October 2015 • Volume 103 • Number 10 • Page 24
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DUI / Traffic Law
Keeping the Road Safe and the Law Sane
The ISBA Traffic Law Section had one of its best years ever this legislative session, helping advance laws that remove harsh and counterproductive DUI restrictions while keeping (and sometimes boosting) appropriate punishments.
Alcohol- and drug-impaired drivers always have been easy, obvious targets for state legislators. But the morality play surrounding their behavior has led to legislation some see as grandstanding overreach that does more to burnish reputations in Springfield than to keep drivers safe.
And the consequences that some see as unfair for those convicted of DUIs can range from not being able to drive to necessary destinations like work or school to being charged with felonies for accidents in which they were not impaired.
Legislation championed by the Traffic Law Section now means that Illinois residents convicted of driving under the influence four or more times will no longer be barred from driving (e.g., to work) again, and other counterproductive DUI regulations might be changed as well - although punishments like jail time and fines will remain the same, says Larry Davis, of The Davis Law Group in Northbrook, a DUI defense attorney and ISBA Traffic Law Section member. The section was chaired last year by David Franks of Lake in the Hills.
"It has always been the low-hanging fruit for the legislature. It is hard to get people to feel sympathy for these [drivers], who put themselves in this position," Davis says. "And I, at a certain level, agree that there has to be a consequence for your actions. You'll notice none of these bills lessen the criminal penalties. They all deal with what Senator [and Majority Leader John] Cullerton likes to call 'rehabilitative justice.' These bills are designed to encourage people to do the right thing, and give them a chance."
Gov. Bruce Rauner has signed legislation, known as House Bill 1446 (now Public Act 99-290), which amends the previous law that barred those with four DUIs from driving for the rest of their lives. Instead, they will have to wait five years, apply for a restricted driving permit, and permanently use a breath alcohol ignition interlock device (BAIID) to operate a motor vehicle. (See sidebar for more information about BAIIDs.)
A second piece of legislation, which started out as Senate Bill 627 and is now Public Act 99-467, allows those with DUI offenses to apply for limited driving privileges immediately rather than waiting through suspension periods that start at 30 days for a first-offender suspension and last up to one year for second and third convictions.
A third bill to emerge with a legislative fix from the Traffic Law Section, House Bill 218, died after an amendatory veto by Gov. Rauner but may reemerge before session's end. That legislation would scrap the so-called "trace" standard for determining whether marijuana use was impairing one's driving, in favor of a measurable limit for cannabis metabolites in a driver's blood or saliva.
Scaling back lifetime revocation and 'hard time'
Lifetime revocation. Davis says he became a bit emotional when he heard that Gov. Rauner had signed HB 1446. "I can't tell you how many people have contacted my office over the years, who have a lifetime revocation, who have turned their lives around, who have been sober for years if not decades, who are actively involved in AA," he says. "Yet they have been locked out, unable to get back to work and support their families.… I'm very pleased with the result. It's been a long time coming."
The law removes revocation for life and instead allows those convicted four or more times to apply for a restricted driving permit, Davis says. They must appear before a formal hearing, complete a drug-alcohol evaluation, and receive treatment as directed. "The conditions would be that they have to maintain abstinence for three years, they cannot apply for driving privileges for five years from the date of the last revocation, and they would be required to have a BAIID device," he says. "And no more than one of the DUIs can be drug-related."
People who reside out of state would have to wait 10 years to reapply for reinstatement, he says. And they still would never be eligible for a full reinstatement of driving privileges in Illinois.
"Current law doesn't protect public safety, nor does it recognize that, in a limited number of cases, people with substance abuse problems do turn their lives around," wrote Jim Covington, the ISBA's director of legislative affairs, in a letter to Rauner before he signed the legislation. "House Bill 1446 recognizes that a lifetime revocation serves no useful purpose if the person is proven to be rehabilitated.
"It also recognizes that many of these persons who, if confronted with the stark choice between driving illegally to work or becoming unemployed, will choose to drive illegally to support their families," Covington wrote. "And they will do it without the protections that House Bill 1446 includes, such as permanent use of a BAIID device and liability insurance."
The purpose of the restricted driving permit is to relieve "undue hardship," Davis says. It provides a permit allowing people to drive to work, but they also can apply for permits to take their children to school, pursue education themselves, or see a doctor, he says.
"It's particularly important for people in rural areas," Davis says. But drivers should not plan to play fast and loose with their restrictions. "If you are driving outside the terms of the restricted driving permit, under existing law, you're driving while revoked, and you're charged accordingly," he says.
