ATTORNEY IN FATAL CRASH SAYS POT LAW IS UNCONSTITUTIONAL

Does the presence of any amount of marijuana in a driver's urine or
bloodstream automatically mean that he or she is impaired and
therefore criminally responsible if a crash occurs?

The Illinois Supreme Court believes so -- but the defense attorney for
an Aurora woman accused of killing two St. Charles motorcyclists doesn't.

The lawyer for Alia Bernard, 27, who is accused of reckless homicide
in causing a May 2009 crash in Elburn that killed Wade and Denise
Thomas, is arguing to have the aggravated driving under the influence
charges against her thrown out.

If convicted, Bernard could face a maximum sentence of 28 years in
prison, but probation also is an option.

Bruce Brandwein argues that a recent Illinois Supreme Court decision
that holds drivers criminally responsible for a crash if they have
"any amount" of marijuana in their system is overbroad,
unconstitutional and violates equal protection under law.

"For example, some states allow the lawful use of marijuana for
medical reasons. A person, using marijuana where legal, and is not
impaired, drives into Illinois and gets into a fatal accident may not
be charged with aggravated driving under the influence, where under
the same facts, a person who has consumed marijuana unlawfully can be
charged," Brandwein wrote. "There is no rational basis for this
distinction."

Brandwein, who could not be reached for comment Tuesday, also argues
that field sobriety tests are the best way to determine if a driver is
impaired by marijuana and that the state's law is "overly broad."

Bernard is accused of rear-ending a stopped car on May 23, 2009,
pushing it into an oncoming group of motorcycle riders and causing a
nine-vehicle pileup on Route 47 near Smith Road. The crash also
injured 12 other riders.

Bernard was charged in May 2010 with reckless homicide, but
re-indicted in May 2011 with aggravated DUI. She is free on $5,000
bond.

First Assistant State's Attorney Jody Gleason, the lead prosecutor on
the case, declined to comment other than to say the state will fight
Brandwein's motion. Gleason has until Sept. 23 to respond.

Both sides are due to argue their positions before Judge Allen
Anderson Sept. 30. It is unclear whether Anderson will rule that day
or take it under advisement.