2016 Illinois Public Act 99-0697: SB2228: CANNABIS DECRIMINALIZATION AND REMOVAL OF ZERO TOLERANCE CANNABIS DUI
On Friday, July 29, 2016, Governor Rauner signed SB2228 into law, effective immediately. As one of the drafters who assisted in writing this law, I wanted to share my experience with getting involved, the changes the bill made when going through the process, and how we ended up with certain language in the statute.
My main focus was to assist in drafting the DUI-Cannabis section of the code as I did not provide input on the cannabis penalties for possession. I will summarize the most relevant sections but my involvement and behind-the-scenes accounting will mainly cover the DUI language, the purpose behind adding the language, and my interpretation as one of the many authors of the bill.
I believe the statute is a "work in progress" and definitely has its flaws; however, it is the best compromise, at this point, all parties could make to decriminalize cannabis possession less than 10 grams and to remove zero tolerance for DUIs involving cannabis and the presence of THC in the blood. I will discuss the problems below my summary of the laws where it is listed: "PROBLEMS WITH THE STATUTE..."
Here is a summary of the bill and I will discuss more in depth below. The bill is sometimes hard to read and I made small changes with the intent of the legislature in mind. I should note that the 5ng/ml language adopted by the Governor is NOT supported in science and we made that as clear as we could to the Governor. In becoming involved, I did not seek to make laws easier on impaired driving. I have a family and we have to drive these roads too. Rather, I wanted to remove a law that sent sober drivers to jail and/or suspended/revoked their driving privileges. As a former prosecutor, I did not like prosecuting cannabis possession cases and I am glad the Governor signed the decriminalization bill. Minor cannabis possession cases did not always send people to jail. BUT, what it would do is convict them of a criminal offense that would disqualify many poor people from public aid, such as housing, financial aid, etc. They would then be arrested for a subsequent crime and that prior cannabis conviction would "aggravate" their sentence on the subsequent crime...that is when they go to jail, lose their job, aid, and many times, the custody of their children. Had that cannabis conviction not been there, depending on the facts, they would likely not have been sentenced to jail at all and they may not have lost everything.
NEW CANNABIS PENALTIES AS OF 7/29/2016 IN ILLINOIS
720 ILCS 550/4
- Sec. 4. It is unlawful for any person knowingly to possess cannabis. Any person who violates this section with respect to:
- (a) not more than 10 grams of any substance containing cannabis is guilty of a civil law violation punishable by a minimum fine of $100 and a maximum fine of $200. The proceeds of the fine shall be payable to the clerk of the circuit clerk. Within 30 days after the deposit of the fine, the clerk shall distribute the proceeds of the fine in accordance with 720 ILCS 550/4(1)(a)(1).
- (b) more than 10 but not more than 30 grams of any substance containing cannabis is guilty of a Class B misdemeanor;
- (c) more than 30 grams but not more than 100 grams of any substance containing cannabis is guilty of a Class A misdemeanor; provided, that if any offense under this subsection (c) is a subsequent offense, the offender shall be guilty of a Class 4 felony;
- (d) more than 100 grams but not more than 500 grams of any substance containing cannabis is guilty of a Class 4 felony; provided that if any offense under this subsection (d) is a subsequent offense, the offender shall be guilty of a Class 3 felony;
- (e) more than 500 grams but not more than 2,000 grams of any substance containing cannabis is guilty of a Class 3 felony;
- (f) more than 2,000 grams but not more than 5,000 grams of any substance containing cannabis is guilty of a Class 2 felony;
- (g) more than 5,000 grams of any substance containing cannabis is guilty of a Class 1 felony.
720 ILCS 600/3.5: Unlawful Possession of Drug Paraphernalia
- Sec. 3.5 (a): If a person knowingly possess an item of paraphernalia with the intent to use it in ingesting, inhaling, or otherwise introducing cannabis or a controlled substance into the human body, or in preparing cannabis or a controlled substance for that use, is guilty of a Class A misdemeanor for which the court shall impose a minimum fine of $750 in addition to any other penalty prescribed for a Class A misdemeanor. This subsection (a) does not apply to a person who is legally authorized to possess hypodermic syringes or needles under Hypodermic Syringes and Needles Act.
- (b) In determining intent under subsection (a), the trier of fact may take into consideration the proximity of the cannabis or controlled substances to drug paraphernalia or the presence of cannabis or a controlled substance on the drug paraphernalia.
- (c) If a person violates subsection (a) of Section 4 of the Cannabis Control Act, the penalty for possession of any drug paraphernalia in violation of the cannabis control act seized during the violation for that offense shall be a civil law violation punishable by a minimum fine of $100 and a maximum fine of $200. The proceeds of the fine shall be payable to the clerk of the circuit clerk. Within 30 days after the deposit of the fine, the clerk shall distribute the proceeds of the fine in accordance with 720 ILCS 600/3.5(c)(1)(2)(3)(4)&(5).
