Driving while sober

 It seems simple enough.

People convicted of driving under the influence of drugs in Illinois should actually be under the influence of drugs. But that isn’t always the case. And so the Illinois State Bar Association is pushing to change a law that has resulted in sober people being prosecuted and convicted for driving while impaired.

The problem lies in drug testing and a law that allows prosecutors to file charges against people who have trace amounts of drugs in their systems or no drugs at all. All it takes are non-psychoactive metabolites of drugs that are produced after a drug is ingested and that can remain in the body long after the high is gone. In the case of marijuana, non-psychoactive metabolites can linger as long as 30 days. With other drugs, it can be a matter of days.

So it is that Dana Hasselbring of Champaign has spent the last year in prison, with a scheduled parole date of Jan. 30, 2023, after being convicted last year of aggravated DUI stemming from a motorcycle accident that killed his friend, Eddie Piatt. Both men were riding considerably faster than the posted 35 mph speed limit when Hasselbring’s bike collided with Piatt’s motorcycle. Hasselbring got an 11-year sentence even though there was no evidence that he was impaired at the time of the crash. Rather, a lab expert with the Illinois State Police testified that Hasselbring had consumed cocaine between 24 and 28 hours before his blood was drawn three hours after the accident, with a test revealing non-psychoactive metabolites.

The Fourth District Appellate Court in Springfield last month overturned Hasselbring’s conviction, deciding that the trial court judge erred when he told puzzled jurors that non-psychoactive metabolites qualify as intoxicating compounds under state law. The appellate court ruled that the judge should have told jurors to rely on evidence they heard during the trial, as both the defense and prosecution recommended when jurors sought guidance during deliberations. Prosecutors haven’t indicated whether they will re-try Hasselbring. But a new trial won’t clear up problems in the drugged driving laws that have resulted in other drivers being convicted of felony DUI despite no evidence that they were under the influence of drugs.

Scott Shirey is one. The Lake County man lost a 10-year-old son in a 2011 accident caused by the driver of an overloaded pickup truck who ran a stoplight and t-boned Shirey’s car. The truck driver pleaded guilty to reckless homicide. After a blood test found trace elements of pot in Shirey’s system, he was charged with aggravated DUI and pleaded guilty. He had no prior criminal record, according to his attorney Patrick O’Byrne, but Shirey is now a felon, even though there was no evidence that the amount of marijuana in his system affected his driving ability.

“How would you like to be charged with the homicide of your own child when you smoked marijuana that had absolutely nothing to do with the accident?” O’Byrne asks. “That wouldn’t happen in Nazi Germany. But it happens in Illinois.”

Not any longer, if the bar association gets its way.

The bar association is pushing a bill that would require prosecutors to show actual impairment to win DUI convictions in cases involving drugs. The effort comes after the state Supreme Court in 2011 ruled that the so-called zero-tolerance law that allows convictions based on the presence of non-psychoactive metabolites or trace amounts of drugs is valid because no one knows what level of a given drug impairs a person’s ability to drive. Indeed, some studies have shown that pot can improve driving performance.

Drug testing methods are an issue, according to Matt Jones, a lobbyist with the Illinois State’s Attorneys Appellate Prosecutor’s Office that opposes the measure pushed by the bar association.

Police typically rely on tests that measure non-psychoactive metabolites as opposed to substances that cause intoxication, Jones said. New methods that test saliva can find psychoactive substances as opposed to metabolites that don’t cause impairment, he said, so controversy over whether non-psychoactive metabolites alone should merit charges might be settled.

Left unanswered is the question of how much of a drug is enough to cause impairment. Colorado and Washington, which have legalized pot, have established threshold limits in DUI statutes for THC, the active ingredient in marijuana, much like .08 percent is the legal limit for alcohol. Unlike alcohol, however, there is no scientific evidence that driving ability is impaired once levels of THC or psychoactive ingredients in other drugs rise above certain levels.

“These (laws establishing THC legal limits) have become default positions,” says Larry Davis, a Northfield defense attorney who wants to abolish the current zero-tolerance law on drugged driving in Illinois. “They’re doing it not because the science supports it but because there’s no alternative.”

Jones said he’s optimistic that a compromise will be reached during the coming legislative session.

“The bar association has rational arguments on their side,” Jones allows. “We have a willingness to meet them halfway, if they’re willing to meet us. I’m confident that reasonable minds can come to a reasonable place here.”

Contact Bruce Rushton at [email protected].