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What Are The Laws In Illinois And Wisconsin Regarding Marijuana DUI?


The laws in Wisconsin and Illinois vary a bit. Finally, Illinois has just changed their archaic marijuana DUI laws, because up until recently, if you had any amount of marijuana in your system, then you were guilty of a DUI. As most people know, or do not, marijuana will remain in your system with a traceable amount for up to thirty days, maybe even a little longer, depending on how much you used, or how long you have been using. For example, say you smoked four weeks, or twenty days ago, and you are pulled over, and your eyes are bloodshot because you have been working all day, and the officer says, “You know you look like a little goofy to me, and I want to take a breathalyzer” and you take a breathalyzer, it shows 0.0%.

The officer then states, “I still think you’re on something, you’re on some medication, or you’re on drugs. I want you to take a blood test”, when you take a blood test, that marijuana is still going to show up. Is it affecting you? Absolutely not. Anybody that has ever smoked marijuana in their life knows that if you smoke even a week, or even three days ago, it is not going to affect you, or your ability to do normal everyday things, but it is still traceable enough. That was a horrible, horrible law, and many other states did not change their laws along these lines, but Illinois finally did. Now, based on a couple of things, the most important of which this is no longer an automatic DUI, just because you have traceable amounts in your blood or your urine.

In order for you to be guilty of DUI using marijuana, which has so many nanograms of THC, which is the active ingredient in marijuana, it must be traceable in your blood. It is kind of like a 0.08% with alcohol.

If it is above that, you are presumed to be intoxicated, if it is below, you are presumed to be sober. If it is right on the border, that is considered an interpretation by law enforcement. It is not an automatically not guilty with one little nanogram less, but I cannot imagine a judge finding you guilty on that. Everything would depend on driving under the influence charges, be it alcohol, marijuana, or prescription drugs. The test is always going to be has this affected your ability to do normal things? They feel you are safe to drive. With alcohol, they will try, and you have to perform these field sobriety tests, and you are going to get all kinds of medical conditions that will affect your ability to do the field sobriety tests, because they usually involve having a very stable core, ankles, and hips.

Anybody who has had an injury or anything else that could affect whether someone can stand on one leg for thirty seconds holding his or her foot six inches off the ground. If you have bad knees, or had surgery, you will have a hard time doing that as well. They also have you walk in a straight line, which is like a tight rope. This is a very difficult test to do regardless if you have any disabilities, because it requires quite a bit of coordination, and a bit of stability. So getting back to the point, law enforcement or a judge is looking to see if you are able to do these so called normal tests.

Barry Boches, Esq.

Get your questions answered - call me for your free phone consultation (847) 244-4636.

These field sobriety tests are supposed to be indicators, to see if you are under the influence of any drugs, or alcohol. They also have what is called a Horizontal Gaze Nystagmus test. This is where they hold a pen in front of your eyes, and move it back and forth in front of your nose, and then they bring it to the center of your face all the way over your ear until you cannot see anymore. If there is nystagmus, which is usually a shaking of both eyes due to a visual impairment. That is a much-subjected analysis as to whether someone sees your eyes shake, did they hold the pen right, or were there any flashing lights in the background? Law enforcement always has their lights on when they pull somebody over, which can be distracting.

Those tests are supposed to give you some indication if they think you might be under the influence. Now, more importantly, what evidence does law enforcement have, and what shows any of us beyond reasonable doubt, that you are impaired to do normal things. What are normal things? How about driving normal? Are driving in a straight line, and not swerving all over the road, that is a good thing. Obviously, many people are pulled over for improper lane usage, or drifting from one lane to the other, or they make abrupt changes, and it may not look safe at that time. Many things can make a car drift. For instance, you could be texting, I have witnessed this a thousand times, and it just makes me mad, but I see people drift from one lane to the other.

It can be in the middle of the day, and some moron is sitting there just texting away, and they think they can drive while texting. That is all good and fine until the kid runs out in front of your car, and you do not see him, or there is a tractor-trailer, and then all of a sudden you collide. I am sure the insurance industry has been putting their gun to their own heads because of the cell phone texting accidents. Cell phones cause so many accidents, because folks are not paying attention to the rules of the road. However, getting back to the drug issues at hand, they want to look and see if you are able to do normal things.

These are the things that an experienced attorney is going to hit on when cross-examining a police officer. That is why it is important to have an experienced DUI attorney, because they will know how to look for these things, not just to try to attack the officer on how he has objectively analyzing field sobriety tests. So what I like to ask is look, you had this person in your car, you headed back at the station, most of the time these police officers do not put anything in their reports about a person who was staggering, because they do not. I ask them, “Look, did they walk into your police station? Yes. Did they sit down okay? Yes.

