Probable Cause, Arrest Required Before Taking DUI Blood Sample

 Posted on December 23,2018 in Criminal Law

Illinois’ implied consent law puts you at a disadvantage when you have been arrested on suspicion of driving under the influence of alcohol. According to the law, all drivers have consented to submit to a blood alcohol concentration test by providing a blood or urine sample. A police officer cannot physically force you to provide a sample, but refusing may lead to additional charges. Police do not need your permission to take a blood sample from you while you are unconscious if there is probable cause that you were involved in a DUI incident. Despite these legal advantages, police may still skip the required steps in obtaining a BAC test sample, which allows you to request that the test results be dismissed from evidence.

Recent Example

In People v. Pratt, an Illinois court determined that the BAC test results from a fatal crash were inadmissible in a DUI case. The defendant had crashed his vehicle into a tractor-trailer, killing a passenger in his vehicle and injuring himself. An officer at the scene testified that the man was incoherent when responding to questions and an open bottle of alcohol was in the back seat of his car. A police chief contacted an off-duty detective, asking him to obtain a blood sample from the defendant at the hospital. The detective asked a nurse to draw the blood sample because the defendant was unconscious.

Probable Cause and Arrest

Prosecutors argued during the trial that the detective did not need a warrant to obtain the blood sample because of the implied consent law. The court responded that implied consent did not apply in this case because:

• Police had not arrested the defendant; and
• There was no proof of probable cause.

The court stated that the prosecution had not shown that the detective or the police chief had probable cause to suspect that the defendant had committed a DUI offense. The detective was not at the scene of the accident and did not testify that he had read an accident report before going to the hospital. The police chief did not testify to say what evidence he directly knew of before calling the detective. The court also found the evidence from the officer at the scene to be unconvincing. The defendant may have been incoherent because he was injured, and there was no evidence that the driver had recently consumed the alcohol found in the vehicle.

Contact a DuPage County Criminal Defense Attorney

Prosecutors cannot use evidence that police illegally obtained from you. A Wheaton, Illinois, criminal defense attorney at Stephen A. Brundage, Attorney at Law, can argue that police did not have probable cause before seizing the evidence in your case. Schedule a consultation by calling 630-260-9647.

Source:

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2018/5thDistrict/5170427.pdf