One of our basic constitutional rights under the fourth amendment of the United States Constitution is our right to be from unreasonable search and seizures. As citizens, we should be able to be free from the government harassing us, detaining us, or searching us for no justifiable reason.
This basic right is something that has stood up through the test of time as new laws have been created and society has changed. One change that has become very controversial in Illinois is what's become known as a forced blood draw.
Imagine you are out to dinner with a few friends and on your way home, a law enforcement officer pulls you over for a simple traffic stop such as speeding or improper lane usage. That law enforcement officer orders you out of the car and without a warrant asks you to take a blood test or alcohol tests. After the police officer asks you to perform alcohol tests and asks you to submit a blood sample, he begins to investigate you for driving under the influence of alcohol and asks you to perform field sobriety tests.
After you perform the field sobriety tests, the officer places you under arrest for DUI, and then the officer asks you to submit to a chemical breath test to obtain your blood alcohol concentration. You refuse to take the breath test because you have already been arrested and then the officer then sticks a needle in your arm to get a sample of your blood to test what your blood alcohol concentration is.
That is exactly the scenario that is happening in counties like Cook County, Dupage County, Will County, Kendall County, Kankakee County, and McHenry County. You might be asking, how can a police officer just take my blood after I refuse to take a test? Well, the answer to that question is through a search warrant.
If an officer believes you were driving poorly or you failed the field sobriety tests, police officers can apply for a warrant with a judge. The reason that the police officer needs to apply for a warrant is that the supreme court has ruled that under the fourth amendment, a police officer cannot force you to draw your blood without your consent.
Police officers need a warrant to draw your blood unless you consent to a blood draw or unless you ask for a blood draw.
Once the judge grants the search warrant, then the police can take you to the nearest emergency room and have a nurse draw your blood without your consent, in order to prove you guilty of driving under the influence of alcohol.
In Illinois, a new electronic system has allowed for police officers to apply for a search warrant online and a judge can grant the warrant upon probable cause within minutes of the officer's request.
Under Illinois law, for a search warrant to be proper, the warrant must: (1) be filed in good faith, (2) the warrant must be filed based upon reliable information showing probable cause, (3) the warrant must be issued by a neutral judge, and (4) the warrant must be specific enough to state what is to be searched or seized.
In order for a prosecutor to prove you guilty of driving under the influence of alcohol, they must prove: (1) that you were driving or in actual physical control of a motor vehicle and (2) that your blood alcohol concentration was a .08 or above at the time you were driving.
If you refuse to submit to field sobriety tests and to take a breathalyzer test then the prosecutor's job will become much harder to show you were under the influence of alcohol. A prosecutor will have to use circumstantial evidence such as; an odor of alcohol emitting from your breath, slurred speech, and bloodshot eyes to show the judge or jury you were drunk.
However, if you refuse all the tests, a police officer can apply for a warrant and get a nurse to draw your blood to determine what your blood alcohol concentration is. A nurse will conduct a DUI blood draw at the hospital. So, what does a DUI blood draw test for? The DUI blood draw will test for alcohol and all types of intoxicating substances that the prosecutor can use to prove you guilty.
The DUI test at the hospital will test for things such as; alcohol levels, cocaine, cannabis, heroin, and various other narcotics. Once the nurse draws your blood, the hospital can have the DUI test results within minutes and the police officer will be able to arrest you for the offense of DUI. The DUI blood draws waiting period is such a short amount of time that officers can almost instantly have probable cause to charge you with DUI.
The officer will then have to collect a sample of the DUI test results and put it into evidence to establish a chain of custody. The police will hand the results and evidence over to the prosecutor to build a case against you. Once the prosecutor can determine that your blood alcohol concentration is a .08 or above, or that you had an illegal drug in your system, all they need to do is to prove that you were driving or in control of a vehicle to show the judge that you are guilty.
The forced blood draw makes it easier for the prosecutor to prove that you are guilty of DUI after they obtain your blood alcohol concentration from your blood.
Whenever a police officer arrests you for driving under the influence of alcohol, he will also submit paperwork to the Illinois Secretary of State in order to suspend your driver's license for driving drunk.
The reason that your driver's license is suspended for 6 months longer if you refuse to take a breathalyzer test is that Illinois has an implied consent law. The implied consent law basically states that when you apply for a driver's license in Illinois, you are consenting to take field sobriety tests and a breathalyzer test.
If you decide to take the breathalyzer test, you will be giving the prosecutor more evidence to use against you, but you will only be subjected to a six-month suspension. However, if you refuse to take a breathalyzer test and the police obtain a warrant to draw your blood, your license will be suspended for one year and they will be able to have the evidence needed to prove you guilty of DUI.
With forced blood draws, you will receive a year suspension of your driver's license because you refused to take the test and they will still have the evidence they need against you.
If the police obtain a search warrant to draw your blood for purposes of a DUI, you are required to comply with that warrant. Remember that the warrant is issued by a judge and once the police obtain a search warrant they have every right to take your blood.
If the police are trying to have a nurse draw your blood to obtain your BAC and you refuse to let them proceed with the blood draw, then you will be charged with a felony offense. In many counties, like Kankakee County, Will, and Dupage County, the state's attorney's office will charge you with the felony offense of obstructing justice for not complying with the warrant.
In Illinois, a person commits the offense of obstructing justice when, with the intent to prevent the apprehension or obstruct the prosecution or defense of any person, he or she knowingly commits any of the following acts: Destroys, alters, conceals, or disguises physical evidence, plants false evidence, furnishes false information.
Refusing a blood test can result in a class four felony and instead of looking at facing a maximum of 364 days in jail for your DUI, you will be facing a maximum of 4 years in prison for obstructing justice.
If you have been charged with driving under the influence of alcohol and the police officers have obtained a sample of your blood through a warrant, then you will need to contact a DUI attorney that is familiar with blood alcohol concentrate procedures and with cases involving warrants as well.
Here at Ktenas Law, we have handled hundreds of DUI cases that involve DUI defenses to blood draws and we know how to hold the prosecutor to their burden and not let the prosecutor introduce that evidence without the proper foundation.
We know exactly where to attack the prosecutor's case to keep the blood draw out of the trial. We have had plenty of experience dealing with cases involving search warrants and motions to quash these warrants and suppress evidence obtained from the search warrants.
You want to make sure that your attorney can file the proper motion in order to have that evidence thrown out and you can have a fighting chance in court! If you have been subjected to a forced blood draw, call today for a free consultation!