A High Burden: A Discussion of People v. Krzeczkowski and the Standard for Securing DUI Drug Convictions
Introduction
Doris Connelly was traveling down Interstate 57 with her three children and nephew when her vehicle was struck from behind, causing it to spin-out into a ditch and roll-over multiple times. The driver who struck Doris and her family appeared lethargic, showed signs of impairment on field sobriety tests, and had morphine, fentanyl, diphenhydramine, and flualprazolam in his system at the time of the crash. A jury found the driver guilty of driving under the influence of drugs, but the Third District Appellate Court reversed his conviction, holding that the evidence was insufficient to prove his guilt because there was no “competent evidence explaining the nature and effect of the drugs” in his system and “the effect [those] substances had on his ability to drive safely.” People v. Krzeczkowski, 2024 IL App (3d) 230117-U, ¶ 21. This Article discusses the legal standard for securing DUI drug convictions, the Third District’s unpublished Rule 23 Order in Krzeczkowski, and considerations for law enforcement agencies enforcing DUI drug laws.
Driving Under the Influence of Drugs in Illinois
The Illinois Vehicle Code contains five variations of driving under the influence offenses involving impairment from either drugs, intoxicating compounds, or marijuana. See 625 ILCS 5/11-501(a)(3) – (a)(6). According to statistics obtained from the Illinois State Police, between January 1, 2022, and October 26, 2024, there were at least 1,299 arrests for these offenses in Illinois, as depicted in the chart below:
|
Illinois Vehicle Code provision: |
A person shall not drive or be in actual physical control of any vehicle in Illinois while: |
Number of arrests between January 1, 2022, and October 26, 2024: |
|
(a)(3) |
Under the influence of any intoxicating compound or combination of intoxicating compounds to a degree that renders them incapable of driving safely |
34 |
|
(a)(4) |
Under the influence of any other drug or combination of drugs to a degree that renders them incapable of safely driving |
816 |
|
(a)(5) |
Under the combined influence of alcohol, other drug(s) or intoxicating compound(s) to a degree that renders them incapable of safely driving |
289 |
|
(a)(6) |
There is any amount of a drug, substance, or compound in their breath, blood, other bodily substance, or urine resulting from the unlawful use or consumption of a controlled substance, intoxicating compound, or methamphetamine |
139 |
|
(a)(7) |
THC concentration of 5 nanograms or more per milliliter of whole blood or 10 nanograms or more per milliliter of other bodily substance within 2 hours of driving or being in actual physical control of a vehicle |
21 |
The vast majority of impaired drivers in Illinois are cited under section 5/11-501(a)(4) of the Illinois Vehicle Code. Under that provision, a person commits the offense of driving under the influence of drugs when they drive or are in actual physical control of a vehicle while under the influence of any drug or combination of drugs to a degree that renders them incapable of safely driving. 625 ILCS 5/11-501(a)(4); Illinois Pattern Jury Instructions, Criminal, No. 23.16 (approved April 26, 2024). To sustain a conviction for this offense, Illinois courts generally require (1) proof that the driver was impaired due to consuming drug(s); (2) proof that the driver was incapable of safely driving; and (3) testimony describing the nature of the drug that caused the impairment, the physiological effects of the drug, and how the drug affects one’s ability to safely drive. See, e.g., People v. Workman, 312 Ill. App. 3d 305, 311-313 (2nd Dist. 2000); Krzeczkowski, 2024 IL App (3d) 230117-U, ¶¶ 21-24; Vill. of Lombard v. Cassell, 2024 IL App (3d) 230220-U, ¶ 29; see also Donald J. Ramsell, Ill. DUI Law and Practice Guide, § 2:5, 2:7, 2:17 (Thompson West, 2024).
In most cases, the prosecution will need the testimony of an expert witness to establish the nature and effects of the drug causing the impairment and how the drug affects one’s ability to drive safely. See, e.g., Workman, 312 Ill. App. 3d. at 311; Krzeczkowski, 2024 IL App (3d) 230117-U, ¶ 21; Cassell, 2024 IL App (3d) 230220-U, ¶ 29; People v. Walker, 2024 IL App (1st) 220985-U, ¶¶ 22-23. Such testimony can be provided by a drug recognition expert officer who evaluated the driver. So long as the defendant’s charging instrument does not identify a specific drug, a DRE witness need not identify the specific drug causing the driver’s impairment; identifying the category or combination of categories of drugs will suffice. See People v. Lenz, 2019 IL App (2d) 180124, ¶ 103. Alternatively, when the driver submits to a blood or urine test, testimony of the forensic toxicologist who evaluated the driver’s test results is required. In either scenario, the witness should describe the nature of the drug causing the driver’s impairment and/or the applicable drug category; the physiological effects the drug has on a person, the quantity required to produce significant effects, and how long those effects last; how long the drugs remain in one’s system; and whether the drugs remain detectible after possible impairment dissipates. Krzeczkowski, 2024 IL App (3d) 230117-U, ¶ 24.
