Appellate Court rules blood and urine illegally obtained in fatal DUI case

An Illinois Appellate Court reversed a trial court’s ruling in a fatal DUI crash.

According to the Opinion, the motorist was driving with his children in the back seat.  One of his kids tried to hand him a candy wrapper to open.  When he momentarily turned his head, his van struck a seven year old boy, who was riding a bicycle and had darted out into traffic between two parked cars.  The motorist immediately stopped and ran into the nearby City Hall to get assistance.

The investigating officers testified that they did not observe any indications that the motorist was impaired by either alcohol or drugs.  Nevertheless, he was taken to a hospital to provide blood and urine screens.  The tests results showed the presence of THC and amphetamines and the motorist was charged with DUI.

A few days later, it was determined that the motorist had not been read the “Warnings to Motorist” form that would advise him of his rights regarding the chemical testing.  A second test was then ordered.

The defendant was found guilty and received a sentence of 54 months.

On appeal, the Court noted that there was no probable cause to believe that the motorist was impaired or that he had caused the accident.  No citations had been issued, and he was not under arrest at the time of the blood test, as required by Illinois law.  As a result, the results of the tests were suppressed and since there was no other evidence to support a finding of guilty, his conviction was reversed.

You can read the opinion here:  People v. Hayes, 2018 IL App (5th) 140223 (February 15, 2018) .

Carol Stream Police to begin using new Drugged Driving Detection test

The Carol Stream Police Department is about to begin trying out a new drugged driver detection device, called the PIA2, which is made by Protzek (I’ve never heard of them before, but you have to wonder about their accuracy when their materials misspell the word “saliva”).

From the Chicago Tribune:

…the device that Carol Stream police plan to test, called P.I.A.2 , gives measurements for the amount of drugs present.

That’s important, because while Illinois used to define impairment as having any amount of cannabis or other controlled substance in the body, last year lawmakers raised that minimum threshold to 5 nanograms per milliliter in the blood, and 10 ng/mL in other bodily fluids.

But the Illinois State Police crime laboratory is not certified to give such precise measurements, and local police agencies say it can take months to process a request. Therefore, police sometimes send samples to private labs, which can be quicker but also costlier.

That’s where the new field test comes in. For drivers who submit to a blood draw, Carol Stream police plan to ask them also to volunteer for the mouth swab, not for use in court, but simply to compare its accuracy to the lab test. The department plans to conduct at least 100 comparisons over the next year, beginning around March.

Testing devices can cost $3,000 to $6,000, but the manufacturer of the unit in question, a German company called Protzek, will provide it for free to the village. Officials claim its accuracy is comparable to state-of-the-art laboratory techniques.

Len Jonker, president of Judicial Testing Systems, the distributor for Protzek here, said he is in talks about supplying the device to other law enforcement agencies in Illinois as well.

The tests have been challenged in some state courts but have been upheld as a preliminary step to establish probable cause to make an arrest, according to the National District Attorneys Association.

Still, the tests cannot yet be used as conclusive evidence in court, and still require a blood draw for confirmation, the prosecutors reported.

Dan Linn, executive director of the marijuana advocacy group Illinois NORML, said he welcomes the test for accuracy.

“We advocate for legalizing cannabis, but that does not mean we advocate people driving impaired by cannabis,” he said. “The bigger question is, who is driving impaired, and who just has cannabis in their systems.”

Illinois law has zero tolerance for driving on controlled substances other than marijuana, meaning any amount is enough to convict someone of DUI.

Yet unlike alcohol, which has been shown to cause impairment at a blood alcohol level of 0.08, no numeric levels have been established to show impairment from various drugs, because their effects vary so widely from person to person, depending in part on the user’s tolerance.

That’s why Linn believes it’s better to have trained police officers try to assess from direct observations whether a driver is impaired.

Police and prosecutors agree, and for that reason call for more training of officers as drug recognition experts, or DREs. While the standard field sobriety test — where drivers are asked to walk in a straight line and turn around, stand on one leg and close their eyes and touch their nose — was designed primarily to detect the influence of alcohol, the DRE test uses more subtle signs to try to detect drugs.

