Attorney calls ‘vague’ DUI law unconstitutional

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Updated: November 22, 2011 8:34AM

ST. CHARLES TWP. — When the state’s highest court ruled last spring that a driver testing positive for any amount of illegal drugs can be charged with aggravated driving under the influence, Kane County prosecutors quickly reindicted Alia Bernard in crash that killed a St. Charles couple.

On Thursday, Bernard’s attorney told Kane County Judge Allen Anderson that the law is unconstitutional because it violates equal protection laws and is overly broad in how it applies to marijuana, which can legally be obtained and used in some states.

“It’s a vague statute,” attorney Bruce Brandwein said, pointing at the legislature’s use of the phrase “unlawful use” of the drug. “I don’t believe it passes constitutional muster.”

Bernard, of Aurora, faces two counts each of aggravated DUI and reckless homicide and one count of misdemeanor DUI relating to the crash near Elburn that killed Wade and Denise Thomas on May 23, 2009. Prosecutors allege that Bernard caused a chain-reaction crash when her car struck waiting traffic at Route 47 and Smith Road.

Prosecutors initially charged Bernard with two counts of reckless homicide, claiming she failed to “keep a proper look-out” prior to the crash. Court documents also state Bernard texted someone around the time of the crash and that she failed to slow down or brake to avoid the crash because she took her eyes off the road to grab and put on sunglasses.

In April, the Illinois Supreme Court ruled prosecutors did not have to prove impairment was a proximate cause of a fatal crash, just that a defendant had any amount of a drug in their system. That decision prompted prosecutors to upgrade charges, and potential penalties, against Bernard.

Assistant State’s Attorney Jody Gleason argued Brandwein missed the point of the law because, in Illinois, there are no circumstances where possession or use of marijuana is legal.

“The goal (of the law) is to prevent drivers who ingest contraband drugs or cannabis from driving on Illinois roadways,” Gleason wrote in her formal response.

Brandwein said equal protection is violated because the law is unclear on what would happen if a person legally used marijuana in another state, then was involved in a fatal crash in Illinois. Gleason countered it would be no different if someone drank alcohol under the legal limit in Wisconsin and then was arrested for DUI in Illinois.

Anderson said he would issue his ruling on Oct. 28.