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Defense Must Prove Blood Draw Was Carried out by State Actors ILLINOIS STATE BAR ASSOCIATION MAY 2021 VOL 30 NO. 4 Traffic Laws & Courts The newsletter of the Illinois State Bar Association’s Section on Traffic Laws & Courts Defense Must Prove Blood Defense Must Prove Blood Draw Was Carried Out by State Actors Draw Was Carried Out by 1 Breathalyzer Challenge State Actors Toppled by Lack of Credibility 1 BY DAVID B. FRANKS Recent U.S. Department of a time when Defendant had four prior Facts Justice Funded Study Raises After causing a motor vehicle accident, violations of driving under the influence of Constitutional Issues & the state filed a bill of indictment charging alcohol. Count II charged Defendant with Prosecution Challenges in Defendant with three counts of alcohol- aggravated driving under the influence Cannabis-Related DUI Cases related driving offenses. People v. Mueller, with an alcohol concentration of 0.08 7 2021 IL App (2d) 190868. Count I of or more (11-501(a) (1), (d) (2) (D)) at a time when Defendant had four prior the indictment charged Defendant with Does State Commit a aggravated driving under the influence violations of driving under the influence of Discovery Violation When of alcohol (11-501(a) (2), (d) (2) (D), alcohol. Count III charged Defendant with Evidence Does Not Exist? (d) (1) (G)), alleging that Defendant aggravated driving under the influence of 8 drove under the influence of alcohol at Continued on next page Breathalyzer Challenge Toppled by Lack of Credibility BY ADAM MILLER In People v. Sokolowski, 2021 IL App along the interstate. When the trooper (4th) 190074-U the court upheld the denial arrived on scene the defendant was outside of a motion in limine asking to bar a his vehicle in a grassy area with two cans of preliminary breath test (PBT) result as well beer next to him. The defendant claimed as a guilty verdict following a stipulated to have missed his exit due to the rainy bench trial. In Sokolowski the defendant was and foggy weather and left the roadway charged with DUI following a single vehicle due to a squall of rain. The trooper made accident after he struck the cable barriers Continued on page 5 Traffic Laws & Courts ▼ MAY 2021 / VOL 30 / NO. 4 Defense Must Prove Blood Draw Was Carried Out by State Actors CONTINUED FROM PAGE 1 Traffic Laws & Courts alcohol (11-501(a)(2), (d)(1)(G)), alleging draw. The state argued, however, that the This is the newsletter of the ISBA’s Section on Traffic Laws & Courts. that Defendant drove under the influence of only available remedy for this error was Section newsletters are free to section alcohol at a time when her driving privileges to rescind Defendant’s statutory summary members and published at least four were revoked for a violation of section 11- suspension, and not to suppress the results times per year. Section membership dues are $30 per year. 501 of the Illinois Vehicle Code, or a similar of her blood test. The state further argued To join a section, visit www.isba.org/ out-of-state offense. that the question of consent was misplaced sections or call 217-525-1760. Defendant filed a motion to quash her because “the appellate court held that OFFICE arrest and suppress evidence, seeking to consent is no longer a requirement for the ILLINOIS BAR CENTER suppress the results of three separate blood admission of the results of chemical tests 424 S. SECOND STREET SPRINGFIELD, IL 62701 alcohol tests from blood draws that all into evidence.” In response to Defendant’s PHONES: 217-525-1760 OR 800-252-8908 had been taken at the hospital following arguments concerning the legality of the WWW.ISBA.ORG the accident. Regarding the first blood jail blood draw (third blood draw at the EDITORS draw (the medical blood draw), Defendant hospital), the state reported that it would Sarah E. Toney argued that her Fourth Amendment rights not seek to admit that final blood draw in to PUBLICATIONS MANAGER were violated when paramedics, who evidence. Sara Anderson [email protected] were acting as state agents, took her to the The trial court held a hearing on hospital against her will, where her blood Defendant’s motion to suppress. Five TRAFFIC LAWS & COURTS SECTION COUNCIL was drawn “for no medical reason but witnesses testified. An emergency room Thomas M. Moran, Chair instead to assist police.” nurse testified, in part, that Defendant Ted P. Hammel, Vice-Chair Regarding the second blood draw (the told her that she had been drinking, she Ted Harvatin, Secretary Hon. Jeremy J. Richey, Ex-Officio administrative blood draw), Defendant observed a skin tear to the Defendant’s Juliet E. Boyd argued that her Fourth Amendment rights right forearm, and that Defendant was Larry A. Davis Nancy G. Easum were violated when her blood was drawn belligerent and had slurred speech. Defense David B. Franks “without authority and without consent.” counsel questioned the emergency