As a DUI defense attorney, people always ask me, “should I perform the tests?” And my answer is, do what police officers do.
From the Chicago Tribune:
A Woodstock police officer faces arraignment in March for driving under the influence after he crashed his pick-up truck in Round Lake Beach about two weeks ago.
The officer was identified as Michael E. Niedzwiecki, 29, of Lake Villa, who was charged with DUI and failure to reduce speed to avoid an accident, according to a Round Lake Beach Police Department report.
The accident occurred Feb. 11 at 1:49 a.m. on Hainesville Road when Niedzwiecki’s 2007 Ford F250 pick-up went out of control while traveling northbound on a curve close to Clarendon Drive and struck a telephone pole, according to the report, which added that power lines knocked down by the crash blocked northbound traffic on Hainesville between Rollins Road and Clarendon.
According to the report, Niedzwiecki told one of the officers at the scene that he forgot about the sharp curve to the left in the roadway, and that is why he lost control of his truck. The report added that both Niedzwiecki and a woman who identified herself as his wife went to a nearby McDonald’s after the accident and before police arrived to get help.
The officer wrote in the report that Niedzwiecki was slurring his words and had glassy bloodshot eyes and an unsteady gait. “I could smell a strong odor of an alcoholic beverage,” the officer wrote.
When an officer asked Niedzwiecki to do a field sobriety test, Niedzwiecki refused and when asked to submit to a breath test, which he also refused, according to the report, and he was placed under arrest for DUI and was also cited for failure to reduce speed. When asked to make a statement about the accident, Niedzwiecki refused again, the report states.
According to the report, at one point, Niedzwiecki showed an officer his Woodstock police officer badge and identification card.
Read the whole story here: http://www.chicagotribune.com/suburbs/lake-county-news-sun/crime/ct-lns-woodstock-officer-charged-dui-st-0225-20170224-story.html
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.
In Illinois, the only consequence for a DUI suspect who refuses to take a blood, breath or urine is a license suspension which is longer than the suspension he or she would receive had he or she taken and “failed” the test (and there is no suspension for someone who “passes” the test).
However, thirteen states make it an additional crime for a person to refuse such a test. The Minnesota law was recently struck down but the case, and two others, have been taken up by the United States Supreme Court.
In a move that could have a nationwide effect on the roadside actions of police officers, the Supreme Court agreed on Friday to decide whether a blood or breath test for drunk driving can be made without a search warrant and whether, if there is no warrant, an individual can be charged with a crime for refusing to take such a test. The Justices took on three cases raising the issue: two from North Dakota and one from Minnesota. Thirteen states make it a crime to refuse to take a drunk-driving test….
The drunk-driving cases provide the Court with something of a sequel to its ruling in 2013 in Missouri v. McNeely, which left the clear impression that, if police have enough time, they should get a warrant before taking a test of a suspected drunk driver. The Court ruled that the natural dissipation of alcohol in the bloodstream does not always amount to an emergency situation that permits a DUI test without a warrant.
In North Dakota, state laws bars a person from driving in the state if he or she refuses to submit to a chemical test, of blood, breath or urine, to determine alcohol concentration. It makes refusal to take such a test open to prosecution for a crime that carries the same punishment as a conviction for drunk-driving. In Minnesota, state law makes it a crime to refuse an officer’s request to take a chemical test for alcohol in the blood, if the individual has been validly arrested for drunk driving. The cases to be reviewed by the Court involve either a blood or breath test.
Lawyers for the three men involved in the appeals said that the issues they were raising were coming up more frequently in the wake of the McNeely decision. And they argued that the decisions by the state supreme courts in these cases conflict with the McNeely ruling. The Supreme Court, at its private Conference on Friday, considered thirteen cases on these issues, and chose the three from that list — all filed by the same attorneys.
The three apparently were chosen because they involve different legal scenarios: in two of the cases, the individuals were convicted for declining to take a test — one a blood test, the other a breath test. In the third case, the individual was convicted of drunk driving after he refused field sobriety tests and then was taken to a hospital for a blood test against his wishes. The Court will be reviewing that individual’s punishment for refusing the field tests — a two-year suspension of his driver’s license — instead of the jail time and fine he got for the drunk-driving conviction.
The three cases to be reviewed are Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. North Dakota. The three will be consolidated, and will be heard together at a one-hour hearing.