- See below for problems with meaning, enforcement and interpretation of this statute.
Expungement & Sealing Changes under 20 ILCS 2630/5.2(a)(2.5)
Procedures for Law Enforcement
Commencing 180 days after the effective date of this amendatory act of the 99th General Assembly, the law enforcement agency issuing the citation shall automatically expunge, on or before January 1 and July 1 of each year, the law enforcement records of a person found to have committed a civil law violation of subsection (a) of Section 4 of the Cannabis Control Act or subsection (c) of Section 3.5 of the Drug Paraphernalia Control Act in the law enforcement agency's possession or control and which contains the final satisfactory disposition which pertain to the person issued a citation for that offense. The law enforcement agency shall provide by rule the process for access, review, and to confirm the automatic expungement by the law enforcement agency issuing the citation.
Procedures for the Circuit Clerk
Commencing 180 days after the effective date of this amendatory Act of the 99th General Assembly, the clerk of the circuit clerk shall expunge, upon order of the court, or in the absence of a court order on or before January 1 and July 1 of each year, the court records of a person found in the circuit court to have committed a civil law violation of subsection (a) of Section 4 of the Cannabis Control Act or subsection (c) of Section 3.5 of the Drug Paraphernalia Control Act in the clerk's possession or control and which contains the final satisfactory disposition which pertain to the person issued a citation for any of those offenses.
DISCUSSION & MY INTERPRETATION OF THE CHANGES TO THE LAW FOR POSSESSION OF CANNABIS AND PARAPHERNALIA:
The legislature intended to decriminalize small amounts of Cannabis (less than 10 grams) as well as drug paraphernalia (in certain circumstances and I explain more below), by way of assessing a "civil fine" that will be disbursed to various government agencies. The intent was to 1) save the State of Illinois money due to the cost to prosecute and incarcerate, and 2) prevent citizens from being convicted of a criminal offense that could affect their future job prospects, ability to provide for their families, etc.
PROBLEMS WITH THE STATUTE CONCERNING POSSESSION OF CANNABIS AND PARAPHERNALIA:
Problems with Municipal Police Enforcement/Officer Discretion to cite a violation: While the statute calls for a maximum "civil fine" of $200 under 720 ILCS 550/4(a), it conflicts with 720 ILCS 550/17.5: Local Ordinances: The provisions of any ordinance enacted by any municipality or unit of local government which imposes a fine upon cannabis other than as defined in this Act are not invalidated or affected by this Act. (emphasis mine)
- If the new cannabis penalties are now "civil penalties" that are not criminal in nature, how does the statute explain section 720 ILCS 550/17.5 in that the new law does not invalidate "quasi-criminal" ordinance violations with a maximum fine that exceeds the $200 maximum "civil fee" that the new cannabis law commands?
- Here is an example to illustrate the problem: The City of East Peoria has a municipal ordinance violation under Section 10-1-4.17(d)(1) for possession of cannabis less than 2.5 grams with a minimum fine of $350 and maximum of $750, for possession of cannabis between 2.5 and 10 grams with a minimum fine of $400 and maximum of $750, and for possession of cannabis between 10 and 30 grams with a minimum fine of $500 and maximum $750. -----
- If an East Peoria Police Officer cites a citizen with possessing up to 2.5 grams of cannabis, he/she has the choice to write an ordinance ticket or a "civil fine" ticket. The problem is, the officer will most definitely be advised by their city attorneys to cite them with the much more costly ordinance ticket and then the citizen is not afforded the rights the legislature intended to extend with the "civil fine" that would be automatically expunged. Next thing you know, there will not be any municipality with cannabis possession laws citing individuals with the new statute's "civil fine," but rather, they will simply cite the ordinance violation that 1) requires a court appearance and 2) can lead to a criminal record that can prevent future offenses from being expunged (e.g. conviction for ordinance violation invalidates any future expungement of criminal offense even though otherwise eligible for expungement).
- Based on the current language, the statutes would be conflicting and it would be unclear if a person can expunge their cannabis ordinance conviction simply because the City directed its officers to cite citizens with the ordinance violation under each municipal code rather than the new "civil fine" law. This is something that will need to be fixed as I anticipate municipalities will continue citing with the more serious "ordinance violation" rather than the "civil fine" that is automatically eligible for expungement on January 1st and July 1st of each year.
