The Journal of The DuPage County Bar Association

Back Issues > Vol. 25 (2012-13)

When Does “No” Mean “No” in DUI Chemical Test Refusals
By Brent Christensen

It happens to every practitioner of DUI defense law at social functions.  Following the usual  chit-chat about weather and the state of one or more of Chicago’s professional sports franchises, non-lawyers and lawyers from other concentrations alike ask the question, “to blow  or not to blow” in the context of a DUI arrest.  The correct, yet invariably unsatisfying answer, “It depends,” generally results in a quick turn back to woes of the Chicago Cubs and other imminently more solvable puzzles.  However, the recent advent of so-called “No Refusal Weekends” in DUI enforcement, as well as a Third District case involving a warrantless and forcible DUI blood draw, invite a more detailed analysis of refusal of chemical testing in DUI arrests.

In Illinois, along with every other State, the concept of “implied consent” allows the government to suspend, more or less summarily, the license of a driver whom law enforcement reasonably believes to be operating a motor vehicle on public roads while under the influence of alcohol or other intoxicants.  In Illinois, refusal of any requested chemical test – breath, urine, and/or blood – by a driver reasonably suspected of DUI, will result in a license suspension of one or three years, depending on the existence and timing of any prior DUI statutory summary suspensions.  The threat of such a civil sanction for refusal of chemical testing most typically results in arrestees submitting to testing – giving the prosecution what is typically compelling evidence of guilt in the context of the criminal aspect of a DUI charge.

But what of the relatively rare arrestee who steadfastly refuses chemical testing?  Shortly before Labor Day weekend in 2011, the DuPage County State’s Attorney’s Office in conjunction with the DuPage County Sheriff’s Department, announced a DUI enforcement scheme dubbed “No Refusal Weekend” where, upon probable cause, the police request a search warrant from an on-call judge for a blood test which is then expeditiously carried out by a licensed phlebotomist, who is on hand, typically at a DUI check point (roadblock).

In Schmerber v. California[1], the United States Supreme Court held that the taking of a blood sample without the defendant's consent, or a search warrant, was a “reasonable” search under the fourth amendment where there was probable cause to believe the defendant was intoxicated, and the delay caused by obtaining a search warrant might have resulted in loss of evidence of the defendant's intoxication, given the natural dissipation of the alcohol in the defendant's blood[2]. In examining the reasonableness of the blood test procedure itself, the Court observed that blood “tests are commonplace in these days of periodic physical examinations, and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain.”[3] The Court further noted that the manner in which the procedure was conducted was reasonable, as the defendant's blood was taken “in a hospital environment according to accepted medical practices.”[4]

The Illinois Supreme Court largely adopted the reasoning in Schmerber in the case of People v. Todd[5], Todd was a consolidated appeal from three DUI convictions in which the defendants sought interpretation of a provision of the Illinois Vehicle Code, arguing that the statute prohibited the evidentiary use of blood samples obtained without a DUI arrestee's consent[6].

However, the Illinois Supreme Court distinguished Todd from Schmerber on the ground that the Illinois Vehicle Code at that time afforded a  protection to DUI defendants greater than that required by Schmerber, stating Schmerber made it “clear that a compulsory blood test does not violate any constitutional rights of an individual merely because he objected to such tests.”[7] In Todd, the Illinois Supreme Court held that Illinois’ DUI statute did require consent to chemical testing for test results to be admissible as evidence.[8]   The Todd court focused its attention on the statutory language of Section 11–501 the Vehicle Code, which, at the time provided:

“Evidence based upon a chemical analysis of blood, urine, breath or other bodily substance shall not be admitted unless such substance was procured and such analysis made with the consent of the person as provided by this Chapter, whose bodily substance was so analyzed.” (Emphasis added.)[9]

This “right” to refuse chemical testing, discussed in Todd,  was, in turn, repealed by Public Act 84–272, effective January 1, 1986. The current version of this provision can be found in Section 11-501.2(c)(1) of the Vehicle Code which provides::

“If a person under arrest refuses to submit to a chemical test * * *, evidence of refusal shall be admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person under the influence of alcohol, or other drugs, or combination of both was driving or in actual physical control of a motor vehicle.”[10]

But this amendment, along with a line of appellate cases discussing it, went only to the admissibility of the refusal in a criminal prosecution.  In the context of a “no refusal weekend,” the immediate issue is not admissibility in the incipient future proceeding, but rather whether, in light of a search warrant, refusal to submit to blood testing could result in a garden-variety DUI arrestee being tied down in order for agents of the State to procure blood evidence ab initio.

