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*** UPDATED x1 *** Good news and bad news

Tuesday, Nov 25, 2014

* A guy is involved in a motorcycle accident, his passenger dies, he consents to a drug test and it turns up negative except for this

The only positive test result was for benzoylecgonine, a metabolite of cocaine, which was found in both defendant’s blood and urine. A metabolite is a byproduct remaining in the body after metabolism has taken place.

In other words, he wasn’t high at the time.

* During his trial, jurors ask the judge for instructions. Is benzoylecgonine the same as a drug? If it is the same, then the guy is gonna get convicted. If it isn’t, then he has a chance at acquittal. The state’s attorney did not object to the defense counsel’s request that the judge state the obvious. The judge’s response

“It’s not really a factual question or one about review of the evidence,” Kennedy said, according to a transcript in the appellate ruling. “It’s really a matter asking the court to give a legal definition and so the court should answer that as closely as possible by giving a direct answer and then explaining without alluding to facts in the answer, so the answer the court is going to give is, yes, cocaine metabolite qualifies as a drug, substance or intoxicating compound. … I believe that responds to their question and correctly states the law to them, so that’s the response that’s going to be given. I’m going to write that out carefully.”

As a result, Dana Hasselbring was convicted of DUI, even though there was clearly no “influence” involved with his driving.

* The appellate court reversed yesterday

“Both the state and defendant agreed the trial court should answer the question by telling the jury to rely on the evidence it heard during the trial. The trial court’s unprompted response, ‘yes, cocaine metabolite qualifies as a drug, substance, or intoxicating compound,’ was incorrect, in conflict with the evidence presented, and served to direct a verdict in the state’s favor,” the ruling said.

“The better approach would have been for the trial court to accept the parties’ recommended response and instruct the jury to rely on the evidence it heard during the trial. Accordingly, we have no choice but to reverse defendant’s conviction and remand for a new trial.”

* But this is also from the opinion

The State’s expert testified, “Benzoylecgonine is a cocaine metabolite. That means that at some point cocaine was ingested. It breaks down into metabolites. One of them is Benzoylecgonine, which we test for. It is similar to digestion. When you ingest food, it has to break down into other substances. Drugs are the same way.” (Emphasis added).

Looking at the evidence in a light most favorable to the prosecution, as we must, we find a rational jury could have found the benzoylecgonine in defendant’s system was a substance resulting from defendant’s use of cocaine before driving… Accordingly, double jeopardy does not preclude retrial of defendant.

So, he could very well go on trial again and lose again.

This goofy state law really needs to be changed.

*** UPDATE *** From an Illinois State Bar Association letter to the editor of the Pekin Times…

Under the current Illinois Vehicle Code, a driver who is not impaired is still guilty of a DUI offense or aggravated DUI offense if there is any trace of an unlawful drug in their blood or urine. So, if a driver smoked marijuana two weeks before an accident, it is still a crime even though a urinalysis can’t test for active THC metabolites, and the driver showed no evidence of impairment. In other words, smoking marijuana two weeks earlier had nothing to do with the accident.

This isn’t good policy. As the Pekin Daily Times recently stated, “The purpose of the DUI laws should be to punish people who drive under the influence of alcohol or or drugs. We don’t see any justice in punishing people who aren’t under the influence.”

We agree.

Accordingly, ISBA Legislative Proposal 98-16 removes this absolute liability offense from the DUI statute and makes it a new separate Class B misdemeanor for a first offense and a Class A misdemeanor for a second or subsequent offense.

The proposal continues to make it illegal to use drugs to the extent that they result impairment under the current DUI statute. A conviction under this new statute would also parallel the DUI statute to require payment of the $150 DUI Analysis Fee and require a professional evaluation of the driver for substance abuse before sentencing.

The punishment must fit the crime. We join with the Pekin Daily Times and request you “fix the law so that those who are driving under the influence are punished but those who are clearly not impaired are not.”

- Posted by Rich Miller        

17 Comments
  1. - William j Kelly - Tuesday, Nov 25, 14 @ 12:35 pm:

    I am sorry but what’s the good news again?


  2. - Wordslinger - Tuesday, Nov 25, 14 @ 12:37 pm:

    “Looking at the evidence in a light most favorable to the prosecution, as we must…..”

    Huh? I thought it was the other way around.

    In dubio pro reo?


  3. - Gooner - Tuesday, Nov 25, 14 @ 12:44 pm:

    Wordslinger,

    On appeal, the Court defers to the finder of fact.