Problems with application of Drug Paraphernalia Statute: There is ambiguity and even confusion as to what the law is against possessing drug paraphernalia under 720 ILCS 600/3.5. I'll try to explain: The statute still has the former law against possessing drug paraphernalia a class A misdemeanor but in a subsequent subsection, it makes possessing it a civil offense if, during the arrest, police discover you are in violation of the civil offense of possessing cannabis up to 10 grams. That means: If you are possessing a hitter pipe and you have less than 10 grams of cannabis, it will be two "civil violations" and you will face a maximum fine of $200 on each. However, if you are caught with 10-30 grams of cannabis and you have a hitter pipe with you, that will be a Class A misdemeanor. It will also be a Class B misdemeanor for possessing 10-30 grams of cannabis (under the new law).
- If you do not want to commit a criminal offense, simply possess less than 10 grams of cannabis and you can carry a hitter pipe with you. That should not be considered a Class A misdemeanor, but rather, 2 civil violations with maximum fines of $200.
- If you are found with just a hitter pipe, the statute is unclear on what sentence to impose: First, if they can prove their elements (that you were going to use the pipe for the purposes of introducing cannabis to your body), even though they do not have any traceable amount of cannabis in the pipe, it will likely be considered a Class A misdemeanor because the paraphernalia statute making it a civil violation is only "triggered" if the person violates subsection (a) of Section 4 of the Cannabis Control Act (possessing no less than 10 grams of cannabis). It does not seem the legislature meant to make possessing a hitter pipe with no cannabis more serious than possessing a hitter pipe with cannabis, but alas, these are the problems that we see thus far with this language in the new law.
- A point of practice will be this: If you are caught with a hitter pipe and no cannabis and they charge you with a Class A misdemeanor, you should get the hitter pipe tested by the crime lab so they can find a traceable amount of cannabis so the civil violation will "kick in" since the hitter pipe was found with less than 10 grams of cannabis (the residue).
Another problem involves "Police Officer Discretion" in deciding which law to cite a citizen with violating intending on avoiding the civil offense provisions of the new law: (Illinois Attorneys Samuel Partida and Kenneth Wang spotted these problems)
- For example: A city police officer searches you (lawfully) and finds 6 grams of cannabis and a hitter pipe (the pipe has no testable residue inside it). The officer, not having an ordinance violation to reap the benefits of the fines and costs that total around $1000 (for the ordinance violation in other cities with cannabis possession ordinances), decides to not cite you with the cannabis possession, but simply sites you with a Class A misdemeanor for Possession of Drug Paraphernalia in violation of 720 ILCS 600/3.5. This MAY be legal and you MAY have to face the criminal Class A misdemeanor in court (and not the $200 civil violation from the new statute) since the officer is not alleging you violated subsection (a) of Section 4 of the Cannabis Control Act, thereby not "triggering" the new statute's "civil offense" provision. This would be a stretch but nothing surprises me when it comes to police officers collecting revenue for their employer (i.e. the City they work for).
- Using that example but changing the facts a little: If there is a municipal ordinance for cannabis, say, in East Peoria, IL for a maximum fine of $500 for 2.5 grams of cannabis possession, the officer could use his/her discretion to cite you with the ordinance violation ($500 fine) plus the Class A misdemeanor Paraphernalia ticket and give you two separate court dates: One court date in Ordinance Violation Court (OV Court) and one in criminal court for the paraphernalia case. This way, they could say since they did not cite the citizen with a violation of subsection (a) of Section 4 of the Cannabis Control Act, the "civil violation" provision was not "triggered." Therefore, they can still get their criminal offense for the paraphernalia and also get their money for the city from the OV for possessing the 2.5 grams of cannabis. See the problems?
- I would likely argue the intent of the legislature was to trigger the civil provision if there was a "violation" of subsection (a) of Section 4 of the Cannabis Control Act and if a citizen possessed less than 10 grams of cannabis in any fashion, that is enough to trigger the "civil violation" into effect.
If you have a pending cannabis possession case or paraphernalia case in court, what effect, if any, will this law have on your case? Presently, we represent many clients who are facing misdemeanor charges for possessing cannabis and paraphernalia. Since the law changed to a civil violation, can the defendant still be prosecuted under the old statute? The answer is: It depends on the facts:
- If you are presently facing a Class B or C misdemeanor for possessing cannabis (under 10 grams) and you are also facing a Class A misdemeanor for possession of drug paraphernalia, the State should dismiss your case and they can choose to cite you with a new violation of the law under the new statute so long as the statute of limitations has not run. Should they choose to not dismiss, they could always amend the charging instrument (called an "information") to cite the new law and its penalties. Your defense attorney should consider filing a "Motion for Re-Admonishment of Rights" so the judge can explain to you the new "civil penalties" and also file a "Notice of Election," to inform the court and prosecution that you elect (or choose) to be sentenced under the new sentencing range of the "civil penalty" ($100-$200).
