Matthew P. Jones
James R. Covington III
SPRINGFIELD — The state’s largest bar group wants to curb a law that subjects drivers to DUI charges for having trace amounts of narcotics in their systems, despite the fact they may have taken the drugs days or weeks before a crash they may not have caused.
“It is a bad law. It is putting people who have not really committed anything that would justify that type of treatment — putting them in prison,” said Larry A. Davis, a principal at The Davis Law Group P.C. in Northfield who helped write the Illinois State Bar Association’s proposal.
Under that plan, Senate Bill 2953, a penalty enhancement for controlled substances would be stripped from the DUI statute and turned into a stand-alone misdemeanor.
But the organization’s top lobbyist said today the group won’t push legislators to take action on the bill until next spring.
It’s likely the measure will still have to be negotiated with prosecutors, who oppose the bill but have signaled a willingness to make some changes to the law.
“I think it’s something for us to work on. And we will refile it next year,” said James R. Covington III, the ISBA’s directory of legislative affairs.
The Illinois Vehicle Code currently says that someone is guilty of driving under the influence if they operate a vehicle with any amount of an illicit substance in their blood or urine, regardless of whether they’re impaired or how long ago they consumed the substance.
It’s a policy that was upheld by the Illinois Supreme Court in at least two notable cases: People v. Fate in 1994 and People v. Martin in 2011.
In the former, the high court backed the law as a reasonable exercise of police powers, noting “the vast number of contraband drugs, the difficulties in measuring the concentration of these drugs with precision from blood and urine samples and, finally, the variation in impairment from drug to drug and from person to person.”
In the latter, it ruled prosecutors did not have to prove a driver was impaired by the drugs in his system when he killed two other travelers to sustain an aggravated DUI conviction — just that the drug was present.
But the policy gained special notoriety among members of the defense bar after a 2011 crash involving a suburban man, Scott Shirey.
One of Shirey’s sons was killed in the accident, which was caused by another driver.
But Shirey faced up to 14 years in prison for aggravated DUI after a blood test showed he had a small amount of marijuana in his system at the time, given that he smoked the drug a month prior to the crash.
He ultimately received probation, but his plight fueled an effort to scale back the policy.
“I think everybody recognizes that cases like Shirey’s are a result of the Supreme Court’s decision in Martin and are a serious problem. And I think you could even get the state’s attorneys’ people to agree with that,” Davis said.
While opposing Senate Bill 2953, some prosecutors have pointed to laws in states such as Pennsylvania and Colorado — which have adopted threshold levels of presumed impairment from marijuana — as models for a compromise in Illinois.
In Pennsylvania, it’s illegal to have more than 1 nanogram of tetrahydrocannabinol — or THC, the active ingredient in marijuana — per millileter of blood. In Colorado, where recreational marijuana is legal, 5 nanograms per milliliter is the legal limit.
Matthew P. Jones, the top lobbyist for the state’s attorneys appellate prosecutor, said his group is still talking to the ISBA about the policy.
Jones said he would like to see protections from drivers who ingest a combination of marijuana and alcohol or other drugs but still carve out some space to protect patients who have legally obtained medicinal marijuana.
“Whether it’s lawful use or unlawful use, the goal ought to be the same, which is if you ingest this amount, more than a certain amount, we need to make sure your driving privileges are impacted by that,” Jones said.