Appellate Court rules blood and urine illegally obtained in fatal DUI case

An Illinois Appellate Court reversed a trial court’s ruling in a fatal DUI crash.

According to the Opinion, the motorist was driving with his children in the back seat.  One of his kids tried to hand him a candy wrapper to open.  When he momentarily turned his head, his van struck a seven year old boy, who was riding a bicycle and had darted out into traffic between two parked cars.  The motorist immediately stopped and ran into the nearby City Hall to get assistance.

The investigating officers testified that they did not observe any indications that the motorist was impaired by either alcohol or drugs.  Nevertheless, he was taken to a hospital to provide blood and urine screens.  The tests results showed the presence of THC and amphetamines and the motorist was charged with DUI.

A few days later, it was determined that the motorist had not been read the “Warnings to Motorist” form that would advise him of his rights regarding the chemical testing.  A second test was then ordered.

The defendant was found guilty and received a sentence of 54 months.

On appeal, the Court noted that there was no probable cause to believe that the motorist was impaired or that he had caused the accident.  No citations had been issued, and he was not under arrest at the time of the blood test, as required by Illinois law.  As a result, the results of the tests were suppressed and since there was no other evidence to support a finding of guilty, his conviction was reversed.

You can read the opinion here:  People v. Hayes, 2018 IL App (5th) 140223 (February 15, 2018) .

New DUI forfeiture opinion upholds forfeiture of Wife’s Harley driven by Husband

The Illinois Supreme Court has reversed an Appellate Court ruling that I previously discussed on this blog.

In the case, a husband and wife went drinking.  The husband’s license had already been suspended for drunk driving.  The wife claimed that she had been the driver of the motorcycle, but when the left the bar to go home, her husband, who had a key fob, got on their Harley Davidson first and refused to relinquish control.  He was later arrested with DUI with a BAC of twice the legal limit, and the vehicle was forfeited.

The Appellate Court held that the forfeiture was unconstitutional, considering that the wife had paid $35,000 for the bike and that she was not the one violating the law.

On further appeal to the Illinois Supreme Court, the Court noted that the actual value of the vehicle at the time of the forfeiture had not been proven during the forfeiture hearing, only the cost of purchase four years earlier.  It also held that the wife bore some degree of culpability for this occurrence, because she knowing consented to her husband driving even though she knew that his license was suspended and that he was intoxicated.

Read the Opinion here:  The People of the State of Illinois ex rel Matthew Hartrich v. 2010 Harley Davidson, 2018 IL 121636 (February 16, 2018).

IL Appellate Court rules that blood in motorist’s mouth invalidated her breath test

In a new Illinois Appellate Court opinion (People v. Ernsting, 2018 IL App (5th) 160330), the Court affirmed a trial Court’s ruling that a breath test result was inadmissible due to the motorist bleeding inside her mouth.

According to the opinion, the motorist claimed that after having three beers with dinner, she went for a ride with her 85 pound dog.  During the ride, the dog was unruly, and was licking her face and obstructing her view.  As a result, the defendant crashed her car.

She testified that before taking the breath test, she was bleeding from her mouth.  The arresting officer did not check her mouth, in violation of the Illinois Administrative Code rule for breath alcohol testing, which requires that the breath test operator observe the subject for 20 minutes prior to the test, to ensure that there is no foreign substances in her mouth.  The Court found that blood is a foreign substance.

The Court also heard testimony from Ronald Henson, PhD., a breath test expert (who I have used in a few DUI cases and one civil case in the past).  Dr. Henson testified that blood in a subject’s mouth is a “foreign substance” and would elevate their BAC result and make the test unreliable.  This was supported by Henson’s opinion that the defendant did not appear to be intoxicated on the arrest video.  He also pointed to mistakes that the officer made in administering the breath test.

Due to these errors, the Defendant’s breath test of 0.215 was suppressed from evidence at her trial and her statutory summary suspension was rescinded.

Oregon Appellate Court Reverses Wheelchair DUI Conviction

Can you get a DUI in a motorized wheelchair?  The Oregon Appellate Court has said no.

From the Associated Press:

The Oregon Court of Appeals has reversed the conviction of a wheelchair user who had been found guilty of driving under the influence of intoxicants.

James Greene of Waldport was arrested in November 2012 after entering a crosswalk in a motorized wheelchair and striking the side of a moving pickup. Police determined he was impaired by alcohol and drugs, and a jury convicted him of drunken driving.

In his appeal, Greene argued that he should have been considered a pedestrian, not subject to the DUI law.

The state disagreed, pointing to a law that treats motorized wheelchairs like bicycles when they are driven on bike lanes.

In its opinion Thursday, the Appeals Court decided legislators only intended to have wheelchairs treated like bicycles in that narrow circumstance, and users should be considered pedestrians when in a crosswalk.

