An article in this morning's paper should be a warning to drivers planning to drive into or through DuPage County this week-end.
Notice that I say that without reservation. Why?
DuPage County State's Attorney Robert Berlin is going to make life miserable for anyone arrested for DUI who refuses a breathalyzer. His plan is to have that driver taken to a "central location", where an assistant state's attorney and a judge will be standing by through the week-end. (What happens to the driver's car? Towed?) The cop will ask for a warrant; the judge will issue the warrant; then medical personnel will stick the driver and draw blood, which will be tested for blood-alcohol content.
Is this legal? Is a driver thus being required to subject himself to an invasive procedure and provide evidence which could be used against him?
Bad move, Mr. Berlin!
What does State law provide, for the driver who refuses to submit to a test for alcohol above the legal limit for driving (0.08% BAC)? A summary suspension of his driving privileges and the attendant expense to restore his privilege to operate a motor vehicle on public roadways.
Consider what happened in McHenry County recently, when a man was arrested for DUI and refused a breathalyzer. His blood was drawn at a hospital, and his BAC was 0.04%. What? Less than 0.08%? Right!
So he was not drunk! Now what happens? He is still subject to a summary suspension, just because he refused the test! Is this fair? Who pays for his lawyer to defend him on the summary suspension charge and on the DUI charge? Who pays for the restoration of his Driver's License? How long does he have to wait before he can drive again?
What keeps a cop from charging someone with DUI, even if he knows the person probably isn't drunk? Should his police department have to pay all the costs to set things straight?
Does something in DuPage County this week smack of a kangaroo court? Sort of a "Give him a fair trial and string him up"?
With a judge, assistant state's attorney and medical personnel standing by, are cops and deputies going to be expected to keep them busy? Will everybody look like a drunk driver to the cops in DuPage County this week-end?
You never know who is interested…
3 months ago
4 comments:
The driver is still subject to the suspension because he refused the test. Is this fair, no the law is not fair, it is the law (that's why they call it law rather than "fair."
Who pays for the lawyer, the driver does. Who pays for the restoration of the driver's license? The driver does. How long does he have to wait before he can drive again? One year, unless he has had a DUI or statutory summary suspension in the past 5 years: then the suspension is for three years.
What keeps the cop from charging someone for DUI? His/her integrity.
Should the police department have to pay all the costs to set things straight? Umm, no (are you high?)
Does something in DuPage County smack of a kangaroo court? No, because the driver has not been found guilty yet, this is just investigation.
Which brings me to another point. In the article above you "demand" that more be done to find Beth Bentley, however in this article where law enforcement is "pushing the legal envelope, you ask if it is fair, and want law enforcement to pay ....
Pick a horse, Gus! More law enforcement or less law enforcement.
Riddle me this Batman...If someone is involved in a fatality traffic crash and refuses to take the test should the cops walk away? Of course the answer is NO. The prudent procedure is to search for the "fruits of the crime" and under a long time tested Supreme Court test; Schmerber v. California, 384 U.S. 757 (1966), the United States Supreme Court, held that a State may, over the suspect's protest, have a physician extract blood from a person suspected of drunken driving without violating the suspect's Fifth Amendment to the United States Constitution rights.
The alcohol is evidence and the police may withdraw blood as the evidence is being metabolized by the body. IN reckless homicide traffic crash police USUALLY obtain a Search Warrant but if they research the law they would understand that they can hold someone down and extract the blood. SO SAYS THE USSC.
In a NORMAL DUI (if there is such a thing) implied consent specifies that as long as there was probable cause to make an arrest a driver's license suspension follows.
Obtaining the blood evidence solidifies the States DUI case so there is a conviction for DUI also. Seems someone in DuPage Cty grew a pair and is serious about convictions.
Why muddy the issue with your riddle? The ASA, judge and blood technician in DuPage County are not standing by "in case of a fatality".
Needless to say, I know of a man whose BAC was 0.04%. Yet he must defend a DUI ticket and fight the Summary Suspension.
Plus I know of a man in eastern Iowa who was charged with DUI and Summary Suspension and was found Not Guilty. He then wasted weeks and $$$s after the verdict, because his lawyer "forgot" to ask the judge to order the return of his D/L. (Hint: more money to the lawyer?)
Read the law Gus. It is not specific to alcohol.
Sec. 11‑501. Driving while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds or any combination thereof.
501 (a) (3) under the influence of any intoxicating compound or combination of intoxicating compounds to a degree that renders the person incapable of driving safely;
A person does not need to have a BAC over .08 if there is a reason to believe he is under the influence of any intoxicating compound or combination of intoxicating compounds. That is probably why there was a blood draw. Maybe your friend was high and the combination of drugs or cannabis and alcohol made him clearly a danger.
Regarding the "Reckless homicide", there are other USSC cases which address the 4th amendment search aspects and blood draws such as Breithaupt v. Abram, 352 U.S. 432 (1957)
The DuPage SAO wants to have the best case he can and make a clear unambiguous case that the evidence was obtained legally. The idea is get these drunks off the road. You seem to support the drunks
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