Articles Posted in Chemical Testing

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Police officers in Delray Beach, Florida recently responded to a car accident in which a man driving a pick-up truck collided with a minivan, resulting in the death of all four occupants of the minivan. In investigating the crash, the driver of the pick-up truck submitted to blood testing and was ultimately charged with DUI manslaughter. While DUI-related car crashes are an unfortunately common occurrence, this one is distinctive because the driver did not consume any alcohol or any illicit drugs. Instead, the blood test revealed the driver was under the influence of difluoroethane, a liquefied gas used as a propellant. Upon further investigation, the police uncovered that the driver had huffed Dust-Off, a household cleaner, prior to the crash to get high.prisoner

The driver’s attorney has set forth the argument that since Florida does not have a defined legal limit of inhalants a driver can consume before he or she is considered impaired, the DUI charge is improper. The driver has pleaded not guilty and is awaiting a jury trial. While the pick-up truck driver’s case is the first case since 2014 in which a driver was charged with DUI manslaughter due to intoxication by inhalants, there were other instances in which drivers caused fatal crashes after inhaling intoxicants, but those drivers were not charged with DUI. The increase in charges due to intoxication by inhalants is evident throughout the country as well, including in Illinois DUI cases.

Unlike Florida, Illinois has a broader DUI statute that allows a person to be charged with DUI for reasons other than impairment due to the consumption of alcohol. Specifically, the Illinois DUI statute states that a person shall not drive if they are under the influence of an “intoxicating compound” to a degree that renders him or her unable to drive safely. These catchall provisions are specifically aimed at preventing people from driving while under the influence of non-traditional intoxicants, such as paint, markers, and aerosol spray. As a result, an Illinois license holder who inhales household intoxicants and then drives can be charged with DUI.

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The Supreme Court’s recent ruling in Birchfield v. North Dakota continues to affect DUI law throughout the country. The Birchfield ruling stated, among other things, that DUI suspects who refused to submit to a blood test without a warrant could not be subject to increased criminal penalties for their refusal. Last month, the Supreme Court of Pennsylvania granted an appeal on the narrow issue of whether it is unconstitutional to introduce evidence of a suspect’s refusal to submit to a warrantless blood test at trial as evidence of the suspect’s guilt. While the court’s ruling will only be applicable in Pennsylvania, it is anticipated it will be persuasive for courts in other states ruling on the same issue, and may impact the prosecution of DUI cases throughout the country, including Illinois DUI cases.

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In Commonwealth v. Bell, the suspect was detained for inadequately illuminated headlights. On approaching the suspect’s vehicle the officer observed the suspect had glassy and bloodshot eyes, and an odor of alcohol. The suspect subsequently admitted he consumed four beers. The officer then administered a field sobriety test, which the suspect failed, and a Breathalyzer test, which indicated the suspect had a blood alcohol concentration of .127%. The suspect was arrested for DUI and taken to a hospital for testing of his blood alcohol content. After the suspect was read the chemical testing warnings, however, he refused to submit to a blood test.

The suspect was charged with DUI. Prior to his trial he filed a motion to dismiss the charge, arguing he had a constitutional right to refuse to submit to the blood test, and therefore, his refusal should not be admitted into evidence. The suspect’s motion was denied and the prosecution was permitted to introduce evidence of the suspect’s refusal to submit to the blood test. The suspect was subsequently convicted of DUI.

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Impaired drivers are a hazard of the road and cause thousands of fatal collisions each year. While alcohol has been the leading cause of impaired driving for decades, drugs recently surpassed alcohol as the leading cause of impairment in collisions involving an impaired driver. The increase in drug related collisions is likely due to several factors, including the opioid epidemic and legalization of marijuana. While many drivers are impaired due to the use of illicit drugs, drivers who are using legally prescribed medications still face the risk of impairment if they are unfamiliar with the side effects of their medication.blood test

Presently, there is no national standard for testing a driver suspected of DUI for opioids, marijuana or other drugs, and police officers often struggle with recognizing the signs a driver is impaired due to drugs. Under the current law, Illinois DUI suspects can be subjected to testing of their blood, urine or breath if impairment is suspected. The currently available drug tests, which utilize a suspect’s blood and urine, can be costly and take a long time to administer, which may allow for the suspect’s body to eliminate some or all of the drug. As such, police departments have been searching for technology that would allow for quick, easy, and accurate testing of whether a suspect has ingested any prescribed or illicit drugs that would cause impairment, similar to the way a Breathalyzer test detects alcohol.

In the near future, the Police Department of Carol Stream Illinois will begin testing newly developed technology by administering drug tests via a mouth swab, which will allow them to test for opioids, marijuana, and amphetamines. The Carol Stream Police Department appears to be the first police department in Illinois to begin using driver drug tests. The tests not only give a positive result if the suspect has drugs in his or her system, but will provide measurements of the amount of drugs present. The Carol Stream police plan to conduct field tests to determine the accuracy of the mouth swab tests, by asking DUI suspects who submit to a blood test to submit to the mouth swab as well, so the results of both tests can be compared.

