* 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.”