- If you are presently facing a Class A misdemeanor for possession of cannabis (10-30 grams) and a Class A misdemeanor for Drug Paraphernalia, under the new statute, you will still face the Class A possession of Drug Paraphernalia and you will now face a Class B misdemeanor for possessing Cannabis (under the new law, 720 ILCS 550/4(b)). Remember: The changes to the paraphernalia statute arguably only apply to those possessing drug paraphernalia when they are possessing less than 10 grams of cannabis. Your defense attorney should consider filing a "Motion for Re-Admonishment of Rights" so the judge can explain to you the new sentencing range (since the Class A possession of cannabis case is now a Class B possession case under the new law) and also file a "Notice of Election," to inform the court and prosecution that you elect (or choose) to be sentenced under the new sentencing range of the possession of cannabis being a Class B misdemeanor under the new law.
Illinois Supreme Court Interpretation and Rule Changes (Updated as of 9/7/16)
- Circuit Clerks shall file these cannabis related civil violations as "Miscellaneous Remedy" (MR) cases.
- All civil law violations may be satisfied without a court appearance by admitting to the violation, with the exception of electronic admissions authorized by the Supreme Court and payment of a "civil fine" of $120, inclusive of all penalties, fees, and costs.
- If the cannabis & paraphernalia cases are filed in conjunction with another violation, the court appearance is required.
- If the defendant fails to appear and does not respond to the citation, the court may continue the case or enter a default judgment while assessing a fine, inclusive of costs, as prescribed in Rule 588 ($120 total fine and cost).
- The circuit clerk shall expunge the entire case on January 1st and July 1st of every year.
- A defendant may contest the violation by notifying the circuit court at least 10 work days before the date set for the first appearance. Contesting may result in the court imposing additional fines (up to $200 by statute) and fees. A new appearance will be set, and the defendant will be notified of the time and place of the required appearance to contest the offense.
- A defendant may demand a trial by jury, which would occur at a later date, but additional fees may apply.
Sample Motion to Re-admonish and Notice of Election:
STATE OF ILLINOIS
IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT
PEOPLE OF THE STATE OF ILLINOIS, )
vs. ) Case No. 2016CM12345
JOHN DOE, )
MOTION FOR ADMONISHMENTS OF RIGHTS UNDER NEW LAW 720 ILCS 550/4(a) AND NOTICE OF ELECTION TO BE SENTENCED UNDER NEW SENTENCING PROVISIONS SET FORTH IN 720 ILCS 550/4(a)
NOW COMES the Defendant, JOHN DOE, by his attorneys, HALL, RUSTOM & FRITZ LLC, and hereby moves this court to admonish the Defendant of the new sentencing provisions set forth under Public Act 99-0697 (SB2228, 2016) as required by Supreme Court Rule and serves Notice of Election on this Court and the State to be sentenced under the new sentencing provisions of 720 ILCS 550/4(a), and if applicable, 720 ILCS 600/3.5, and in support offers the following:
1. On 6/27/16, two counts were filed by the ANYWHERE County State’s Attorney’s office alleging the Defendant committed the offenses of (count 1) Possession of Drug Paraphernalia in violation of 720 ILCS 600/3.5(a), a Class A misdemeanor and (count 2) Unlawful Possession of Cannabis, between 2.5 grams and 10 grams in violation of 720 ILCS 550/4(a), a Class B misdemeanor.
2. On 7/29/16, Governor Rauner signed SB2228, EFFECTIVE IMMEDIATELY, that decriminalized and made a “civil offense” the violation of possession of cannabis less than 10 grams and also decriminalized and made a “civil offense” the possession of drug paraphernalia, if the paraphernalia was found when the Defendant is in violation of the new “civil offense.” Both offenses are no longer considered misdemeanors as of 7/29/16 and are now “civil offenses” with a fine not lower than $100 and not to exceed $200. See Defense Exhibit A & B
3. Since a new sentencing range has been passed by the General Legislative Assembly (GLA), the Defendant will need to be admonished as to the new sentences.
4. Pursuant to Section 4 of the Statute on Statutes (5 ILCS 70/4), “if any penalty, forfeiture or punishment be mitigated by any provisions of a new law, such provision may, b the consent of the party affected, be applied to any judgment pronounced after the new law takes effect.” See 5 ILCS 70/4. See Exhibit C
5. Where a defendant has the right to choose between sentencing provisions, due process requires that he be advised of that right. See People v. James, 46 Ill.2d 71, 263, N.E. 2d 5 (1970).
6. If the applicable sentencing provisions have been changed by an amendment which took effect after the offense was committed but before the sentencing hearing, defendant may elect to be sentenced under the law in effect at the time of sentencing. See People v. Gancarz, 228 Ill.2d 312, 888 N.E.2d 48 (2008) and People v. Jackson, 99 Ill.2d 476, 459 N.E.2d 1362 (1984); People v. Hillenbrand, 121 Ill.2d 537, 521 N.E.2d (1988); People v. West, 142 Ill. App.3d 876, 492 N.E.2d 566 (1st Dist. 1986).