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In the ever-changing landscape of Illinois DUI law, it can be unclear what rights and protections are afforded an individual detained on suspicion of DUI. While individuals who refuse to submit to roadside sobriety testing or a Breathalyzer test face an automatic suspension of their drivers’ license, they could avoid being convicted of a DUI due to the lack of evidence of their blood alcohol level.

carRecently an Illinois man who had previously been convicted of DUI on five occasions managed to evade a sixth DUI conviction where a jury found the prosecution lacked any concrete evidence he was driving while impaired. T.W., of Algonquin, Illinois, was traveling on Route 31 in Crystal Lake when he was pulled over by the police for speeding. When he approached the car, the police officer that stopped T.W. noticed he had glassy eyes, slurred speech and an odor of alcohol. The officer also observed an open can of beer in the car. T.W., who was also previously convicted four times for driving with a suspended or revoked license, admitted to the officer he was driving with a suspended license, but tried to convince the officer to let him go since he was close to his house.

T.W. refused to submit to a roadside sobriety test or undergo a Breathalyzer test. He was arrested and charged with aggravated driving under the influence, which is a felony. At trial, the arresting officer testified that during the traffic stop T.W. had bloodshot eyes and “mush mouth.” He further testified that T.W. became belligerent while being transported to the police station, yelling at the officer to go find real criminals. T.W. also accused the officer of drinking and driving, but being able to get away with it due to his badge.

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Do you know whether the machine used to administer the breath test in your DUI case was properly certified? Most states, including Illinois, have regulations to ensure the accuracy of breath test machines. If the state relies on results from an improperly certified breath test machine in prosecuting a DUI case against you, it can greatly affect the outcome of your case and may provide grounds for avoiding or overturning a conviction.

breathalyzerRecently, the impact of certification issues was felt by prosecutors throughout Nebraska, when hundreds of DUI cases were affected when it was revealed the machines used for official breath tests were improperly certified. While Nebraska police officers administer preliminary breath tests when they suspect a person is driving under the influence of alcohol, many DUI cases rely on results from official breath test machines, which are usually in jails. State regulations require the official breath test machines to be tested regularly to ensure accuracy.

While defending a DUI charge against a client, a Nebraska criminal defense attorney noticed discrepancies in certifications for the official breath test machines. His discovery prompted an investigation which revealed that the individual responsible for testing and certifying the accuracy of breath test machines throughout the state had not actually tested the machines. Subsequently, all DUI cases relying on results from the official breath tests were affected. In cases that relied solely on the official breath tests, prosecutors lacked any evidence with which to convict the defendants.  Moreover, the lack of certification greatly impacted the prosecution’s ability to prove cases in which it was alleged the defendant had committed an aggravated DUI, which requires proof the defendant had a blood alcohol concentration higher than 0.15 percent in Nebraska.

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After failing field sobriety tests, an Illinois defendant was arrested for DUI. At the police station, an officer read the defendant the required admonitions, and the defendant submitted to a breathalyzer test, showing his blood alcohol content was within the legal limit. Then, the officer requested that the defendant submit to blood or urine testing. The defendant refused, and his driver’s license was suspended. He filed a petition to rescind the suspension, which the trial court denied. He appealed, arguing that his petition should have been granted because the officers (1) lacked a reasonable suspicion to request blood or urine testing and (2) failed to issue him a second warning before requesting blood or urine testing. In a case relevant to all Illinois DUI law, this fall, the Illinois Court of Appeals for the Third District affirmed.

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At the hearing, the Shorewood police officer testified that while on patrol at around 1:12 a.m. on April 4, 2016, he observed the defendant commit multiple lane violations. The defendant’s vehicle veered toward his patrol car, crossed over the double yellow line three times, veered into the painted median twice, and veered toward the opposite lane of traffic. After observing the defendant commit “approximately five lane violations,” the officer effectuated a traffic stop.

The officer approached and asked the defendant for his license. In attempting to retrieve his license, the defendant’s hands slipped multiple times, and before handing the license to the officer, the defendant dropped it in his lap. He also dropped his cell phone in his lap. The officer asked the defendant if he had drunk alcohol or was on any medication, and the defendant answered in the negative to both.

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The Fourth Amendment protects U.S. residents from unreasonable governmental searches and seizures. This fall, the Illinois Supreme Court was tasked with deciding whether an alleged hospital blood draw violated an Illinois DUI defendant’s constitutional rights.