  4. - JoanP - Tuesday, Nov 25, 14 @ 12:48 pm:

    @ Wordslinger -

    You have to look at the context. Here, the appellate court is considering whether any rational trier of fact could have found the evidence sufficient to support a conviction. That’s the standard in determining whether double jeopardy bars the retrial. It’s NOT the “beyond a reasonable doubt” standard that a jury must use at trial.


  5. - AC - Tuesday, Nov 25, 14 @ 12:57 pm:

    I’m encouraged to hear that there seems to be a renewed interest in punishments fitting crimes. It’s too bad we’ve had to lock up such a large portion of the population, or leave them impoverished, for crimes they didn’t commit. I can’t be convinced that someone drove under the influence of a drug if they didn’t have the actual drug in their system, not a byproduct, or some indicator that they had taken the drug in the past.


  6. - VanillaMan - Tuesday, Nov 25, 14 @ 1:01 pm:

    I don’t agree with your viewpoint at all.

    Their is no reason to have either cocaine or its metabolites in your bloodstream.

    Debating how it may or may have not effected the wreck isn’t how to fairly address this issue.

    It should be considered and justice shouldn’t ignore the defendant’s physical condition.

    The law is not the problem.


  7. - Knome Sane - Tuesday, Nov 25, 14 @ 1:01 pm:

    “Drivin’ that train, high on Benzoylecgonine” doesn’t have the same ring to it.


  8. - DPGumby - Tuesday, Nov 25, 14 @ 1:03 pm:

    this is significant in that evidence of marijuana remains in the system for extensive periods long after the high is gone. that fact is a conundrum for states with recreational use.


  9. - Anonymous - Tuesday, Nov 25, 14 @ 1:17 pm:

    Debating how it may or may have not effected the wreck isn’t how to fairly address this issue.


  10. - ChicagoR - Tuesday, Nov 25, 14 @ 1:19 pm:

    “Debating how it may or may have not effected the wreck isn’t how to fairly address this issue.”

    When you are trying someone for driving “under the influence”, it seems to be that debating whether the person was “under the influence” is exactly how to fairly address the issue.


  11. - Nick Name - Tuesday, Nov 25, 14 @ 1:23 pm:

    -* A guy is involved in a motorcycle accident, his passenger dies-

    Not that it affects your narrative, but the person who died was not a passenger on the defendent’s motorcycle. He was on another motorcycle. Both motorcyclists were going 55+ mph in a 35 mph zone (residential area) when they collided. Maybe reckless driving would have been a more appropriate charge.


  12. - Judgment Day (on the road) - Tuesday, Nov 25, 14 @ 1:23 pm:

    Actually, VM, that’s not quite correct. This, from Wikipedia:

    “Benzoylecgonine is used as the main pharmaceutical ingredient in the prescription drug Esterom, a topical solution used for the relief of muscle pain.”

    Link is: http://en.wikipedia.org/wiki/Benzoylecgonine
    ——————-

    This is just a small part of a much bigger issue. There has been a little noticed revolution in quick response testing of body fluids. It used to be that it literally took days to get any types of results.

    Doesn’t always take that any more - at least to get preliminary findings. And they are testing for more and more things. And it’s starting to effect employment, getting hired, etc.

    If they are going to change these statutes (and IMO, they should), it shouldn’t just be for ‘impairment’ - it may very well go into other areas such as eligibility for military service, etc.

    Imagine if somebody got a copy of a pol’s physical with all this type of testing data. Talk about opposition research going to a new extreme.

    This is a difficult issue.


  13. - Weltschmerz - Tuesday, Nov 25, 14 @ 1:46 pm:

    Obviously, the good news is that once your body metabolizes something, it no longer has any effect on said body. Pass the doughnuts.


  14. - Wensicia - Tuesday, Nov 25, 14 @ 1:50 pm:

    Catch-22


  15. - Formerly Known As... - Tuesday, Nov 25, 14 @ 5:20 pm:

    More like this, please.


  16. - Plutocrat03 - Tuesday, Nov 25, 14 @ 7:41 pm:

    So who has said that this person is not under the influence? Where in the chain of metabolism does this substance occur? It this a gotcha of an indication of continuing impairment?


  17. - vole - Wednesday, Nov 26, 14 @ 6:14 am:

    Having considerable horsepower harnessed between a persons legs could be considered a source of impaired judgment in the minds of some individuals. Add the influence of other individuals similarly affected, cultural influences, helmet laws, etc. and you have a whole messed up set of impairments.
    The judicious would first consider this: if you are breaking one law, don’t break two. But if you break one law two weeks earlier, you best be damned careful and on guard to avoid messy lawmaking and enforcement.


Sorry, comments for this post are now closed.


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