June 23rd, 2008
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.
May 16th, 2008
Illinois judges are on a roll:
Almost without exception, any Illinois judge arrested for DUI refuses to take a breath test. Many also refuse the field sobriety test.
From the AP, via the Daily Chronicle:
TINLEY PARK, Ill. - A Cook County judge is expected to appear in court next month on drunken driving charges filed last week in the southern Chicago suburb of Tinley Park.
Tinley Park Police Commander Rick Bruno said Thursday that 47-year-old Judge Sheila McGinnis of Chicago was charged with misdemeanor driving under the influence after she struck another vehicle stopped at a traffic light on the evening of May 8.
Bruno said it appeared McGinnis was not traveling at a high speed, and neither she nor the five occupants of the minivan she struck were injured.
Officers said that when police arrived, McGinnis appeared intoxicated and smelled strongly of alcohol, but she refused to submit to a field sobriety test or a breath analysis.
Since covering appellate courts for the Chicago Daily Law Bulletin in 1999 and 2000, I’ve been intrigued by the uncanny consistency with which judges handle DUI arrests.
Who knows the law better than a judge?
Last spring, I authored an overview on this topic for the Register Star:
Cases filed by the state’s Judicial Inquiry Board, which prosecutes judicial misconduct, read like a playbook for limiting your culpability during a DUI stop. […]
John Karns, an appellate court justice from southern Illinois, refused to blow when he was arrested for DUI in 1978. He threatened to fight police officers and “challenged one or more of the police personnel to engage in such fighting,” the JIB said.
The next morning, Karns and his lawyer seized all police documents pertaining to his arrest. The JIB said he and his lawyer destroyed or suppressed them, and that he was never prosecuted.
The JIB prosecuted two other judges arrested for DUI in the 1970s, but its complaints in those cases make no mention of breath or field sobriety tests. In that decade, breath tests were not yet widely used.
George Ray, a trial judge in central Illinois, refused field sobriety and breath tests during his DUI stop in 1989. A sheriff’s deputy stopped him for swerving in and out of his lane 20 minutes after seeing the judge sleeping in his vehicle outside a tavern.
Ray was convicted of improper lane usage but the DUI charge was dropped.
Edwin Gausselin, a Cook County judge, was stopped in 1998 for DUI in Michigan City, Ind. He refused field sobriety and breath tests, and officers later found an open bottle of whiskey in his vehicle. An Indiana judge dismissed a drunken driving and two other criminal charges, according to the Chicago Daily Law Bulletin.
The same year, a sheriff’s deputy arrested LaSalle County Judge Cynthia Raccuglia for DUI. The deputy discovered her vehicle in the middle of a street after another motorist towed it from a ditch. As the deputy followed her from the scene, the judge steered her vehicle off the road and attempted to drive down railroad tracks.
Raccuglia submitted to field sobriety tests but refused to take a breath test. She pleaded guilty to reckless driving.
Then in late April, there was this:
Lake County Chief Judge David Hall refused to take Breathalyzer and field sobriety tests Saturday morning when he was pulled over for allegedly weaving across the center lane, according to Lake County court documents.
April 30th, 2008
When the chief judge of Lake County was stopped recently for DUI, he reportedly refused to take a breath test.
Lake County Chief Judge David Hall refused to take Breathalyzer and field sobriety tests Saturday morning when he was pulled over for allegedly weaving across the center lane, according to Lake County court documents.
It’s no wonder. Judges know the law.
Last spring, in an examination of cases in which Illinois judges are stopped for DUI, the Register Star found that judges generally do not blow.
Illinois law encourages motorists arrested for DUI to consent to breath tests, and it penalizes them when they refuse. Under the law, anybody arrested for DUI in Illinois has given “implied consent” to testing of his or her breath, blood or urine to determine blood-alcohol concentration.
If you’re arrested for DUI and refuse a breath test, your driver’s license is automatically suspended for six months. A misdemeanor DUI conviction, on the other hand, means up to a year in prison, loss of driving privileges for a year, 100 hours of community service and a fine of up to $2,500, according to the Illinois secretary of state’s office.
With each subsequent conviction, the penalties grow.
Drivers who know the law know it may be in their best legal interest not to blow.
“You’re depriving the state of that evidence, so you’re enhancing the chances that you will avoid criminal sanctions that will ensue if you’re found guilty of criminal charges. And in exchange, you’re willing to accept the enhanced penalties — license penalties, not criminal penalties — because you refused,” said Larry Davis, a Des Plaines lawyer specializing in DUI defense.
“You’re not going to go to jail for refusing a breath test or a blood test or a urine test. You will go to jail if you are found guilty of DUI.”
The field sobriety test is another matter. Though there is a mandatory suspension for refusing to blow, there is no such mandatory suspension for refusing the field sobriety test. Interestingly, the Lake County chief judge reportedly refused the field sobriety test, too.
From the Register Star:
The question, as defense lawyer Davis sees it, is not so much whether to refuse to blow but whether to refuse field sobriety tests. He says the results of these tests can give police probable cause to arrest a DUI suspect, which in turn gives an officer the right to ask for a breath test.
Illinois law does not mandate a license suspension for refusing a field sobriety test.
“If you refuse a field sobriety test, you enhance the chances that the officer is not going to have probable cause to make the arrest to begin with,” he said. “If I am telling somebody at a cocktail party what you want to do to avoid a DUI, it’s ‘Don’t take the field sobriety test.’ ”
