Is Smell of Cannabis on Driver's Breath Enough Evidence to Convict Him of DUI ?
In People v. Allen, 375 Ill. App. 3d 810, 816, 873 N.E.2d 30, 313 Ill. Dec. 735 (2007), the defendant was arrested under section 11--501(a)(6) after the arresting officer noticed an odor of burnt cannabis on the defendant's breath and the defendant's pupils seemed dilated.
However, the officer was precluded from testifying that he believed the dilated pupils meant that the defendant had consumed cannabis.
The defendant told the officer that he had smoked cannabis the night before.
There was nothing unusual about how the defendant walked, his speech was clear, and there was no drug paraphernalia or residue located inside the defendant's vehicle.
The defendant was convicted of DUI, and the Third District reversed based on insufficient evidence, stating:
"The statute does not criminalize having breath that smells like burnt cannabis.
Furthermore, even though the trial court found the officer's testimony credible regarding defendant's admission of smoking cannabis the night before his arrest, the State put on no evidence that there would have been 'any amount' of the illegal drug in defendant's breath, urine, or blood at the time of defendant's arrest as a result of smoking cannabis the night before." Allen, 375 Ill. App. 3d at 816.
In comparison, in People v. Briseno, 343 Ill. App. 3d 953, 956, 799 N.E.2d 359, 278 Ill. Dec. 641 (2003), also involving section 11--501(a)(6), the defendant told the arresting officer that he smoked cannabis "in his vehicle, just before driving it."
The officer smelled cannabis on the defendant's breath, the defendant's motor skills were slower than average, and the defendant had trouble performing field sobriety tests.
Under those circumstances, the First District determined that there was sufficient evidence of DUI. Briseno, 343 Ill. App. 3d at 962.