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Illinois Drugged Driving

In Illinois, a person is guilty of DUI if he or she drives under the influence of any drug or combination of drugs to a degree that renders the person incapable of safely driving, OR if there is any amount of a drug, substance, or compound (excluding THC below 5ng/ml) in the person's breath, blood, or urine resulting from the unlawful use or consumption of cannabis. 625 Ill. Comp. Stat. Ann. § 5/11-501(a) (West 2010).

(1) Driving under the influence of any drug or intoxicating compound

It is unlawful for a person to drive or operate a motor vehicle in Illinois if the person is under the influence of any drug or intoxicating compound to a degree that renders the person incapable of safely driving. Id. §§ 5/11-501(a)(3)-(4).

Affirmative Defense

The fact that the driver is or has been legally entitled to use a drug or intoxicating compound shall not constitute a defense. Id. §§ 5/11-501(b).

(2) Operating a motor vehicle while there is any amount of a drug in the person's body (per se law)

It is unlawful person to operate a motor vehicle while there is any amount of a drug in the person's breath, blood or urine. Id. §§ 5/11-501(a)(6).

NOTE: Actual impairment is not an element of this offense. Cannabis metabolites can be detected in a person's body up to one month after use, thus it is possible to be convicted of this offense weeks after a person last ingested cannabis.

Affirmative Defense

The fact that the driver is or has been legally entitled to use a drug or intoxicating compound shall not constitute a defense. Id. § 5/11-501(b).

Implied Consent

  • Any person who drives or is in actual physical control of a motor vehicle upon the public highways of Illinois shall be deemed to have given consent to a chemical test or tests of blood, breath, or urine for the purpose of determining the content of alcohol, drug, or intoxicating compound in the person's blood. Id. § 5/11-501.1(a). The officer shall choose which test(s) shall be administered. Id.
  • Refusal to submit to a chemical test will have their driver's license revoked and suspended. Id. § 5/11-501.6.
  • If a person under arrest refuses to submit to a chemical test evidence of refusal shall be admissible in any civil or criminal action or proceeding arising out the incident. Id. § 5/11-501.2(c)(1).

Penalties

  • First Offense – one (1) year loss of drivers license; possible imprisonment of one year; maximum fine of $2,500; DUI victim impact panel required. Id. § 5/11-501(c)(1).
  • Second Offense – fine of up to $2,500; minimum 5 year loss of drivers license; mandatory 5 days in jail or 30 community service days (if second offense was within a 5 year time frame); mandatory substance evaluation and treatment; possible imprisonment of up to one (1) year. Id. § 5/11-501(c)(2).
  • Third and Subsequent Offense Class 4 felony - 6 year loss of driving privileges; possible imprisonment for up to 3 years; fine of up to a $10,000; mandatory alcohol/drug treatment. Id. § 5/11-501(d).

Other Penalties & Penalty Enhancers

  • Driving with a passenger under 16 in the vehicle or in a school zone enhances penalties. Id. §§ 5/11-501(c)(3), (d)(1)(E).
  • Causing great bodily harm or permanent disability or disfigurement to another enhances penalties. Id. § 5/11-501(d)(1)(C).
  • DUI while the person knew or should have known that the vehicle was not covered by a liability insurance policy enhances penalty. Id. § 5/11-501 (d)(1)(I).

Sobriety Checkpoints

Illinois allows law enforcement officials to conduct roadblocks under the Federal Constitution.

  • If motorist acts to avoid a roadblock, such action may constitute reasonable suspicion justifying a stop. For example, if the driver fails to stop at the checkpoint, or the vehicle avoids the roadblock in a suspicious manner. However, law enforcement officials do not have the authority to stop all vehicles that seek to avoid a roadblock, particularly those that do so in a legal, and non-suspicious manner. People v. Scott, 660 N.E.2d 555 (1996).

Case Law

People v. Allen, 873 N.E.2d 30 (2007) – Where Arresting officer claimed defendant had breath which smelled like burnt cannabis, but stated it was impossible to tell whether defendant had any amount of cannabis in his breath or blood, and only other evidence was the admission that driver had smoked cannabis the night before, evidence was not sufficient to convict. Statute does not criminalize having breath that smelled like burnt cannabis. State needed some evidence that defendant had at least some cannabis in his breath, urine, or blood.

People v. Workman, 312 Ill. App.3d 305 (2000) – Officer's opinion as to whether a person is under the influence of drugs is circumstantial evidence that may be considered sufficient provided officer's relevant skills, experience, or training.

People v. Bitterman, 492 N.E.2d 582 (1986) --Influence of a drug or drugs is essential element of charge of driving under the combined influence of alcohol and drugs.

People v. Briseno, 799 N.E.2d 359 (2003) -- Evidence is sufficient to support conviction for DUI of cannabis if police officer detected odor of cannabis on defendant's breath and in defendant's car, and defendant admitted smoking cannabis before operating his motor vehicle.

People v. Shelton, 708 N.E.2d 815 (1999) – In order for police officer's opinion testimony regarding drug impairment to be admissible, the officer must have more than "limited training" in detecting drug use.

Per Se Drugged Driving Laws

Illinois has per se drugged driving law enacted for the presence of THC in blood above 5ng/ml. The law states:

  • If there was a tetrahydrocannabinol concentration of 5 nanograms or more in whole blood or 10 nanograms or more in an other bodily substance as defined in this Section, it shall be presumed that the person was under the influence of cannabis.
  • If there was at that time a tetrahydrocannabinol concentration of less than 5 nanograms in whole blood or less than 10 nanograms in an other bodily substance, such facts shall not give rise to any presumption that the person was or was not under the influence of cannabis, but such fact may be considered with other competent evidence in determining whether the person was under the influence of cannabis.