room Jeffrey R. Hall Although Defendant acknowledged that she nurse about the other driver involved in the Alan E. Jones Anisa L. Jordan gave a police officer her “purported consent” accident, who also received treatment at Hon. Edward M. Maloney after being read the “Traffic Crash Warning the hospital. When the state questioned the Stacey A. McCullough Hon. Thomas F. McGuire to Motorist” (the faulty warning) pursuant relevance of this evidence, defense counsel Adam M. Miller to 625 ILCS 5/11-501.6, she argued that indicated that the other driver’s injuries Donald J. Ramsell this consent was invalid because it was were directly relevant to the statutory Jacob W. Scholz Tricia L. Smith predicated on false information. warning that the arresting officer read to Thomas Speedie, Jr. Regarding the third blood draw that was Defendant before obtaining her purported James M. Stern Paul R. Vella taken at the hospital (the jail blood draw), consent for the administrative blood draw. Sara M. Mayo Vig Defendant argued that there was no medical Specifically, defense counsel indicated that Tracy L. Weaver purpose justifying the blood draw, the blood the section 11-501.6 warning “only applies Sarah E. Toney, Board Liaison/Newsletter Editor draw was not grounded in statute, and in accidents when somebody other than Blake Howard, Staff Liaison Defendant had not consented to the draw, the defendant has a category A injury” and Randy Randall Cox, CLE Committee Liaison which was obtained without a warrant. that, if the other driver did not have such Brick Van Der Snick, CLE Coordinator The state responded to Defendant’s an injury, section 11-501.6 “should not motion, arguing that “neither the State, have been dealt with” and was “improperly nor any of its agents, played any part” in a mechanism” by which the state obtained DISCLAIMER: This newsletter is for subscribers’ personal use obtaining the medical blood draw and that consent for the administrative blood draw. only; redistribution is prohibited. Copyright Illinois State Bar Association. Statements or expressions of opinion appearing the draw was “made in the regular course The state acknowledged that the arresting herein are those of the authors and not necessarily those of the Association or Editors, and likewise the publication of any of providing medical treatment.” The state officer read the incorrect statutory warning advertisement is not to be construed as an endorsement of the product or service offered unless it is specifically stated in the ad argued that based on the paramedics’ to defendant. The emergency room nurse that there is such approval or endorsement. observations, Defendant was “not suitable testified that the other driver experienced Articles are prepared as an educational service to members to refuse care.” The state conceded that the pain in his chest and shin following the of ISBA. They should not be relied upon as a substitute for individual legal research. arresting officer read the wrong warning accident. She also testified that the other The articles in this newsletter are not intended to be used and to Defendant before obtaining her consent driver had “bruising and a hematoma” on may not be relied on for penalty avoidance. to complete the administrative blood his shin, and that the airbags in his vehicle 2 deployed as a result of the accident. that Defendant’s behaviors could have also case of a Fourth Amendment violation. Another emergency room nurse testified. reflected a possible head injury. He testified Specifically, the trial court found that The other emergency room nurse testified, that no police officer or member of the fire Defendant failed to show any evidence in part, that Defendant was belligerent, department requested that he take Defendant supporting a finding that the ambulance had slurred speech, and challenged to the hospital. personnel or the hospital medical staff were staff when asked questions. He testified A paramedic testified that she responded agents of the state or acting as an arm of the that Defendant’s gait was unsteady, and to the scene and spoke with the occupants state. The trial court rejected Defendant’s Defendant initially attempted to refuse of the other car involved in the accident. The arguments concerning the lack of consent transport to the hospital. He testified that paramedic did not notice any injuries that leading up to the medical blood draw, the administrative blood draw was “obtained required the occupants to be transported to because Defendant’s arguments relied on at the request of the Illinois State police,” the hospital by ambulance. Both occupants case law that pertained to tort cases involving and he personally participated in that blood refused care by transport. medical batteries, and not criminal cases draw. He confirmed that the blood draw An emergency room physician later involving the admissibility of evidence.
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