Chicago Criminal Defense & Expungement Blog

When a client refuses to submit to a urine test the prosecution often relies on the results of standardized field sobriety tests to prove the charge of driving under the influence of cannabis.  One of the standardized field sobriety tests recognized by the National Highway Traffic & Safety Administration ("NHTSA") is the Horizontal Gaze Nystagmus ("HGN") test which checks for the involuntary jerking of the eyes.  However, when defending a case of driving under the influence of cannabis defense attorneys should pay close attention to the factual findings the Illinois Supreme Court made in the case of People v. McKown, 236 Ill. 2d 278 (2010).  The McKown Court noted that Central Nervous System ("CNS") depressant drugs and alcohol affect the neural centers in the brain that control eye movements. Id. at 298.  The Court further noted that Horizontal Gaze Nystagmus is a physical manifestation of CNS depression. Id. at 299.

The problem with using the HGN test to prove driving under the influence of cannabis is that Courts in other jurisdictions have concluded that cannabis does not fall in the category of drugs that are considered to be Central Nervous System depressants. See Washington v. Baity, 140 Wn 2d 1, 5; 991 P. 2d 1151; 2000 Wash. LEXIS 81 (1999) (noting that cannabis was not in the category of drugs considered Central Nervous System depressants).

Since the HGN test is only useful in detecting ingestion of Central Nervous System depressants it stands to reason that the test should not be used in cases involving drugs that are not Central Nervous System depressants.  Nonetheless, officers continue to assert that motorists are failing the HGN test in DUI cannabis cases.  Such a conclusion belies science and legal precedent. 

In my office it is an extremely common occurrence for a parent to contact me with the unfortunate news that his son has a suspended driver's license.  Often times a teen motorist who is cited for speeding or a red light violation elects to pay the ticket through the mail or over the internet without researching the consequences of his actions.  Section 625 ILCS 5/6-206(a)(36) of the Illinois vehicle code vests the Secretary of State's Office with the authority to suspend the driver's license of a motorist who is under 21 and has obtained 2 moving violation convictions within a 24 month period of time.  The good news is that most of the time this is a problem that can be fixed.

When a client comes to me with such a problem the first thing I do is identify which Courthouse(s) that the convictions originated from and how old they are.  So long as there are only 2 convictions the hold on the client's driver's license can be lifted by motioning one of the convictions up before a Judge and requesting that the conviction be vacated.  Most Judges are sympathetic to this situation and are often receptive to such a reasonable request.  If the Judge elects to vacate one of the convictions notice must be sent to the Illinois Secretary of State's Office.  When the Secretary of State receives notification that the motorist now only has 1 conviction in the past 24 months as opposed to 2, section 625 ILCS 5/6-206(a)(36) will no longer be applicable and the hold on the motorist's license resulting from the 2 convictions is lifted.

Pursuant to 625 ILCS 5/11-501 there are six different types of subcategories in which someone can be charged with DUI.  Subsection (a)(1) criminalizes driving with a breath alcohol content of .08 and subsection (a)(2) criminalizes driving under the influence of alcohol.  However, three out of the four remaining DUI subcategories do not involve alcohol at all.  The problem is that if a statutory summary suspension is imposed upon a first offender motorist he must install a Breath Alcohol Ignition Interlock Device in his car if he wants to drive during the term of his summary suspension.  The BAIID rule applies even to DUIs that do not involve alcohol.

By way of example: If a first offender is charged with driving under the influence of cannabis and wants to drive during his summary suspension he must apply for a Monitoring Device Driving Permit ("MDDP") and install a BAIID device in his car.  See 625 ILCS 5/11-501.1 & 625 ILCS 5/6-206.1.  The reason this rule does not make sense is that BAIID devices only detect alcohol and do not detect the presence of cannabis.  This means that a chronic user of cannabis may continue to use cannabis undetected as he drives during the term of his summary suspension.  Assuming the motorist intended to stay clean and drive safely he would still be required to pay for the BAIID in his vehicle even if he had never consumed a drop of alcohol in his life.

The foregoing rule lumps too many offenders into the same category.  It is virtually impossible to explain to a client who does not drink and was arrested for driving under the influence of cannabis why he must install a BAIID device in his vehicle if he wants to drive during his summary suspension.   

Most CDL holders understand that when they are charged with a simple moving violation the consequences can be dire.  The good news is that most prosecutors understand the high stakes and are willing to work with defense attorneys.  Today, my client (a CDL holder) was charged with a moving violation.  However, after a brief conference with the village prosecutor he was kind enough to amend the charge to a parking violation.  The foregoing disposition will not adversely effect my client's CDL.