Basic Overview of Medical Cannabis Law
Under the Illinois Medical Cannabis law, a person that is diagnosed with one or more of the enumerated “debilitating medical conditions,” as defined by the Illinois Department of Public Health, can apply for a medical cannabis registry identification card. The law covers many debilitating medical conditions, including PTSD, seizures, cancer and Alzheimer’s Disease. 77 Ill.Adm.Code 946.10.
Individuals seeking to obtain medicinal cannabis must register with the Illinois Department of Public Health to apply for a registry ID card. The applicant must provide a written certification from a physician that they have one or more of the specified debilitating medical conditions covered by the Medical Cannabis Pilot Program, as well as confirmation that the physician is treating or managing treatment of the specific condition(s). A bona-fide physician/patient relationship must exist for a physician to provide a written certification. 410 ILCS 130/10(y).
If approved, legally patients may obtain a registry ID card that allows for the patient to obtain an adequate supply of medicinal cannabis so long as they have a valid prescription from their medical caregiver. An adequate supply has been deemed to constitute a prescription of no more than 2.5 ounces of usable cannabis in a 14-day period and must be obtained through an intrastate source. If this amount is insufficient, a patient may apply for a waiver through submitting a qualifying statement from their physician that a greater quantity is necessary to properly treat their condition, subject to the guidelines of the Department of Public Health. 410 ILCS 130/10(a).
Identifying Drivers Who Are Registered Medical Cannabis Patients
The Compassionate Use of Medical Cannabis Pilot Program Act has had a noteworthy impact in the field of Illinois drivers licensing and DUI law. For law enforcement purposes, the Illinois Department of Public Health must notify the Illinois Secretary of State when they have issued a medical cannabis registry ID card. Upon receipt of notice, the “Secretary of State shall make a notation on the person’s driving record stating that the person is a registered qualifying patient who is entitled to lawful medical use of cannabis.” If, in the future, the person no longer holds a valid registry card, the notation should be removed from a driving record by the Secretary of State. 410 ILCS 130/60 (d).
Possession of Medical Cannabis in a Vehicle
A valid registry cardholder should take precaution while possessing their medical cannabis in a motor vehicle. The Illinois Vehicle Code prohibits any valid ID registrant from using medical cannabis in the passenger cabin as a driver of a vehicle. Further, valid registrant drivers and passengers, as well as caregivers and specified agents, cannot possess medical cannabis within any area of their vehicle without it being kept in a “sealed, tamper-evident medical cannabis container.” 625 ILCS 11-502.1
A violation of the Possession of Medical Cannabis law is considered a Class A Misdemeanor and can be used as a basis to revoke medicinal cannabis registration for a period of two (2) years from the end of the imposed sentence. 625 ILCS 11-502.1. Upon conviction for violating the possession law, the Illinois Secretary of State will impose a drivers license suspension for the first and second conviction(s). If a registrant violates this law for a third or subsequent time, the Secretary of State will revoke the offender’s driving privileges. 92 Ill.Adm.Code 1040.44
Interaction Between Medical Cannabis Registration Card Holders and DUI Law
A valid registration card for the use of medical cannabis does not prohibit a DUI arrest, nor is it a defense to guilt, if the registrant is deemed to be impaired by cannabis while operating or while being in actual physical control of a vehicle. Under the Illinois DUI law, a medical cannabis registrant can be charged with a DUI if they are deemed to be impaired by the tetrahydrocannabinol (“THC”) concentration in their whole blood or other bodily substance. 625 ILCS 5/11-501(a)(7)
A valid registrant ID holder is deemed to show cannabis impairment for DUI purposes if, within two hours of driving or being in actual physical control of a vehicle, the THC concentration in their whole blood is 5 nanograms or greater, or alternately, if 10 nanograms or more of THC is detected through other bodily substance testing. Conversely, a valid registrant is not deemed to be under the influence of marijuana if they test below these limits within the prescribed time period. 625 ILCS 11-501.2(b-5)(1) and 625 ILCS 11-501.2(b-5)(2)
Further, law enforcement can require standardized field sobriety testing to determine if valid medical marijuana registrants are under the influence of cannabis for DUI purposes. The results of any field sobriety testing may be used against the medical cannabis registrant at any civil or criminal trial or proceeding and the refusal or failure of such tests can result in suspension of a cardholder’s driving privileges. However, the cardholder may admit evidence that they lacked the physical capacity to perform the field sobriety tests once the results are admitted in a civil or criminal trial or proceeding, if applicable as a defense. 625 ILCS 5/11-501.2(6)(a-5)(1-3)
Drivers License Revocation Hearings and Medical Cannabis
In drug/alcohol-related drivers license revocation hearings, valid registrants are not required to prove abstinence from medical cannabis at an Illinois Secretary of State hearing if they are deemed High Risk, Dependent, so long as they are able to meet the burden of showing that they have been stable in the program for at least one year and provide a letter from their primary counselors and attending physician. Their physician must state the condition for which cannabis has been prescribed, their progress and status in the program, and the length of time that the physician anticipates that the medical cannabis registrant will be in the program and taking the prescribed cannabis. However, in such cases, the registrant will be required to demonstrate abstinence from alcohol and all other non-qualifying prescription and illegal drugs. 92 Ill.Adm.Code 1001.440(e)(5)
As medical cannabis laws continue to expand across the nation, the ever-changing legal landscape surrounding this trend continues to impact many areas of practice. In the coming years, issues surrounding both medical and recreational use of cannabis will continue to develop and practitioners will be confronted with many issues of first impression in this emerging industry.
The information in this article is not intended as legal advice and does not create an attorney-client relationship. Readers should consult with a qualified attorney with any legal questions.
Medical Marijuana and DUI law in Illinois.
By: Jennifer Wirth, Attorney at Law
January 26, 2018
Drivers License and DUI-Related Implications for Medical Cannabis Patients in Illinois.
By: Jennifer Wirth, Attorney at Law
January 26, 2018
On January 1, 2014, the Compassionate Use of Medical Cannabis Pilot Program took effect in Illinois, which allows for medical cannabis use for qualifying individuals. 410 ILCS 130. The Act remains effective until July 1, 2020 and is subject to renewal thereafter. The emergence of medical cannabis in Illinois creates complex legal issues in many areas of practice, including administrative, civil and criminal proceedings.