Cannabis plant

Cannabis buds are trimmed from a marijuana plant.

Listen to this article

In advance of the new state law legalizing recreational cannabis going into effect in Illinois on Jan. 1, Ford County State’s Attorney Andrew Killian answered a few questions posed by Ford County Record Editor Will Brumleve. The give-and-take follows:

(1) What are your general concerns, if any, about the new law?

My biggest concern is related to possible increases in traffic accidents and fatalities as people adjust to the new reality of driving cars after consuming cannabis. There will likely be a period of adjustment as people who have not used before try it out. Additionally, people who have used in the past but have not used in a number of years or decades may find legal cannabis more potent than what they used to use. Several states, after legalization, saw an uptick in crashes and deaths, but those numbers seemed to level back off once people learned their limits and the novelty wore off.

I am also concerned that there was a lack of education by the state as to the restrictions on legal usage. There may be a number of unintended violations until people become more familiar with how much they can possess, how they can transport it and where they can legally consume it.

Finally, as with any “revenue generator” that the General Assembly enacts, I am also concerned that the money generated from legalization will not be used for the purposes the public was told it would go to in order to get enough votes to pass it.

(2) Do you have any concerns about the ability for police to arrest — and prosecutors to convict — persons suspected of driving under the influence of marijuana? What, if anything, is being done to make sure those concerns are addressed?

Currently, there is no easy way for law enforcement to determine the level of THC in a driver of a vehicle suspected of being under the influence. Unlike an alcohol level, which can be determined with a non-invasive breath test, THC levels will need to be determined through a blood test.  

The Illinois State Police are researching ways to obtain an accurate measure without the need for a blood draw, but until that technology is proven accurate and reliable, which may take a couple years, I am working with law enforcement agencies locally to address this issue.

In cooperation with Judge Matt Fitton, local law enforcement agencies and I are developing a “no refusal” protocol for individuals suspected of driving under the influence of cannabis. If a driver, after having been arrested for driving under the influence of cannabis, refuses to submit to a blood draw, then the police officer can request a search warrant compelling the driver to provide a sample. We have already had success with this process involving an individual who the Illinois State Police Crime Lab determined was operating a vehicle with both cannabis and cocaine in their system. If a driver refuses to comply with the search warrant, they may be charged with obstruction of justice, which is a felony-level offense.

However, the DUI cannabis law is fairly restrictive regarding when blood must be drawn to be admissible in court. Under the law, the blood must be collected within two hours of the incident. In rural counties, this can be a challenge given the procedures that law enforcement officers must undertake even prior to asking for a sample. In cases involving accidents where extraction from a vehicle and transport to a hospital are required, that two hours can be completely used up before a police officer can even speak with a suspected impaired driver.

These issues still need to be addressed by the General Assembly to make sure those who operate vehicles while impaired are held accountable, especially if they cause injury or death to another person.

(3) As for expungement of eligible marijuana-related cases prior to 2020, is that something you are actively working on or will be working on? What can people expect to happen?

The expungement process, outside of Cook County, is being handled by the Illinois State Police. They are compiling the list of cases eligible for expungement and forwarding those on to the Prison Review Board for a recommendation that they be expunged. Gov. J.B. Pritzker is then expected to pardon those individuals and both the arrest and court records would be expunged. Once that is done, the circuit clerks of the various counties, as well as law enforcement agencies, should receive a report listing the cases that are pardoned and to be expunged. Circuit clerks are tasked with sending notices of the expungement to the last known address of the individual involved.

Individuals with cases that do not qualify for automatic expungement would need to seek a court order for the sealing or expunging of their cases, and law enforcement and the state’s attorneys have an opportunity to either consent or object to the defendant’s petition.  

(4) Do you expect an uptick in marijuana-related offenses?

I am not necessarily concerned with an increase in the civil violations of the law. However, there is a concern that the taxes and regulations surrounding legal cannabis will cause the price to be so high — no pun intended — that the black market for unregulated cannabis products with see a surge. If that were to occur, I would expect an increase in offenses related to unlawful production and distribution.