The Law Offices of Kathleen Colton, Ltd.
Criminal Defense / P.O. Box 1364 / St. Charles, IL 60174
Kane County takes right to refuse breath test for suspected drunken drivers.
Warrants allow police to draw blood of uncooperative motorists.
By Gerry Smith & Cliff Ward
Chicago Tribune
June 6, 2008
After St. Charles police pulled over Gerald Tully, 22, on May 24 for speeding and swerving, they told the Elgin man to submit to a Breathalyzer test.
Police said Tully refused. So in the middle of the night, officers took a search warrant to the home of an on-call judge who authorized their unusual search request: to draw Tully's blood.
After two vials of blood were drawn, Tully was charged with driving under the influence, ensnared by a new tool for prosecuting drunken driving in Kane County.
The county's first "no-refusal weekend" was aimed at repeat offenders who have found a loophole in Illinois law that issues a penalty for refusing a Breathalyzer test that is less severe than having another DUI conviction.
More than 40 percent of 158 drivers arrested on a DUI charge in April in Kane County refused the test, a number that parallels national statistics, according to authorities.
Without blood-alcohol evidence, "it's much more difficult to win a refusal case," Kane County State's Atty. John Barsanti said.
While new in Illinois, the legal tool has become popular in other states. But it also has raised constitutional and ethical questions from defense attorneys and health officials.
Kane County authorities implemented the strategy for the first time over Memorial Day weekend. Of the 14 DUI arrests made, a judge authorized four warrants to uncooperative drivers, including Tully, who did not have a prior DUI conviction. He could not be reached for comment.
On the same weekend, Peoria County also launched its first no refusal weekend. Of the six people cited for DUI, warrants were issued and blood samples were taken from two of them, said Peoria County State's Atty. Kevin Lyons.
While authorities in Illinois need a court order to draw blood from a suspected drunken driver, authorities in some states do not. Last week, the Minnesota Supreme Court ruled that police do not need a search warrant because the process would take too long and evidence could be lost by the "rapid, natural dissipation of alcohol in the blood."
High-court opinion in '66
The issue went to the U.S. Supreme Court in 1966, when in a 5-4 ruling the justices found that taking blood against a driver's wishes didn't violate the defendant's right against unreasonable searches and seizures or compelled self-incrimination.
But in their majority opinion, the justices warned about blood being drawn outside of a hospital environment, such as a police station, which could "invite an unjustified element of personal risk of infection and pain."
In Kane County, suspected drunken drivers who refused to submit to a Breathalyzer test during no-refusal weekend faced the possibility of having their blood drawn at the Geneva Police Department by a volunteer phlebotomist from the county Health Department.
The scenario raises an ethical dilemma for health officials trying to both respect civil liberties and protect the community, said Paul Kuehnert, executive director of the Health Department.
But Kuehnert said he believed that the phlebotomist could achieve both goals "because this individual does present a hazard not only to themselves but to other people in the community."
However, many defense attorneys disagree, arguing that the practice tramples privacy rights.
"Once they have their blood, there's no limit to what they can look for and do with it," said Donald Ramsell, a DUI attorney in Wheaton.
Kathleen Colton, a defense attorney in Kane County, raised concerns over how much force authorities could use to extract blood from someone who does not cooperate.
"They could tie you down, strap you to a gurney and extract your bodily fluids to use in a criminal prosecution," she said. "It's coercive."
Kane County prosecutors said Tuesday that they did not forcibly compel anyone arrested on suspicion of DUI over no-refusal weekend to provide a blood test, citing safety concerns.
"There could be a fight, and you've got people with needles," Barsanti said.
Colton said she advises all her clients to refuse a Breathalyzer test. Although doing so results in an automatic three-year license suspension for a driver with a prior conviction, repeat offenders prefer it to the license revocation imposed after a second DUI conviction, prosecutors said.
Kane County authorities modeled their no-refusal weekend on similar strategies in Texas, where several big cities have used it during holidays. But Jamie Balagia, an attorney in San Antonio who specializes in DUI cases, suspects that authorities in Texas are preprinting warrants and judges are approving them without hesitation.
"They're not neutral magistrates," Balagia said. "How many warrants did the judges decline to sign? Probably not a single one."
Weekend's arrests
Of the 14 arrested in Kane County over the Memorial Day weekend, eight drivers refused to take the breath test. Four of the eight later consented to blow into the Breathalyzer when threatened with a warrant. Judge Linda Abrahamson signed warrants for the four who refused.
Of the four served with warrants, two changed their minds and gave breath samples, Tully gave a blood sample and another refused to give either a breath or blood sample and could face contempt charges and jail time, prosecutors said.
Five of the 14 who were cited had previous DUI arrests, and four of those drivers were among the eight who initially refused to give breath samples.
All of those who eventually tested with a Breathalyzer—either by warrant or threat of a warrant—were over the legal limit of 0.08 blood-alcohol content, and two were at least double the limit, prosecutors said. Tully's blood samples are being processed by the state crime lab.
Barsanti called the weekend "wildly successful" and vowed to have more.
"We got four samples we never would have gotten," Barsanti said.
Gerry Smith is a Tribune reporter. Clifford Ward is a freelance reporter.