What about Illinois?  It is an open question.  The Illinois Vehicle Code defines a vehicle for DUI purposes as:

Every device, in, upon or by which any person or property is or may be transported or drawn upon a highway or requiring a certificate of title under Section 3-101(d) of this Code, except devices moved by human power, devices used exclusively upon stationary rails or tracks and snowmobiles as defined in the Snowmobile Registration and Safety Act.

For the purposes of this Code, unless otherwise prescribed, a device shall be considered to be a vehicle until such time it either comes within the definition of a junk vehicle, as defined under this Code, or a junking certificate is issued for it.
In Illinois, a motorized wheelchair could qualify as a motorized vehicle.  But common sense has prevailed, as I am not aware of any such prosecution ever being brought.

Illinois Court finds that forfeiture of wife’s 35K motorcycle was excessive penalty for hubby’s DUI

In a recent case from the Illinois Appellate Court, Fifth District, in The People ex. rel. Mathew Hartwich v. 2010 Harley Davidson, 2016 Ill. App. (5th) 150035, it was held that Courts must consider whether a forfeiture is an excessive penalty considering the crime committed.

In this case, a married couple drove to a bar.  The motorcycle, a Harley Davidson valued at $35,000, was owned exclusively by the wife.  The wife drove the vehicle to the bar, where she did not drink.  However, her husband, who became intoxicated, insisted on driving home.  He was stopped by police and charged with felony aggravated driving under the influence, because he did not possess a valid driver’s license at the time.  He had only driven 12 blocks to his home.  He had a blood alcohol level of 0.161, twice the legal limit.

The State filed for a vehicle forfeiture.  In Illinois, a vehicle can be forfeited if used in the commission of an aggravated DUI or driving while revoked, and the revocation was based upon a prior DUI conviction.  Vehicles can be forfeited even if the owner was not operating the vehicle, so long as he or she knew of the illegal use of the vehicle and consented to it.

The Court found that the forfeiture in this case was grossly disproportionate to the underlying offense of aggravated DUI.  To support its finding the Court emphasized three factors: 1) that the owner of the vehicle was not the person who committed the offense; 2) the husband only drove 12 or 13 blocks from the bar to their home and 3) the Harley had an estimated value of $35,000

Cook County Judge Censured for false mortgage application

The Illinois Courts Commission has censured Cook County Judge Beatriz Santiago for making false statement on a mortgage application.  The full text of the order can be found here: https://www.scribd.com/document/321625953/Santiago-order

The gist of the complaint was that Santiago has owned a home since 2005.  In 2012, she decided to run for a the Sixth Judicial Subcircuit, even though her home was outside the subcircuit.  She claimed to have solved the residency issue by moving in with her parents, who do live in the subcircuit.  She did not sell the house.  There was a residency challenge to her candidacy, which she defeated, and then she went on to win her election.

After being sworn in, she then sought to re-finance her house.  As part of this process, she affirmed several times that the house was her principal place of residence.  This helped her obtain FHA loan approval for the refinance.  It also was revealed by a WGN investigation that the Judge had claimed a homeowner’s tax exemption on the property in 2012, which she later paid back.

In her defense, she claimed that she did not read the paperwork closely, and had quickly signed it during a lunch break.  She was a former public defender not familiar with real estate law.  She claimed that she in fact lives with her parents in the subcircuit, does not live at the house, and that it is currently being used by members of her family.  Several attorneys attested to her good character and reputation for honesty.

The Judge was charged with failing to maintain high standards of conduct and failing to respect and comply with the law.  As a sanction, she was censured.

U.S. Supreme Court issues split decision in DUI refusal cases

Today the United States Supreme Court issued its Opinion in three consolidated cases that dealt with states that criminalize anyone who is arrested for a DUI and refuses to submit to a blood or breath test (Birchfield v. North Dakota).

The short version of it is that the Court did not find a problem with state laws that make it a crime to refuse a breath test.  The Court found that a breath test falls within the right of law enforcement to conduct a search subject to arrest and that one’s right to bodily integrity or to avoid self-incrimination were not significantly affected enough to overcome this.

However, the Court found that blood tests are a significant invasion of one’s right to bodily integrity and privacy, and that states could not require warrantless blood draws in DUI cases, except in exceptional circumstances.

Currently, Illinois does not criminalize breath test refusals, however, it does impose a license suspension of one year for first offenders and three years for repeat offenders who refuse to submit to breath, blood or urine testing subsequent to a DUI arrest.  However, now that the Supreme Court has ruled that it is permissible, perhaps that will change.

Personally, I feel that it is deep within our traditions to say no to government, to insist on our bodily integrity, to be free of unreasonable searches and seizures and to have the right to refuse to provide evidence that may incriminate ourselves.  I feel that this opinion, like so many when it comes to DUI, ignores our legal history and tradition, and ignores the important Constitutional protections that makes America the freest nation in the world, merely to make it easier to convict DUI defendants.  This approach is short-sighted.  I hope that our Illinois legislators don’t take this opportunity to further chip away out our freedom and liberty.