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The defendant was charged with DUI following a motorcycle accident. He filed a motion to suppress the results of blood-alcohol testing on the ground that the blood draw performed at the hospital after his accident violated the Fourth Amendment. Specifically, he argued that the police officers forcibly placed him in an ambulance, despite his refusal of medical treatment. The motion further argued that the blood draw performed at the hospital was a search conducted without a warrant, without consent, and without exigent circumstances. The trial court granted defendant’s motion, and the appeals court affirmed. The state petitioned to the Illinois Supreme Court, which accepted the appeal and reversed.

The state argued on appeal to the Illinois Supreme Court that the lower court erred in holding that the defendant established a prima facie case that the alleged blood draw was an unreasonable search. The state high court agreed.

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The Fifth Amendment to the United States Constitution protects Illinois DUI defendants and those in other states from self-incrimination. The Georgia Constitution’s protection is broader. It applies to more than just testimony, also applying to coercive acts that generate incriminating evidence. This fall, the Georgia Supreme Court had to decide whether the Georgia Constitution‘s protection prohibited police from forcing someone suspected of DUI to be breathalyzed.

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The defendant was convicted of DUI and related traffic offenses. He appealed. He challenged the lower court’s denial of his motion to suppress the results of a breath test. He argued that Georgia’s implied consent notice statute was unconstitutional. He further contended that his state constitutional right against selfincrimination was violated when law enforcement asked to breathalyze him, and the deceitful language of the implied consent notice was coercive. For these reasons, the defendant argued that the admission of his breath test results violated his constitutional rights.

The court agreed with the defendant that taking a breath test implicates a Georgia resident’s state constitutional right against compelled selfincrimination, and it overruled precedent ruling otherwise. The court reasoned that the relevant portion of the Georgia Constitution prohibits compelling a suspect to perform an act producing incriminating evidence, but it does not ban compelling a suspect to be present so that another person may perform such an act.  And, as with other constitutional rights, a suspect may consent to act in a way the statute would prevent the state from compelling.

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This summer, the Florida Supreme Court heard arguments regarding whether the state has sufficient rules for measuring the blood-alcohol levels for DUI suspects. The case arose after a Palm Beach millionaire was convicted of DUI manslaughter following a 2010 collision. His attorneys challenged the Florida Department of Law Enforcement (“FDLE“) rules before the state high court. While the rules are not exactly the same in Illinois, people charged with an Illinois DUI may raise similar types of arguments in some cases.

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Following a late-night two-vehicle accident, in which the other driver died after his vehicle was submerged in a canal, the defendant was charged with DUI manslaughter with failure to render aid (Count 1) and vehicular homicide with failure to render aid (Count 2). He was convicted and sentenced following his first trial. After juror misconduct came to light, his first conviction was vacated, and he was granted a new trial.

At the second trial, the evidence showed that he ran a stop sign without braking and “t-boned” the victim. He was going 63 miles per hour in a 35 mile per hour zone. The force of the impact pushed the victim’s Hyundai through the intersection and into a nearby canal, where it came to rest upside down. The defendant did not remain on the scene or assist the victim, who ultimately drowned. The victim did not sustain fatal injuries in the collision itself. Earlier in the evening, the defendant had consumed alcohol at several venues, the amount of which was a contested issue at trial. He was charged with DUI Manslaughter, Failure to Give Information or Render Aid, and Failure to Render Aid and Vehicular Homicide.

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This fall, the Massachusetts Supreme Judicial Court considered whether field sobriety tests (FSTs) could be admitted as evidence when a police officer suspects the driver has been driving while under the influence of marijuana. In determining whether a suspect is driving under the influence of alcohol, police typically administer three FSTs — the “walk and turn test,” the “horizontal gaze nystagmus test,” and the “one leg stand test.” These tests were specifically developed to measure alcohol consumption, and there is agreement in the scientific community that a strong correlation exists between insufficient performance on the FSTs and a BAC (blood-alcohol content) of over .08% (the legal limit). By contrast, there is no scientific agreement yet that FSTs, or some FSTs, can determine marijuana intoxication.

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In 2016, the Illinois governor signed SB 2228, dictating that drivers will be subject to Illinois marijuana DUI charges only if they have at least 5 ng of THC in their blood, or at least 10 ng of THC in their saliva. Prior to the law, the state could bring DUI charges even when the subject had just trace amounts of THC in their system. This meant that someone who smoked marijuana weeks prior could still test positive and be charged with a misdemeanor. The fact that people could face DUIs for trace THC in their systems “was making a crime without any criminal intent,” said an Illinois public defender.

The new Illinois law did not change the pre-existing law making it a DUI to drive while under the influence of cannabis. At trial, the state must prove by the arresting officer’s expert testimony that the person was impaired due to the consumption of cannabis. As with a DUI for alcohol, a person can be found guilty even if he or she is under the “legal limit” if the court finds that he or she was impaired to the point that he or she was unable to safely operate a motor vehicle.