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Appeal Ruling Questions Constitutionality of DUI Testing Law

Posted on in Criminal Law

Appeal Ruling Questions Constitutionality of DUI Testing LawAn Illinois appellate court recently overturned a man’s conviction for first degree murder, aggravated driving under the influence and failure to report a motor vehicle accident involving a death. There were several reasons that the court decided to send the case back for retrial:

  • The jury should have been instructed of a possible lesser charge of reckless homicide as an alternative to first degree murder;
  • The class 1 felony count of failure to report should not apply because it requires 30 minutes to have passed and the defendant was arrested about 10 minutes after the incident; and
  • Blood and urine samples should have been inadmissible as evidence because they were obtained by force and without a warrant.

The third point is potentially the most consequential because it questions the constitutionality of an Illinois law that allows police officers to force a suspect to give bodily fluid samples after a DUI arrest.

Case Details

The initial incident occurred in 2009, when the defendant was allegedly driving a vehicle that hit and killed a woman and injured her son. A passenger in the vehicle testified that the defendant was driving and failed to stop after striking the pedestrians. Police spotted the vehicle shortly after the incident and apprehended the fleeing defendant. Almost six hours after taking him into custody and charging him with DUI, police transported the defendant to a hospital in order to obtain blood and urine samples without serving him a warrant. The defendant verbally refused and physically resisted, and police held him down so samples could be taken. The tests on the blood sample were negative, but the urine sample showed traces of cannabis, ecstasy and cocaine.

Fourth Amendment

Illinois’ Vehicle Code states that police must obtain blood and/or urine samples from a suspect in a fatal accident whom they have reason to believe was driving under the influence. The fourth amendment to the U.S. Constitution protects citizens from unreasonable search and seizure. Further court decisions have established that law enforcement must provide a warrant before a search, unless:

  • The person consents to the search;
  • The search is incident to an arrest; or
  • There are pressing circumstances that require an immediate search.

The Illinois appellate court stated that there was no reasonable explanation for police failing to secure a warrant before obtaining the blood and urine samples. Police held the defendant for hours before taking him to the hospital, during which they had ample time to request a warrant. Thus, police violated the defendant’s constitutional rights in obtaining the samples and using them as evidence. The court further stated that the pertinent portion of the Illinois Vehicle Code is unconstitutional on its face because it allows warrantless searches without police having to prove urgency.


The decision shows that some courts expect police to provide a warrant before forcing a DUI suspect to give a blood sample. A McHenry County criminal defense attorney at Botto Gilbert Lancaster, PC, will protect your constitutional rights during your case. To schedule a free consultation, call 815-338-3838.



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