In People v. Jones[11], the Illinois Supreme Court passed on the lack of a “right” to refuse chemical testing in light of the 1986 changes to the vehicle code.  In that case, Defendant Jones was arrested for DUI and hospital personnel administered blood and urine tests at the request of the arresting officer, but without defendant's consent.   Jones moved to suppress the results of the blood and urine tests on the ground the tests were nonconsensual. Circuit Judge Geoge Bakalis granted the defendant's motion and ordered suppression of the test results. The State appealed, and the appellate court affirmed the suppression order. The Supreme Court reversed the Appellate Court, holding that Section 11–501.2 of the Illinois Vehicle Code[12]  did not grant a statutory right to refuse chemical testing to a DUI arrestee in a situation not involving the death or personal injury of another. But the Supreme Court took some pains to clarify its position on the notion that that blood could be forcibly drawn:

“For purposes of clarification, our holding in this case does not give law enforcement officers unbridled authority to order and conduct chemical tests. We do not suggest that a DUI arrestee's lack of a right to refuse chemical testing under section 11–501.2(c)(2) permits law enforcement officers to use physical force in obtaining blood, urine, and breath samples. The Vehicle Code already eliminates any advantage a DUI arrestee might hope to gain from refusing chemical testing. Under section 11–501.2(c)(1), if a DUI arrestee refuses to submit to chemical testing, evidence of the refusal is admissible in the arrestee's DUI prosecution.”

The issue of whether the Police can use force to obtain a blood test in a DUI arrest was directly addressed recently in the case of People v. Farris.[13]  In that case, the Appellate Court confronted a situation where the arresting police officer sought consent from a DUI arrestee for a blood draw in a hospital emergency department following a motor vehicle crash. The defendant refused consent. The arresting officer then instructed a nurse to take a sample of the arrestee’s blood. Two police officers stood by while a doctor, a nurse, and another emergency department staff member held the defendant down and forcibly drew blood. One person was on either side of the defendant, each holding a wrist and shoulder, while another person held the arrestee’s legs as the nurse drew blood from one of the defendant’s arms inside of the elbow.

The result of this forcible blood draw was suppressed in the trial court and the State appealed.  Relying heavily on the reasoning (and dicta) in Jones, the Appellate Court affirmed the trial court’s finding that the arresting officer lacked statutory authority to use force to obtain a blood sample.  Left unanswered, however, is the question potentially posed by a “no refusal weekend” regime.  What about a forcible blood draw in the context of a search warrant?

The forcible blood draw in Farris was without warrant.  As indicated earlier in this article, the typical “no refusal weekend” scheme centers on the police obtaining a warrant from an on-call judge for a blood draw.  If a judge issued a requested warrant specifically providing that force could be used to obtain a blood sample, it is difficult to see how the rulings in Jones or Farris would protect a non-consenting DUI arrestee from a forcible blood draw ordered by a warrant.  Under the U.S. Supreme Court’s reasoning in Schmerber it would appear that such an intrusion would not violate the 4th Amendment proscription against unreasonable search.

As a practical matter, it is difficult to imagine a “no refusal weekend” scenario where a judge would sign a warrant specifically authorizing a forcible blood draw for an arrestee without a significant DUI history, and with no aggravating factors such as an accompanying motor vehicle accident with injuries.  More likely, the issue of a forcible blood draw pursuant to a warrant would arise under more severe circumstances.  In either event, Illinois case law is still unclear on this most unsettling prospect of a “no refusal weekend.”  Until that question is addressed head-on, the practitioner is well advised to stick to “It depends . . .” as the answer to the broad question of whether or not to submit to chemical testing following a DUI arrest. 

[1] 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

[2] See Schmerber, 384 U.S. at 768–72, 86 S.Ct. at 1834–36, 16 L.Ed.2d at 918–20.

[3] Schmerber, 384 U.S. at 771, 86 S.Ct. at 1836, 16 L.Ed.2d at 920.

[4] Schmerber, 384 U.S. at 771, 86 S.Ct. at 1836, 16 L.Ed.2d at 920.

[5] 59 Ill.2d 534, 322 N.E.2d 447 (1975).

[6] Todd, 59 Ill.2d at 536, 322 N.E.2d 447 (citing Ill.Rev.Stat.1969, ch. 95 1/2, par. 144, and Ill.Rev.Stat.1971, ch. 95 1/2, par. 11–501).

[7] Todd, 59 Ill.2d at 544, 322 N.E.2d 447. 

[8] Todd, 59 Ill.2d at 544, 322 N.E.2d 447.

[9] Ill.Rev.Stat.1975, ch. 95 1/2, par. 11–501(c)(3).

[10] Ill.Rev.Stat.1981, ch. 95 1/2, par. 11–501.2(c).

[11] 214 Ill.2d 187, 824 N.E.2d 239, 291 Ill.Dec. 663 (2005).

[12] 625 ILCS 5/11–501.2.

[13] 968 N.E.2d 191, 360 Ill.Dec. 112 (3rd Dist. 2012).

Brent Christensen was recently appointed to the DCBA Editorial Board. He is a 1993 graduate of The John Marshall Law School and veteran of the U.S. Navy Seabees. He is a solo practitioner focused on DUI Defense.

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