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You need to know this about Illinois Medical Marijuana and DUI

Posted by Steven H. Fagan | Dec 26, 2013 | 0 Comments

The Compassionate Use of Medical Cannabis Pilot Program Act, a new law in the state of illinois that will go into effect on Jan. 1, 2014, is a medical marijuana pilot program that makes it legal for people suffering from certain medical conditions to use medical marijuana as a treatment.

The new Illinois law authorizes registered patients to obtain up to two ounces of medical marijuana every two weeks from a dispensary specified by the patient during the application process. Patients may apply for a waiver to use more marijuana only after their physician explains that two ounces of medical marijuana every two weeks is insufficient for the patient's medical condition.

The law allows physicians to recommend the therapeutic use of medical marijuana to patients who are under the care of a doctor for at least one of the 33 qualifying medical conditions. Qualifying patients who receive a written certification may register with the Illinois Department of Public Health for legal status as a medical marijuana patient. The qualifying medical conditions include: cancer; glaucoma; HIV/AIDS; hepatitis C; ALS; Crohn's disease; agitation of Alzheimer's disease; cachexia/wasting syndrome; muscular dystrophy; severe fibromyalgia; spinal cord disease; Tarlov cysts; hydromyelia; syringomyelia; spinal cord injury; traumatic brain injury and post-concussion syndrome; multiple sclerosis; Arnold Chiari malformation; SCA; Parkinson's disease; Tourette's syndrome; myoclonus; dystonia; RSD; causalgia; CRPS; neurofibromatosis; chronic inflammatory demyelinating polyneuropathy; Sjogren's syndrome; lupus; interstitial cystitis; myasthenia gravis; hydrocephalus; nail patella syndrome; residual limb pain; or the treatment of these conditions.

Under the act, registered patients may not be arrested or prosecuted or face criminal or other penalties including property forfeiture for engaging in the medical use of marijuana in compliance with the law. Patients may not possess or consume marijuana in a vehicle unless it is secured in a sealed, tamper-evident container that is inaccessible while the vehicle is moving and the act also requires the holder of a driver's license to submit to standardized field sobriety tests (SFSTs) when requested by a law enforcement officer.

The law also contains a seriously misguided proposal - those who refuse to submit to SFSTs at the request of a police officer will have their driver's license suspended.

There are numerous problems associated with enforcement of the Compassionate Use of Medical Cannabis Pilot Program Act in this way. Here are a very few.

  • SFSTs are validated based upon National Highway Traffic Safety Administration (NHTSA) studies and research which indicates that SFSTs are to be used only for purposes of detecting impairment by alcohol, not for cannabis consumption.
  • SFSTs are validated as an investigative tool for the average person. Persons suffering medical conditions sufficient to qualify them for medical marijuana for the treatment of cancer, multiple sclerosis, fibromyalgia, lupus, Parkinson's, Tourrette's, ALS, and other medical conditions, are not likely to be able to perform the SFSTs in the same manner as a healthy person. These tests are called "divided attention" tests. How does someone weak from chemotherapy or in constant pain perform these tests in any predictable way, given that their attention will already be drawn away due to the very problems that create their eligibility for this program?
  • SFSTs don't test the ability to drive, just the ability to perform the SFSTs. The results are interpretive, and rely on a physical observation and judgement, on a case-by-case basis, by a police officer who has often been told by his or her supervisor to "get out there and make some arrests."
  • This suspension for refusal to submit to SFSTs that medical marijuana users are inherently more likely to have difficulty with due to their medical conditions treats those who have permission under the act to possess and use medical marijuana in a worse way than anyone else suspected of DUI. There is no loss of driving privileges for anyone else (whether they've illegally used some drug or overindulged in alcohol) to refuse to submit to the highly subjective SFSTs.

The bottom line is that a person illegally using marijuana is treated better than a legal user who is complying with the law under this act - a motorist that refuses the SFSTs due to the physical inability to perform them, but agrees to chemical testing to demonstrate that they have only the permissible, therapeutic levels of marijuana in their system, still is subject to a suspension of their driving privileges.  For that reason, as well as the fact that the basis for the legal use of medical marijuana in the first place is that the person is suffering from a serious medical condition, we think this provision is immoral, and very likely unconstitutional.

The attorneys at Fagan, Fagan & Davis have defended countless clients against DUI charges throughout the Chicago area courts, including those located in Cook County, DuPage County and Lake County. The attorneys at Fagan, Fagan & Davis understand which defense strategies are the most effective in court and how to challenge evidence gathered by law enforcement and offered by the prosecution. Contact us now for a free consultation.

About the Author

Steven H. Fagan

Steve Fagan graduated from the University of Illinois in Urbana/Champaign with a degree in political science. He earned his law degree from Chicago-Kent College of Law. Steve practices law with a single-minded devotion to one thing – the needs and desires of the client.  Steve is a member of the National College for DUI Defense, the National Association of Criminal Defense Lawyers, a founding member of the DUI Defense Lawyers Association, the Illinois State Bar Association, and the DuPage County Bar Association, and has taught other attorneys in Continuing Legal Education courses.

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