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Illinois Supreme Court Finds Implied Consent Law Unconstitutional As Applied

This September, the Illinois Supreme Court held that the Illinois implied consent statute was unconstitutional as applied to a driver when the test was requested two days after the motor vehicle accident.law-education-series-2-1467427

In May 2012, Kevin McElwain was involved in a traffic accident. He was stopped at an intersection and began to make an U-turn when a motorcycle collided with the side of his vehicle. The driver and passenger of the motorcycle had substantial injuries, and the passenger died. On the date of the accident, McElwain did not receive any tickets and was not asked to take any chemical tests. The officers present on the date of the accident did not think he appeared to be under the influence of any illicit substance.

During a subsequent investigation, the police discovered rolling papers and a bag containing cannabis residue in McElwain’s vehicle. McElwain was questioned and admitted that he had smoked marijuana two weeks prior to the accident. The police issued him a ticket for failing to yield when turning left and requested that he take a chemical test, reading him the implied consent law. McElwain refused to submit to a test. The Secretary of State responded by suspending McElwain’s license for three years.

He petitioned to have his license suspension rescinded on the basis that the police waited two days after the accident to request the chemical test. The Administrative Law Judge (ALJ) upheld the suspension, rejecting McElwain’s argument that the officers violated his due process right by waiting. The Secretary adopted the ALJ’s findings and holdings and entered a final order denying his request for rescission.

McElwain thereafter filed for administrative review, contending that his due process and Fourth Amendment rights were violated by the two-day delay. He argued the law was applied to him in an unconstitutional manner. The circuit court agreed, holding the law to be unconstitutional as applied.

The circuit court reasoned that two days after the accident, McElwain no longer had the diminished expectation of privacy he would have had to justify the intrusion at the time of the accident. Moreover, two days was ample time to secure a warrant. The special needs exception to the Fourth Amendment therefore did not apply. Finally, the court relied on the Illinois law requiring chemical testing of a driver who is arrested after fleeing the scene to be completed within 12 hours of the accident. It would not make sense to hold that a person who stays at the scene and cooperates is subject to testing for a longer period of time.

The Illinois Supreme Court allowed the Secretary’s petition for leave to appeal and upheld the circuit court’s holding that the statute was unconstitutional as applied.

First, the court explained that the plain language of the statute included no time limit, and when the statutes intends there to be a limitation, it does so expressly. The court therefore held it could not reasonably construe the statute as having a time limit.

Next, relying on Illinois Supreme Court precedent, the court found it “abundantly clear” that the statute was applied unconstitutionally to McElwain. When the court previously held that the statute at issue was facially constitutional, it assumed that testing would shortly follow the accident. The court also explained that a person subject to the test has a diminished expectation of privacy due to both his status as a driver and his presence at the scene of a serious accident. These factors were not present in McElwain’s case. Furthermore, the “special need” the court referenced in the previous case was the need to suspend the license of impaired drivers. A test two days later, however, determines impairment at a different time. The court therefore concluded the statute was unconstitutional as applied to McElwain.

The court declined to draw a bright line rule as to how soon after the accident testing must be required, instead leaving the task to the legislature. It would in turn be the Illinois Supreme Court’s job to determine whether the line drawn by the legislature is constitutional.

If you have been charged with a DUI crime in Illinois, it is crucial to speak to an experienced Illinois DUI lawyer as soon as possible. Harvatin Law Offices, PC provides knowledgeable representation for people in Springfield and throughout Illinois. We have considerable experience defending individuals charged with DUI offenses. To learn more and to set up a free initial consultation, contact us online or call us toll-free at 1-800-829-8513.

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Illinois Gives Four-time DUI Offenders a Second Chance, Illinois DUI Lawyer Blawg, October 2, 2015.

Florida Judge Recommends Permanent Disbarment for Lawyers Involved in DUI Setup, Illinois DUI Lawyer Blawg, September 10, 2015.

Montana Supreme Court Holds 24/7 Sobriety Program is Constitutional, Illinois DUI Lawyer Blawg, September 1, 2015.

THC Breathalyzer to Hit Market Soon, Illinois DUI Lawyer Blawg, August 3, 2015.

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