No more 'hard times.' SB 627, which passed the legislature unanimously and was signed by the governor on August 26, actually adds a punishment for those caught without a BAIID device, hiking that offense to a Class 4 felony on the first offense within the past decade, where it had been a Class A misdemeanor. But the new law eases restrictions in other areas, most particularly with regard to "hard times," which are periods of time during which drivers cannot apply for certain privileges.
For example, first time DUI offenders cannot get driving privileges for 30 days while they wait for a monitored device driving permit. Second offenders who failed or refused to take an alcohol test receive a one-to-three year suspension, two DUIs within a 20-year period means a 5-year revocation, and a third DUI leads to 10 years; and under current law, these drivers cannot apply for any driving privileges during the one-to-three year suspension or the first year of the multiple-year revocation. "This law eliminates all of what we call 'hard times,'" Davis says.
The Illinois Secretary of State's Office supported SB 627 and remained neutral on HB 1446, while Mothers Against Drunk Driving (MADD) and the Alliance Against Intoxicated Motorists (AAIM) wrote letters of support and appeared before committees in support of both pieces of legislation, Davis says. All have come to the realization that legally prohibiting a person from driving does not, in practice, mean they are going to stop doing so, he says.
"There's been a recognition on the part of ourselves, as well as the Secretary of State's Office, that these people are driving anyway, by and large," he says. "If you give somebody a choice between not being able to support themselves and their families or violating the law, the majority of people will violate the law. It's just human nature."
In a separate letter to Rauner asking him to sign SB 627, Covington struck similar notes. "Current laws prohibit driving by these persons but has the opposite of its intended effect," he wrote. "It actually is more dangerous, not less. Many of these revoked and suspended drivers are uninsured and driving without the protections to the public provided by a BAIID device.… Senate Bill 627 will reduce the cases of driving while revoked and suspended and therefore reduce county and state incarcerations."
As laws gradually toughened during the past couple of decades, the number of convictions for driving while revoked "exploded," Davis says. "These bills really represent a sea change in the thinking about revocations of driver's licenses. The thinking used to be that continuing somebody's license is inappropriate to deter that kind of behavior. The understanding that everybody has come to, at this point, is that it doesn't work. The Chicago Tribune wrote an editorial in support of 627. The media has also come around to thinking the same way."
"We have helped put together and participated in a coalition of the state's attorneys, Secretary of State, and MADD and AAIM," Covington says, in a phone interview. "There's been kind of a recognition that terrible punishment, in and of itself, doesn't help make the public safer. There was an acknowledgment that everybody understood that."
The two bills attempt to strike a balance between providing people some freedom to continue their daily activities while also protecting the public, Davis says. "You don't get [driving] privileges automatically," he says.
"You still have to go through an administrative hearing at the Secretary of State's office. HB 1446 requires treatment and requires that people prove themselves on the merits. It gives them the opportunity, where they didn't have one before. And yes, there are enhanced punishments [for going without the BAIID].… Is it going to work? We don't know yet. Time will tell. But we do know that what was the law, previously, wasn't working."
Marijuana 'trace' law: A hazier future
The third piece of legislation that the ISBA Traffic Law section has gotten behind - and still hopes to get enacted - would overturn the current law that says even a trace of cannabis is enough to categorize you as driving impaired. Since cannabis metabolites can stay in a person's system for up to a month, proponents argue, this measure makes no sense. The bill also decriminalized possession of small amounts of marijuana.
The driving-related provisions within HB 218 arose out of several cases in which a person had a trace amount of marijuana in their system. Perhaps the best known, Davis says, is People v. Shirey, in which a man with his twin sons in the back of his car was broadsided. The accident was not his fault and he showed no signs of physical impairment, but because he had cannabis in his system - from smoking a month earlier, he claimed - when one of his sons was killed in the accident, he was charged with aggravated DUI involving a death.
"If law enforcement is properly trained in enforcing impairment laws when it comes to drugs, the trace law is unnecessary," Davis says. "The result of the trace law is to unfairly punish people who are not impaired, and who end up being charged with serious felony offenses with prison terms of up to 14 years.
"Scott Shirey lost his son. Should he have smoked? No. But it is, to me, unthinkable," Davis says. "If you want to punish the man for possession, or some marijuana offense, fine, punish him. That's normally a petty offense, a Class A misdemeanor. But here's a guy facing a felony, a 14-year sentence, because he happened to have marijuana in his system." And in Shirey's case, there was evidence of an inactive metabolite, which can sit in one's system for a month. Ultimately he pleaded guilty and received 30 months probation.
When the trace law was first passed, there was no agreed-upon measure of what constituted impairment. The Illinois bill set the bar at 15 nanograms. "There's objections to that level," Davis says, noting that some had suggested as high as 25 nanograms when testing urine or saliva. "But the thing about cannabis and other illegal drugs is that the science has changed drastically since that law originally went on the books."
