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updated: 8/24/2011 6:42 AM

Attorney in fatal crash says pot law is unconstitutional

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Does the presence of any amount of marijuana in a driver's urine or bloodstream automatically mean that he or she is impaired and therefore criminally responsible if a crash occurs?

The Illinois Supreme Court believes so -- but the defense attorney for an Aurora woman accused of killing two St. Charles motorcyclists doesn't.

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The lawyer for Alia Bernard, 27, who is accused of reckless homicide in causing a May 2009 crash in Elburn that killed Wade and Denise Thomas, is arguing to have the aggravated driving under the influence charges against her thrown out.

If convicted, Bernard could face a maximum sentence of 28 years in prison, but probation also is an option.

Bruce Brandwein argues that a recent Illinois Supreme Court decision that holds drivers criminally responsible for a crash if they have "any amount" of marijuana in their system is overbroad, unconstitutional and violates equal protection under law.

"For example, some states allow the lawful use of marijuana for medical reasons. A person, using marijuana where legal, and is not impaired, drives into Illinois and gets into a fatal accident may not be charged with aggravated driving under the influence, where under the same facts, a person who has consumed marijuana unlawfully can be charged," Brandwein wrote. "There is no rational basis for this distinction."

Brandwein, who could not be reached for comment Tuesday, also argues that field sobriety tests are the best way to determine if a driver is impaired by marijuana and that the state's law is "overly broad."

Bernard is accused of rear-ending a stopped car on May 23, 2009, pushing it into an oncoming group of motorcycle riders and causing a nine-vehicle pileup on Route 47 near Smith Road. The crash also injured 12 other riders.

Bernard was charged in May 2010 with reckless homicide, but re-indicted in May 2011 with aggravated DUI. She is free on $5,000 bond.

First Assistant State's Attorney Jody Gleason, the lead prosecutor on the case, declined to comment other than to say the state will fight Brandwein's motion. Gleason has until Sept. 23 to respond.

Both sides are due to argue their positions before Judge Allen Anderson Sept. 30. It is unclear whether Anderson will rule that day or take it under advisement.

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