Generally, having a medical marijuana registry card is not a defense to a drugged DUI charge. However, if the arrest was because of the presence of marijuana in the person’s breath, blood, or urine resulting from the lawful use of marijuana, there may be a defense. Depending on the frequency of use for a person, marijuana can be detected in the body anywhere from two weeks to a month after use. For some heavy users, the drug may be detected much longer. Being a registered medical marijuana patient can be a defense if the patient used the marijuana in the past, the drug is still in his system, and the driver is not impaired at the time of driving.
If a driver is arrested based on the presence of an unlawful drug, the prosecution does not have to prove that the driver was impaired while driving in order to get a conviction. It is enough that the substance is detectable in the person’s breath, blood, or urine. It is more difficult for the prosecution to prove presence of drugs on a driver’s breath than to prove presence in the blood or urine.
In some Illinois cases, the testimony of the arresting officer as to the presence of drugs due to the smell of a defendant’s breath has been insufficient for a conviction, without more supporting evidence. (People v. Allen, 375 Ill. App. 3d 810 (2007). However, in other cases, the courts have accepted the testimony of the arresting officer alone; although usually the officer also describes physical signs of the driver’s impairment. In order to avoid giving the prosecution evidence to use against you, as a driver, you should never admit to having smoked marijuana or used any other kind of drug prior to driving, even if you think the drug is out of your system. An admission can be supporting evidence to a police officer’s testimony that he or she smelled drugs on your breath.
The penalties for drugged DUI are the same as for an alcohol DUI. First and second offenses are typically charged as misdemeanors with possible prison terms of up to one year; while third and subsequent offenses are felonies, with possible prison terms of up to three years. There are also additional penalty enhancements depending on the facts of a particular case. Additionally, Illinois’ implied consent law would apply, and a driver would automatically have his or her license suspended for refusing to take or complete a sobriety test, or for failing one.
It is of the utmost importance to have an attorney on your side when facing DUI charges. Contact Steven Goldman today for experienced legal representation in your case.