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Is a Warrantless Blood Test Allowed in Illinois?

Monday, May 13th, 2013 at 2:15pm

Under Illinois Statute 625-5/11-501.1, drivers are required to submit to a blood, urine, or breath test if arrested for a DUI in Illinois.  Authority for this comes from Illinois’s implied consent law that provides that if you are lawfully arrested for a DUI based on probable cause, consent is implied to conduct the necessary tests to establish blood alcohol concentration (BAC).  Being dead, unconscious, or otherwise unable to communicate does not invalidate this consent.

A preliminary breath test can be requested by law enforcement prior to an arrest, which can be refused.  The results of this test can establish the probable cause necessary to make an arrest.  Refusal, however, will lead to an automatic summary suspension of the person’s driver’s license and fines.

Missouri v. McNeely

A U.S. Supreme Court case, Missouri v. McNeely, decided last month, may bring the above law into question.  In McNeely, a man was pulled over for speeding and crossing the centerline.  He refused a breath test so he was arrested then taken to a hospital for blood testing, which revealed he was driving over the legal BAC limit.  Based on this evidence, he was charged with a DUI.  The man moved to suppress the results of his blood-draw claiming that the warrantless test violated his Fourth Amendment rights.

The Supreme Court agreed with the defendant in this case and refused the reasoning of the State.  The State claimed the rapid dissipation of intoxicating substances in the bloodstream was an emergency circumstance that provided an exception to the warrant requirement.  The Court reasoned that there could be no bright line rule that allowed police to circumvent constitutional parameters in DUI investigations. Further, the Court stated that the blood draws were a violation of privacy that we should be protected against without just cause, i.e. a warrant or an exception thereto.

Implications of McNeely on Illinois Law

So where does that leave motorists subject to Illinois law?  The McNeely case seems to describe the basic scenario every motorist pulled over for a DUI faces.  Does the implied consent eliminate law the warrant requirement in these situations?  Does this new U.S. Supreme Court ruling invalidate the Illinois law?

These are all valid questions, and to that point the Court even talks about implied consent laws in the McNeely holding.  The first mention of such laws note that all 50 states have them and it allows police to enforce DUI laws.  What is implied in this discussion is that these laws are limited and that consent may be revoked, which can lawfully result in penalties and can be used against the person in later criminal proceedings.

The State in McNeely attempted to rely on the implied consent law by asserting that every driver who refuses to submit to a chemical test after being arrested for DUI is always subject to a nonconsensual blood test without a warrant requirement.  The Supreme Court flat out said this is incorrect.  States must conduct case-by-case analysis as to what constitutes an emergency situation that would provide a warrant exception and a routine DUI investigation that did not involve an accident or other justifiable reason to avert the Constitution.

In light of this recent case, it is clear that Illinois law is valid, but does not give police a free pass to conduct warrantless searches in every DUI case where consent to a chemical test is refused.  There is certainly a fine line being drawn here and every case is different.  Your best defense in this situation will certainly come from a qualified Illinois Criminal Defense Attorney who knows and understands the law.

Posted in Criminal Defense, DUI Defense

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