ISBA Seeks Amendment to Drug DUI Law

Did you know that smoking marijuana two weeks ago could land you a DUI charge today under current Illinois law? Illinois’ zero-tolerance policy for drug DUIs allows drivers to be prosecuted for DUI even if they were not high behind the wheel. The Illinois State Bar Association (ISBA) hopes to change the way drug DUIs are charged with its recent legislative initiative.

The ISBA has submitted a bill to the Illinois Legislature seeking a shift from Illinois’ zero-tolerance approach to drug DUIs. The zero-tolerance policy allows drivers testing positive for any quantity of an illegal drug in their system to be charged with DUI. ISBA believes that the law as written unduly focuses on the presence of drugs in the blood, and fails to adequately account for whether the accused was actually intoxicated. ISBA’s position is simple: drivers shouldn’t be charged with DUI if they were not impaired at the time of the incident.

The ISBA’s bill cites Scott Shirley’s case, in which the Lake Island man was charged with DUI when a distracted driver ran a red light and crashed into his vehicle, killing Shirley’s son. When statutorily-mandated blood tests revealed trace amounts of marijuana in Shirley’s system, he was charged with DUI. The fact that Shirley was not impaired at the time of the accident was not allowed as a defense. Shirley pleaded guilty to DUI.

One Illinois police official’s statement bluntly explains the zero-tolerance approach:

“If you have any amount of marijuana in your system and you don’t have a medical marijuana card. . . you’re going to go to jail.” – Limey Nargelenas, Deputy Director of the Illinois Association of Chiefs of Police

The danger of this approach is its neglect of the science behind the way body metabolizes marijuana. For example, many chemical compounds contained in marijuana smoke are fat-soluble (“lipophilic”), meaning they are readily absorbed and stored in fatty tissue throughout users’ bodies. These compounds are called cannabinoids, and most are lipophilic. As a result, these compounds have a long elimination half life compared to other recreation drugs. In other words, marijuana stays in users’ system longer. In fact, research suggests that THC can be detected 3 to 10 days after marijuana is ingested in light to moderate marijuana users. Frequent users may test positive for 1 to 10 months after ingesting the drug. Thus, a driver who has recently used marijuana can be found guilty DUI without regard to whether he or she was actually driving while impaired.

As a DUI lawyer, I embrace the ISBA’s position as stated by Larry Davis, an attorney who helped write the bill, “if it’s in your system and it doesn’t impair you, it shouldn’t be part of the DUI law.” I believe that the proposed amendment could reconcile Illinois DUI law with the science behind the way marijuana affects the mind and is metabolized by the body. This is a positive reform, and will prevent sober drivers from being erroneously convicted of DUI.


Daniel J. Reynolds is a lawyer at Brinkoetter, Hassinger & Strobach, a Decatur, IL law practice.


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