohol prosecution?
The Law
In terms of DUI alcohol, 625 ILCS 5/11-501 contains both a per se provision and a circumstantial evidence provision. Drivers with a BAC above .08 are intoxicated as a matter of law, and in non-test cases, prosecutors can prove that the defendant was “under the influence.” Similarly, the same law contains several different ways to make a DUI drug case:
- Per Se: Drivers are DUI as a matter of law if their blood shows any sign of any substance prohibited under the Illinois Controlled Substances Act, Use of Intoxicating Compounds Act, or Methamphetamine Control and Community Protection Act.
- Under the Influence: Per subsection (a)(4), it is illegal to drive or operate a motor vehicle while “under the influence of any other drug,” i.e., one not prohibited by any of the three laws mentioned above, if that drug “renders the person incapable of safely driving.”
- Marijuana: It is illegal for a person to use marijuana within two hours of driving.
Somewhat confusingly, a cannabis prescription is not a defense to a per se or under-the-influence prosecution, but it is a defense to a marijuana-only prosecution.
Possible Defenses
Police in California have field-tested a marijuana Breathalyzer, but it will probably be quite some time before such devices are widely used or can detect any substance other than THC. In the meantime, per se DUI drug cases rest on blood tests, and this evidence often raises procedural questions. Officers must have valid search warrants before they can extract blood. There are also often chain-of-custody issues in this area because the vial of blood must make several different stops with different entities before it can be used in court.
Furthermore, a defense expert can usually run an independent analysis of a blood sample, the results of which may be markedly different than the analysis that the police performed.
Synthetic marijuana creates issues, as well, because the substance which the defendant consumer may not have been on the prohibited list at the time.
Like alcohol under-the-influence prosecutions, drug cases normally rely on circumstantial evidence from the field tests. Many times, officers testify that defendants “failed” the field tests because of minor technicalities and were thus incapable of safely operating a motor vehicle, an argumentative leap that many jurors see as tenuous at best.
Team Up with Aggressive Attorneys
DUI drug cases can be defended in much the same way as DUI alcohol matters. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.
(image courtesy of Get Budding)