Yesterday, voters in Oregon, Washington D.C., and Alaska voted to legalize the recreational use of cannabis. Consumption of cannabis will now be lawful in Washington, Colorado, Oregon, Washington D.C., and Alaska. Polls show that most Americans favor legalization of marijuana, which indicates that the number of states to legalize the drug will continue to grow. This creates problems for Illinois' DUI-Cannabis statute, which stands out among many attorneys (including myself) as perhaps the most backwards, heavy-handed, and arbitrary criminal provision in Illinois.
Section 11-501(a)(6) of the Illinois Vehicle Code (625 ILCS 5/11-501(a)(6)) provides 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[.]"
Notice that the statute uses the word "unlawful." Under the plain language of the statute, one can be convicted under the statute only if the State proves that the drug, substance, or compound in the person's blood, breath, or urine resulted from the unlawful consumption of cannabis. In other words, if someone in Illinois drives with any amount of a drug, substance, or compound in their breath, blood, or urine resulting from the use or consumption of cannabis in a place where it is legal (such as Washington or Colorado), that person has not violated this statute. As more and more states make consumption legal, the State should have a more difficult time making its case under this statute.
Note also that the federal code does not provide a basis to prove unlawful use or consumption either. It is not a federal crime to use or consume cannabis. The federal code only makes it a crime to "manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." 21 U.S.C.A. § 841.
Also, the State can find no refuge in section 11-501(b) of the Vehicle Code (625 ILCS 5/11-501(b)), which provides as follows:
"The fact that any person charged with violating this Section is or has been legally entitled to use alcohol, cannabis under the Compassionate Use of Medical Cannabis Pilot Program Act, other drug or drugs, or intoxicating compound or compounds, or any combination thereof, shall not constitute a defense against any charge of violating this Section."
Section 11-501(b) does not apply to the use or consumption of cannabis in a jurisdiction where it is legal. More specifically, the section must be read for the following proposition: even if someone uses a substance lawfully, the lawfulness of that use does not provide a defense for unsafe driving. This is a reasonable provision, but it does not apply to section 11-501(a)(6), which has nothing to do with unsafe driving.
"Cannabis" under section 11-501(b) is specifically tied to the use of cannabis under the Compassionate Use of Medical Cannabis Pilot Program Act (an Illinois statute). The section's reference to "other drug or drugs, or intoxicating compound or compounds, or any combination thereof" must be read as a distinct category separate and apart from cannabis and alcohol. After all, section 11-501(a) separates cannabis and alcohol from the "others." Of course, it would still be illegal to drive in Illinois even after legally consuming cannabis if it rendered the person incapable of safe driving. But section 11-501(a)(6) does not set forth an "unsafe driving" standard; it merely prohibits driving at all after the unlawful use or consumption of cannabis. Nothing more, nothing less.
Unfortunately, if we're looking at legislative intent, we can presume that the legislature intended to punish the immoral act of cannabis consumption through this draconian statute. Applying the rule of lenity, however, I just don't see how it can be illegal for someone to drive in this state (assuming they're capable of driving safely) after consuming cannabis in a jurisdiction where it is legal. As the number of states legalizing the consumption of cannabis grows, the State should have more difficulty proving in each case that the cannabis in a defendant's system resulted from unlawful use or consumption. Defense attorneys should demand that the State meet this burden of proof in each case.