dissenting:
The single issue that triggers my dissent is whether the State bears the burden under section 11 — 501(a)(6) of the Vehicle Code (hereinafter the Code) (625 ILCS 5/11 — 501(a)(6) (West 2004)) to prove that the controlled substances listed in the Illinois Controlled Substances Act (hereinafter the Act) (720 ILCS 570/206 (West 2004)), in this instance the cocaine traces found in defendant’s blood and urine, were not legally ingested. If so, we must then determine whether the burden has been satisfied. I submit that it does and it was not. The majority appears to agree that the State bears the burden of proof to establish unlawful use, but contends that the State satisfies that burden solely by proving merely that the substance found was cocaine, whose use is unlawful per se. I disagree.
The majority urges that section 11 — 501 of the Code must read in pari materia with the Act, which provides that, “except as otherwise authorized by the Act, it is unlawful for any person to knowingly possess” any of the controlled substances (720 ILCS 570/402 (West 2004)) unless exempted under various provisions of the Act including section 312, which exempts certain drugs that are medically prescribed (720 ILCS 570/312 (West 2004)). As pointed out by the majority, under the Act proof of such exempt status must be borne by the possessor pursuant to section 506 of the Act (720 ILCS 570/506 (West 2004)), which provides that “the burden of proof of any exemption or exception is upon the person claiming it.” (Emphasis added.)
While such construction may well be desirable since the exempt use through medical prescription is more readily proven by the defendant rather than the State, this result is not reachable as the section 11 — 501(a)(6) of the Code is currently drafted.
Section 11 — 501(a) enumerates six offenses that a person is prohibited from committing while driving a motor vehicle. Namely, a person shall not drive or be in physical control of any vehicle within this State while:
“(1) the alcohol concentration in the person’s blood or breath is 0.08 or more based on the definition of blood and breath units in Section 11 — 501.2;
(2) under the influence of alcohol;
(3) under the influence of any intoxicating compound or combination of intoxicating compounds to a degree that renders the person incapable of driving safely;
(4) under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving;
(5) under the combined influence of alcohol, other drug or drugs, or intoxicating compound or compounds to a degree that renders the person incapable of safely driving; or
(6) there is any amount of a drug, substance, or compound in the person’s breath, blood, or urine resulting from the unlawful use or consumption of *** a controlled substance listed in the Illinois Controlled Substances Act.” 625 ILCS 5/11 — 501(a)(1) through (a)(6) (West 2004).
If the term “unlawful” under the Code must be construed in pari materia with the Act, the use of the term “unlawful use” in section 11 — 501(a)(6) would be redundant under the construction proposed by the majority. It would have been sufficient simply to state that “a” person may not drive a vehicle if there is any amount of a drug, substance, or compound in the person or urine resulting from the use or consumption of any drug listed in the Act. Since use of such drug would be unlawful per se as the majority reasons, then there would be no need to identify such use or consumption as “unlawful.”
However, if the term “unlawful use” in section 11 — 501(a)(6) is specifically designed to exempt use of such Schedule II drugs when they are medically authorized, then proof of the lack of medical authorization or other factors giving rise to this exemption becomes integral to establish the element of unlawful use.
As noted, the majority does not appear to dispute that “unlawful use” is an element of the offense that the State must establish. Rather the majority contends that this element merely requires the use of a scheduled substance alone, without necessitating proof by the State that its use was unauthorized. Given this construction, namely, that the element of “unlawful use” is satisfied by simply proving use without necessitating proof that it was not legally authorized so as to be exempted, legal authorization would not provide any defense under the Code. Such defense is specifically disallowed by section 11 — 501(b), which states “[t]he fact that any person charged with violating this Section is or has been legally entitled to use alcohol, other drug or drugs *** shall not constitute a defense against any charge of violating of this Section.” 625 ILCS 5/11 — 501(b) (West 2004).
