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Marijuana DUI

Is it legal to drive after using marijuana?

Although marijuana use and possession is now legal in Illinois, the laws governing marijuana DUIs (also known as cannabis DUIs) have not changed. It remains illegal to drive or be in physical control of a motor vehicle while under the influence of cannabis or to have over a certain level of cannabis in your blood or other bodily substance.

Medical cannabis has been legal in Illinois since 2014 and the recreational use of marijuana became legal on January 1, 2020. Under the recreational cannabis law, it is legal for those 21 years of age and older to possess and use marijuana products in Illinois subject to certain limitations. Possession is limited to 30 grams of cannabis flower and cannabis-infused products, such as edibles, is limited to 500 mg of THC. THC is the chemical in marijuana that causes its psychoactive effects.

Can I be arrested for driving under the influence of marijuana?

In Illinois, you may be charged with driving under the influence of marijuana under two different laws:

  1. Driving while under the influence of marijuana alone or in combination with other drug(s), meaning that you are incapable of safely driving (usually based, at least in part, on a police officer’s observations); and/or
  2. Driving with an excess concentration of THC in your body. In Illinois, it is illegal to drive with a THC concentration of 5 or more nanograms in your bloodstream or 10 or more nanograms in any other bodily substance (e.g. saliva or urine) within 2 hours of driving or being in physical control of a motor vehicle. A nanogram is simply a measurement of the substance in a person’s body.

However, in Illinois, the law prohibiting you from driving with an excess amount of THC in your system does not apply if you hold a valid medical marijuana card and are a registered medical marijuana user. In other words, if you are registered medical marijuana user, you may only be charged with cannabis DUI based on a police officer’s observations of you.

What are the penalties for a marijuana DUI?

The potential criminal penalties for a cannabis-based DUI are essentially the same as the penalties for an alcohol-based DUI. These penalties can range from court supervision (a non-conviction type of sentence) to prison time depending on your prior record including prior DUIs or other criminal history and any aggravating factors present in the case (e.g. an accident with injuries or other charges filed by a police officer).

A first offense cannabis-based DUI is usually charged as a Class A misdemeanor, which carries a maximum penalty of up to 12-months in jail and a $2,500.00 fine plus mandatory fees and court costs. At a minimum, if found guilty after trial or after a plea of guilty, you would be required to complete an alcohol/drug evaluation, risk education classes, possible treatment, attend a victim impact panel and pay court assessments.

Will I lose my driver's license due to a marijuana DUI?

Generally, there are two different parts to every DUI case: (1) a statutory summary suspension of your driver’s license based on whether you refuse or fail chemical testing and; (2) the criminal charge of driving while under the influence. A statutory summary suspension of your driver's license is automatically imposed 46 days after you are served with a Notice of Statutory Summary Suspension by the law enforcement officer.

If you are arrested for a cannabis DUI, you are subject to two different types of statutory summary suspensions.

  • The first type involves a statutory summary suspension entered where the law enforcement officer has a reasonable suspicion that you are impaired by the use of cannabis, but not enough cause to arrest (also known as probable cause). In this situation the officer has the right to request that you submit to certain physical field performance tests conducted by the police officer, known as standardized field sobriety tests (SFSTs). These tests may include the horizontal gaze nystagmus test, walk and turn test, and one leg stand test. Additionally, the officer may request that you submit to a roadside chemical test, such as a saliva test, designed to detect the presence of THC (the psychoactive ingredient in cannabis). If you refuse or fail the field sobriety tests or a roadside chemical test, a summary suspension of your driving privileges may be imposed as follows:
    • Refused testing: 12-month license suspension
    • Failed testing: 6-month license suspension

If you receive this type of statutory summary suspension, you are not eligible to receive a Monitored Device Driving Permit during the period of suspension.

  • The second type of statutory suspension is entered where the law enforcement officer has probable cause (rather than just a reasonable suspicion) that you are driving under the influence of cannabis. After arrest, if you subsequently refuse chemical testing or fail chemical testing the following suspension will be entered (this type of suspension does not involve failing or refusing standardized field performance or roadside sobriety tests):
    • Refused testing: 12-month license suspension
    • Failed testing: 6-month license suspension

If you have a prior DUI or statutory summary suspension within 5-years of the current arrest (including out of state offenses reported to your Illinois record), you are not considered a first offender for purposes of the summary suspension. As a result, you face the following enhanced driver’s license consequences for this type of suspension:

  • Refused testing: 3-year license suspension
  • Failed testing: 1-year license suspension

If you are a first offender and receive this type of statutory summary suspension, you are eligible for a Monitored Device Driving Permit as long as you do not also receive a statutory summary suspension based on refusal or failing field sobriety testing (including a roadside chemical test) as discussed above.

Also, for this type of statutory summary suspension, if you have a commercial driver’s license (CDL), you are also subject to a 12-month CDL disqualification (and a lifetime loss of CDL in the case of a second suspension) if you refuse or fail chemical testing after arrest. The disqualification applies whether you were driving a commercial or non-commercial vehicle at the time of the offense.

If you are ultimately convicted of a cannabis DUI, a driver’s license revocation will be imposed for a minimum period of one year. This is a separate driver’s license consequence from the statutory summary suspension. You will be required to have a hearing before the Illinois Secretary of State in order to regain any driving privileges.

A sentence of court supervision will prevent the revocation of your driver’s license as it is a non-conviction disposition under Illinois law.

Medical Use of Marijuana and DUI

The medical marijuana law went into effect on January 1, 2014, which allows those with certain medical conditions to legally possess and use marijuana to alleviate the symptoms associated with those conditions.

These include conditions such as cancer, arthritis, glaucoma, multiple sclerosis, Parkinson’s disease, spinal cord injuries, brain injuries, limb pain and post-concussion syndrome. For a complete list of conditions see this article.

Those individuals who have a qualifying medical condition and wish to use medical marijuana may apply for permission to use it. Upon approval, they are granted a Medical Cannabis Registry Card. This card gives the patient immunity from state or local laws prohibiting the possession or use of marijuana, provided that the patient complies with the law’s requirements.

A person who holds a Medical Cannabis Registry Card is also granted immunity from that part of the marijuana DUI law, which prohibits driving or being in physical control of a motor vehicle at or above the THC limit of 5 or more nanograms of whole blood or 10 or more nanograms of other bodily substances.

However, the law does not grant the person immunity if their use of marijuana has caused actual impairment which makes them unable to drive safely.

Furthermore, individuals with a Medical Cannabis Registry Card may be subject to a statutory suspension if they are impaired.

Contact our cannabis DUI attorneys

The cannabis DUI attorneys at The Davis Law Group, P.C. have studied and identified many issues under the current DUI cannabis laws. Attorney Larry A. Davis has been a representative of the Illinois State Bar Association in the drafting of the DUI cannabis laws as well as having extensively lectured and written on the new laws.

Contact us today to arrange a consultation. We practice throughout the Chicago Area including Cook County, Lake County and DuPage County. Let us put our knowledge and experience to work for you.

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