7. The recent changes to the law via Public Act 99-0697 are procedural changes to the sentences imposed (i.e. mitigation of punishment), not substantive changes and the Defendant can therefore elect which version of sentence to be imposed. Gancarz, citing People v. Glisson, 202 Ill.2d 499, 270 Ill.Dec. 57, 782 N.E.2d 251 (2002).
8. Failing to properly admonish the Defendant of his/her right to elect is a denial of due process and is reversible error. People v. Malin, 359 Ill. App.3d 257, 295 Ill.Dec. 607, 833 N.E. 2d 440 (2005) and People v. Hollins, 51 Ill.2d 68, 280 N.E.2d 710 (1972).
9. The Defendant moves to be admonished of the new sentencing ranges set forth in 720 ILCS 550/4(a) and expressly elects to be sentenced under the new sentencing provisions should he plead guilty to or be found guilty of the new “civil violation” set forth in 720 ILCS 550/4(a).
WHEREFORE, the Defendant moves this honorable court to:
1. Admonish him of the new sentencing provisions set forth under Public Act 99-0697 (SB2228, 2016) as required by Supreme Court Rule and;
2. Grant his Notice of Election to be sentenced under the new sentencing provisions of 720 ILCS 550/4(a) and for any other relief the court deems appropriate.
HALL, RUSTOM & FRITZ LLC
For the Defendant
Jeffrey R. Hall
Hall, Rustom & Fritz LLC
316 SW Washington Street, Suite 1A
Peoria, IL 61602
Phone: (309) 699-4691
Fax: (309) 699-4693
Direct email: email@example.com
DUI CANNABIS AND THE NEW "PER SE" LIMIT OF 5 NG/ML OF THC IN WHOLE BLOOD UNDER 625 ILCS 5/11-501(a)(7):
In this section, I will discuss my involvement with the law's changes and why we arrived at the compromise with adding "per se" language rather than requiring the State to prove drivers are actually impaired like 34 other states require. Even though the Governor signed this law and I am pleased, it is only bittersweet. I do not agree with "per se" limits as a better choice of law. I believe we should require evidence of impairment to be able to punish for "impaired driving." I believe the studies support my position, but more studies are needed other than the most recent study from the National Highway and Traffic Safety Administration that I discuss below. If 34 other states can do it without having higher incidents of cannabis related traffic fatalities, why can't we?
I became involved with the changes in the law after I represented a 16-year-old girl who caused a traffic fatality the first time she drove at night. I believed the evidence showed that she was not impaired (she had cooperated with officers, performed field sobriety tests to the satisfaction of the officers, and did not exhibit signs of impairment) but since her blood tests resulted in the presence of THC in her system, the law at the time said that she is guilty of aggravated driving under the influence of cannabis and she must be sentenced to prison unless "extraordinary circumstances exist for probation." Finding no extraordinary circumstances existed (I disagreed), the judge sentenced her to 6 years in prison which required her to serve 85% of the sentence (5 years and 1 month). I did not believe this was fair and I strongly believed the law should change.
I began working on changing the law by researching other states and their requirements to prove impairment. I was shocked to see that 34 other states require prosecutors to present evidence of impairment. Why was our State so strict requiring there be no trace of THC from cannabis? Are our police any less capable of gathering evidence of impairment? Are our prosecutors any less capable of proving their case beyond a reasonable doubt like the other 34 states?
I then began discussions with attorney Larry Davis (who was so important in the drafting and formulation of these changes to the law) and, at his suggestion, we should remove the "zero tolerance" statute and replace it with a separate, non-DUI related statute under a new section entitled "Driving with Drugs in System" that would be designated as 625 ILCS 5/11-508, a class B misdemeanor, that would not be related to DUI but would still be a criminal offense promoting zero tolerance while driving vehicles.
Our opposition (various police lobbying groups and the Illinois Appellate Prosecutor's office) opposed but suggested a compromise for us to add language setting a limit of THC in whole blood. Based on studies abroad and at home, other states such as Nevada, Washington, Oregon and Colorado, moved forward by setting per se limits. However, in Colorado, their "per se" limit is actually not a "presumption" but rather an inference. That means, a prosecutor in Colorado can submit evidence that the driver was operating their vehicle with 5 ng/ml THC in whole blood, but the defense could rebut that with evidence the driver was NOT impaired.
Fearing that language sets the standard to high, (since many regular cannabis users consistently have 5ng/ml or more in their system at all times but are NOT impaired, we opposed until a new study came out by the National Highway Traffic Safety Administration (NHTSA), that concluded 15 ng/ml of whole blood showed similar signs of impairment than someone who had a BAC of .07/.08 Click the link for the study: Cannabis Effects - NHTSA Study
Here is a graphical illustration from the study demonstrating their conclusions:
With that new study, we all agreed on the language to set the limit at 15 ng/ml rather than 5 ng/ml since this study superseded the studies used by Colorado when passing their "per se" law.
