New DUI policy: Refuse breath test, cop will seek instant warrant for blood test

By Robert McCoppin Contact Reporter

Chicago Tribune
April 13 2018 8:50AM
http://www.chicagotribune.com/news/local/breaking/ct-met-dui-no-ref...

Police in McHenry County will be out for blood with drivers who refuse to take breath tests for suspicion of driving under the influence of alcohol or drugs.

And the practice of officers immediately seeking blood draws from those who won’t submit to a breath screen appears to be spreading, with Lake County also planning to adopt a similar policy.

The strategy in many departments takes advantage of technology that allows police to generate an “e-warrant” that can be sent electronically to a judge for review right from a curbside traffic stop.

Law enforcement authorities say their main targets are repeat offenders who not only are the biggest public hazards but also know how to game the system by refusing to take breath tests, making it harder for them to be successfully prosecuted.

“These repeat offenders are some of the most dangerous people out there,” Lake County State’s Attorney Michael Nerheim said. “It’s a recipe for disaster.”

Critics counter that such tactics infringe upon constitutional rights or, at best, could be overly burdensome to emergency room staffs who might have to handle the blood draws.

“It’s just another way for prosecutors and police to use fear and intimidation on ordinary citizens,” said well-known DUI defense attorney Don Ramsell.

Many police departments in the Chicago area already will seek blood draws from those who decline breath tests. Before online e-warrants, some counties had a rotation of on-call judges who would review search warrants at night or on weekends, often at home.

But generally, and in counties including DuPage, the practice is limited to more serious cases, where there’s been an accident with injuries or death or a suspect appears to be a repeat offender.

Kane County also was something of a pioneer in establishing targeted campaigns known as “no-refusal” weekends, sometimes geared around events like St. Patrick’s Day or the Super Bowl, about a decade ago.

But McHenry County’s shift marks a significant expansion of the policy, which will go into effect Sunday, in Algonquin, Cary, Harvard, Huntley, Johnsburg, Lake in the Hills, McHenry, Spring Grove and Woodstock.

The legal system already uses civil penalties as deterrents for refusing a breath test — namely, the automatic suspension of a driver’s license. But police generally can’t force a suspect to submit to a blood test without a warrant, and many motorists accept the trade-off of a license suspension if it lessens the chance they will be convicted of DUI.

McHenry County State’s Attorney Patrick Kenneally said in a news release that refusal is an increasingly common tactic of repeat offenders, one of the reasons he endorsed the expansion of no-refusal.

E-warrant systems now allow the process to proceed much more quickly — before the traces of drugs or alcohol dissipate — with officers able to communicate with a judge through teleconference and a judge providing an electronic signature if the probable cause is proved.

If the warrant is granted by a judge, the suspect will be taken to a nearby emergency room, where blood will be drawn and tested for alcohol and drugs. In Lake County, Nerheim hopes to work with the sheriff to have the jail medical staff perform the blood draws.

But critics see a system that could be overly burdensome and potentially unfair.

Defense attorney Robert Hanaford said court rulings have generally allowed blood draws if there is probable cause for a search warrant, like a driver weaving in traffic, having glassy eyes or slurred speech or failing a field sobriety test.

But Hanaford anticipates possible problems with overtaxed health care workers having to take so many blood draws so often for police. He envisions police taking suspects to crowded emergency rooms on weekend nights, and drivers who may be hostile or physically resisting needle draws.

Another concern is that police are increasingly dealing with drivers who may be using prescription drugs or, with an aging population, may be in the early stages of dementia.

“From a constitutional standpoint, they can probably get away with this, but from a practical standpoint they’re going to run into some difficulties,” he said. “I applaud the effort to get impaired drivers off the road, but I think it’s going to be burdensome. They’re putting medical professionals in the line of performing law enforcement duties.”

Ramsell said drivers should still have a right to refuse a blood draw and that police shouldn’t use force or intimidation to get them to cooperate.

Police could surround drivers and threaten other charges, or use physical force to secure a blood sample, as he said has occurred in documented cases.

“Is that what you want?” he asked. “I don’t think the Hannibal Lecter approach will reduce commission of the offense.”

Complicating the matter, more health professionals are refusing to become agents of the police. In Utah, a nurse was handcuffed after refusing to allow police to draw blood without stated consent from an unconscious driver. The nurse was later paid $500,000 to settle the dispute over her arrest, and the officer was fired.

Ramsell said he would challenge the legality of any forced blood draws. “Good luck,” he said of the tactic. “I’ll see you in court.”

Some states have passed laws making it a crime to refuse a blood test. In Lake County, Nerheim said those who refuse to cooperate would be charged with obstruction of justice.

The county has a pilot program using electronic warrants. So far it’s used only by Waukegan police, the Lake County sheriff’s department and a special gang unit, so Nerheim hopes to expand that countywide.

Under Illinois law, by driving a motor vehicle, motorists are legally considered to give “implied consent” for a breath or blood test. Even a person who is dead or unconscious is deemed to have given consent.

Refusal can result in automatic suspension of the person’s driver’s license, but defense attorneys generally say it’s easier to get driving privileges back with such a suspension than with a license that’s revoked for a DUI conviction.

rmccoppin@chicagotribune.com

Twitter @RobertMcCoppin