Illinois Supreme Court gets DUI law wrong (again)……….

While Illinois Law is not written well, whether on purpose or not, it does have a lot of little holes in it.  One of the holes is that in the DUI statute provides that in some of the clauses that the intoxication must happen because of “illegal use”  The Illinois Supreme court was asked to opine on that little hole in the case of People v. Kathan, 2014 IL App (2d) 121335.  In Kathan, the justices agreed that the burden of showing that the use was legal was on the defendant, because of course it is.

In that case the defendant was charged with being under the influence of a drug that was taken illegally (2 Xanax and a Vicodin for which she had a prescription).  There were no blood tests.

One of the main problems of drafting a DUI law is that you don’t want to catch the millions of people who take prescription medication properly according to a doctor’s prescription.  You don’t want to punish as a crime normal legal behavior, but because we appoint lawyers and judges from a pool of people who by definition have “done no wrong” it follows that they don’t know what “normal” is because they are decidedly abnormal.  Therefore when it comes time to decide how defendants should be treated and what should be required of them in court, they come from a natural bias of having not violated (or not having been caught violating the law) and therefore apparently have little problem with shifting the burden of disproving criminal charges on the defendant.

I see a little of this in criminal court, where young states’ attorneys take a hard line with respect to what can fairly be characterized as bad behavior and have little sympathy for the defendant and his poorly thought out actions, because they have experienced very little of life between completing undergrad and law school.   Generally, one sees this in courts that are not all that busy, high volume courts don’t have a lot of time to make sure that a person charged with disorderly conduct receive a stiff sentence.

The law should punish crime, however bad behavior is not always a crime.