Recent Developments in Illinois DUI Law
By Donald J. Ramsell ©1999
The Second District has recently issued two opinions regarding the discovery of dispatch audio tapes, and the possible sanctions for the inadvertent destruction of the same after they are requested by a defendant.
In People v. Schambow, 305 Ill. App. 3d 763, 279 Ill. Dec. 525 (2d Dist. 1999), the Court, while reversing the outright recission of a summary suspension, suggested that the appropriate sanction would be to bar the state from presenting evidence obtained by the officer as a result of the dispatch.
In People v. Petty, slip op. 2-98-1291 (decided 2-10-2000), (2d Dist. 2000), the Court, while reversing the total exclusion of the arresting officers testimony, suggested that the proper sanction should be to bar the State from presenting evidence that might have been included on the dispatch tapes.
Two Appellate cases have addressed the propriety of roadblocks in DUI or criminal cases.
In People v. Adams, 293 Ill. App. 3d 180, 687 N.E. 2d 491 (2d Dist. 1997), the Court identified several factors to be weighed in determining the propriety of roadblocks:
"that the checkpoint (1) was authorized and selected by policy-level or politically accountable officials; (2) was operated pursuant to sufficiently specific, standardized, preexisting guidelines to limit officer discretion; (3) was operated in safe manner; (4) was publicized clearly and in advance; and (5) was actually effective in advancing the interest in question. "
Holding that the State provided insufficient evidence as to several factors, the Adams Court affirmed the suppression of evidence.
In People v. Fulwiley, 304 Ill. App 3d 44, 237 Ill. Dec. 861 (2d Dist. 1999), the Appellate Court declared a roadblock was unconstitutional. The court found that a license-check roadblock was less compelling than a DUI roadblock, that the roadblock was set by a non-politically accountable sergeant, that the lack of written guidelines and the failure to prove the effectiveness of the roadblock rendered it unconstitutional.
3. DUI DRUGS
In People v. Shelton, 303 Ill. App. 3d 915, 237 Ill. Dec. 12 (5th Dist. 1999), the Court held that laypersons and police officers could not render any opinion that a person was under the influence of drugs or a combination of alcohol and drugs, without specialized training. The police officers six years experience with drug users, and the "small block" of training in DUI school regarding drug influences was determined to be insufficient.
Practice Tip: The evidentiary foundation for an officer's opinion as to whether one is under the influence of drugs should also apply to a motion to quash arrest and suppress evidence.
4. SPEEDY TRIAL
In People v. Vasquez, Slip op. 2-98-0800 (decided 2-1-2000), (2d Dist. 2000), the Appellate Court reversed a conviction for DUI and reckless homicide, finding that the State's failure to provide court ordered discovery requested by defendant, thereby causing a delay in trial, was a delay attributable to the State. This case distinguishes other cases that normally hold that motions filed by a defendant toll the speedy trial period.
5. DUI INDICTMENT-PERJURED TESTIMONY
In People v. Hruza, 2-99-0389 (decided 3-17-2000), (2d Dist. 2000), the Court held that an officer's erroneous statement to a grand jury that defendant had failed all of the field sobriety tests, was insufficient to cause the DUI indictment to be dismissed in light of the officer's additional testimony that the defendant's car swerved and describing the defendant's physical appearance (i.e. odor of alcohol and bloodshot eyes). The Court viewed its role in reviewing grand jury proceedings as extremely limited.
Also, the Court found that the introduction of electronically transmitted abstracts as prima facie evidence of a revocation of a charge of driving while license revoked, was not a violation of the ex post facto law, even though the law was not enacted until after the date of offense. The Court found the enactment did not lessen the State's evidentiary burden at trial. Further, the Court noted that defendant had the opportunity to rebut the facts but did not do so.
6. HOSPITAL BLOOD
In People v. Ernst, slip op. 2-98-1489 (decided 2-16-2000), (2d Dist. 2000), the Appellate Court reversed a motion to quash arrest. The trial court had ruled that Defendant's emergency health care providers had improperly reported the Defendant's blood alcohol results to the police in violation of the physician-patient privilege.
On review, the Court held that direct disclosure of blood alcohol tests to law enforcement personnel under 11-501. 4-1(a) did not violate the physician-patient privilege. The court also rejected defendant's argument that disclosure of medical records without judicial supervision was improper, distinguishing itself from the case of Village of Arlington Heights v. Bartelt , 211 Ill. 2d 747, 750 (1991), and others.
7. WARNING TO MOTORISTS
In City of Rockford v. Elliott, slip op. 2-98-0957 (decided 11-19-99), (2d Dist. 1999), the Court held that the civil penalties for refusing a chemical test may be inadmissible at the criminal trial. While evidence of the refusal itself is admissible by statute, the consequences of the refusal may not be statutorily admissible.
8. BREATH TEST OPERATING PROCEDURES
In Village of Bloomingdale v. Meline, slip op. 2-99-0215 (2d Dist 1999), (decided 12-28-99), the Appellate Court held that the defendant failed to make out a prima facie case for recission on the basis of a walkie talkie in the testing room. The court held that unless the walkie talkie was "on", no violation of the operating procedures had occurred.
In People v. Morris, 703 N.E.2d 923, 1998 Ill. App. Lexis 819 (5th Dist 1998), the court held that the failure of the Intoxilyzer 5000 to perform a post-analysis room air analysis (air blank) and the use of a simulator solution with a differential of greater than .01, constituted a basis to suppress the breath test. The court declined to follow People v. Kilpatrick, (2d Dist. 1991) 216 Ill. App. 3d 875,576 NE2d 546.
9. INFORMANT TIPS AS BASIS OF STOP
In People v. Gray, 304 App. 3d 124 (3rd Dist. 1999), the Court held that an informants tip alone can constitute the basis for a stop of a vehicle when every detail of the tip was corroborated. Practice Note: this case did not involve an anonymous tip, and the informant herein was previously known to the officer.