Dilated or constricted pupils, incomplete or repetitive speech, tremors in the eyelids or hands, odors, high pulse or body temperature, nervousness or lack of inhibition may all be considered signs of impairment from various drugs.

Processing a DUI arrest is time-consuming, and the new law that set the cannabis intoxication standard on driving under the influence states that police must take a blood sample within two hours. Police say that’s often impractical or impossible, especially in rural areas far from a hospital.

That’s why interest is so high in finding a quick technological fix.

Read the entire story here:


Illinois take note: Colorado Troopers to pilot test marijuana detection devices

While Illinois is still considering amending its marijuana laws to decriminalize possession of small amounts of cannabis and replacing its “zero tolerance” cannabis DUI laws with a “legal limit, ” Colorado, which has taken the lead in legalization, is moving forward with a pilot program using new marijuana detection devices.

From Colorado’s Fox 31:

The Colorado State Patrol is using marijuana DUI devices as part of a three-year pilot program.

Since March, more than 125 troopers have been equipped with one of five types of an oral fluid tester that sample a driver’s saliva for the presence of drugs, including marijuana.

“It would be nice to have that additional evidence on the side of the road,” CSP Major Steve Garcia said.

Troopers can perform roadside sobriety tests and seek a blood test, but much like a Breathalyzer for alcohol use, investigators would like a roadside device to give troopers probable cause to make an arrest.

“It would confirm or deny the officer’s investigation that the suspect would be under the influence of marijuana or other drugs,” Garcia said.

Under the pilot program, drivers have to consent to have the inside of their cheeks swabbed for saliva. The device then takes about five minutes to deliver an electronic readout, evaluating the presence of several narcotics, including marijuana.

Garcia said the legalization of marijuana has increased the need to stop drivers who have more than 5 nanograms of THC in their system, which is Colorado’s legal threshold for impaired driving.

In the meantime, a Wheat Ridge lab is working on a marijuana Breathalyzer-type device thanks to a $250,000 grant from the state.

“It would be home run for any company that develops the technology,” said Barry Knot, CEO of Lifeloc Technologies. “The advantage of a Breathalyzer is that it provides virtually instantaneous feedback to the officer, so within a matter of seconds they can get an accurate determination of blood alcohol content.”

But Knott admits the disadvantage of a Breathalyzer is that it only detects breath from a smoker and not someone who consumes an edible.

As for the saliva test, suspected drivers must consent and so far only 82 have.

“It hasn’t been used in court yet that we’re aware of, but we foresee that in the near future,” Garcia said.

CSP will evaluate the success of the oral testing devices in March, but the pilot program will continue for two more years.



New version of IL Marijuana decriminalization bill proposed

Last August, Governor Rauner vetoed a bill which would have decriminalized small amounts of marijuana, and created a “legal limit” of THC for drugged driving cases (as opposed to Illinois’ current “zero tolerance” statute).

In particular, the Governor wanted a “legal limit” of 5 nanograms of THC per milliliter of blood, the same as Colorado, instead of the bill’s 15 nanogram standard, which was closer in line to a government study which showed that 13 nanograms is equivalent to the 0.08 blood alcohol level used in alcohol DUI cases.

Representative Kelly Cassidy (D-Chicago) has proposed a new bill (HB 4357) which much closer to Rauner’s amendatory veto.

Under the proposed bill, the “legal limit” for DUI cannabis cases would be, as Rauner requested, 5 nanograms of THC, and possession of less than 10 grams of marijuana would be a fine only violation, with fines up to $200.


Will driving under the influence of drugs soon become more common than under the influence of alcohol?

From a story by Jon Smitz for the Pittsburgh Post-Gazette:

A new report says drivers are nearly as likely to be high on pot or pills as drunk on alcohol, and it urges states to take steps to better monitor and control drugged driving.

