## Facts

- An officer stopped Samuel W. McPeak for not wearing a seat belt in Lee County, Illinois.
- During the stop, the officer noticed an odor of cannabis and concluded it came from McPeak’s person rather than the vehicle.
- McPeak admitted he had smoked cannabis within the last hour or two, describing “two hits” from a pipe.
- The officer arrested McPeak for per se DUI-cannabis under 625 ILCS 5/11-501(a)(6), which prohibits driving with any amount of cannabis in one’s breath, blood, or urine.
- A search of the vehicle found a pipe containing burnt residue that smelled like cannabis and field-tested positive for cannabis.
- No chemical testing of McPeak’s breath, blood, or urine was performed.

## Issues

1. Whether the evidence (odor on McPeak’s person, admission of smoking about an hour earlier, and a pipe with burnt cannabis residue) proved beyond a reasonable doubt that cannabis was present in McPeak’s breath, blood, or urine while he was driving, as required by 625 ILCS 5/11-501(a)(6).

## Decision

- The Appellate Court of Illinois, Second District, reversed the per se DUI-cannabis conviction.
- The court held the State’s evidence was insufficient to prove the statutory element that cannabis was in McPeak’s breath, blood, or urine at the time of driving.
- The court concluded that inferring bodily presence from the record would be speculative without chemical testing or other competent evidence connecting recent use to bodily presence at the relevant time.

## Legal Principles

- Under 625 ILCS 5/11-501(a)(6), the State need not prove impairment, but must prove beyond a reasonable doubt that cannabis was present in the defendant’s breath, blood, or urine while driving.
- Evidence of recent cannabis use and possession-related circumstances may show consumption, but does not alone establish bodily presence in the statutorily specified media at the time of driving.
- Circumstantial evidence can support conviction only when it establishes each statutory element beyond a reasonable doubt; conjecture about pharmacological persistence is insufficient absent testing or competent explanatory evidence.
- An odor attributed to a defendant’s “person,” without evidence tying it to the defendant’s breath or other proof of bodily presence, has limited value for establishing the per se element.

## Conclusion

The court reversed McPeak’s per se DUI-cannabis conviction because the State proved only recent use and related circumstances, not that cannabis was present in his breath, blood, or urine while driving, as required by statute.


People v. McPeak, 399 Ill. App. 3d 799, 927 N.E.2d 312 (Ill. App. Ct. 2010)