The Journal of The DuPage County Bar Association

Back Issues > Vol. 27 (2014-15)

Medical Marijuana and the ‘Trace Law’: Why Treat Cheech Worse Than Chong?
By Mark M. Trapp

The enactment of the Compassionate Use of Medical Cannabis Pilot Program Act (“Cannabis Act”)1 has created two classes of drivers in Illinois – those who are legally permitted to drive with cannabis in their system, and those who are not. The unequal treatment sanctioned under the new law goes so far as to apply two different burdens of proof for driving under the influence, depending on the preferential status of the accused. Under current law, the State assumes authorized medical marijuana users are not impaired, but presumes the impairment of all other cannabis users. This unequal treatment may violate the equal protection clauses of both the Illinois and United States constitutions, because “[w]hen the law lays an unequal hand on those who have committed intrinsically the same quality of offense, equal protection is denied.”2

Background. Section (a)(6) of the Illinois DUI Act prohibits driving with “any amount of a drug ... in the person’s breath, blood, or urine[.]”3 Illinois courts have long interpreted this section, known colloquially as the “trace law,”4 to forbid any level of detectable marijuana in a driver’s body, regardless of whether evidence of impairment exists, “because there is no standard that one can come up with by which, unlike alcohol in the bloodstream, one can determine whether one is — driving under the influence.”5

Thus, prior to passage of the Cannabis Act, according to the Illinois Supreme Court the trace law “create[d] an absolute bar against driving a motor vehicle following the illegal ingestion of any cannabis,” and this was “without regard to physical impairment.”6 However, the Cannabis Act amended the trace law such that the presumption of impairment applicable against all other drivers “does not apply” to one holding a registry card “unless that person is impaired by the use of cannabis.”7 Accordingly, whether the State bears the burden of proving actual impairment now depends on the class of the defendant.

The Cannabis Act Treats Similarly Situated Individuals Differently. To illustrate the different treatment under the law, imagine two dope smokers, Chong and Cheech. Chong has a valid registry card under the Cannabis Act, Cheech does not. Both guys smoke the same joint in the same parking lot, and then get into separate vehicles to get some nachos and pizza. As they pull out of the parking lot, an accident occurs between the two vehicles, and both drivers subsequently test positive for cannabis. Although both smoked the same cannabis in the same parking lot, were in the same accident, and violated the same sentence of the same statute, Chong and Cheech will be treated very differently. Indeed, Cheech will be presumed guilty of DUI, while Chong will be presumed not guilty of the same crime.8

This is despite the fact that the equal protection clause “requires equality between groups of persons similarly situated,” 9 and precludes the government from making classifications on the basis of criteria wholly unrelated to the statute’s purpose.10 A review of the necessary elements shows that Cheech (and other disfavored drivers) could potentially raise a strong equal protection challenge against his unequal treatment under the trace law.

I. Chong and Cheech Are Similarly Situated. Within the context of the Illinois Vehicle Code, Chong and Cheech are similarly situated. In fact, they are exactly (not just similarly) situated: all drivers charged with violating the trace law have been charged with the exact same offense, under the exact same statute, and upon conviction, are subject to the exact same penalties.

Chong’ possession of a registry card under the Cannabis Act does not change the analysis; to the contrary, it further demonstrates Cheech’s unequal treatment by the State. The fact that the State treats Cheech and other

disfavored drivers less favorably is the problem; the State cannot sidestep constitutionally guaranteed protections simply by “legalizing” conduct for one class that remains illegal for another.11 To the contrary, “a state may not, under the guise of classification, arbitrarily discriminate against one and in favor of another similarly situated.”12 While the State may enact a strict liability statute such as the trace law, it must apply and enforce it against all citizens equally, rather than exempt certain favored groups from its harsh results. In any event, the possession of a valid registry card allows Chong to use cannabis; it most decidedly does not allow him to drive a motor vehicle after doing so.13 Accordingly, any driver (whether authorized to use cannabis or not) who drives with cannabis in his or her system is in violation of the law. Thus, all drivers charged with violating the trace law are similarly situated.

II. Chong and Cheech Committed the Same Offense. It is likewise clear that favored and disfavored drivers with any amount of cannabis in their system have committed “intrinsically the same quality of offense.”14 As stated by our state Supreme Court, “A driver with [cannabis] in his body violates section 11-501(a)(6) simply by driving.”15 Whether committed by Chong or Cheech, driving with “any amount” of cannabis in one’s system is the exact same offense.16 However, under the newly-amended trace law, Chong and other favored drivers are free from the same draconian presumption applied against Cheech (and other disfavored drivers).

