The Law Offices of Kathleen Colton, Ltd.
Criminal Defense / P.O. Box 1364 / St. Charles, IL 60174
Defense attorneys question forced blood draws
Kane plans to get quick warrants to bolster DUI cases
By Dan Campana
Aurora Beacon News
May 18, 2008
A palpable buzz of discontent has arisen among local defense attorneys in the wake of Kane County State's Attorney John Barsanti's plan to bolster cases against suspected drunken drivers.
Reacting to Barsanti's introduction of "no refusal" weekends -- where DUI suspects refusing breath tests would be compelled by search warrant to give a blood sample -- those in the defense ranks have questioned the constitutional impact of such an approach, as well as lashing out at Barsanti's characterization of DUI attorneys.
"This is obviously going to be challenged," said Batavia-based attorney Kathleen Colton.
During an upcoming weekend, which Barsanti would not disclose, regular and extra patrols in the Tri-Cities and within Kane County's jurisdiction will be on the lookout for drunken drivers. After an arrest, the driver is asked to submit to breath, blood or urine tests.
A refusal to do so kicks off a chain of events that includes a search warrant being driven to an on-call judge's home and the suspect having his blood drawn -- by force, if necessary -- by a Health Department employee, according to prosecutors.
Similar programs have been successful and legally upheld in other states, Barsanti said.
Attorney J. Brick Van der Snick, who handles about 100 DUI cases a year, said forcing a blood draw on someone violates his or her rights and will eventually lead to an innocent person being "strapped to a gurney" for refusing a test.
Colton and fellow defense attorney Bruce Steinberg acknowledge they advise against taking breath tests, but for different reasons.
"I don't trust them," Steinberg said of breathalyzers, which he called "Orwellian."
"As a defense attorney, I don't advise people not to take a breath test to get away with something," he added, noting he's never seen a case where blood-alcohol content levels from breath and blood tests matched.
Barsanti suggested some multiple DUI offenders refuse tests in an effort to minimize the impact on their driver's license. Refusing triggers an automatic three-year suspension for a repeat drunken driver, but an additional conviction means a five-year license revocation. But that conviction is harder to get without any type of test results.
But not impossible, Van der Snick says.
"With good law-enforcement work and good police testimony, you can get a conviction with a refusal," he said.
Colton tells clients to refuse tests and remain silent because that is their right to avoid self-incrimination.
"The state is saying, 'No, you can't exercise your constitutional right,'" Colton offered. "It's an end run around the Fifth Amendment."
Including judges in the process also raised questions among the attorneys, while they disagreed that deterrence is a by-product of the plan.
Steinberg also took issue with Barsanti, pointing to example statements from DUI attorney Web sites advising drivers to refuse breath tests because it aids the defense's case.
"It's not appropriate to make blanket statements about defense attorneys," he said. "I've never met a defense attorney who's pro-DUI."
