People v. Gassman

• Decision Date: 22 October 1993
• Docket Number: No. 2-91-1136,2-91-1136
• Citation: 251 Ill.App.3d 681,190 Ill.Dec. 815,622 N.E.2d 845
• Parties: , 190 Ill.Dec. 815 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Steven GASSMAN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 845

622 N.E.2d 845

251 Ill.App.3d 681, 190 Ill.Dec. 815

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Steven GASSMAN, Defendant-Appellant.

No. 2-91-1136.

Appellate Court of Illinois Second District.

Oct. 22, 1993.

Kenneth W. Torluemke, Public Defender of Du Page County, Stephen W. Baker, Ronald Fraley, Asst. Public Defenders, Office of Du Page County Public Defender, Wheaton, for Steven Gassman.

Anne S. Quincy, Elgin, James E. Ryan, Du Page County State's Atty., Wheaton, William L. Browers, Deputy Director, Lisa A. Hoffman, State's Attys. Appellate Prosecutors, Elgin, for the People.

Justice GEIGER delivered the opinion of the court:

The defendant, Steven Gassman, was charged with one count each of the unlawful possession of cannabis (Ill.Rev.Stat.1989, ch. 56 1/2, par. 704(c)) (now 720 ILCS 550/4(c) (West 1992))); failure to dim headlights (Ill.Rev.Stat.1989, ch. 95 1/2, par. 12-210(a) (now 625 ILCS 5/12-210(a) (West 1992))); unlawful transportation of open liquor (Ill.Rev.Stat.1989, ch. 95 1/2, par. 11-502(a) (now 625 ILCS 5/11-502(a) (West 1992))); driving while under the influence of drugs to a degree that rendered him incapable of safely driving (Ill.Rev.Stat.1989, ch. 95 1/2, par. 11-501(a)(3) (now codified, as amended, at 625 ILCS 5/11-501(a)(3) (West 1992))) (subsection 11-501(a)(3)); driving while under the combined influence of alcohol and drugs to a degree which rendered him incapable of safely driving (Ill.Rev.Stat.1989, ch. 95 1/2, par. 11-501(a)(4) (now codified, as amended, at 625 ILCS 5/11-501(a)(4) (West 1992))) (subsection 11-501(a)(4)); and driving with any amount of a drug in his blood or urine resulting from the unlawful use or consumption of cannabis or a controlled substance (Ill.Rev.Stat., 1990 Supp., ch. 95 1/2, par. 11-501(a)(5) (now codified, as amended, at 625 ILCS 5/11-501(a)(5) (West 1992))) (subsection 11-501(a)(5)).

After a bench trial, the defendant was acquitted of violating subsections 11-501(a)(3) and 11-501(a)(4) but convicted of violating subsection 11-501(a)(5). The defendant was convicted of the remaining charges. The defendant received one year of court supervision and was ordered to pay a $300 fine for violating subsection 11-501(a)(5).

The defendant appeals only his conviction under subsection 11-501(a)(5). He argues that (1) this subsection and the corresponding charging document are constitutionally deficient because they fail to specify a requisite mental state as an element of the offense; (2) subsection 11-501(a)(5) violates due process because it is not a proper exercise of the police power; (3) subsection 11-501(a)(5) violates the Federal and State constitutional guarantees of equal protection; and (4) subsection 11-501(a)(5) is unconstitutionally vague.

We set out the relevant evidence from the trial. After the trial court denied the defendant's motion to dismiss the charge of violating subsection 11-501(a)(5), the case went to trial. The State's first witness was John Tannahill, a police officer for the Village of Westmont. Officer Tannahill testified that, at about 11:10 p.m. on October 1, 1990, he was driving south on Cass Avenue when he observed a Cadillac about 500 to 600 feet away. The Cadillac had all four bright headlights on and was traveling at or slightly under the posted speed limit of 35 miles per hour. Tannahill noticed nothing unusual or suspicious about the way the car was driven other than the condition of the headlights. The officer flashed his bright lights, requesting the other driver to dim his lights. The two cars passed each other. Tannahill ordered the driver of the Cadillac to stop.

The Cadillac stopped. By the time Officer Tannahill approached the car, the driver, whom the officer identified in court as the defendant, had exited the car. The defendant was standing against the vehicle, but he was not holding onto anything for support, and he did not appear to be nervous. As Tannahill spoke to the defendant, the officer noticed that the defendant's breath smelled of alcohol. The defendant admitted that he had consumed three or four beers that evening.