As shall be more fully elaborated, under the majority’s analysis, the term “unlawful” as an element of the offense refers only to the mere use of a controlled substance without requiring proof by the State that the use was not exempted. This analysis would make section 11 — 501(a)(6) subject to the provision of section 11 — 501(b) of the Code as is the case with regard to the other provisions of section 11— 501(a), namely, sections 11 — 501(a)(1) through (a)(5), a result that would be anomalous and undoubtedly unintended by the legislature. Section 11 — 501(b) is understandably applicable to all prohibited uses encompassed within sections 11 — 501(a)(1) through 11 — 501(a)(5) since each of those provisions requires that the driver be under the influence of the substance, either actually or presumptively, as in section 11 — 501(a)(1), which looks to quantity of consumption (625 ILCS 5/11 — 501(a)(1) (West 2004)). It is the impairment, not the unlawfulness, that triggers the violation under sections 11 — 501(a)(1) through 11 — 501(a)(5). Such a result, however, would be incompatible with respect to section 11 — 501(a)(6), which does not require impairment, either actual or presumptive, particularly since section 501(a)(6) would encompass all drugs listed under Schedule II (720 ILCS 570/206 (West 2004)), which would include drugs such as Ritalin, which is in wide medical use. Yet, the majority’s interpretation of “unlawful use” as deployed under section 11 — 501(a)(6) would result in prohibiting the use of any substance encompassed under the Act, whether such substance is medically prescribed or not, from ever driving so long as any trace of such use remains in one’s blood or urine. In effect, any medically prescribed user of benign Schedule II drugs such as Ritalin would never be able to drive since the mere presence of the drug would violate section 11 — 501(a)(6) whether or not the use of the drug was medically authorized and section 11 — 501(b) would preclude the interpolation of such medical authorization as a defense
This result, however, would be averted if the term “unlawful use” in section 11 — 501(a)(6) were given its natural meaning that such use was legally unauthorized. If proof of the lack of authorization were an element of the offense and necessary to establish a prima facie charge under section 11 — 501(a)(6), the result of section 11 — 501(b) and section 11 — 501(a)(6) would be compatible. As noted, section 11 — 501(b) prevents a defendant from alleging that he was legally entitled to use the drug as a defense of “violating this Section.” Accordingly, by its very terms, section 11 — 501(b) would not be applicable to section 11— 501(a)(6) since section 11 — 501(a)(6) would not be violated in the first instance unless the use were unauthorized. Thus, a medical authorization would be a defense since with such authorization there could be no unlawful use of drugs in the first instance.
This result is in full harmony with the underlying rationale of section 11 — 501(b), namely, that where the driver is impaired he should not be driving whether the source of his impairment is legal or not. 625 ILCS 5/11 — 501(a)(1) through (a)(5) (West 2004). If the use of cocaine actually caused impairment, it would be subsumed under section 11 — 501(a)(4) (prohibiting driving while under the influence of any drug) and fully subject to section 11 — 501(b). See People v. Shelton, 303 Ill. App. 3d 915, 921, 708 N.E.2d 815, 820 (1999) (defendant convicted pursuant to what is now section 11 — 501(a)(4) when his ingestion of “Tylenol 3 with codeine” rendered him “incapable of safely driving”). But if not impaired, then he would fall within section 11 — 501(a)(6), which would require proof that said use was unauthorized. If the presence of cocaine in his urine was the result of a lawful exempted use, which did not render him impaired, then there would be no offense committed under the Code. Thus, when there is no impairment, legality of use would protect against the offense notwithstanding section 11 — 501(b), since the provisions of section 11 — 501(a)(6) would “not have been violated” so as to trigger the applicability of section 11 — 501(b).