III. The DUI Act Treats Similarly Situated Individuals Unequally. Because Chong and Cheech are similarly situated, the equal protection clause requires they be treated equally.17 But now the trace law actually mandates the unequal treatment of Cheech and other disfavored drivers. As noted above, prior to passage of the Cannabis Act, the trace law was a “strict liability” offense, applicable to all drivers equally.18 Now, whether the trace law is a strict liability offense depends upon the identity of the defendant: for Cheech, it is a strict liability offense, but for Chong it is not, and the State must prove the use of cannabis actually impaired his ability to drive.19 The trace law operates such that the presence of “any amount” of cannabis in a disfavored driver’s “breath, blood or urine” creates an irrebuttable presumption of impairment, i.e., strict liability.20 However, for a favored driver like Chong (i.e., one “in possession of a valid registry card issued under” the Cannabis Act), the statute works the exact opposite way — such a driver is presumed to be un-impaired, unless and until the State proves actual impairment beyond a reasonable doubt.21 Thus, rather than prohibiting driving after having ingested cannabis, the trace law as amended allows favored cannabis users to drive on the State’s roadways with active cannabis in their system; such individuals violate the law only when their actual impairment can be proven beyond a reasonable doubt. Prohibiting for one conduct allowed for another clearly constitutes unequal treatment.

The law’s unequal treatment of Chong and Cheech is stark, and meaningful: it is not a stretch to assert that Cheech has lost his presumption of innocence, while Chong retains his. To further illustrate the disparate treatment, imagine Cheech took a single puff of marijuana three weeks earlier, and had no active components in his system when the accident occurred, while Chong was smoking marijuana all day the day of the accident, had a lit joint in his mouth when the cars collided, and his test showed high levels of active components in his system. Regardless of this huge disparity, and the fact that Cheech might be able to scientifically prove he was not impaired by cannabis at the time of the accident, Cheech will still be presumed impaired, while Chong will not.

This is because, as applied to disfavored drivers, “impairment is not an element” of DUI under the trace law, as “[s]uch violations are essentially driving while presumed impaired.”22 In sharp contrast, when prosecuting a favored driver, the State bears the burden of proving beyond a reasonable doubt the individual was actually “impaired by the use of cannabis.”23 Even worse, because impairment is not even an element on which the State bears the burden of proof against a disfavored driver, the presumption of impairment is conclusive.24 Thus, Cheech stands certain of conviction, even in the face of unrefuted evidence that he was not impaired, while Chong may not be convicted in the absence of proof beyond a reasonable doubt of actual impairment.25

In short, the statute’s presumption applies only against disfavored drivers, supplies the crucial element of their guilt, is irrebuttable in both misdemeanor and felony situations,26 and requires they be treated in the exact opposite manner as favored drivers. Whatever one thinks of the Cannabis Act, such unequal treatment is intolerable in a society built on the bedrock foundation of equal protection under the law.27 

IV. The State Has No Rational Basis to Treat Cheech Unequally. Clearly, Cheech’s actual impairment is not affected by whether he is legally entitled to smoke the marijuana alleged to have caused any impairment. It is not clear how allowing Chong to drive free of the presumed impairment applied against Cheech furthers the purpose of the State’s prohibition against driving under the influence, which “is to protect the people who walk and drive on the public way.”28

Our Supreme Court has stated the DUI Act “was intended to keep drug-impaired drivers off the road.”29  Obviously, allowing those most likely to use cannabis to drive does not advance the statutory purpose “intended to keep drug-impaired drivers off the road.”

Moreover, common sense indicates the level of risk to “the people who walk and drive on the public way” does not depend on whether the impaired drivers around them were legally entitled to smoke marijuana or not, just as the danger inherent in drunk driving does not depend on whether the alcohol was legally consumed or not. Accordingly, the Cheechs of our state have a ready-made argument that the classifications drawn by the trace law have no rational relationship to the purpose of the statute, and are based on criteria wholly unrelated to that purpose.30 Because of this, it is entirely arbitrary to classify Chong and Cheech differently.31

To be clear, under the new trace law, the State has not decided Chong can smoke marijuana and Cheech cannot – the Cannabis Act accomplished that. Instead, it has determined Chong may drive with cannabis in his system and retain his presumption of innocence while Cheech may not. While the State is entitled to create “an absolute bar against driving a motor vehicle … without regard to physical impairment;”32 it most certainly cannot create and apply two unequal standards for what is inarguably the same offense. To illustrate, consider that Illinois maintains a prohibition against driving with a blood alcohol concentration of .08 or greater.33 The Supreme Court has upheld this prohibition on the basis that the legislature rationally determined that level of alcohol constitutes impairment all by itself.34

Now imagine if the State distributed “Compassionate Use of Alcohol” licenses, carving out an exception to the strict liability alcohol statute exempting holders of such licenses from the presumption of impairment applicable against everyone else at an alcohol concentration higher than .08. The equal protection violation would be obvious, as it seems to be here. Simply stated, the State can apply a standard that presumes impairment, or it can apply a standard under which the State must prove actual impairment. But it cannot apply two different standards of proof to the same statutory violation, according to the identity of the person charged. Because it has done so, the resulting inequality violates the equal protection clause.