In the absence of expert testimony, a conviction for DUI drugs may still be secured if the driver provides detailed admissions to consuming drugs and being under the influence, so long as other evidence corroborates their admissions and demonstrates their inability to safely drive. See, e.g., People v. Bitterman, 142 Ill. App. 3d 1062, 1065-66 (1st Dist. 1986); Vill. of Lincolnshire v. Olvera, 2024 IL App (2d) 230255, ¶¶ 84-87; Krzeczkowski, 2024 IL App (3d) 230117-U, ¶ 24; Walker, 2024 IL App (1st) 220985-U, ¶¶ 23-24.
It should be noted, however, that the Illinois Supreme Court has stated that “[e]xpert testimony is not required in every case for an officer to testify to his opinion that a motorist was under the influence of drugs based on his inference from the totality of the circumstances.” People v. Gocmen, 2018 IL 122388, ¶ 62. According to Gocmen, an officer can opine that a driver was under the influence of drugs so long as their opinion is not based on the results of field sobriety tests or other “scientific, technical, or specialized knowledge that require[s] specialized training or experience.” Id. ¶ 37; see Ill. R. Evid. 702. Thus, the officer’s non-expert opinion was sufficient to establish probable cause for a DUI drug arrest in the context of a summary suspension hearing. Gocmen, 2018 IL 122388, ¶ 62. To date, the Illinois Supreme Court has not applied the reasoning from Gocmen in the context of a criminal DUI trial, where the prosecution bears a much higherburden. See Ramsell, supra § 2:9.
Facts and Procedural History of People v. Krzeczkowski
Zbigniew Krzeczkowski (“defendant”) was arrested and charged with driving under the influence of drugs following a crash on May 18, 2020. The matter proceeded to a jury trial on October 17, 2022. The State’s first witness, Doris Connelly, testified that she was driving 70 miles per hour on Interstate 57 with her three children and nephew. The weather was clear, and it was around 2:30 in the afternoon. According to Doris, the defendant rear-ended her, causing her vehicle to spin and land in a ditch and flip over multiple times. Krzeczkowski, 2024 IL App (3d) 230117-U, ¶¶ 4-5.
The next witness was the Illinois State Police trooper who responded to the crash. He testified that he observed heavy front-end damage to the defendant’s vehicle. When speaking with the defendant, the trooper testified, the defendant appeared lethargic. And the defendant showed clues of impairment on the vertical gaze nystagmus test, the walk-and-turn test, and the one-leg-stand test, although the trooper could not recall the specific details about the defendant’s performance on those tests. The defendant voluntarily submitted to blood and urine tests; he fell asleep while en route to the hospital and again on the way back to the station. Id. ¶¶ 6-8.
The defendant was evaluated by a drug recognition expert, but that officer did not testify at trial. Id. ¶ 8.
The last witness was a forensic toxicologist with the Illinois State Police, who testified that the defendant’s blood sample tested negative for alcohol, but his urine sample tested positive for morphine, fentanyl, norfentanyl, diphenhydramine, and flualprazolam. She described morphine and fentanyl as opioids, diphenhydramine as an antihistamine, and flualprazolam as a novel psychoactive substance similar to (and more potent than) Xanax and not typically used pharmaceutically in the United States. Id. ¶ 9.
The jury found the defendant guilty of driving under the influence of drugs. On appeal, the defendant argued that the evidence presented was insufficient to sustain his conviction. Id. ¶¶ 11, 13.
The Third District’s Order in People v. Krzeczkowski
The Third District reversed the defendant’s conviction, holding that the evidence was insufficient to sustain the defendant’s conviction for DUI drugs. Id. ¶ 25. Although the court recognized the evidence of the defendant’s impairment, the court focused on the lack of competent evidence connecting those signs of impairment to the drugs found in the defendant’s system. The ISP trooper who testified was inexperienced in conducting DUI drug investigations, and he did not describe how the drugs in the defendant’s system would result in impairment, presumably because he was not qualified to do so because he was not a certified drug recognition expert. The DRE who evaluated the defendant did not testify at trial. And ISP’s forensic toxicologist did not describe the physiological effects of the drugs found in the defendant’s system or how they might affect his ability to drive safely. Id. ¶ 21. “Without competent evidence explaining the nature and effect of the drugs in defendant’s system,” the court explained, “the fact finder was left to speculate about the effect these substances had on his ability to drive safely—an essential element of the crime for which defendant was convicted.” Id. ¶ 21.
