Here is a fact scenario that may surprise you.
A young woman named Alia Bernard was driving on Route 47 between Sugar Grove and Elburn, when she looked away from the road to get her sunglasses. She didn’t see that two cars ahead of her had stopped, and she hit into them. This started a chain reaction that led to the death of two motorcyclists, Wade and Denise Thomas.
No one has ever said that Ms. Bernard was under the influence of anything at the time of this horrible incident. In fact, prosecutors have stated in open court that she was not under the influence.
No one ever said that Ms. Bernard intended to hurt anyone either.
Up until recently, all she would be facing would be some traffic citations and a big personal injury lawsuit.
Yet when she returns to court next February, she is looking at a sentence of between six to twenty-eight years in prison.
How can this be?
Under Section 11-501.6 of the Illinois Motor Vehicle Code, anyone involved in a serious personal injury or fatal motor vehicle accident is required to submit to alcohol or drug testing.
Ms. Bernard’s blood test came back positive for cannabis metabolites, which were in her system because she had smoked some marijuana three or four days before this accident.
Under a 2011 Illinois Supreme Court decision, People v. Aaron Martin, 2011 IL 109, a person can be prosecuted for aggravated DUI involving a death even if that person was not impaired and even if they didn’t cause the accident (although in this case, Ms. Bernard did cause the accident by failing to keep a proper lookout).
You see, in Illinois, a person can be charged with a DUI just for having drugs in his or her system. The DUI statute states that:
5/11-501(a) A person shall not drive or be in actual physical control of any vehicle within this State while:
(1) the alcohol concentration in the person’s blood or breath is 0.08 or more based on the definition of blood and breath units in Section 11 501.2;
(2) under the influence of alcohol;
(3) under the influence of any intoxicating compound or combination of intoxicating compounds to a degree that renders the person incapable of driving safely;
(4) under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving;
(5) under the combined influence of alcohol, other drug or drugs, or intoxicating compound or compounds to a degree that renders the person incapable of safely driving; or
(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 [720 ILCS 550/1 et seq.], a controlled substance listed in the Illinois Controlled Substances Act [720 ILCS 570/100 et seq.], an intoxicating compound listed in the Use of Intoxicating Compounds Act [720 ILCS 690/0.01 et seq.], or methamphetamine as listed in the Methamphetamine Control and Community Protection Act [720 ILCS 646/1 et seq.]. 625 ILCS 5/11-501.
This statute applies to all DUIs in Illinois, whether misdemeanor or felony.
Thus under section (a)(6), a person commits a DUI when they drive, or are in actual physical control of a motor vehicle while there is the presence of a drug in his or her blood, breath or urine.
(Note that this statute only requires a “controlled substance” so prescription pain medication would qualify; also note that unless the driver has the ability to test his breath, blood or urine on a daily basis, he would have no way of knowing when the controlled substance has passed out of his system).
What makes this case a felony then is the following language:
(d) Aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof.
(1) Every person convicted of committing a violation of this Section shall be guilty of aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof if:
(F) the person, in committing a violation of subsection (a), was involved in a motor vehicle, snowmobile, all-terrain vehicle, or watercraft accident that resulted in the death of another person, when the violation of subsection (a) was a proximate cause of the death.
Note that it is the violation of the DUI statute itself (“subsection (a)”) that leads to the upgrade to aggravated DUI, not any impaired driving.
The penalty for this is a minimum of three to fourteen years if there is one death, or six to twenty-eight years if two or more people died in the accident. Probation is available only if a judge determines that “extraordinary circumstances” exist.
Had Alia Bernard been in this accident and had not smoked marijuana three or four days before, she would have been facing only a traffic citation (which is fine-only, and does not carry any jail or prison sentence), and a big personal injury lawsuit. Under a recent change in the law, if this accident happened now she would also face a license revocation upon conviction.
But because she did smoke some “weed” a few days before, she is now facing six to twenty-eight years in prison — even though the prosecutors have stated that the marijuana she smoked did not impair her in any way.
Think about that. Six to twenty-eight years, because of something she did that had nothing to do with this accident. Something that, while illegal, has been done by millions of Americans. Something, that by itself, did no harm.
Is this justice?