In Illinois, a DUI arrest can occur not only when an officer believes that someone is driving under the influence of alcohol, but a DUI arrest can occur when an officer has probable cause that an individual is driving under the influence of any controlled substance or marijuana. Currently, most breath analysis equipment is only able to determine the presence and/or amount of alcohol in a driver’s system. In order to determine whether or not a suspected drunk driver has any other controlled substance in their system (e.g., marijuana, cocaine, heroin, benzodiazepines, etc.), an officer will normally request that the driver submit to blood testing at a hospital (“blood draw”).

The United States Supreme Court has held that breath analysis testing is not subject to Fourth Amendment protection, while blood testing is subject to that protection. This is important because if testing is subject to Fourth Amendment protection, law enforcement will be required to obtain a search warrant issued by a judge for any testing. There are many exceptions to this warrant requirement. For the purposes of this topic, the exception to the warrant requirement that has the most impact is called exigency.

Both under federal and state law, if the police have an exigent circumstance, then they are not required to obtain a warrant. For instance, if police see a gunshot victim run into their home, police can enter that home because there is a risk of an immediate loss of life. No court would require that the officers stop their investigation to obtain a warrant while risking that the gunshot victim may die during the process.

Turning back to DUI blood draws, because such a blood draw is protected under the Fourth Amendment to the United States Constitution, in order to avoid an unlawful search, police must either obtain a warrant for such a draw or establish that there is an exigent circumstances. In the past, police have argued that exigency exists by the very fact that alcohol dissipates over time and the process of obtaining a warrant for a DUI suspect would lead to a “destruction of evidence,” namely that the suspect’s blood alcohol content will decrease during the period the police are obtaining a warrant.

In Missouri v. McNeely, the United States Supreme Court expressly rejected this argument. Among their reasons, the Supreme Court noted that with today’s technological advances, the process of obtaining a warrant can and should be streamlined making the “possible destruction of evidence” unpersuasive. The Supreme Court did not outright ban warrantless blood draws, however. They noted that each individual situation must be judged on a case-by-case basis.

Prior to this decision, Illinois has had a law which dictates that when police have probable cause that an individual is driving under the influence of alcohol or any controlled substance and that driver caused an accident leading to the death or great bodily harm of another, the office must request, and the driver must submit to, a blood draw. This is and was without regard to any attempt to obtain a search warrant and did not address any exigencies which may exist in the situation. In essence, this was a law that ran contrary to the Supreme Court’s decision in Missouri v. McNeely.

That changed on December 26, 2017 when an Illinois Appellate Court was faced with a case where Chicago police officers forcibly drew blood from an individual suspected of driving under the influence after a hit-and-run leading to the death of one individual and permanent injury to another.

The Appellate Court held that the statute which authorized this involuntary blood draw was unconstitutional under McNeely because it did not require a warrant and the fact that death or injury occurs to another does not, in and of itself, create an exigency. Based on this holding, the Appellate Court held that the defendant’s conviction for First Degree Murder should be overturned. It is important to note that the Appellate Court was faced with the question of constitutionality in non-consensual blood draws. A driver consenting to such a blood draw will always obviate the warrant and/or exigency requirements under the Fourth Amendment.

This decision has resolved the conflict that existed in Illinois regarding non-consensual blood draws without a warrant since the McNeely decision. Because the statute was held unconstitutional, the Illinois Supreme Court will surely be reviewing the matter in the future. It will only be a matter of time until we learn whether the Illinois Supreme Court agrees with the Appellate Court’s reasoning or whether the Illinois Supreme Court will determine that, because the statute authorizing such a blood draw is administrative in nature, the law is not unconstitutional.

[1] Birchfield v. North Dakota, 579 U.S. ___ (2016)

[2] Missouri v. McNeely, 569 U.S. 141 (2013)

[3] 625 ILCS 5/11-501.2(c)(2)

[4] People v. Eubanks, 2017 IL App (1st) 142837

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