V. The Subsequent Amendment has Entirely Undermined Fate and Martin. At the very least, the amendment of the trace law by the Cannabis Act has undermined the continued application of the case law upholding the pre-Cannabis Act trace law. The Illinois Supreme Court’s decision in Fate was premised on the supposed necessity of a blanket prohibition against any level of drug in the blood or urine because the legislature had assumed there was no standard to apply to determine a cannabis user’s level of impairment.35 The Martin decision followed Fate’s reasoning, and stated clearly the principle on which it rests: “while it is possible to determine scientifically the amount of alcohol that renders a driver impaired, it is not possible to do the same for drugs.”36 Clearly, both Fate and Martin rested on the notion that it was impossible to determine actual impairment from drugs. Accordingly, only because it accepted the notion that no standard under which impairment could be determined was possible, the Court in each case also accepted the State’s blanket standard of presumed impairment. However, the legislature of Illinois has now determined that actual impairment from the use of cannabis can be ascertained, at least for so-called “medical marijuana” users, and that a prosecutor is now required to show such a user is actually impaired by his use of cannabis.37 Thus, unless we are to believe the legislature has commanded the impossible (that is, determining actual impairment from cannabis) the assumption on which Fate and Martin were decided is no longer applicable. Accordingly, Fate and Martin may no longer be controlling, at least with respect to cannabis users.38

Conclusion. Whatever one thinks of so-called “medical marijuana,” the fact that some cannabis users are now presumed guilty while others retain their presumption of innocence is indicative of a fundamental inequality under Illinois law. There is simply no rational basis for the distinction, and no citizen should be subject to such unfair and unequal treatment by the government. If the State wishes to keep its roadways free of those who have ingested cannabis, it may certainly do so.

But whatever standard it applies to achieve this goal must be applied fairly and equally to all citizens.39 As noted by the U.S. Supreme Court, “The equal protection clause would indeed be a formula of empty words if such conspicuously artificial lines could be drawn.”40 Or, as Cheech might say: “Dude, that’s so wrong. You got a light man?”  

1 410 ILCS 130/1, et. seq.

2 People v. Reed, 125 Ill.App.3d 319, 325 (4th Dist. 1984). See also People v. Bradley, 79 Ill.2d 410, 416 (1980), and People v. Mathey, 99 Ill.2d 292, 296 (1983).

3 625 ILCS § 5/11-501(a)(6).

4 See “Reformers: trace law unfairly punishes drug users who are not DUI,” 102 Ill. Bar Journal 114 (Mar. 2014).

5 People v. Fate, 159 Ill.2d 267, 270 (1994).

6 Fate, 159 Ill.2d at 271.

7 625 ILCS § 5/11-501(a)(6)(emphasis added).

8 Moreover, because a simple misdemeanor DUI constitutes “[t]he essential and underlying criminal act” of an aggravated DUI where an accompanying physical injury “turns the offense into a felony.” Martin, 955 N.E.2d at 1064, if Chong or another person is injured in the accident, Cheech may be charged with a felony. See also People v. Lavallier, 187 Ill.2d 464, 469  1999)(“the  essential and underlying criminal act remains the same: driving while under the influence”). In such a case, Cheech’s presumed impairment would also apply to the felony, compounding his unequal treatment and placing him (and other disfavored drivers) in much greater jeopardy of losing liberty than favored drivers, who face no such presumption. Martin, 955 N.E.2d at 1064 (“[W]hether proof of impairment is necessary to sustain a conviction for aggravated DUI … depends upon whether impairment is an element of the underlying misdemeanor DUI.”).

9 People v. Mathey, 99 Ill.2d 292, 296 (1983).

10 People v. Shepard, 152 Ill.2d 489, 499 (1992).

11 Id. (“the guarantee of equal protection prohibits the State from according unequal treatment to persons placed by a statute into different classes for reasons wholly unrelated to the purpose of the legislation.”).

