Pubdate: Sun, 30 Nov 2014
Source: Pekin Daily Times, The (IL)
Copyright: 2014 Pekin Daily Times
Contact:  http://www.pekintimes.com/
Details: http://www.mapinc.org/media/2290
Author: Michael Smothers

MARIJUANA DUI LAW MUST CHANGE, ATTORNEYS SAY

Next year, unless state legislators change a law linking marijuana and
driving, Illinois prosecutors can continue to brand innocent people as
criminals and put them in prison with no proof of guilt.

That's not a claim but a sad fact, said one area defense attorney
who's finding more around the state rallying to his cause. They're
raising their flag now around the case of Scott Shirey, a north
suburban Chicago man whose 10-year-old son was killed and twin son
badly injured when a pickup truck broadsided his car at an
intersection.

The truck driver was at fault, but Shirey was convicted in February
2012 of felony aggravated DUI. He said he'd smoked marijuana a month
earlier.

"If we had known about the case we would've brought him down to
testify" to a General Assembly committee that briefly considered
changing the DUI law last spring before shelving the bill, said
attorney Jeff Hall of East Peoria.

"It's a bad law," said Larry Davis, a suburban Chicago defense
attorney who with Hall produced an alternative that now has the
support of the Illinois State Bar Association (ISBA) Jerry Brady,
Peoria County's state's attorney, said he's "aware of the movement
among attorneys and the ISBA's effort" to change the state's
marijuana/DUI law, but he declined to comment on the bill until it's
passed.

Tazewell County State's Attorney Stewart Umholtz did not respond to a
request for comment on the proposed bill. "Our ultimate goal is to
move with the other 34 states that require proof of impairment," Hall
said.

Illinois is one of 11 states that set a zero-tolerance standard for
marijuana in DUI cases, according to the National Organization for the
Reform of Marijuana Laws. No test for impairment by the drug need be
conducted by police at accident scenes.

All prosecutors need for now is to show the drug's chemical trace in
the driver's bodily fluids to pursue an aggravated DUI charge
punishable by up to 14 years in prison.

That trace, however, could be a day to a month or more old, in either
case long past the period when marijuana might have impaired the driver.

Prosecutors may conclude they have no choice, or discretion, but to
charge drivers in serious accidents when even the smallest amount of
marijuana's chemical traces, or metabolites, are detected in blood or
urine.

Hall, who served as Tazewell County's chief DUI prosecutor during his
three years as an assistant state's attorney last decade, disagrees.

"A prosecutor's first job by law is to seek justice," he said. The
prosecutor who chose to charge Shirey "should've taken a pass" on the
case.

In effect, the judge who sentenced him did. He found "extenuating
circumstances" existed to impose probation rather than a prison term,
though Shirey's record still contains a felony conviction. Last March
a Tazewell County judge showed similar discretion in the case of a man
who said he had smoked marijuana a week before causing an accident
that killed his friend.

After the two slept in Brock Meerseman's car following a long day of
fishing, Associate Judge Tim Cusack said Meerseman, 20, of Pekin,
might have been impaired more by fatigue than marijuana. Cusack
sentenced him to four years of probation and six months in jail.

Debate, both in legal and scientific fields, continues over whether
chemical traces of marijuana can measure levels of impairment by the
drug.

The bill that the ISBA supports, and which a Chicago-based state
senator has said he intends to introduce again this spring, sidesteps
that issue.

Instead, said Hall and Davis, it would make the presence of marijuana
in a serious accident a separate criminal offense not directly
connected to the state's DUI laws. Police and prosecutors could not
assume impairment merely because marijuana's traces had remained for
an undetermined time in a driver.

"A driver should not be charged with impaired driving if there's no
proof he's impaired," Hall said.
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