The report, “Drug-Impaired Driving: A Guide for What States Can Do,” cites crash data and surveys chronicling a steady increase in driving under the influence of drugs, even as drunken driving rates continue to fall.

“I don’t think drugged driving has received nearly the attention that drunk driving has received,” said the author, James Hedlund, a retired executive with the federal National Highway and Traffic Safety Administration who has studied and written extensively on highway safety.

The report was issued today by the Governors Highway Safety Association, a nonprofit organization based in Washington, D.C.

Using the most recent available data from fatal crashes, it said nearly 40 percent of the victims who were tested had drugs in their system, with about one-third testing positive for marijuana. But it cautioned that the data has limitations, including no distinction between THC, the marijuana component that causes impairment, and metabolites that remain in a person’s system long after the effects of smoking pot have worn off.

As debate intensifies about whether marijuana, now legal in some form in nearly half of the states, causes an increased crash risk for drivers, better data is needed, Mr. Hedlund said.

“The jury is still very much out,” he said. “You certainly could not say unambiguously that marijuana increases crash risk. The only thing you can say with confidence is that in laboratory experiments, it affects a lot of things that are related to driving.”

A research paper by NHTSA in February said “there is evidence that marijuana use impairs psychomotor skills, divided attention, lane tracking and cognitive functions. However, its role in contributing to the occurrence of crashes remains less clear.”

While measurement of alcohol impairment is clearly established, with all states classifying an 0.08 blood alcohol level as the threshold of intoxication, there is no similar standard for what constitutes impairment from marijuana, Mr. Hedlund said. Some states, including Pennsylvania, have what amounts to “zero tolerance” laws, while others have established largely arbitrary thresholds for THC levels.

The report recommends better public education, noting that most drivers in surveys have said they don’t believe marijuana impairs their driving, while some said it improves their performance behind the wheel.

While police officers routinely are trained in detecting alcohol intoxication, relatively few are schooled in recognizing impairment from marijuana, prescription medicines, illegal narcotics or over-the-counter medications, it said.

Read the full story here:

Gov. vetoes bill to decriminalize pot and replace zero tolerance pot DUIs with a legal limit

As you may recall, both the Illinois House and Senate passed bills that would decriminalize small amounts of marijuana possession and amend the DUI laws to establish a “legal limit” of 15 nanograms of THC per milliliter of whole blood (or proof of impairment) to prove a DUI cannabis case, as opposed to the current “any amount of cannabis” standard.

The Governor (and many police departments) felt that the 15 nanogram standard was too high.  Colorado uses a 5 nanogram standard.

However, as I blogged last June, a rigorous study by the National Institute of Drug abuse showed that 13 nanograms correlated to the 0.08 BAC standard for alcohol.

15 is a lot closer to 13 than 5.  Maybe Governor Rauner is using a “Price is Right” standard where it is better to not “go over” than be closest.

If you wonder why we should get rid of a “zero tolerance” approach, here are a couple of my past blog posts to refresh your memory:

From the Chicago Tribune (story by Monique Garcia):

Republican Gov. Bruce Rauner on Friday used his veto powers to rewrite a bill aimed at decriminalizing possession of small amounts of marijuana, saying the measure that lawmakers sent him would let people carry too much pot and sets fines too low.

Rauner said while he supports the “fundamental purposes” of keeping people out of jail and cutting court costs, such a significant change in drug laws “must be made carefully and incrementally.” Sponsors of the bill pushed back, saying the changes are “low-hanging fruit” when it comes to reforming the criminal justice system and contending the governor is working against his own goal of reducing the number of prison inmates.

Under the proposal, people caught with up to 15 grams of marijuana — about the equivalent of 25 cigarette-sized joints — would not go to court but instead receive fines ranging from $55 to $125. Rauner said those standards were too lax and the threshold should be lowered to 10 grams and fines should range from $100 to $200.

The governor also took issue with a provision that would loosen the state’s zero-tolerance policy for driving under the influence of cannabis. Currently, a driver can be charged if any trace of marijuana is detected, even if it was ingested days or weeks before and a driver showed no signs of impairment.

