Illinois DUI Lawyer Blawg
Each year, the United States Supreme Court is asked to grant certiroria (which is necessary before the High Court will hear an appeal) in tens of thousands of cases. The Court only accepts about 150 of those petitions a year. All other applicants’ are denied Supreme Court review.
The court did agree to hear an appeal of a DUI case, something that appears to have occurred on only one other prior occassion, in the early 1980’s. The issue the Court agreed to decide was whether, in connection with a DUI arrest, the police may forcibly draw blood from a DUI suspect without first obtaining a search warrant?
In an Illinois DUI case, one of the investigative tools at the disposal of law enforcement is the right to test your breath or blood to determine if you have a blood alcohol content (BAL) of .08 or greater, .08 being the legal limit in Illinois. 625 ILCS 5/11-501 If the results of such tests show a reading of at least .08, this information can be used in two different ways.
First, such a reading can be grounds to impose a driver’s license suspension (known as a statutory summary suspension). In an effort to avoid giving the police that information, you may be tempted to turn down the tests.
Since a valid breath test requires you to blow into a tube, something that it is physically impossible to force a person to do, any forced testing must be done by strapping you to a gurney and drawing blood. As the law now stands in Illinois, it appears that the police may not do so without first obtaining a search warrant from a judge.
In general, the Fourth Amendment to the United States Constitution requires the police to obtain a warrant in order to conduct a search of your person, papers or other things. However, courts have carved out a number of exceptions to the warrant requirement.
One such exception involves “exigent circumstances”. These simply refers to the situation in which, if the police are required to contact a judge in order to request a search warrant, by the time the warrant issues, the evidence they hope to seize is in danger of being destroyed. The classic case of an exigency exemption is to avoid the suspect from flushing the drugs down the toilet.
After you ingest alcohol, it goes to your stomach. From there, is reaches the blood stream after being absorbed through the small intestine. After a brief period in which the BAL is rising, it starts declining.
The state is arguing to the Supreme Court that a delay in drawing blood while the police seek a warrant could lead to a loss of evidence, because the blood alcohol content will have gone down by the time they draw it. Thus, the argument goes, there are exigent circumstances so as to excuse the need for a warrant.
The most aggressive part of this argument is not in the theory, Certainly there are times where a long delay may be critical. But the state wants the High Court to rule that in any DUI case, the police need not seek a warrant in order to draw blood.
In a case in which you do not voluntarily provide breath or blood samples, the law will consider you to have refused to submit to testing as requested. 625 ILCS 5/11-501 A refusal to submit to testing results in a much longer suspension of your driving privileges than if you had agreed to provide samples.
Thus, someone with a DUI in the previous 5 years who agrees to take a test suffers a one year driver’s license suspension but a three year suspension is imposed if he refuses. Someone who has not had a DUI in the past 5 years (“first offender”) will be suspended for six months if a test is provided and for one year if the test is refused.
However, even though your suspension will be longer if you “refuse”, the prosecutor is allowed to use the results of a forced blood draw in the DUI prosecution. The DUI prosecution is the criminal case in which you may be sent to jail. Thus, forced blood draws, in addition to possibly being unconstitutional, can lead to the worse of both worlds, a longer driver’s license suspension and a criminal conviction.