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Crime & Safety

Driver in Fatal Crash To Challenge DUI Charges

Alia Bernard is accused of causing 2009 crash that killed a St. Charles couple.

An Aurora woman accused of having marijuana in her system during a 2009 crash that killed a St. Charles couple plans to challenge the legality of the state's aggravated drunken driving law.

On Thursday, 's attorney asked a to declare aggravated DUI unconstitutional. The request comes three months after prosecutors tacked on the charges in a case where distracted driving has long been suggested as a prime factor.

Bernard, 27, faces two counts each of aggravated DUI and reckless homicide, as well as one misdemeanor DUI count, in connection to the crash near Elburn two years ago. Wade and Denise Thomas died from injuries caused when, according to prosecutors, Bernard's 1999 Toyota slammed into traffic at Route 47 and Smith Road just after 8 a.m. on May 23, 2009.

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Initially charged with a minor traffic offense, Bernard was indicted in May 2010 on two counts of reckless homicide alleging she "failed to keep proper look out" prior to the chain-reaction crash that also injured several motorcyclists riding with the Thomases. The indictment also alleged her blood and urine tested positive for marijuana.

Prosecutor stated in court documents that, around the time of the crash, Bernard texted someone to say she was "too sick to drive." Prosecutors also claim Bernard failed to brake or reduce speed to avoid the crash, while also taking her eyes of the road to retrieve sunglasses and put them on.

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Bernard tried unsuccessfully to have those charges dismissed. Her attorney, Bruce Brandwein argued simple negligence was not enough to establish Bernard was reckless at the time of the crash. The landscape of the case changed in April, as Bernard was moving close to a trial date, when the Illinois Supreme Court ruled a positive test for small amounts of illegal drugs can be used to support an aggravated DUI charge even if other evidence does not indicate impairment or intoxication.

That decision led Kane County prosecutors to re-indict Bernard in May, adding two counts of aggravated DUI. Those counts allege she drove "with any amount of cannabis in her blood or urine," records show.

A July 31 Chicago Tribune story included Bernard as one recent example of charges upgraded after the high court's decision. A Sept. 29 hearing is scheduled on the constitutionality motion. Prosecutors have a little more than a month to file a formal response.

Also, a motion was recently filed seeking to enforce the settlement reached in a 2009 wrongful death lawsuit filed by Denise Thomas' son against Bernard. Details about the settlement and the enforcement request were not immediately known.

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