Another change that's laid groundwork is the passage of Illinois' medical marijuana statute, which took effect in 2014 and gives patients immunity from DUI laws if they have a trace of marijuana in their system - leading to questions about whether it's truly a safety issue. "If the purpose of the law is to protect the public, then why would it make a difference if you have a medical need or don't have a medical need, if you have a trace of marijuana in your system?" Davis asks.
The State's Attorney Appellate Prosecutor's office, which wasn't involved in the other two pieces of legislation, partnered with the ISBA Traffic Law section on HB 218. In working on all three pieces of legislation, "One thing we learned from this is you obviously cannot go it alone," Davis says. "It doesn't work. This was the most productive year the bar has had in the area of traffic law in at least a decade, if not longer."
AAIM did not support HB 218, in part because they feared the 15 nanogram threshold might be too high, citing Colorado's standard of 5 nanograms, Covington says. "They do not support 218. Every family's got its arguments," he says. But the "optics of going from 5 to 15" nanograms concerned the advocacy group. "They say it's three times as high as any place in the country, but that's irrelevant if the bottom figure is inaccurate," Covington adds.
Elements of Illinois' law enforcement community have been opposed to all three pieces of legislation, Davis says. "They staked out their position fairly early," he says. "Law enforcement, by and large, continues to abide by the philosophy that taking away somebody's license permanently, or for a long period, is something that is a valid deterrent to aberrant behavior."
Covington's letter on behalf of HB 218 read, in part, "[I]f 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. In other words, smoking marijuana had nothing to do with the accident. Simply stated: The present law convicts sober drivers. This needs to change, and House Bill 218 corrects this injustice."
Thirty-three states require evidence of impairment to convict of DUI when it comes to drugs, Covington noted. "What House Bill 218 attempts to do is position our law so that it can follow science if and when a commonly accepted standard is validated," he wrote. "Even the National Highway Traffic Safety Administration has determined in the most recent and comprehensive study to date that 'specific drug concentration levels cannot be reliably equated with a specific degree of impairment.'"
On August 14, Governor Rauner amendatorily vetoed HB 218. Among other changes, Rauner's amendatory veto adopted the 5-nanogram standard. The legislature did not act on Gov. Rauner's amendatory veto, rendering HB 218 dead. However, reports indicate that the bill's sponsors may pursue other routes to get the law enacted this session.
'There has got to be a better way'
Davis understands at a visceral level the reactions of those who oppose easing restrictions on alcohol- or drug-influenced drivers, but ultimately he respectfully disagrees with them.
"I have children. I get it," he says. "But I also know that the law, as it is right now, doesn't work. There has got to be a better way. Is this the better way? I think so. Is it the answer to the problem? No. But I think it's going to make the problem better. As far as what I've seen, our criminal penalties have gone as far as they could go….
"Our prisons are overcrowded," Davis adds. "Our governor has voiced the desire for criminal justice reform to lessen the prison population. I think the pendulum has swung as far as it can. The time has come for rational, productive changes in the law. This is part of that process."
Ed Finkel is an Evanston-based freelance writer.
A key component of the new law eliminating lifetime revocation of driving privileges is the requirement that these drivers' vehicles be equipped with a BAIID, or "breath alcohol ignition interlock device."
"Think of a BAIID as a portable breath test machine, installed in an offender's vehicle," Helen Gunnarsson wrote in the Journal in 2008. "[I]t requires the driver to blow into it before attempting to start the vehicle. The BAIID analyzes the amount of alcohol in the driver's system and will not permit the vehicle to start if the amount exceeds a preset level…. It also records its activity, including when the driver has blown into it and what the BAC analysis showed." The following resources provide more background on BAIIDs and how they work.
• ISBA Free CLE, The Do's and Don'ts of the BAIID Machine (June 2014), http://onlinecle.isba.org/store/seminar/seminar.php?seminar=26963.
• Larry A. Davis, Constitutionality of Secretary of State BAIID Violation Hearings, ISBA Traffic Laws & Courts newsletter (May 2014), http://www.isba.org/sections/trafficlaw/newsletter/2014/05/constitutionalityofsecretaryofstate.
• Larry A. Davis, The Monitored Device Driving Permit: What Practitioners Need to Know, 99 Ill. B.J. 506 (Oct. 2011), http://www.isba.org/ibj/2011/10/themonitoreddevicedrivingpermitwhat.
• Helen W. Gunnarsson, The BAIID Era Begins, 96 Ill. B.J. 616 (Dec. 2008), http://www.isba.org/ibj/2008/12/duilawthebaiiderabegins.