Mostly because it is 100% legal, relatively inexpensive, and easy to purchase, alcohol-related DUIs will probably always constitute the majority of DUI cases. In many jurisdictions, however, drug-related DUIs are almost as common.
When they go to trial, DUI-drug cases present their own unique kinds of issues. If the defendant submits to a breath or blood test, and most do, the prosecutor can use the DUI law’s per se section to prove intoxication without any additional evidence. Even in the absence of such tests, alcohol’s intoxicating effects are very well known. There is no Breathalyzer test for drugs and there is also no consensus as to the impairing effects of many of these substances.
Presence of Drugs
In some cases, a per se law is available. Under Section 625 ILCS 5/11-501(a)(6), the prosecutor need only prove the presence of drugs. Either direct evidence, like a blood or urine test, or circumstantial evidence, such as track marks on an arm or drugs recovered from a car, may suffice.
Most of the prohibited substances are listed in the Controlled Substances Act. The list includes a variety of illegal “street drugs,” like heroin, LSD, and cocaine.
Marijuana, which is legal for medicinal purposes in Illinois but illegal for recreational purposes, is a special case. With regard to other CSA drugs, the prosecutor must only establish that, beyond a reasonable doubt, the defendant had at least trace amounts of the drug in his or her system. Amount is completely irrelevant. With regard to marijuana, however, the defendant must have at least five nanograms of THC. There is considerable debate as to whether this measurement has any scientific basis or even if that much THC, which is much less than one joint, is impairing. But, that is the law, at least for now.
Section 625 ILCS 5/11-501(a)(5) is the circumstantial evidence section, which is used almost exclusively in prescription drug cases. It is not illegal to take prescription pain killers and not even necessarily illegal to abuse them, but it is illegal to get behind the wheel if the medication “renders the person incapable of safely driving.” As with alcohol, prosecutors generally use the field sobriety tests to determine impairment. These tests are only a few of the 12 steps the authorities can use to determine if a driver is under the influence of drugs:
- Walk and Turn: Walking a straight line heel to toe without using the arms for balance is difficult on a flat surface in a well-lit, quiet room, and almost impossible to perform if conditions are less than ideal.
- One-Leg Stand: Like the WAT, the OLS is a divided attention test which measures both dexterity and mental acuity. Prosecutors commonly claim that the defendant “failed” this test based on minor technicalities, like holding the leg at a slightly incorrect angle.
- Horizontal Gaze Nystagmus: The HGN test is very reliable if it takes place under carefully controlled conditions and if the test administrator is well qualified. Those are two very big “ifs.”
There must also be additional evidence that the defendant was using an impairing substance at the time, such as empty pill bottles in the car or a current prescription for a painkiller.
Reach Out to Assertive Lawyers
Though they serve the same purpose (keeping impaired drivers off the street), the DUI-alcohol and DUI-drug laws each work differently. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.
(image courtesy of Yeshi Kangrang)