In reaching its conclusion, the court rejected the State’s Gocmen argument that expert testimony was unnecessary in this case to prove that the defendant was under the influence of drugs. Id. ¶ 22. The court distinguished this case from Gocmen based on the nature of the proceedings: Gocmen took place in the context of a hearing on a petition to rescind a statutory summary suspension, where the standard of proof is probable cause, whereas this case involved a conviction following a criminal trial, where the standard of proof is beyond a reasonable doubt. The court agreed with the general statement that “expert testimony is not required in every case to establish a motorist was under the influence of drugs,” but, citing Workman, explained that “there must be sufficient other evidence to support a finding of guilt.” Id. ¶ 23 (citing Workman, 312 Ill. App. 3d at 311). In Workman, the Second District similarly reversed a DUI drugs conviction where there was no evidence of the drug’s physiological effects and how the drugs affect one’s ability to drive. The Workman court noted that “this lack of competent testimony may create a reasonable doubt of the defendant’s guilt, absent other sufficiently incriminating evidence.” Workman, 312 Ill. App. 3d at 311 (emphasis added). The Krzeczkowski court appears to have interpreted the “other sufficiently incriminating evidence” language from Workman to mean detailed admissions from the defendant describing his drug use and how it affected him, and/or evidence of drugs in the vehicle, neither of which was present here. Krzeczkowski, 2024 IL App (3d) 230117-U, ¶ 24.
Those reading Krzeczkowski can imagine how the case may have ended differently. Had the drug recognition expert who evaluated the defendant testified at trial, the result may have been different. Similarly, had the forensic toxicologist described how morphine, fentanyl, diphenhydramine, and flualprazolam affect a person and their ability to drive safely, the result may have been different. Finally, it is unclear why the defendant was not charged under section 5/11-501(a)(6), which prohibits driving a vehicle with any amount of an unlawfully-ingested controlled substance in a person's breath, blood, or urine. 625 ILCS 5/11-501(a)(6); see generally People v. Martin, 2011 IL 109102; People v. Rodriguez, 398 Ill. App. 3d 436 (1st Dist. 2009); People v. Kathan, 2014 IL App (2d) 121335.
Considerations for Law Enforcement Agencies
As mentioned above, according to statistics obtained from the Illinois State Police, between January 1, 2022, and October 26, 2024, there were at least 1,299 arrests for offenses involving driving under the influence of drugs, intoxicating compounds, or marijuana in the State of Illinois. E-mail from Sarah Wheeler, Freedom of Information Officer, Illinois State Police, to Matthew Moustis, (Nov. 6, 2024, 10:21 CST) (on file with author). Contrast this with the number of drug recognition expert officers in Illinois: 163. Telephone call with Mike Pappas, Sergeant, Illinois State Police (Nov. 2024). This disparity between the number of DUI arrests and the number of drug recognition experts means that, at any given DUI investigation, the odds of a DRE being available to evaluate the driver are slim at best. And because judges rarely issue search warrants for a driver’s blood, law enforcement agencies face significant challenges in obtaining the evidence necessary to secure a conviction.
That said, the primary objective for law enforcement in these situations is to make arrests based on probable cause and take unsafe drivers off the roads; officers should not let the difficulty of obtaining a conviction discourage them from making DUI drug arrests. In doing so, officers should attempt to obtain as much evidence of impairment and unsafe driving as possible.
Further, officers should attempt to elicit as many details about the driver’s drug use as possible, including what specific drugs were consumed, when the drugs were consumed, how those drugs were consumed, how much the driver consumed, how the drug affects them, whether they are currently feeling those effects, and how the drug affects their ability to safely drive. Finally, officers should report immediately to their supervisor and request to embark on the journey of becoming a certified drug recognition expert.
Matthew M. Moustis is an associate attorney at Mahoney, Silverman & Cross, LLC. Matthew currently focuses his practice on municipal prosecution, where he prosecutes petty and misdemeanor traffic matters and ordinance violations for the Firm’s municipal clients.