HB 218 would lower the penalty for possessing small amounts of marijuana to a fine and change DUI law so that drivers could no longer be charged for registering only trace amounts of cannabis.

Colorado, Washington, Oregon, Alaska, and the District of Columbia have legalized the recreational use of marijuana. And 23 states have legalized medical cannabis. On the heels of enacting its own medical cannabis law, Illinois' General Assembly is now considering one bill that would decriminalize the possession of marijuana and another that would legalize the possession of marijuana and cannabis sativa plants.

The most active of the two bills, HB 218, decriminalizes the possession of 15 grams or less of marijuana, instead imposing a fine of no more than $125. It also establishes a standard for determining whether a driver is impaired by cannabis, rather than penalizing even trace amounts of the substance as current law does.

SB 753 seeks to legalize the possession of up to 30 grams of marijuana and the possession and cultivation of five cannabis sativa plants. People under the age of 21 would still be prohibited from possessing marijuana or plants.

SB 753 has stalled in committee. HB 218 passed the House on April 23, 2015. Its second reading before the Senate was on May 12, 2015, shortly before this issue went to press.

HB 218 represents a next step in Illinois' cannabis control policies. Earlier this year, Governor Rauner issued the first medical cannabis licenses to patients, dispensaries, and cultivation facilities. The decriminalization bill has many supporters, including Cook County Sheriff Tom Dart, the Illinois State Bar Association, the Illinois Office of the State's Attorney Appellate Prosecutor, the ACLU, and the Illinois State's Attorney's Association. Recently, Cook County State's Attorney Anita Alvarez announced that her office would stop prosecuting minor marijuana possession under certain circumstances.

DUI liability based on impairment, not trace amounts

Both Northfield criminal defense attorney Larry Davis and Matt Jones of the Illinois Office of the State's Attorney Appellate Prosecutor say the most interesting aspect of HB 218 is its change to the current DUI statute, 625 ILCS 5/11-501. The bill would change section 11-501(a)(6) to create a standard for determining when a driver is actually impaired by cannabis. Davis points out that the current law makes a driver liable for a DUI even if that person had smoked marijuana 30 days before driving. In other words, liability is not tied to impairment. (See Larry Davis' article in the March 2014 IBJ.)

But unlike in the past, devices now exist that can test a driver's saliva to determine he or she is actually impaired by marijuana, Jones says. Thanks to the devices produced by companies like Dräger, law enforcement now has "a validated way to have a roadside chemical test based on the presence of active substances" in a driver's body, he says.

HB 218 would create the equivalent of the blood alcohol measurement used for alcohol-based DUIs. The bill sets the legal limit for the presence of active cannabis in the blood at 15 nanograms; drivers are also impaired if their saliva contains 25 nanograms of the substance.

Davis notes that this is the highest legal limit in the United States. Jones concurs, pointing out that both Washington and Colorado have set their limits at five nanograms. The number, Jones says, is based on a "European study extrapolating the legal BAC (0.05) to cannabis intoxication." After accounting for a margin of error of 3.4 nanograms, the study placed the limit at five nanograms. The higher limit in Illinois is based on the state's goal of establishing a "comparable risk of impairment" based on the 0.08 BAC standard for alcohol.

Marijuana intoxication: harder to measure

Jones points out that there are many difficulties with establishing impairment for marijuana users. While "one ounce of alcohol is one ounce of alcohol," he notes that "experienced [cannabis] smokers smoke deeper, ingesting more THC." Those same individuals have a higher tolerance and can better compensate for their intoxication. This factor makes it "more difficult to set a standard."

The solution has involved significant research and testing, a large amount of which comes from European sources. Jones says that the limit imposed by HB 218 is "not an experimental design, but is an epidemiological" design. Davis feels that "there is no clear science in terms of where impairment occurs." He points out that, based on the proposed limits, testing would have to occur within two hours after arrest due to the rapid drop off of the active metabolite after smoking.

The bill's decriminalization components are designed to eliminate convictions for possession of slightly more than one-half ounce of marijuana. Davis believes that the move is "consistent with Governor Rauner's desire to decrease jail and prison populations. The real problem," he says, "is that we are [currently] criminalizing an offense that affects a lot of young people; one that ruins or harms their futures."