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The legal significance of the difference between "in his breath" and "on his breath".

People v McPeak, No. 2-08-0572, 2010 WL 1611775 (2d D 2010)

On April 16, 2010, the Appellate Court of Illinois, Second District, reversed a conviction for driving under the influence (DUI) by the Lee County Circuit Court holding that evidence was insufficient to establish that defendant had cannabis in his breath, blood or urine when he was driving.

In 2005, Samuel McPeak, defendant, was charged with DUI and possession of drug paraphernalia in connection with a traffic stop. Defendant moved to quash the arrest and suppress evidence.

At the hearing on the motion, the arresting officer testified that on March 6, 2005, he stopped defendant because defendant was not wearing a seat belt. After taking defendant's driver's license back to his squad car the officer learned that defendant had a warrant for arrest in another county. Geographic limits prevented the officer from arresting defendant on the warrant.

The officer then returned to defendant's vehicle and told defendant to get out to receive a seat belt citation. When defendant exited the vehicle, the officer noticed an odor of cannabis. The officer determined the odor came from defendant's person. When asked if he had been smoking cannabis, defendant stated that he had done so within the past hour or so. Based on the response, the officer arrested defendant for DUI. After the arrest, the officer located a smoking pipe inside defendant's vehicle that field-tested positive for cannabis.

The trial court denied the motion to quash and suppress, and defendant was convicted after a stipulated bench trial. Defendant appealed and the appellate court reversed and remanded because the defendant was not properly admonished under Supreme Court Rule 402. On remand, the defendant asked the trial court to reconsider its order denying the motion to quash and suppress, to preserve the issue for appeal. The court denied the motion, and a new bench trial was held on stipulated facts, nearly identical to those above. The court found defendant guilty and he timely appealed.

Based upon the facts in this case, to convict defendant of DUI, the state needed to prove beyond a reasonable doubt that defendant, had cannabis "in his breath, blood, or urine when he was driving." 625 ILCS 5/11-501(a) (6). The state argued that there was sufficient circumstantial evidence to support conviction in this case.

In People v Allen, 375 Ill App 3d 810, 873 NE2d 30 (3d D 2007) a trial court convicted a defendant of DUI based upon the smell of burnt cannabis on the defendant's breath and an admission that the defendant smoked cannabis the night before. The Appellate Court of Illinois, Third District, reversed based on insufficient evidence, reasoning "the statute does not criminalize having breath that smells like burnt cannabis." Id at 816, 873 NE2d at 35. It is incumbent upon the state to put on evidence "that there would have been any amount of the illegal drug in [the] defendant's breath, urine or blood at the time of the arrest as a result of smoking cannabis the night before." Id.

While the appellate court in McPeak stated that evidence of the odor of cannabis on the breath of a defendant could provide circumstantial evidence that defendant has cannabis in his breath, such a connection is too tenuous absent other evidence. In this case not only was there no evidence of an odor of cannabis on the breath of defendant, there was no evidence, excluding the admission of smoking cannabis an hour before the arrest, that defendant had any amount of cannabis in his breath, blood or urine at the time of arrest. Thus, the appellate court reversed based upon insufficient evidence of cannabis in the defendant's "breath, blood or urine." McPeak at *4.
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Publication:Illinois Bar Journal
Date:Jul 1, 2010
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