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updated: 10/20/2011 4:40 PM

Kane judge to decide if marijuana law is unconstitutional

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A Kane County judge will rule Oct. 28 whether to declare unconstitutional a state law that considers a driver automatically impaired and criminally responsible for a crash if they have any amount of an illegal substance in their system.

"The legislature chooses its words and we're required to interpret those words," Judge Allen Anderson said. "No court should easily find a statute unconstitutional."

Alia Bernard, 27, of Aurora is accused of having marijuana in her system when she caused a May 2009 crash in Elburn that killed Wade and Denise Thomas of St. Charles.

If convicted of two counts of aggravated DUI, she could face up to 28 years in prison and would have to serve 85 percent of any sentence.

Defense attorney Bruce Brandwein argued Thursday that the law violates a person's right to equal protection under law. Brandwein said a person could smoke marijuana legally in California, drive to Illinois a week later and be involved in a fatal accident, but the California resident would be treated differently than an Illinois resident who did the same thing here.

"The statute, in my opinion, is vague. There is lawful consumption in other states," he said, adding that lawmakers incorrectly used the word "unlawful" in the crafting the law.

"They were more concerned with making this a per se violation," he said. "There's no impairment, that's what we're arguing here."

First Assistant State's Attorney Jodi Gleason argued appellate courts have upheld use of the work "unlawful" in past cases. For example, person could have a legal prescription for a drug that would otherwise be charged as unlawful possession of a controlled substance.

"There is no lawful use of cannabis in Illinois," she said.

Bernard, who is free on bond, was indicted in May 2010 for causing the May 23, 2009 crash when she rear-ended a car that was waiting to turn left. The impact pushed that car into an oncoming pack of motorcyclists on a charity ride. The crash near Smith Road and Route 47 caused a nine-vehicle pileup and also injured 12 others.

If Anderson declares the law unconstitutional, it could torpedo the state's case. If he upholds it, a trial date will be set.

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