Proposed Illinois Law Regarding Drunk Driving

Illinois Rep. Keith Farnham (D-Elgin) proposed legislation to allow police with warrants to use reasonable force to facilitate blood draws over the objection of DUI suspects. HB 4969, pending before the rules committee, would arguably set a dangerous precedent, setting aside long-established patient consent rights to facilitate prosecutions. Under current law, police authority to use any force to facilitate a blood draw when serving a warrant requiring a suspect to provide blood for testing is unclear, and health department rulings generally preclude hospital staff from providing any treatment or test without consent of the patient. A bill similar to HB 4969 failed to pass last year.

The impetus for the bill is the disparity between mandatory license revocation periods for repeat drunk drivers and mandatory suspension periods for suspected drunk drivers who refuse blood tests. By refusing the test, a suspected repeat drunk driver can sometimes avoid conviction and suffer a three-year license suspension rather than the five-year revocation a conviction would bring.

But while the bill would hinder strategic blood test refusals and provide police certainty as to the scope of their authority in serving warrants for DUI blood tests, it would move into dangerous territory few jurisdictions will enter. Under current laws requiring informed consent for medical treatment, health departments will not allow doctors to forcibly draw blood from a patient. Upsetting longstanding tradition to help police with traffic law enforcement may lead to distrust of the medical profession with dangerous collateral consequences. Moreover, forcibly drawing blood may lead to patient injuries and legal claims for compensation.

Some Illinois localities have tried to copy the experience of Dallas, Texas, in holding No Refusal days on holiday weekends and other high traffic times. Dallas set up round-the-clock services to support its No Refusal program, including a judge on call and a willing hospital phlebotomist. The Nicole Lily Lalime Act permits some blood draws without a warrant in Texas, including cases of suspected DUI when a driver has two or more previous convictions. Some lawyers in Texas nevertheless contend that the mandatory blood draws are prohibited by the Sixth Amendment as unreasonable searches and seizures.

Police believe that mandatory blood draws aid prosecution by providing almost irrefutable evidence of intoxication, whereas breathalyzers are often challenged due to calibration and other issues. More significantly, toxicology screens conducted on blood provide evidence of drug intoxication as well as alcohol intoxication, something a breathalyzer does not do. With drug intoxication while driving becoming increasingly prevalent, police are eager to have mandatory blood tests in their arsenal.

While the Dallas experience may have buoyed police enthusiasm for No Refusal days in Illinois, it has been of little practical effect. When Kane County has attempted such a campaign, hospitals have refused to draw patient blood without consent.