Kane County State’s Attorney John Barsanti has decided to bring back “No Refusal” traffic stops for St Patrick’s Day – Saturday night into Sunday, March 14 and 15, and Tuesday night into Wednesday, March 17 and 18, reports Matt Hanley of the Aurora Beacon News. The “No Refusal” policy refers to the right of motorists to refuse breath or blood testing after a DUI stop – sort of....

Illinois law states that drivers shall be deemed to have given consent to testing of blood, breath, or urine for the purposes of determining whether the driver is under the influence of alcohol or drugs if the driver is arrested.  For the purposes of this law, “arrested” means that the driver has been issued a traffic ticket for DUI (or an accident involving personal injury or death, which isn’t at issue here).  The law is clear about this “implied consent” – it’s part of being able to drive legally in Illinois.

That said, the law specifically provides for the penalty for refusing to submit to any chemical test, which is a driver’s license suspension, called a “statutory summary suspension.”  That suspension is administrative through the Secretary of State, and the person who refuses to submit to chemical testing need not be found guilty of a DUI to incur the automatic suspension for that refusal.  The law even requires the law enforcement officer to inform the driver that refusing the chemical test will result in statutory summary suspension of the driver’s license.  Of course, the statutory summary suspension can be challenged as well, as the law requires that the officer have reasonable grounds — basically probable cause — to request the chemical test in the first place.

The State’s Attorney doesn’t want you to know this, though, because the State’s Attorney essentially wants to rewrite the law, or interpret the law based on only those parts that are good for the prosecution.  The problem for the State’s Attorney is that it can be much more difficult to get a DUI conviction when the driver refuses chemical testing, and drivers refuse chemical testing in roughly 35 percent of stops.  Those drivers will receive a statutory summary suspension anyway, but it is harder to prove that they were driving under the influence than if a breathalyser shows a blood alcohol level over .08.  Sure, we can argue about whether the State’s Attorney really wants to save and protect the community or whether he wants a higher conviction rate.  I think we can safely assume that it’s both.

Regardless of the motivation, the No Refusal policy is supposed to work like this:  The law enforcement officer can’t just force you to take a blood, breath, or urine test, even if you are arrested and taken to the station, without a warrant.  So for No Refusal days, the State’s Attorneys will reportedly immediately obtain a search warrant from a judge — in probably 60-90 minutes’ time.  That search warrant will authorize law enforcement to obtain the evidence – your breath, blood, or urine – and further refusal will subject the objecting driver to contempt charges – and possible jail time – before a judge.  That’s the No Refusal part of the policy.

As Hanley writes, even State’s Attorney Barsanti isn’t going to force drivers into unwanted blood tests.  Of course, despite the questionable legality of strapping someone down and taking blood against his will, ethical concerns, such as the Hippocratic Oath, may also keep medical professionals from performing such tests.  The real point is scaring drivers into thinking they have no right of refusal, and the State’s Attorney has decided that the law – that law enforcement officers simply warn drivers of the statutory summary suspension resulting from refusal – isn’t good enough.  And this seems to have worked, as there was only one driver who refused testing even after a warrant was issued, and his contempt charge hasn’t been resolved yet. 

Let’s be clear here – neither I nor this Law Firm advocate driving under the influence.  We don’t use this blog to give specific legal advice without the facts of your situation, but I think I can make a blanket exception:  Don’t drive under the influence.  We have seen the devastation DUI can cause, particularly right now, as we currently represent three teens injured by a drunk driver in Aurora.

That said, our attorneys are always concerned about protecting your rights.  We as a society need to maintain our rights and freedoms as citizens against unfettered law enforcement.  If you find yourself refusing the No Refusal policy and need legal representation, the attorneys of Joseph P. McCaffery & Associates can help.
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