After a search of the defendant's car turned up two cans of beer and a bag of a substance later identified as cannabis, Tannahill arrested defendant for possession of cannabis. Tannahill could not detect any odor of marijuana or any residue of marijuana cigarettes in the defendant's car. Tannahill noticed nothing unusual about the way the defendant walked to the squad car; the defendant did not stagger or sway. A pat-down search of the defendant at the scene revealed that the defendant had been carrying a small pipe in his pocket. Tannahill's experience led him to conclude that this was the type of pipe used to smoke cannabis and that there was some burned cannabis in the bowl of the pipe.

After Tannahill and the defendant arrived at the police station, Tannahill put the defendant through several field sobriety tests. The defendant performed poorly, although he was well short of "falling-down drunk." Tannahill placed the defendant under arrest for DUI. The defendant's breathalyzer test gave a reading of only .04, which the officer believed was not enough to put the defendant into the "condition he had."

After he arrested the defendant for DUI, Tannahill read the defendant his Miranda rights. The defendant signed a Miranda waiver form and answered some questions. Tannahill asked the defendant what the defendant had been doing in the past three hours. The defendant replied that he had drunk three or four beers and had had "a couple of hits" of cannabis. Tannahill's accident report stated that the defendant had admitted to having done "several tokes" of cannabis earlier that evening. At Tannahill's instruction, the defendant underwent a blood and urine test at Hinsdale Hospital that evening.

The State's next witness was Dr. Jeffrey Benson, an Illinois State Police forensic scientist who performed the blood and urine test. Benson performed quantitative analyses on a blood sample, testing for the presence of phencyclidine (PCP) and cannabinoids, or substances which are indicative of the consumption of cannabis. The tests revealed a concentration of less than 10 micrograms per liter of PCP in the defendant's blood and less than 50 micrograms per liter of cannabinoids in the defendant's blood (a microgram is one-millionth of a gram). From these results, Dr. Benson concluded with a reasonable degree of scientific certainty that the defendant had consumed cannabis and PCP. However, he could not say when the defendant had used these substances. Dr. Benson testified that, in the case of habitual users, PCP and cannabinoids can be detected up to 30 days after drug use. The period is shorter for casual users.

Dr. Benson acknowledged that the measurements he made were imprecise in another respect. The instruments he used were not sensitive enough to give a precise reading of cannabinoid concentrations outside a range of 50 to 500 micrograms per liter or of PCP levels outside 10 to 50 micrograms per liter. Thus, Dr. Benson's estimates for the defendant's sample were extrapolations. Dr. Benson could say that the level of PCP in the defendant's blood sample was closer to one microgram per liter than to nine micrograms per liter. Dr. Benson estimated that the concentration of cannabinoids was 8 micrograms per liter, but he admitted that this figure was based on a calculation that could not provide scientific certainty.

Furthermore, Dr. Benson could not state firmly whether the concentrations of cannabinoids or PCP found in the defendant's blood were sufficient to cause any driving impairment. Although there is a general correlation between the level of cannabis use and impairment, Dr. Benson stressed that the relationship was not simple. He could not say with certainty either that the small amount of cannabinoids in the defendant's blood would impair driving or that such an amount would not impair driving. Of the substances known as cannabinoids, only THC is psychoactive. Also, the consensus among scientists is that there is no hard and fast relationship between the amount of PCP consumed and the seriousness of the drug's effects.

Dr. Benson acknowledged that a person could unknowingly ingest or inhale cannabinoids, such as by inhaling smoke from cannabis. Also, a person could consume PCP without realizing that he was doing so, a common way being through the smoking of a marijuana cigarette onto which PCP has been sprayed.

The defendant testified last. He stated that, on the night that Officer Tannahill stopped him, he had consumed two or three beers at about 8 p.m. while he was watching television with friends. At this gathering, he had also taken "one or two drags" from a joint. The defendant did not know that the cigarette had PCP on it, and he never knowingly used PCP.

The defendant conceded that he had told Officer Tannahill that he had drunk three or four beers between 8 and 11:30 p.m. on the evening that he was stopped. He smoked the marijuana "to get high" and because he did not feel like refusing the offer from his friends. He held the smoke in his lungs for a while before he blew it out. The marijuana he smoked was from friends and not from the bag that was discovered in his car.

The trial court acquitted defendant of violating subsection 11-501(a)(3) and of violating subsection 11-501(a)(4). The court convicted the defendant of the remaining charges, including violating subsection 11-501(a)(5); for this offense, defendant received one year of court supervision and was fined $300. After the court denied his motion to reconsider, defendant filed a late notice of appeal with leave from this court.

Defendant makes a variety of constitutional challenges to subsection 11-501(a)(5). For clarity, we set out the language of this subsection along with the others involved here:

" § 11-501. Driving while under the influence of alcohol, other drug, or...