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Marijuana legalization sparks concerns about DUIs, enforcement for McHenry County police chiefs

Police concerned about DUIs, proper enforcement after pot legalization

• Editor’s note: This is part one of two stories on the potential local effects of recreational marijuana. Part two will run Monday.

Police chiefs in McHenry County have concerns about residents driving under the influence and how to properly enforce the law now that Illinois is poised to become the 11th state in the country to legalize recreational marijuana.

Since marijuana first was legalized in Colorado in January 2014, the state has collected about $6.4 billion in total sales, according to data from the Colorado Department of Revenue.

Conversely – despite downturns in a number of marijuana-related crimes – traffic fatalities involving a driver who tested positive for cannabis compounds increased from 55 in 2013 to 139 in 2017, according to a 2018 report from the Colorado Division of Criminal Justice’s Office of Research and Statistics.

The latter statistic is one that has worried some local police chiefs.

“Home grows, our inability to test motorists for impairment, the potential of increased teen use and the potential of children or infants being poisoned after exposure to edible products will be challenges faced by law enforcement and the medical profession,” Crystal Lake Police Chief James Black said.

The bill

On May 31, the Illinois House concurred with a Senate amendment to House Bill 1438, which allows adults age 21 or older to possess marijuana and buy marijuana products from licensed retailers, effective Jan. 1.

Having passed both legislative chambers, the bill now heads to the desk of Gov. J.B. Pritzker, who has made marijuana legalization a staple of his agenda.

Under the bill, Illinois residents would be allowed to buy and possess
30 grams of marijuana, 250 milligrams of THC in a cannabis-infused product and 2.5 grams of a concentrated cannabis product. Nonresidents would be allowed to buy half of those amounts.

Eligible medical marijuana patients also would be able to grow up to five plants taller than 5 inches within their home without a craft grower license.

Once allocations have been made to cover administrative and legal costs, 35% of the revenue from taxing recreational marijuana will go to the state’s General Revenue Fund; 25% will go to the Recover, Reinvest and Renew Program, which targets underserved communities in the state; 20% will go to mental health services and substance abuse programs; 10% will go to unpaid bills; 8% will go to prevention and training for law enforcement; and 2% will go to public education and safety campaigns.

The measure was heralded as a revenue generator and also would offer a chance at clemency for people convicted of possessing 30 grams or fewer of marijuana.

Police concerns

One area that local police chiefs feel the bill is lacking is proper enforcement to handle traffic stops where an individual may be driving under the influence of marijuana.

Black said there currently is no testing device available for law enforcement officials to test drivers to see whether they are impaired by marijuana. Because of this, Black said he anticipates officers spending more time in court testifying.

Cary Police Chief Patrick Finlon said this will create difficulty in prosecuting these crimes when an officer examining an impaired motorist is not trained as a “drug-recognition expert.”

“Not all police officers would necessarily be suited to go through that training,” Finlon said.

A drug-recognition expert is an officer trained to detect and identify people under the influence of drugs and determine which category of drug is causing the impairment. Black said training can be costly and time consuming, and the certification is difficult to maintain.

Police chiefs also are concerned that the bill leaves a gray area when it comes to probable cause for a search, particularly when a K-9 unit is involved.

“A dog is not going to be able to hit on a quantity,” Harvard Police Chief Mark Krause said. “Dogs will hit on the fact that there’s marijuana. Then you run into the question of whether that’s good enough for a search.”

Woodstock Police Chief John Lieb said case law will have to be established to deal with these situations.

“Search and seizure is a huge part of law enforcement, and we’ll have to work through the court system to see where that goes,” Lieb said. “There will be a lot of retraining with officers and dogs for this.”

Huntley Police Chief Robert Porter said there has been some case law out of Colorado regarding the use of K-9 units to detect marijuana, but it will be uncharted territory in Illinois.

“We will have to deal with issues as they arise,” Porter said.

Enforcement

Lieb said possession of marijuana is one of the most frequent drug arrests made in Woodstock.

A majority of these cases are for quantities small enough that officers have the discretion on how they want to handle it. As an alternative to jail, Lieb said, officers can make an adjudication citation arrest that would go before city hall, or they can write it as a nontraffic complaint to the courthouse.

Lieb said the adjudication process has been a good tool to use for such charges based on the direction marijuana is going in today’s society. However, Lieb said, there still will be a criminal element at work trying to profit off marijuana.

“The common-sense factor to me is that this criminal element isn’t going to go away only because of the legalization of recreational marijuana,” Lieb said.

A common concern among police chiefs is the lack of enforcement that would go into home grows.

Krause said it would be difficult to do any meaningful enforcement on these grows, while Black said there is no way of regulating them.

“I hope people understand that [marijuana legalization] is not the silver bullet that some people think it is,” Lieb said. “This is a very complex issue, [and] I hope the entire state of Illinois knows what it’s getting into.”

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