The Compassionate Use of Medical Cannabis Pilot Program Act (“Act”) became effective January 1, 2014; however, due to the time required to promulgate required rules for its implementation, to date, no registered user cards have been issued by the Illinois Department of Public Health.1 As a result, to date, there have been no DUI Cannabis arrests that have been subject to its provisions.

As I pointed out in an article appearing in the Illinois Bar Journal (“IBJ”) in March 2014, there were numerous issues surrounding the DUI provisions contained in the Act.2 The Act has now been amended to address a significant problem with its provisions but continues to maintain others.3

As was explained in the IBJ article a fundamental problem with the previous version of the Act is that it required that the officer “arrest” the person before field sobriety testing could be conducted but also required that “the officer have an independent, cannabis related factual basis giving suspicion that the person (was) driving under the influence of cannabis” in order to conduct testing. I suggested that these provisions were inconsistent in that a suspicion was a long way from the probable cause associated with an “arrest” to require and obligate one to submit to testing as required by the law.4

The amended language has now eliminated the requirement of an arrest and only requires a reasonable suspicion is order to require field sobriety testing.5

The Act continues to recognize that cannabis impairment cannot be quantified by a chemical test providing for a prohibited per se level. As a result, it continues to rely on standardized field sobriety tests as a determinant of impairment. As I have opined before this is subject to challenge as an unconstitutional exercise of the State’s police powers in that such a conclusion is without a recognized scientific basis. Additionally, the legislature appears to be attempting to qualify any officer trained in field sobriety testing (for alcohol) without regard to the particularized experience and training in drug recognition as currently required under Illinois case law to prosecute DUI drug cases.

Furthermore, the amended Act continues to provide that the obligation to submit to field sobriety tests only applies to the registered cannabis user and that a summary suspension will only result in the case of a registered user who fails or refuses such testing.6

The Act also continues to provide that the length of suspension is six months for submitting to and failing testing and 12 months for refusal (regardless whether the person is a first or second offender for summary suspension purposes); prohibits the issuance of a MDDP for registered cannabis users (but allows issuance of a MDDP for non-registered users); provides that a commercial driver’s license holder who is a registered user and is subject to a statutory summary suspension under the Act’s provisions is subject to a 12-month disqualification for a first suspension and lifetime loss for a second violation (regardless of whether the person was operating a CMV or non-CMV at the time of the offense); and continues to prohibit the use of medical cannabis within a vehicle or from possessing it in a vehicle unless in a tamper-evident medical cannabis container.7

Immunity for registered users from DUI prosecution under 625 ILCS 5/11-501(a)(6) remains part of the Act.8 This continues to raise what I and other attorneys believe is an equal protection issue. In People v. Fate, the Court held that the statute creates an absolute bar against driving a motor vehicle following the illegal ingestion of any cannabis without regard to physical impairment.9 Its reasoning was grounded in the finding that because there was no adequate scientific basis to determine at what level impairment occurs, it was a reasonable exercise of the state’s police power to prohibit any driving with the substance in one’s system in the interest of “safe streets and highways.10

In light of the Court’s reasoning in Fate, how does immunizing from prosecution those drivers who legally use the substance without impairment constitute any less of a risk to the public than those who use it illegally and are not impaired? If the statute seeks to protect the public from that class of drivers with any amount of cannabis in their system, how is the possession of a registered cannabis user card justification for classifying and treating this group differently? It would seem that such a distinction would have a difficult time surviving even a rational basis test. What does having a medical need to use cannabis have to do with according such individuals the right to drive with the substance in their system? No more than allowing individuals who are impaired by a prescription drug taken to alleviate a medical condition—which Illinois, of course, prohibits.11

Furthermore, if the legislature is now saying that cannabis impairment can be determined by standardized field sobriety tests (a dubious proposition as stated above), is the reasoning of Fate upholding an absolute bar because impairment cannot be quantified—no longer valid and therefore an unreasonable exercise of the state’s police powers and therefore a violation of due process?

In my opinion, despite that amendment the Act continues to raise significant constitutional due process and equal protection issues as well as practical enforcement problems that will be litigated for years to come. ■

__________

1. Pub. Act 98-122 (eff. 1/1/14).

2. See L. Davis, “The Medical Cannabis Act and Illinois DUI Law,” vol. 102, no. 3, page 128 (March 2014).

3. Pub. Act 98-1172 (eff. 1/12/15).

4. Supra. See L. Davis, “The Medical Cannabis Act and Illinois DUI Law” at page 131.

5. 625 ILCS 5/11-501.9(a).

6. 625/11-501.9(a).

7. See P.A. 98-1172.

8. See 625 ILCS 5/11-501(a)(6).

9. People v. Fate, 159 Ill.2d 267 (1994).

10. Supra. 159 Ill.2d. 271.

11. 625 ILCS 5/11-501(b).