12 People v. McCabe, 49 Ill.2d 338, 341 (1971).

13 See 625 ILCS § 5/11-501(b)(“The fact that any person charged with violating this Section is or has been legally entitled to use … cannabis … shall not constitute a defense against any charge of violating this Section.”). See also 410 ILCS § 130/30(a) (5)(licensed users prohibited from “Operating, navigating, or being in actual physical control of any motor vehicle … while using or under the influence of cannabis in violation of Section[] 11-501 … of the Illinois Vehicle Code”); and 410 ILCS § 130/30(b) (“Nothing in this act shall be construed to prevent the arrest or prosecution of a registered qualifying patient for … driving under the influence of cannabis where probable cause exists.”).

14 Reed, 125 Ill.App.3d at 325.

15 People v. Martin, 955 N.E.2d 1058, 1064-65 (2011).

16 625 ILCS § 5/11-501(a)(6).

17 McCabe, 49 Ill.2d at 341.

18 Martin, 955 N.E.2d at 1064.

19 625 ILCS § 5/11-501(a)(6). While beyond the scope of this article, the amendment of the DUI Act may also have eradicated any notion of “a legislative purpose to impose absolute liability for the conduct prescribed.” 720 ILCS § 5/4-9. This could open the door to an argument that the presumption of impairment may no longer be applied. Id.

20 625 ILCS § 5/11-501(a)(6). See also Martin, 955 N.E.2d at 1064.

21 625 ILCS § 5/11-501(a)(6)(“this paragraph (6) does not apply” against a favored driver “unless that person is impaired by the use of cannabis.”)(emphasis added).

22 Martin, 955 N.E.2d at 1064, fn.1 (emphasis added). See also People v. Rodriguez, 398 Ill.App.3d 436, 439 (1st Dist. 2009) (noting section 501(a)(6) “properly created a per se offense without any element of impairment”).

23 625 ILCS § 5/11-501(a)(6).

24 See People v. Fate, 159 Ill.2d 267, 271 (1994)(Section 5/11-501(a)(6) “creates an absolute bar against driving a motor vehicle following the illegal ingestion of any cannabis … without regard to physical impairment.”)(emphasis added).

25 People v. Cervantes, 408 Ill.App.3d 906, 908 (2d Dist. 2011)(state must prove every element of offense beyond a reasonable doubt).

26 See note ix, above.

27 Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)(“The guaranty of equal protection of the laws is a pledge of the protection of equal laws.”).

28 People v. Avery, 277 Ill.App.3d 824, 830 (1st Dist. 1995).

29 Fate, 159 Ill.2d at 269.

30 See Shepard, 152 Ill.2d at 499; and McCabe, 49 Ill.2d at 341. In a more recent decision, the Third District Appellate Court denied equal protection and due process challenges brought against the DUI Act, finding it “treats all individuals who ingest illegal substances the same[.]” People v. Rennie, 2014 IL App. (3d) 130014, P.22 (May 23, 2014). However, under the arguments

advanced here, it is clear that all individuals charged with violating the trace law are not treated the same.

31 See McCabe, 49 Ill.2d at 341 (“it is required that there be a reasonable b asis for distinguishing the class to which the law is applicable from the class to which it is not.”).

32 Fate, 159 Ill.2d at 271.

33 625 ILCS § 5/11-501(a)(1).

34 See People v. Ziltz, 98 Ill.2d 38, 43 (1983).

35 Fate, 159 Ill.2d at 270 (“flat prohibition ... was considered necessary because there is no standard that one can come up with by which, unlike alcohol in the bloodstream, one can determine whether one is - driving under the influence.”).

36 Martin, 955 N.E.2d at 1064.

37 625 ILCS § 5/11-501(a)(6).

38 A further challenge could also be brought under the due process clause. See Carella v. California, 491 U.S. 263 (1989)(“The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense,” and “relieving States of this burden violate a defendant’s due process rights” and “subvert[s] the presumption of innocence accorded to accused persons”). The continued application of the presumption of impairment against disfavored drivers relieves the State of its burden of proof of the crucial element in a DUI – impairment – that it must prove beyond a reasonable doubt against favored drivers. This arguably violates the due process clause. Id.

39 One of the primary problems with the trace law is the essentially unfettered discretion it affords prosecutors. Because of the presumption of impairment, a positive test puts a citizen entirely at the mercy of the state’s attorney, who may cut favorable deals for some, but not for others. The equal protection clause should at minimum protect citizens from the exercise of wholly arbitrary power wielded by agents of the state.

40 Skinner v. Oklahoma, 316 U.S. 535, 542 (1942).

Mark Trapp is a partner in the Chicago office of Epstein Becker & Green, P.C., where he focuses his practice on labor and employment law and litigation, representing employers in a broad range of industries. He has extensive experience in collective bargaining, NLRB proceedings, discrimination and wrongful discharge litigation, and multiemployer pension withdrawal liability matters.

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