ANALYSIS OF 625 ILCS 5/11-501 (a) (6)
The language of 625 ILCS 5/11-501 is clear and unambiguous.
The statute is divided into six different sections each relating to a different offense of driving under the influence. The language of 11-501 (a) (1) requires a breath test to quantify the amount of alcohol “in the person’s blood or breath.” Unlike sections (a) (2), (a) (3), (a) (4) and (a) (5), the final section of the statute, (a) (6), also uses the language “in the person’s breath, blood, or urine.” While findings of guilt under sections (a) (2) through (a) (5) may be based on an officer’s opinion that the defendant is under the influence, a finding of guilt under section (a) (6) requires chemical testing. “When determining legislative intent, a court will construe the language of the statute according to its plain and ordinary meaning and if the statutory language is clear and unambiguous, the statute’s plain meaning will be given effect.” Ramos v City of Peru, 333 Ill. App. 3d 75, 77-78 (2002). Because the legislature used the word “in” only in sections (a) (1) and (a) (6) we must give that word effect in both sections. To determine whether a substance is “in” a person’s blood, breath, or urine chemical testing is required.
People v. Allen is the controlling case for analysis of 11-501 (a) (6).
Recently at The Daley Center, decisions in (a) (6) cases have been based on People v. Briseno, 343 Ill. App 3d 953 (2003), because Briseno is a 1st District case. The controlling case for analysis of 11-501 (a) (6) is People v. Allen, 375 Ill. App. 3d 810 (2007). Reliance on Briseno is incorrect for the following reasons.
There is one appellate court in the State of Illinois. Article VI, Section 1 of the Illinois Constitution states, “The judicial power is vested in a Supreme Court, an Appellate Court and Circuit Courts.” The appellate court is divided into branches, but those branches do not change the fact that the court is a single, unitary authority, whose decisions bind all lower circuit courts. 705 ILCS 25/1 (2009). People v. Allen is a more recent analysis of the (a) (6) statute which deals with the language of the statute itself. “The primary rule of statutory construction is to ascertain and give effect to the intention of the legislature, and that inquiry appropriately begins with the language of the statute.” People v. Hare 119 Ill. 2d. 441, 447 (1988). In Allen, the court pointed out that the only witness called by the State clearly stated that it was impossible to tell whether defendant had zero milligrams or 100 milligrams of cannabis in his breathe or blood based on an odor of cannabis. Allen at 816. The court in Allen interpreted the language of the statute, in particular the use of the word “in,” to hold that without chemical testing, there is no way to determine whether there is any amount of a drug in a person’s system for purposes of a DUI conviction under 11-501 (a) (6).
People v. Briseno does not use the correct framework for an analysis of a conviction under 11-501 (a) (6).
The court in Briseno listed the following as factors for a finding of guilt under 11-501 (a) (6):
(1) operation of a motor vehicle,
(2) odor of cannabis in vehicle,
(3) odor of cannabis on defendant’s breath,
(4) admission by defendant to smoking cannabis,
(5) slurred speech,
(6) dilated pupils,
(7) defendant’s motor skills being slower than average, and
(8) poor performance on standardized field sobriety tests. Briseno at 960.
First of all, the odor of cannabis within a vehicle does not prove that the driver has cannabis “in” his/her system. According to statute:
“Cannabis includes marihuana, hashish and other substances which are identified as including any part of the plant Cannabis Sativa, whether growing or not; the seeds thereof, the resin extracted from any part of such plant; and any compound, manufacture, salt, derivative, mixture, or preparation of such plan, its seeds, or resin, including tetrahydrocannabinol (THC) and all other cannabinol derivatives, including its naturally occurring or synthetically produced ingredients, whether produced directly or indirectly by extraction, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil or cake, or the sterilized seed of such plant which is incapable of germination. 720 ILCS 550/3(a) (2009).
Unlike other controlled substances, cannabis is unique in that certain varieties or forms of the plant are perfectly legal. This distinction is of critical importance in a DUI prosecution. Without either recovery of the illicit substance itself, or a blood or urine test establishing consumption of the illicit substance, there is no tangible proof of the type or variety of cannabis. Because the law criminalizes certain forms or varieties of the plant and not others, the smell of the plant alone cannot establish a violation of 11-501 (a) (6). If the court is not inclined to require chemical testing to prove guilt on an (a) (6) charge, then the expertise of the officer in cannabis detection becomes of critical importance.
Secondly, the odor of cannabis “on” a person’s breath means nothing. The statute requires that a person have an amount of drug in their blood, breath, or urine. “The statute does not criminalize having breathe that smells like burnt cannabis.” Allen at 816.
The third factor relied on in Briseno was an admission of smoking cannabis by the defendant. People v. Park is instructive here.
Park’s own alleged admission was insufficient to convict him of the offense charged. Even assuming that Park’s alleged statement was admissible, its probative value or weight is limited, in the absence of substantial evidence that…defendant had some means of knowing that the substance in question contained cannabis. …the well established rule governing this situation is that requiring substantial, independent corroboration of the defendant’s alleged admission of the element of the corpus delicti. The reasons for this ancient rule are many, but underlying them all is the general problem of the trustworthiness of such alleged admissions. People v. Park 72 Ill 2d 203, 212 (1978).
In Park the court reaffirmed that an admission alone is not enough to affirm a conviction. There must be some other substantial, independent corroborating evidence (e.g. lab testing of substance recovered or, in (a) (6) cases, chemical testing of defendant) that the substance in question was actually cannabis.
The last four factors cited by the Briseno court are all observations made of the defendant by the arresting officer. The court in Briseno mistakenly undertook an analysis of the officer’s observations and whether or not he/she was able to form an opinion about whether the defendant was under the influence based on those observations. A finding of guilt under 11-501 (a) (6) cannot be based on opinion evidence. Because the language of 11-501 (a) (6) is analogous to 11-501 (a) (1), a court cannot make a finding of guilt under 11-501 (a) (6) without chemical testing.
The Briseno court mistakenly analyzes an (a) (6) case using the framework set up by cases analyzing findings of guilt under 11-501 (a) (5). In People v. Jacquith, 129 Ill App. 3d 107, the First District Appellate Court noted a distinction between the competence of a police witness to testify to alcohol intoxication versus drug intoxication. While any lay witness could testify to the effect of alcohol intoxication, the court held that an officer must have some level of professional experience with drugs before his testimony on the subject can support a finding of driving under the influence of drugs. Specifically, the court found that an officer “who claimed no experience with drug arrests, testify(ing) that he believed, based on defendant’s behavior and appearance, that the defendant was under the influence of alcohol and “some other influence,” was “not the level of expertise that has been held necessary in those jurisdictions which have addressed the issue of competent evidence to sustain a conviction for driving under the influence of drugs.” Jacquith at 112-113. In the subsequent decision of People v. Bitterman, 142 Ill. App. 3d 1062, 1064-1065, the First District clarified the holding of Jacquith, explaining that “the officer had to be qualified by the court as an expert in order to reach the conclusion that an accused was under the influence of drugs.” So even if the court uses Briseno’s incorrect analysis of an (a) (6) case, the court would still have to find that the officer was an expert in drug detection before his/her testimony regarding an opinion of drug intoxication may be admissible.
Interpreting the language of the DUI statute, chemical testing is required to sustain a finding of guilt on a charge under 11-501 (a) (6).