Island Lake fatal crash cited as Illinois no-tolerance DUI pot law is challenged

Scott Shirey had a trace of marijuana in his system when another driver ran a red light, killing Shirey's son. But the Lake County man was charged with a crime — prompting some to say the law must be changed.

In December 2011, Scott Shirey and his 10-year-old twins, Griffin and Nicholas, were driving to swimming practice.

Along the way, a distracted driver in an overloaded pickup truck ran a red light at Route 12 and Old McHenry Road near Lake Zurich and slammed into Shirey's Lincoln sedan, killing Griffin and severely injuring Nicholas.

Even though another driver caused the accident, it was the Island Lake father who faced up to 14 years in prison. He was not impaired at the time, but Shirey, now 52, was charged two months later after a blood test showed traces of marijuana in his system from — according to his attorney — smoking it a month beforehand.

“Nothing can possibly illustrate this idiotic law more than the Scott Shirey case,” defense attorney Patrick O'Byrne said. “It's incomprehensible how bad the law is. It's a worst-case scenario, charged with the homicide of your own son for smoking pot that had nothing to do with the accident.”

Yet prosecutors, law enforcement and Attorney General Lisa Madigan unequivocally support the law.

“The legislature has said, 'If you're going to consume these illegal drugs — illegally — you can't drive,'” said Kane County State's Attorney Joe McMahon, noting the law clearly states drivers testing positive for any amounts of the drug are breaking the law.

As recreational use of pot expands — it was legalized this month in Alaska, Oregon and the District of Columbia, joining Colorado and Washington — Illinois' zero-tolerance or “trace” laws for driving under the influence of marijuana have come under scrutiny from attorneys and activists. The state bar association has submitted a bill to the state legislature to change the law.

“Our position is, if it's in your system and it doesn't impair you, it shouldn't be part of the DUI law,” said Larry A. Davis, a Northfield defense attorney who helped write the bill.

'We had no defense'

Drivers with any amount of an illegal drug in their systems can be charged in Illinois with DUI, even if they were not impaired or at a fault at the time of a fatal accident or crash involving serious injuries.

The law applies to marijuana and other illegal drugs, such as heroin and cocaine.

In court, prosecutors do not have to prove impairment; to secure a guilty verdict, they must show only that a driver had any marijuana in his or her system at the time.

“I don't see any problem with the law as written,” said Limey Nargelenas, deputy director of the Illinois Association of Chiefs of Police. “If you have any amount of marijuana in your system and you don't have a medical marijuana card and we take a blood test and it's in your system, you're going to go to jail.”

State law requires authorities to take blood samples of all drivers involved in serious or fatal crashes. Scott Shirey was charged in February 2012 after tests showed he had trace amounts of marijuana in his blood.

That he was not impaired was not allowed as a defense, O'Bryne said.

Shirey, who declined to be interviewed, eventually pleaded guilty and was given 30 months' probation.

“We had no choice. We had no defense,” O'Byrne said. “Thank God the judge gave him probation instead of prison.”

The driver who ran the red light pleaded guilty to reckless homicide and was given two months' periodic imprisonment and nine months of home confinement.

Two-victim law?

Illinois drug laws were written in the 1980s when little was known about the medicinal uses of marijuana. Unlike alcohol and cocaine, which are metabolized and leave the body within hours or days, chemicals from marijuana linger for weeks or even a month after use.

In spring 2011, the Illinois Supreme Court upheld the state's “strict liability” standard for DUI, which requires prosecutors only to show a driver had illegal drugs in his or her body.

“Because possession of a controlled substance is unlawful per se, the state must establish simply that the defendant used or consumed a controlled substance before driving,” justices wrote. “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.”

But defense attorneys and activists believe the law erodes the rights of defendants and negates the state's burden to prove a case “beyond a reasonable doubt.”

Donald Ramsell, a Wheaton defense attorney who specializes in DUI cases, called the state law “draconian and ridiculous.”

“First, you have someone who was in an accident where someone was seriously hurt. But they then punish the other driver simply because they had some amount in their system even if it had nothing to do with the accident at all,” he said. “It creates two victims.”

Brittany Pederson, a Geneva defense attorney, said such “strict liability” standards usually are applied to civil matters such as product liability.

“It doesn't give any room for due process and at looking at fault of parties to determine whether somebody intentionally, unintentionally, negligently, or by accident — if you will — did something,” she said. “Bringing strict liability to criminal cases is extremely rare and in my opinion, extremely dangerous.”

Adds Chris Lindsey, a legislative analyst with the Washington D.C.-based Marijuana Policy Project, “There is no argument that can be made that a person with metabolized THC in their system is impaired.” But in Illinois, “you can consume marijuana on the first of the month and get pulled over on the last of the month and be guilty of DUI.”

Everyone is guilty

Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws, said zero-tolerance standards are imposed in 10 other states: Arizona, Delaware, Georgia, Indiana, Iowa, Michigan, Oklahoma, Rhode Island, Utah and Wisconsin.

“American jurisprudence says one is innocent until proven guilty,” he said. “This is one area where we've turned centuries of American jurisprudence on its head.”

Other states, such as Pennsylvania, Washington, Montana, Ohio, and Nevada, have “per se” standards to determine impairment, he said.

Similar to blood alcohol concentration tests, these states set a threshold for a legal amount of THC, the chemical by-product of marijuana, to determine driver impairment. If a driver exceeds that limit, he can be found guilty.

Ramsell said the law should reflect what is right and what is safe for drivers.

“Illinois needs to grow up and learn how to prove somebody is under the influence of drugs or anything else,” he said. “But instead, Illinois has decided that the cheapest way to enforce the law is to make it easy to make everyone guilty.”

Legislative solution?

Earlier this year, the state bar association's bill was filed in the Illinois State Senate. It has been assigned to a committee, and backers hope it will be called for a vote next spring.

If passed, drivers with marijuana in their systems would face only misdemeanor charges. A violation would not be a DUI nor affect a person's driving privileges. Drivers could still be prosecuted if they have traces of other drugs, such as cocaine or heroin.

Prosecutors would be required to prove impairment to obtain a felony aggravated DUI conviction in a fatal or serious crash, said Davis, the defense attorney who worked on the bill.

“The law is already there for people who are impaired. We're not changing that,” he said. “The only thing were changing is the 'trace law.' It's a bad law.”

With recreational use of marijuana being legalized in more places, a college student or tourist could legally consume pot, get in a crash in Illinois or another state weeks later, and be charged with a crime.

Too bad, says Nargelenas, of the Illinois police chiefs association.

“If you take marijuana in another state, we don't acknowledge that in Illinois,” he said. “We in law enforcement don't write the laws. We merely enforce them.”

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  The Illinois state bar association has introduced a bill that would eliminate the state's "trace law," which makes it illegal to drive if a person has any amount of marijuana in his system and automatically considers drivers to be impaired. Harry Hitzeman/
  The Illinois state bar association has introduced a bill that would eliminate the state's "trace law," which will punish drivers with any amount of marijuana in their systems. Harry Hitzeman/
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