The State has contended that even if the State had the burden of proving unauthorized use under section 11 — 501(a)(6), it satisfied the burden because cocaine does not have any authorized use in Illinois. This issue was not addressed in the original briefs filed by either side. Upon request of this court, both parties submitted supplemental briefs addressing the issue of lawful uses of cocaine in Illinois. Pursuant thereto, defendant submitted material which enumerated various medical uses for cocaine that are generally accepted in the medical field, which the State neither sought to strike nor challenged. These medically accepted uses include a local anesthetic (Physician’s Desk Reference 2966 (59th ed. 2005)), and a confirmatory test in diagnosing Horner’s Syndrome (see D. Jacobson, Duration of Positive Urine for Cocaine Metabolite After Ophthalmic Administration, 131 Am. J. of Ophthalmology 691, 742-47 (June 2001)).
Having established without dispute that there are legitimate, albeit limited, medical uses for cocaine recognized in the medical field, we must determine whether such limited medical uses are lawful in Illinois. Section 312 of the Act states, in pertinent part, that, “[a] practitioner, in good faith, may dispense a Schedule II controlled substance, which is a narcotic drug listed in Section 206 of this Act *** to any person upon a written prescription of any prescriben” 720 ILCS 570/312(a) (West 2004). As indicated previously, cocaine is a Schedule II drug listed in section 206 of the Act. 720 ILCS 570/206(b) (4) (West 2004). It is not listed in Schedule I for which there is no currently accepted medical use (720 ILCS 570/203 (West 2004)). Accordingly, a practitioner can, under limited circumstances, prescribe substances that contain cocaine in Illinois, and it therefore follows that a person can lawfully ingest cocaine in Illinois if it has been lawfully prescribed to that person. Thus, cocaine could conceivably be present in a person’s urine as a result of a lawful use pursuant to a valid prescription.
The State argues, however, that section 206 must be read in pari materia with the entire Act, and as such, section 402 of the Act makes it illegal for any person to knowingly possess cocaine, and therefore a practitioner cannot prescribe any substance that contains cocaine to a person. Section 402 reads, in pertinent part: “Except as otherwise authorized by this Act, it is unlawful for any person knowingly to possess a controlled or counterfeit substance” or controlled substance analog. 720 ILCS 570/402 (West 2004). The State’s argument is that because it is unlawful for a person to knowingly possess cocaine, regardless of its legality, then it follows that a doctor cannot dispense such cocaine to any person, a conclusion with which I disagree.
In construing the statute, the State reads the phrase “[e]xcept as otherwise authorized by this Act” out of section 402. However, section 312(g) of the Act must also be read with section 402. 720 ILCS 570/ 312(g) (West 2004). Section 312(g) states in pertinent part that a “person to whom or for whose use any controlled substance has been prescribed or dispensed by a practitioner *** may lawfully possess such substance only in the container in which it was delivered to him by the person dispensing such substance.” 720 ILCS 570/312(g) (West 2004). As such, a person may lawfully possess cocaine if it is in the container in which it was lawfully prescribed to him under section 312 of the Act. Therefore, State’s reliance on section 402 to prove there is no lawful use of cocaine in Illinois is misplaced.
The State may with good reason contend that this construction imposes excess hardship upon the State to establish unauthorized use and would therefore seek to shift that burden to the defendant as is the case under the Act. However, we are compelled to interpret a statute as drafted even if not well thought out. See Chirikos v. Yellow Cab Co., 87 Ill. App. 3d 569, 575-76, 410 N.E.2d 61, 66 (1980) (courts have no legal power to correct what amounts to errors in judgment by the legislative body); see generally 73 Am. Jur. 2d Statutes §121 (2001) (“Generally, courts will not undertake correction of legislative mistakes in statutes notwithstanding the fact that the court may be convinced by extraneous circumstances that the legislature intended to enact something very different from that which it did enact. However, there is authority for the rule that clerical mistakes should be disregarded or corrected, and that manifest or obvious mistakes may be corrected. These rules prevail where no specific provision of the statute is abrogated by the correction”). Clearly, the corrections which the analysis of the majority attempts to achieve are not clerical but must, therefore, be undertaken legislatively rather than judicially.
Accordingly, I respectfully dissent.