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Appellate Court Rules Part of Illinois DUI Law Unconstitutional

Posted on in DUI Defense

Illinois DUI lawyerWhen a motor vehicle crash results in severe injuries or death, one or more of the drivers will likely get a traffic violation ticket, and may even be charged with a more serious crime such as DUI, Aggravated DUI, reckless driving, or even reckless homicide.

If the police suspect that a driver was under the influence of alcohol or drugs at the time of a crash, officers must act quickly to obtain proof of that, via chemical testing of the driver’s breath, blood, and/or urine. Speed of action is necessary because the body metabolizes alcohol to an undetectable level in a matter of hours and some drugs in just a couple of days.

Illinois Laws Governing DUI Testing

In Illinois, the police must follow specific procedures in order for DUI tests to be admissible in court. In particular, Illinois law requires the police to give drivers a standard warning prior to conducting chemical tests for DUI, which informs the driver that he may refuse to submit to testing.

If a driver refuses to submit to testing, what can the police do next? Must the police seek a court order (a warrant) allowing them to conduct DUI tests without the driver’s consent? Or does the fact that a person’s blood alcohol concentration changes with time constitute exigent (emergency) circumstances, such that the police may proceed without a warrant?

A recent Illinois appellate court decision has addressed those very questions.

Appellant Challenges Nonconsensual, Warrantless DUI Testing

In the case under appeal, a male driver had struck and killed a woman in Chicago in 2009. The driver refused DUI testing, but the police proceeded to forcibly take blood and urine samples from him without first getting a warrant. The police cited a section of Illinois law that allowed law enforcement officers to conduct nonconsensual, warrantless DUI tests when the driver has killed or injured someone.

In this case, the driver’s urine sample tested positive for cannabis, ecstasy, and cocaine. The driver was subsequently convicted of aggravated DUI and first-degree homicide.

He later appealed his conviction on the grounds that the warrantless, nonconsensual testing constituted an unconstitutional search inside his body.

In their January 2018, ruling, the First District Illinois Appellate Court agreed with this argument. The section of the state DUI law on which the police relied in this case was declared unconstitutional.

While police may conduct warrantless searches in exigent (emergency) circumstances, the court ruled that no such emergency existed in the case at hand. In fact, the police had waited several hours after the arrest before taking the blood and urine samples, in which time they could have obtained a warrant.

Police Need Warrant for Nonconsensual DUI Testing

To comply with this appellate court ruling, Illinois police will need to obtain a warrant before taking samples of bodily fluids for DUI testing without the driver’s consent, even in cases involving death or injury. To get a warrant, the police will need to show probable cause to suspect DUI, such as slurred speech or the smell of marijuana.

DUI Defense Attorneys Serving Oak Brook, Lombard, Elmhurst

If police fail to follow the correct procedures for DUI testing, the resulting charges may be reduced or dismissed. For the best chance of a favorable outcome, contact a knowledgeable DuPage County DUI defense attorney. At McMahon Law Offices, we have over 24 years of experience in Illinois DUI defense, and we have secured thousands of favorable outcomes for our clients. Call 630-953-4400 now (including evenings and weekends) for a free consultation.






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