Our first law proposal (625 ILCS 5/11-508: Driving with Drugs in System) failed to gain traction so it was suggested to add our language to remove zero tolerance to the new HB218 law from 2015. This law set the limit for possession of cannabis as a civil violation up to 15 grams and the DUI limits were 15 ng/ml in whole blood.
Fearing severe backlash from law enforcement groups and interest groups, Governor Rauner executed his "amendatory" veto powers and on 8/16/15, he vetoed the bill. However, he made suggestions rather than fully vetoing it. He suggested we lower the amount able to be possessed to 10 grams (comparing Chicago's ordinance allowing for up to 10 grams to possess without penalty), and he suggested we lower the "per se" limit to 5 ng/ml to come in line with Colorado's law.
It seemed apparent that he did not read Colorado's law closely because, as I explained above, their law calls for an inference limit of 5ng/ml that can be presented as evidence of impairment, but it allows the defense to admit evidence the person was sober and not impaired. Our law allows for no such defense to be presented. It is the same as a BAC result of .08. If you test over, you are GUILTY.
In the NHTSA study, it concluded that a limit of 5ng/ml showed similar signs of impairment than someone with a BAC of .02 to .03. Under our laws, anyone with a BAC of .049 or below is PRESUMED SOBER.
Not wanting to pass a law that was not scientifically supported, I, Larry Davis, and our other members of the various ISBA Councils decided to not recommend this law for passage to the Governor. However, the Senate, under SB2228, called the bill for vote and it passed, then was also passed by the House of Representatives on 5/18/16. It was then sent to Governor Rauner on 6/16/16 and he signed it into law on 7/29/16.
TEXT OF THE NEW CANNABIS/DUI UNDER 625 ILCS 5/11-501(a)(7) AND ANALYSIS
625 ILCS 5/11-501 provides: (underlined means new language added and strikethrough means old language removed).
Sec. 11-501. Driving while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds or any combination thereof.
(a) A person shall not drive or be in actual physical control of any vehicle within this State while:
(1) the alcohol concentration in the person's blood or breath is 0.08 or more based on the definition of blood and breath units in Section 11-501.2;
(2) under the influence of alcohol;
(3) under the influence of any intoxicating compound or combination of intoxicating compounds to a degree that renders the person incapable of driving safely;
(4) under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving;
(5) under the combined influence of alcohol, other drug or drugs, or intoxicating compound or compounds to a degree that renders the person incapable of safely driving; or
(6) there is any amount of a drug, substance, or compound in the person's breath, blood, other bodily substance, or urine resulting from the unlawful use or consumption
of cannabis listed in the Cannabis Control Act, a controlled substance listed in the Illinois Controlled Substances Act, an intoxicating compound listed in the Use of Intoxicating Compounds Act, or methamphetamine as listed in the Methamphetamine Control and Community Protection Act; or
(7) the person has, within 2 hours of driving or being in actual physical control of a vehicle, a tetrahydrocannabinol concentration in the person's whole blood or other bodily substance as defined in paragraph 6 of subsection (a) of Section 11-501.2 of this Code. Subject to all other requirements and provisions under this Section, this paragraph (7)
(6) does not apply to the lawful consumption of cannabis by a qualifying patient licensed under the Compassionate Use of Medical Cannabis Pilot Program Act who is in possession of a valid registry card issued under that Act, unless that person is impaired by the use of cannabis.
(b) The fact that any person charged with violating this Section is or has been legally entitled to use alcohol, cannabis under the Compassionate Use of Medical Cannabis Pilot Program Act, other drug or drugs, or intoxicating compound or compounds, or any combination thereof, shall not constitute a defense against any charge of violating this Section.
625 ILCS 5/11-501.2(a)(6) (as referenced by 625 ILCS 5/11-501(a)(7) above):
6. Tetrahydrocannabinol concentration means either 5 nanograms or more of delta-9-tetrahydrocannabinol per milliliter of whole blood or 10 nanograms or more of delta-9-tetrahydrocannabinol per milliliter of other bodily substance.
ANALYSIS OF 625 ILCS 5/11-501(a)(7)
Through our negotiations with our opponents on the bill, their strong position was that they wanted language added that would set a "per se" limit. Their fear was that if it wasn't introduced now, it would be a long time before it could be introduced later. Fearing the law would not make it out of committee, we agreed to the changes in adding a "per se limit" mostly because the present law was so categorically unfair in convicting sober drivers and sentencing them to prison and any such change would be better than the status quo.