Did they answer the question you asked coherently? If they ask what time it is, and they did not start telling you the football score, or what their favorite color is. They are coherent relevant answers those are normal things. Now, police cars have videos, which paint the true picture, which is truly worth a thousand words. I have had police officers videos that are constantly running PDR machines. It is always on, but does not maintain, and record everything until you flip the lights on. When they flip the lights on, like a DVR, it reverts back two or three minutes prior. Therefore, when the officer says, “I was sitting and this guy went by me and I saw him swerve and go in the other line”, you will see everything the officer saw from this video if it is on.

I had one where the officer said he was behind the person, he swerved over the white fog line, went over the centerline, and he was swaying back and forth within his lane. We have the video, and the person was absolutely driving perfectly, I got the case thrown out. Law enforcement are always trying to boost their own testimonies by making things up, and make it sound worse for the alleged suspect. Nevertheless, the pictures tell exactly how it was, and that is really, what we want. We just want a fair trial based on facts, as they were, not on his clouded judgement.

Barry Boches, Esq.

Get your questions answered - call me for your free phone consultation (847) 244-4636.

Mark my words. When they are sure, they are going to arrest you. Therefore, like I tell all my clients, look, you want to keep my business card, which anyone is welcome to get free if they send me requests, but it says, “I don’t want to talk to you. My attorney told me to be polite. I am not supposed to say anything. I know I have a right to remain silent. I know I have a right to refuse to search or have my car search or anything else”. Therefore, you politely want to let the officers know exactly how you feel. The last thing you want to do is scream at the officer, “I know my rights. I am not under arrest. You have to let me go, you have to do this, you have to do that”, well then you are just going to make the officer even more aggressive, and the next thing you know, now you have a felony, aggravated battery charges, because you touched the police officer.

You do not have to hurt him. That is an aggravated battery. Contacting and assaulting the internal public, in any way, guess what, that is an aggravated battery. Technically it is. You always want to be calm, coherent, and kindly say, “Look, my attorney told me not to say anything, I am not trying to be rude, I am just trying to let you know I don’t want to say anything further.” Be polite, sit down, and shut up. For most people, that is the hardest thing to do in the world. They feel they have to justify that there is nothing wrong, and they did not do anything wrong. The last thing you want to say is I only had two beers. You do not want to answer his questions about what you had to drink, ever.

By the time you get to trial, you can tell the truth and say, “I had an alcohol free beer, looks like beers, smells like beers, feels like beer, but it was non-alcoholic.” So the minute you give the officer some probable cause to start building a case, “Yes, I had some alcohol”, you put that noose around your neck, and you are ready to be kicked out of the chair. In the same thing, you do not want to say you might have an officer talking to you on a domestic and you say, “Look, I didn’t hit my wife. I just pushed her on the shoulder and told me let me get out of the house, I wanted to avoid the confrontation”, when you say “I pushed her”, there is an assaulting nature of contact, and you just admitted to a battery. So you never ever want to talk to the police.

If they have questions, they want to ask you, let the answers come from your attorney, because if they come from your attorney, they cannot use them against you. If they come out of your mouth, the exact same answers, they will be used against you in the court of law. You always hear that Miranda Warning, anything you say can and will be used against you in the court of law. All officers are always looking for something from any kind of a case, whether its marijuana, or prescription drugs, that show you do not have the ability to do normal things, and maintain a level of safety than a normal person would do. Drug, and marijuana laws, it is always the same burden; they have to prove that you are incapable of doing normal things.

It is common. If you are incoherent, I do not care if you are incoherent, intoxicated, and you took five bottles of valium, or drank, prescription drugs, or alcohol does not give you a pass on getting a DUI. You are still held to the same standards that if you are not safe, guess what; I do not want you on the street either. I do not want you hitting my car, or my kid, or anybody else. If you are safe, that is fine. Now, if the officer pulls you over and you are tired, well that might be inattentive driving, reckless driving, or something like that, but it certainly is not driving under the influence. Driving under the influence has a catastrophic consequence for your insurance companies. They are going to be paying the rest of your life, and it does not drop after a year after you receive a DUI. Believe me; if you get a DUI, you are going to be a high-risk insured driver. You might have to provide additional SR-22 insurance in Illinois, or in some other state through the DMV, or the secretary of state if you do not pay for it, you are automatically suspended. So with any prescription drug, or marijuana, you have to make sure that you are driving to a level of safety, and that an officer is not going to feel you no longer have the ability to drive safely.

For more information on Marijuana DUI Laws In IL & WI, a free initial consultation is your best next step. Get the information and legal answers you’re seeking by calling (847) 244-4636 today.

Barry Boches, Esq.

Get your questions answered - call me for your free phone consultation (847) 244-4636.

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