March 2014Volume 102Number 3Page 114

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Reformers: trace law unfairly punishes drug users who are not DUI

Proponents are championing legislation to eliminate harsh penalties for drivers who had traces of illegal drugs in their system but were not driving while impaired.

About a year ago, a 20-year-old Pekin man ran a stop sign, and the ensuing accident killed his passenger. The driver, Brock Meerseman, had marijuana in his system from having ingested the substance a week or more earlier, according to a blood test done at the hospital after the accident.

There was no indication that he was impaired at the time of the accident. Still, under a provision of the Illinois DUI law, Meerseman was cited with driving under the influence and found guilty of aggravated DUI. He faced a sentence of up to 14 years in prison. Had he instead been charged with reckless homicide, the maximum prison sentence would have been three years, explained Larry Davis, a DUI lawyer in the Chicago area and author of this month's story on DUI and medical cannabis.

Meerseman is not alone. Many pot-smoking drivers have been charged under the DUI provision. Jeff Hall, a Peoria attorney and member of the ISBA Traffic Laws and Courts Section Council, represented a teenager who had traces of THC in her system from having smoked marijuana earlier. But she was not impaired when she was involved in an accident that resulted in one death and one injury.

"She was sentenced to six years and she has to serve 85 percent of the time," said Hall, who helped draft an amendment to the DUI law that would eliminate such harsh penalties for drivers who are not impaired at the time of an accident. Tests show that the effects of marijuana typically last a couple of hours, even though the presence of the drug shows up in test results for as long as a month or more.

The National Highway Traffic Safety Administration (NHTSA) acknowledges that THC levels are "impossible" predictors of behavioral impairment and that THC-induced impairment is relatively short-lived, Hall said. In addition, the NHTSA states that "it is inadvisable to try and predict effects based on blood THC concentrations alone, and currently impossible to predict specific effects based on THC-COOH concentrations" (see the report at

The ISBA and other groups want that provision of the law, which was upheld in a 2011 Illinois Supreme Court ruling, removed. According to an ISBA position paper in support of the proposal, "Under the current Illinois Vehicle Code, a driver who is not impaired is still guilty of a DUI offense or aggravated DUI offense if there is any trace of an unlawful drug in their blood or urine. So, if a driver smoked marijuana two weeks before an accident, it is still a crime even though a urinalysis can't test for active THC metabolites, and the driver showed no evidence of impairment....This isn't good policy."

State Sen. Kwame Raoul (D-14) took up the cause in the second week of February, agreeing to sponsor SB 2953 and work to bring lawmakers' attention to the problem.


At issue is 625 ILCS 5/11-501(a)(6), which reads as follows:

(a) A person shall not drive or be in actual physical control of any vehicle within this State while:


(6) there is any amount of a drug, substance, or compound in the person's breath, blood, 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. Subject to all other requirements and provisions under this Section, this paragraph (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.

Davis said the last provision was recently added after Gov. Quinn signed a law making medical marijuana legal. "It is hypocrisy to the highest degree," Davis said.

The ISBA legislative proposal suggests that section (a)(6), or "the trace law" as it is known colloquially, be removed from the DUI statute and be a new stand-alone crime - a Class B misdemeanor for a first offense and a Class A misdemeanor for a second or subsequent offense. "The punishment must fit the crime," the ISBA position paper said.

If passed, the proposed change to the DUI law would overturn the Illinois Supreme Court's ruling in the 2011 case People v. Martin, No. 109102. In Martin, a Peoria man involved in a fatal car accident who had traces of methamphetamine in his urine from prior use was prosecuted under (a)(6) and found guilty by a trial court. The Illinois Appellate Court reversed the conviction, stating there was no evidence that Martin was impaired at the time of the accident. But the Illinois Supreme Court, in a very strict reading of the statute, reinstated Martin's conviction and six-year prison sentence.

"This was very upsetting to the people of the [ISBA] section council," Davis said.

In an editorial in the Pekin Times late last year, the newspaper criticized the trace law and suggested it be removed from the DUI statute. "The purpose of the DUI law should be to punish people who drive under the influence of alcohol and drugs," the Nov. 15, 2013 editorial read. "We do not see any justice in punishing people who aren't under the influence….With the recent legalization of medical marijuana, it's even more important that lawmakers think hard about whether these laws make sense. We don't believe they do."

Janan Hanna is a Chicago freelance writer and a licensed attorney. A former staff writer for the Chicago Tribune, she writes for numerous news organizations.

Member Comments (3)

I thought I would be first to correct (myself). As quoted above I stated that Reckless Homicide carried a maximum of 3 years (which at one time it did - as a Class 4 felony). However, in the absence of any aggravating factors, it is now a Class 3 felony - with a sentencing range of 2-5 years (see 720 ILCS 5/9-3 (d)(2)).

This is a very important Bill that we must get passed.

This law, or some variation, must pass. As the nation continues to unlearn the misinformation about cannabis and its relation to psychomotor impairment and reteach the scientific consensus when compared to actual impairment from alcohol consumption, more legislatures will/should follow suit.

Illinois is one of 16 states that employ a "zero tolerance" standard when dealing with cannabis and operating a motor vehicle.

Thirty-Three states, including Washington, D.C., require evidence of psychomotor impairment to sustain convictions for DUI.

This law is merely a step in the right direction to correct an archaic sentencing scheme created from the ruling in People v. Martin. Larry Davis and I have countless hours on this legislation to help educate our legislators to create an appropriate and justiciable law that can adequately prevent and punish true impaired driving.

The Pekin Times Editorial from November, 2013 hit it right on the head by stating: "It would make just as much sense to prosecute someone who drank a six-pack of beer a week before being involved in a fatal crash. Suppose we developed a new test that could detect alcohol use from weeks ago. Would you be comfortable sending people to prison based on the results of such a test? If not, why should we reserve this punishment for the one drug that happens to leave markers in the body long after the effects of the drug have worn off?"

They concluded: "We urge lawmakers to fix the law so that those who are driving under the influence are punished but that those who are clearly not impaired are not."

I wholeheartedly agree with them. The editorial can be read in its entirety by clicking here:

Finally, I am not presently a member of the ISBA Traffic & Courts Section Council; however, I have expressed an interest to join.

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