Kane County, Illinois, Pushes for DUI Enforcement with Blood Tests

Kane County, Illinois, Plans Push for DUI Enforcement with Blood Tests

‘No refusal’ weekend puts prosecutors, judge on call for search warrants, amid uncertain legal footing

April 21, 2010

Chicago Tribune - Kane County is planning another "no-refusal" weekend despite some legal and legislative uncertainties surrounding the program aimed at compelling suspected drunken drivers to surrender a blood sample.

"We've got one in the works," State's Attorney John Barsanti said earlier this month.

He declined to say when and where the enforcement action would take place. Past efforts have coincided with holidays, when greater numbers of revelers — and drunken drivers — take to the streets.

During a no-refusal weekend, prosecutors and a judge are on call to draft search warrants for suspected drunken drivers who refuse to provide blood or breath evidence. A phlebotomist is also on hand to draw blood.

The program is aimed at repeat offenders who don't want to provide incriminating evidence in the form of a sample, often the critical piece of evidence in a DUI prosecution. Refusing the test is illegal, but refusal can be to a repeat offender's advantage: A second DUI conviction comes with a five-year revocation of driving privileges, instead of the three-year suspension for refusing.

During previous no-refusal weekends, most drivers served with warrants complied. But two cases where drivers refused even in the face of a warrant have threatened to take some of the teeth out of the law. In the first, a driver who refused was cited with contempt of court for disobeying the search warrant. However, a county judge later dismissed the contempt citation, saying it was a poor fit legally.

So Barsanti's office tried a new tactic and charged a driver suspected or DUI with obstruction of justice. That case is still working its way through the system.

Illinois law does not explicitly allow a blood sample to be taken by force. For that and safety and liability reasons, no one stopped during a no-refusal crackdown has been physically forced to provide a sample.

Barsanti acknowledged that an argument could be made that there is implied authority to use force. Police executing a search warrant, for example, can batter down the doors of a house where suspected illegal activity is taking place. But Barsanti said he's not willing to use force without legislative authorization.

"There could be a lot of consequences if we're not right," he said.

State Rep. Keith Farnham of Elgin has sponsored a bill that would grant police the authority to forcibly draw a blood sample if authorized by a warrant. A similar measure proposed last year did not pass the General Assembly.