So Much For Not Blowing, Updated X1 and Moved to Top
June 23rd, 2008 at 09:30am Aaron Chambers
As you may know, I’ve taken a keen interest in the fact that judges tend to refuse to consent to breath tests — or, in many cases, roadside sobriety tests — when arrested for DUI.
A motorist faces a mandatory license suspension for refusing to blow, but he or she denies the state solid evidence of intoxication. (There is no such mandatory suspension for refusing a road sobriety test.)
Who knows the law better than a judge? They tend not to blow.
Well, Kane County prosecutors have an answer for motorists who refuse to blow: They’ll take blood to prove intoxication, with or without consent.
From the Tribune:
The county’s first “no-refusal weekend” was aimed at repeat offenders who have found a loophole in Illinois law that issues a penalty for refusing a Breathalyzer test that is less severe than having another DUI conviction.
More than 40 percent of 158 drivers arrested on a DUI charge in April in Kane County refused the test, a number that parallels national statistics, according to authorities.
Without blood-alcohol evidence, “it’s much more difficult to win a refusal case,” Kane County State’s Atty. John Barsanti said.
While new in Illinois, the legal tool has become popular in other states. But it also has raised constitutional and ethical questions from defense attorneys and health officials.
UPDATE 1
A man who refused to provide blood, even after prosecutors secured a warrant for that blood, is now facing a contempt charge.
Stehlik is scheduled to be in court at 9 a.m. Friday. Assistant State’s Attorney Clint Hull said there is no set guideline for contempt of court sentencing, but typically it is less than 180 days in jail. A judge could find someone in contempt, but sentence them to no time, Hull said.
In the future, Barsanti expects avoiding criminal contempt will be the final incentive for drivers who won’t comply with breath or blood tests.
“If the judge finds him in contempt, that will give us some direction,” Hull said.
Entry Filed under: DUI
4 Comments Add your own
1. the.dude.abides.man | June 23rd, 2008 at 12:25 pm
“Privately, [state’s atty] Barsanti had instructed officers not to draw blood, even if the person refused all the tests. So, when Stehlik refused to comply with the judge’s order, prosecutors decided to file a petition for contempt of court.”
So here’s how I read that:
“Here’s a warrant for his blood - but dont try and use it, because if you do, we will catch some major s__t from the American public.”
I can’t believe they had the gall to call this a “no refusal” weekend?! WTF is that? What is difference between this situation and being in court and pleading the fifth amendment? Or refusing to answer police questions before speaking with your lawyer? What a wonderful way to celebrate Memorial Day — force me to incriminate myself.
If I have the “right to remain silent,” and to refuse to answer any police questions and incriminate myself, I should most definitely have the right to refuse a forced blood or breath test.
No matter. I would rather my permanent record have “contempt of court” on it than “DUI.” I definitely wouldn’t resist a cop with a gun, but I’d sure resist one with a needle (or his appointed phlebotomist.) Good luck trying to hit a vein, buddy.
2. Aaron Chambers | June 23rd, 2008 at 12:42 pm
I also was intrigued by that sentence in the story. I wasn’t quite sure what it meant, and I wish the story had elaborated.
Interesting theory.
3. Bookworm | June 23rd, 2008 at 6:37 pm
Somewhere, I think in the Peoria paper regarding their “no refusal” weekend, I read that the U.S. Supreme Court ruled all the way back in 1966 that forced blood alcohol tests for suspected drunk drivers — at least in theory — did NOT violate the 4th and 5th Amendment rules against unreasonable search and seizure or self-incrimination.
However, the court didn’t really clearly rule on the implications of HOW that would be done, or if police officers could push it to the point of strapping down an enraged drunk driver and sticking a needle in him against his will.
It seems to me that since no officer in his or her right mind would want to do this, the “warrants” are pretty much worthless if the suspected driver holds his ground. I guess it will all hinge on what kind of penalty this guy gets for contempt.
The question is, now that drunk drivers (and not just judges) are beginning to figure out that the penalty for refusing tests is less than that of having another DUI on their record, just how should DUI laws be enforced?
4. Aaron Chambers | June 23rd, 2008 at 7:41 pm
Excellent question.
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