DUI

The number one concern most individuals have when they are arrested for DUI are the potential ramifications.  In Illinois most first offense DUIs are charged as misdemeanor offenses.  However, exceptions exist if the motorist causes death or serious injury, does not have a valid driver's license, is operating a motor vehicle for hire etc. (See 625 ILCS 5/11-501(d) for a list of factors which may cause a first offense DUI to be upgraded to a felony).

Assuming the offense is charged as a class A misdemeanor the maximum penalty is 364 days in jail and the maximum fine is $2,500 not including mandatory Court costs.
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Individuals charged with DUI in Illinois often want to understand why some individuals are found not guilty and are able to retain their driving privileges.  I have defended hundreds of DUI cases over a 14 year period and I always feel I have a better chance at a not-guilty verdict when certain general factors are present. 

The first factor is my client's refusal to submit to a breathalyzer test.  Illinois has a per se rule that driving with a breath alcohol content above .08 is illegal and constitutes a DUI regardless of how sober the motorist may have otherwise appeared.
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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. 

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.