After Governor Rauner vetoed 15ng/ml and suggested 5ng/ml, we on the Traffic Laws and Courts Section Council for the ISBA, voted to oppose the change because it was not based in science and was basically an arbitrary number that was assigned that could still CONVICT SOBER DRIVERS.
Sponsors of the bill then adopted language the Governor suggested thus requiring 1) a driver to be tested within 2 hours of driving or being in actual physical control of a vehicle, and 2) setting that limit at 5ng/ml in whole blood or other bodily substances.
"Other bodily substances" was added because law enforcement wanted to preserve their ability to arrest based on test results from the 'yet to be approved' DRAGER drug test, a machine that tests small samples of saliva and can, according to its manufacturer, provide law enforcement with an entire drug screen within 10-13 minutes of testing. This machine has not been approved for usage in IL but we may likely see it in the future. I have personally witnessed the machine in use and I can tell you, it's slightly terrifying (my opinion).
Here is a picture of the machine:
Thus, here will be a typical example of a traffic stop where the new DUI law will govern:
- Officer notices the driver is weaving within its own lane and driving much slower than the posted speed limit. He notices the driver approach a stop sign where he stops for longer than what is normal. Once the driver crosses the center dividing line, the officer, based on his reasonable suspicion the driver violated the statute against "improper lane usage," initiates a traffic stop.
- Upon approaching the vehicle, the officer smells the faint smell of cannabis. The driver appears to have bloodshot, slightly closed eyes, and his speech is slow and calculated.
- The officer, a trained Drug Recognition Expert (DRE), decides to initiate the battery of tests to make sure the driver is not under the influence of, what he suspects is, cannabis.
- After completing the 12 steps of the DRE process, the officer decides the driver is impaired so he places him under arrest for a violation of 625 ILCS 5/11-501(a)(4).
- The officer reads the driver the "Warning to Motorist" that specifies if the driver submits a blood specimen and it reveals that his THC level is 5ng/ml or more in whole blood, his driving privileges will be suspended for a period of 6 months. If he refuses the test and it's his first offense (never had a prior DUI arrest or his last DUI arrest/disposition was more than 5 years ago), his driving privileges will be suspended for 12 months.
- In order for the Officer to ask for the test, the Officer must have reason to believe the driver was driving a motor vehicle or in actual physical control of a motor vehicle within two hours prior to the test being taken.
- The driver agrees to submit a blood sample so the officer takes him to the local hospital and the officer gives the nurse the DUI kit for which the officer observes her take the blood and then seal it in the DUI kit and immediately return it to the officer.
- The officer then takes the driver to jail for processing and concludes his investigation, mailing the DUI kit to the state crime lab.
- Months later, the lab results come back and the person has 6ng/ml in his blood.
- The Officer then mails the driver (now defendant) a new ticket citing 625 ILCS 5/11-501(a)(7) as being violated, a Class A misdemeanor, punishable up to $2500 fine and up to 365 days in jail.
- The Officer also mails with the new ticket a "Notice of Summary Suspension" stating the results of the blood test revealed that his whole blood had 6ng/ml present, thus triggering the Statutory Summary Suspension of his driving privileges for 6 months commencing 46 days from the date the Officer mails/serves the notice on the driver.
PROBLEMS WITH THE NEW STATUTE UNDER 625 ILCS 5/11-501(a)(7):
Had the legislature adopted our original language to remove "per se" requirements for ng/ml limits, we would not have potential problems with this bill. Here is a short summary of problems I see thus far:
- 5ng/ml is not truly indicative of impairment and we run the risk of convicting and sending to jail citizens who are sober. Levels of THC rise drastically immediately upon ingestion and quickly lower as minutes and potentially an hour or so passes. The studies showed that 15 ng/ml was a more reasonable level.
- If the police do not test the driver within 2 hours of his/her driving or being in actual physical control of the vehicle, under the law, does it invalidate the test results? Say an officer conducts his investigation and he gets the test performed within 2 hours and 15 minutes. Would that test be invalidated due to not being timely obtained? My answer under the plain meaning of the statute would be, "yes, it would invalidate it. Why else would the legislature approve of the 2-hour language?" Maybe courts will agree but we do not know at this point since it's too early to be tested. It does seem odd that a person could test positive for 10ng/ml of THC in whole blood 4 hours after driving and prosecutors could not (theoretically) charge them under the new statute. Essentially: Timing when administering the test is key for successful arrest and prosecution.
- Presently, THC levels can only be ascertained by measuring blood. Urine will no longer be a good specimen for testing so more hospital visits mean more hospital visits, time, money, and effort spent by nurses, doctors, driving to and from the hospital, etc.
- Presently, (as of 7/30/16), there is no lab in Illinois that tests for ng/ml. One such lab that can test for these results is called NMS Labs, located in Pennsylvania. If a lab technician is in Pennsylvania, do they fly here to IL to lay foundation for the evidence to be admitted? Seems in-efficient.
