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  4.  » Forced Blood Draws Illegal – No Refusal Weekends May Stop

Forced Blood Draws Illegal – No Refusal Weekends May Stop

| Apr 13, 2012 | Illinois DUI Laws |

Thankfully, an Illinois appellate court decision may stop the “no refusal” policies of several Gestapo-like prosecutors in Illinois.

In People v Farris, 2012 IL App (3d) 100199, defendant was involved in an accident where she sustained a minor injury only. The defendant refused to consent to a blood draw, so the officer ordered hospital staff to pin her arms and legs down while a draw was perforemed. The defendant was physically resisting at the time. The trial court found that Illinois law, although it does not grant a person the right to refuse, also does not grant the police to use force to withdraw blood (unless there is serious injury or death). The appellate court agreed:

\”The issue of whether testing without consent in the absence of death or personal injury is permitted under the Vehicle Code was first addressed by our supreme court in Jones, which held that testing without consent in situations lacking death or personal injury to another was permitted despite the statutory language that seemed to limit testing to those situations. Jones, 214 Ill.2d at 199–200. The Jones court held that testing without consent did not violate constitutional protections against unreasonable search and seizure where there was probable cause to believe the defendant was intoxicated and the delay caused by obtaining a search warrant might result in loss of evidence of intoxication, given the natural dissipation of the alcohol in the defendant\’s blood. Jones, 214 Ill.2d at 200 (citing Schmerber v. California, 384 U.S. 757, 768–72 (1966)). The Jones court also held that the statutory language of section 11–501.2(c)(2), which expressly provided for testing without consent in situations involving death or personal injury to another, did not implicitly outlaw such testing where death or personal injury to another had not occurred. Finding the statute to be ambiguous, the court, relying in part on legislative history, noted that no statutory right to refuse testing existed prior to enactment of section 11–501.2(c)(2). The court stated that it was “unwilling to construe the language of section 11–501.2(c)(2) as creating a right to refuse chemical testing.” Jones, 214 Ill.2d at 199–200. While the Jones court conclusively held that a defendant did not have a constitutional or statutory right to refuse a request for chemical testing, regardless of the lack of death or personal injury to another, the court did not state whether physical force could be used to collect a sample for testing.\”

The court distingusihed several out of state cases that held to the opposite:

\”in Jones our supreme court was quite clear that there is no practical need for physical force in obtaining bodily fluid samples since the Vehicle Code eliminates any advantage a DUI arrestee might hope to gain from refusing chemical testing:

“Under section 11–501.2(c)(2), if a DUI arrestee refuses to submit to chemical testing, evidence of the refusal is admissible in the arrestee\’s DUI prosecution. 625 ILCS 5/11–501.2(c)(1) (West 2002); see also People v. Edwards, 241 Ill.App.3d 839, 843 (1993) (indicating that a defendant\’s refusal to submit to blood testing has ‘some tendency to indicate a consciousness of guilt’ and is thus relevant and admissible in a DUI prosecution). In addition, refusal to submit will result in the summary suspension of the arrestee\’s driving privileges. This penalty is the same as that imposed where tests are conducted and the results indicate a blood-alcohol concentration over the legal limit. See 625 ILCS 5/11–501.1(c) (West 2002).” Jones, 214 Ill.2d at 201–02.

“Thus, the inference of guilt from a defendant\’s refusal to comply with a request for testing is sufficient to protect the public interest in the prosecution of DUI tickets, and the use of force to secure bodily fluid samples adds nothing to the protection of the public. Jones, 214 Ill.2d at 202.”

Thereafter, the trial court suppression of the blood results in both the civil and criminal proceedings was affirmed.