Monday, June 7, 2010

There must be evidence of the presence of cannabis in the blood, breath, or urine to be found guilty of a DUI based on 11-501(a)(6) People of the State of Illinois v. Samuel McPeak, No. 2080572

The 2nd District recently ruled that there was insufficient evidence to convict for a DUI where there was neither evidence of impaired driving nor evidence of cannabis in the breath, blood, or urine of the defendant.

Defendant Samuel McPeak was found guilty of DUI (625 ILCS 5/11-501 (a) (6)) after the trial court denied his motion to quash the arrest and suppress evidence at a stipulated bench trial.

McPeak subsequently appealed on two grounds: 1) the stipulated facts were insufficient to convict him; and 2) he was not properly admonished under Supreme Court Rule 402. The appeals court reversed and remanded based on improper admonishments in accordance with Supreme Court Rule 402. At that point they didn’t address the adequacy of the evidence presented; McPeak’s first ground for appeal.

In this case the court focused on People v. Allen, 375 Ill. App. 3d 810 (2007) and People v. Briseno, 343 Ill App. 3d 953 (2003) as helpful in McPeak’s argument.

In Allen the defendant was also convicted of a DUI based on cannabis and the Third District reversed based on insufficient evidence, stating:

The statute does not criminalize having breath that smells like burnt cannabis. Furthermore, even though the trial court found the officer’s testimony credible regarding defendant’s admission of smoking cannabis the night before his arrest, the State put on no evidence that there would have been ‘any amount’ of the illegal drug in defendant’s breath, urine, or blood at the time of defendant’s arrest as a result of smoking cannabis the night before. Allen, 375 Ill. App. 3d at 816.

The court further addressed the State’s argument that with the additional circumstantial evidence of drug paraphernalia that there was enough evidence to convict. The argument was dismissed because there was no additional evidence of impaired driving (recall the basis of the stop was a seat belt violation). Ultimately, the State was unable to prevail against the court’s decision that there was no evidence of any cannabis remaining in McPeak’s breath, blood, or urine when he was driving.

This decision seems to put the brakes on the statute’s requirement of “any amount of drugs” in the body being sufficient to convict for a DUI. It appears with this ruling that the state will need to make a showing of 1) impaired driving; 2) physical indicators of drug consumption aside from a defendant’s admission, and 3) evidence that the drug is actually in the breath, blood, or urine at the time of the offense.

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