- According to 625 ILCS 5/11-501(a)(7), a medical cannabis user is only exempted unless they are impaired. Problem is, what does an officer cite the medical cannabis user with if he/she is arrested for impaired driving from cannabis? 625 ILCS 5/11-501(a)(4)? That statute requires impairment, but under (a)(7)(b), "the fact that any person charged with violating this Section is or has been legally entitled to use alcohol, cannabis under the Compassionate Use of Medical Cannabis Pilot Program Act, other drug or drugs, or intoxicating compound or compounds, or any combination thereof, shall not constitute a defense against any charge of violating this Section." This language conflicts with the first part of (a)(7) where it exempts them. This language could've been drafted better but there was opposition every step we took.
There will be more "Problems" I will add as they come to me. In the meantime, this should be a good start for you when trying to learn about the new law. I will likely start to present on this topic in late 2016 and into 2017 and I will try to update this blog as time goes by.
Other important changes that may affect you:
- Changes that affect juveniles and confidentiality (705 ILCS 405/5-125): Certain juvenile records related to civil amounts of cannabis, including municipal ordinance violations, are now confidential. This is important if you had prior ordinance violations while you were a juvenile. If those records are still shown in Circuit Clerk databases or accessible by the public, clerks will need to immediately remove those public entries from the public databases or else they could be found in violation of 705 ILCS 405/5-125.
- What effect does section 4 of the Statute on Statutes (5 ILCS 70/4) have on the new cannabis decriminalization law and DUI sections?
- Section 4 states:
(5 ILCS 70/4)
(from Ch. 1, par. 1103)
No new law shall be construed to repeal a former law, whether such former law is expressly repealed or not, as to any offense committed against the former law, or as to any act done, any penalty, forfeiture or punishment incurred, or any right accrued, or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued, or claim arising before the new law takes effect, save only that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding. If any penalty, forfeiture or punishment be mitigated by any provisions of a new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect. This section shall extend to all repeals, either by express words or by implication, whether the repeal is in the act making any new provision upon the same subject or in any other act.
- Would a person facing a DUI(a)(6) (zero tolerance violation) be able to force a dismissal of their charges if the prosecutor does not have in evidence an ng/ml result? This is unclear because there may be a question of whether the (a)(6) prosecution is a vested right. Prosecutors could argue the repeal of cannabis from (a)(6) is substantive in nature. Conversely, one could argue that it was the intent of the legislature to repeal that "zero tolerance" aspect if they do not have blood result of 5ng/ml or more. If allowed to apply retroactively for (a)(6) DUI charges, I do not believe they can prosecute due to lack of evidence since that law's zero tolerance provisions do not apply to cannabis related DUIs. This will likely be litigated and our firm represents many clients with pending (a)(6) "zero tolerance for cannabis" DUIs and it will be interesting to see how courts interpret it. However, the courts will likely hold that since we substantively changed the elements of the offense, that is a substantive change and therefore should not be applied retroactively unless expressly allowed by statute that expressly describes the temporal reach of the statute. See People v Hunter, http://www.illinoiscourts.gov/Opinions/AppellateCourt/2016/1stDistrict/1141904.pdf.
- The Rule of Lenity will likely command Defense arguments and it is, in my opinion, the stronger and best argument. (Rule of lenity: When construing criminal statutes, the rule of lenity requires that any ambiguity must be resolved in that manner which favors the accused; however, this rule must not be stretched so far as to defeat the legislature's intent). Moreover, if presently charged with possession of cannabis less than 10 grams and paraphernalia, you should request the judge to re-admonish you on the new sentences changed by the new statute signed into law on 7/29/16 and "elect" to be sentenced under the new "civil law violation" if you plead guilty or are found guilty. Judges in the 10th and 11th Circuit are already doing this for clients of ours as we've had hearings since the law changed on 7/29/16.
- There is a good discussion on this in the case of People v. Glisson, 202 Ill.2d 499.
- CDL Holders still cannot have any traceable amount of Cannabis in their system when they are operating a commercial motor vehicle.
- Under 725 ILCS 5/115-23, in prosecuting civil law or ordinance violations for cannabis, evidence can be admitted based upon 1) a properly administered field test; or 2) opinion testimony of a peace officer based on the officer's training and experience as qualified by the court.
This law is definitely a work in progress and it needs fixing. However, it is obviously better than the prior law and for that, we should be appreciative.
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Article Author: Jeffrey R. Hall
Article Author: Jeffrey R. Hall
Jeff Hall is managing partner at Hall, Rustom & Fritz LLC and concentrates his law practice in Criminal Law, DUI & Traffic law, driver's license reinstatement hearings and criminal record expungements.
If you have a legal question, email Jeff Hall.