§ 4.8 Evidence

• Library: Illinois DUI and Traffic-Related Decisions (2016 Ed.)

§ 4.8 Evidence

§ 4.8-1 Breath or Blood Test

§ 4.8-1(a) Refusal to Take Test

§ 4.8-1(a)(1) Not Shown

People v. Elledge, 144 Ill. App. 3d 281, 494 N.E.2d 911, 98 Ill. Dec. 789 (3d Dist. l986). Defendant was stopped for DUI based on probable cause. The arresting officer asked defendant to take a breathalyzer which defendant refused. However, defendant offered to take a blood test and the officer agreed to have the defendant take a blood test if the defendant paid for it. Defendant agreed to pay for the test. However, the arresting officer never arranged for the blood test to be administered. The appellate court upheld the trial court's ruling that defendant had not refused to take a chemical blood alcohol test.

People v. Kern, 182 Ill. App. 3d 414, 538 N.E.2d 184, 130 Ill. Dec. 973 (3d Dist. 1989). A police officer had developed a policy of allowing defendants charged with DUI an opportunity to consult with an attorney. Defendant called an attorney in Iowa who professed unfamiliarity with Illinois law and advised defendant to call an attorney from Illinois. The officer decided to treat the second request for calling an attorney as a refusal and the trial court agreed. The appellate court reversed finding there was no evidence defendant refused to take the test.

§ 4.8-1(a)(2) Shown

People v. Hutchinson, 141 Ill. App. 3d 1086, 491 N.E.2d 193, 96 Ill. Dec. 359 (1st Dist. 1986). Due process does not require that a defendant be informed of the consequences if he or she fails to take a breath test.

People v. Griffith, 143 Ill. App. 3d 683, 493 N.E.2d 413, 97 Ill. Dec. 750 (5th Dist. 1986), U.S. cert. denied, cert. denied. People v. Okun, 144 Ill. App. 3d 1066, 495 N.E.2d 115, 99 Ill. Dec. 50 (4th Dist. 1986). People v. Gaddi, 145 Ill. App. 3d 227, 494 N.E.2d 696, 98 Ill. Dec. 574 (lst-1986). A defendant has no right to consult with an attorney prior to taking a breath test.

People v. Doherty, 144 Ill. App. 3d 400, 494 N.E.2d 933, 98 Ill. Dec. 811 (2d Dist. 1986). Defendant was held to have refused to submit to a breathalyzer test because of his inability to follow directions of the police. Defendant was intoxicated and, when initially asked to take a test, he wanted time to think about taking it. After agreeing to the test defendant tried eight or nine times, but each time defendant would put the mouthpiece in, he could not get his lips around it to seal the air flow so a result could be registered. The appellate court found an intoxicated defendant cannot hide behind his intoxication in explaining his refusal to take a breath test.

People v. Kirby, 145 Ill. App. 3d 144, 495 N.E.2d 656, 99 Ill. Dec. 209 (4th Dist. 1986). Defendant was injured in a motorcycle accident. The arresting officer testified defendant smelled of alcohol, had bloodshot eyes, his speech was slurred, and, when told of the consequences of failure to take a breath test, defendant refused the test. At the hearing defendant testified he did not remember being in an accident nor the two days following the accident. The appellate court reversed the trial court's ruling that defendant had not made a knowing refusal. A refusal by a defendant need not be shown to have been a knowing one.

People v. Graziano, 151 Ill. App. 3d 475, 502 N.E.2d 822, 104 Ill. Dec. 325 (2d Dist. 1986). Defendant refused to take a test before he consulted with an attorney. After consultation with his attorney, defendant requested to take test and the officer refused to give a test to defendant. Defendant was held to have no right to a second opportunity.

People v. Wagner, 152 Ill. App. 3d 34, 504 N.E.2d 21, 105 Ill. Dec. 252 (1st Dist. 1987). (Pre-1986 law.) Defendant was in an auto accident and while being questioned at hospital, the arresting officer noticed an odor of alcohol. Also defendant was thick-tongued, had...