The bill that lawmakers sent Rauner would have set new limits of 15 nanograms of THC per milliliter of blood. Rauner again argued that standard went too far in the opposite direction, suggesting the limit instead should be 5 nanograms per milliliter of blood…

The bill now returns to lawmakers, who can vote to go along with Rauner’s changes or reject them. If lawmakers opt not to take up the changes, the bill dies. Cassidy said she would have to regroup with supporters to decide the next move.

How does marijuana use affect driving?

Both Houses of the Illinois legislature have passed a new bill which, if approved by Governor Rauner, would eliminate Illinois’ current “zero tolerance” of marijuana consumption and driving and instead set a per se level of 15 nanograms of cannabis in a person’s blood.  This is intended to be a marijuana equivalent to the 0.08 BAC used for driving under the influence of alcohol. Some police departments have argued that the 15 nanogram standard is too high.  Colorado and Washington have set their limit at 5. But how much marijuana is too much to drive?  How does marijuana affect driving?  The truth is that there hasn’t been much of an effort to find out. Until now.  And it looks a lot closer to 15 than 5. From (story by Eliza Gray):

A rigorous federal research study by the National Institute on Drug Abuse offers new data on the effects of marijuana on driving performance. The exact impact of marijuana on driving ability is a controversial subject—and it’s become more important states continue to loosen their drug laws. And, while drunk driving is on the decline in the U.S., driving after having smoked or otherwise consumer marijuana has become more common. According to the most recent national roadside survey from the National Highway Traffic Safety Administration of weekend nighttime drivers, 8.3 percent had some alcohol in their system and 12.6 percent tested positive for THC—up from 8.6 percent in 2007. It is illegal in all states to drive under the influence of anything, but years of work went in to establishing the .08 breathe alcohol limit that exists in most states. The question is whether we can establish a similar threshold for pot. To find out, the study recruited 18 occasional cannabis smokers, 13 of them men, between the ages 21 and 37. The participants took six 45-minute drives in a driving simulator—a 1996 Malibu sedan mounted in a 7.3 diameter dome—at the University of Iowa. Each drive tested a different combination of high or low concentration THC, alcohol, and placebos (to create a placebo, participants were given fruit juice with alcohol swabbed in the rim, topped of with 1ml alcohol, to mimic alcohol’s smell and taste). The researchers looked at 250 parameters of driving ability, but this paper focused on three in particular: weaving within the lane, the number of times the car left the lane, and the speed of the weaving. While alcohol had an effect on the number of times the car left the lane and the speed of the weaving, marijuana did not. Marijuana did show an increase in weaving. Drivers with blood concentrations of 13.1 ug/L THC, the psychoactive ingredient in cannabis, showed increase weaving that was similar to those with a .08 breath alcohol concentration, the legal limit in most states. For reference, 13.1 ug/L THC is more than twice the 5 ug/L numeric limit in Washington and Colorado. Dr. Marilyn Huestis, the principal investigator in the study, says it is important to note that the study looked at the concentration of THC in the driver’s system while they were driving. This is quite different from the concentration typically measured in a drugged driver out on the road, whose blood may not be checked until several hours after an arrest, allowing the THC level to drop considerably from the time they were driving. Huestis says the researchers are looking at how to estimate how long it takes for THC concentrations in the blood to drop. Huestis believes that the 5 ug/L limit is not strict enough, particularly when you take into account those with low tolerance. The study also found that pot and alcohol have more of an impact on driving when used together. Drivers who used both weaved within lanes, even if their blood THC and alcohol concentrations were below the threshold for impairment taken on their own. “We know cannabis is primarily found with a low dose of alcohol,” Huestis says. “Many young people have a couple beers and then cannabis.” Smoking pot while drinking a little alcohol also increased THC’s absorption, making the high more intense. Similarly, THC delayed the peak of alcohol impairment, meaning that it tended to take longer for someone using both to feel drunk. Such data is important to educate the public about pot’s effects before they get on the road.