DUI and the Medical Cannabis Act
Driving under the influence of alcohol is the first thing that comes to mind when someone mentions a DUI charge. However, there are other substances besides alcohol that may result in a DUI traffic stop if you drive after you have consumed. In the state of Illinois, it is illegal to drive under the influence of alcohol, marijuana, other drugs, or any combination of these. Yet, the new Medical Cannabis Act may change everything with regards to DUI.
The Law before the Change
The state of Illinois has, rather used to have, one of the strictest policies when it came to driving while under the influence of marijuana. Before all of the medicinal marijuana law changes, many states adopted a per se law for marijuana, similar to the blood alcohol concentration measurements. With alcohol, in order to be charged and potentially convicted of a DUI, the blood alcohol concentration in an individual’s system must be at 0.08 percent or higher. In regards to marijuana, several states chose their own levels of impairment. In Washington, it was five nanograms per milliliter (5 ng/mL). In other states such as Ohio and Nevada, their limit was two ng/mL. Still, Illinois had a zero tolerance for marijuana. If any marijuana was found in your system, be it through a blood or urine sample, you would be charged with a DUI. This was referred to as a “trace law”.
The New Law
On January 1, 2014, The Medical Cannabis Pilot Program Act was passed into law. This is a trial program that that makes it legal to possess, use, cultivate and distribute medical marijuana, provided you have a medical pass. It does require those with medical needs to go through an approval process and become a “registered user." As of Monday November 9, 2015, the first eight dispensaries became open for business, with others added by the end of last year. It is estimated by the Illinois Department of Public Health that there are an estimated 3,300 registered users. The agency began mailing out identification cards October.
Effects on DUI Law
For the very first time in Illinois, it is now legal to operate a vehicle if consuming cannabis for medical purposes, so long as the operator of the vehicle is not impaired. However, for a state that previously had a zero tolerance policy for the pairing of marijuana usage and vehicular operation, this creates a few more adjustments that must be made. Standardized Field Sobriety Tests (SFSTs), also known as physical performance tests, which have previously been used for determining alcohol impairment are now statutorily recognized as a valid form of testing, citing that:
“The purpose of these tests is to determine the effect of the use of cannabis on a person's capacity to think and act with ordinary care and therefore operate a motor vehicle safely.”
However, these SFSTs must only be given after an arrest has been made. Also, keep in mind that in order for that to occur, the officer:
“Must have an independent, cannabis-related factual basis giving reasonable suspicion that the person is driving under the influence for conducting [SFSTs].”
Therefore, legally, an officer cannot force a field sobriety test without you being under arrest, and you cannot be under arrest without probable cause.
The New Consequences
If you are arrested and charged with cannabis related DUI, a conviction can result in any of the following outcomes:
- If a registered user submits and fails the SFST, they are subject to having their license suspended for up to six months;
- A registered user who refuses to take the SFST is subject to a full year long license suspension; or
- If this is considered a second offense within five year and you fail a SFST, you may receive a penalty of up to a year of a license suspension, three years if you refuse to take the sobriety test, even if you are a registered user.
As all of this is fairly new to the legal system, many of the cases are left entirely up to judge discretion. It is crucial to your case to have an aggressive attorney on your side fighting for your rights. As judges do not have ample prior cases to refer to and help them in determining the outcome, every detail will matter and an experienced lawyer will make sure that your case is presented in such a way that you will get the outcome you desire. Contact our Addison criminal defense attorneys, serving clients in Maywood, Wheaton, Rolling Meadows, Bridgeview, Cook County, and all surrounding Chicagoland areas. Stringini & Garvey, P.C. are available to take your case. Call us today for your free initial consultation at 630-834-9595.