Peoria’s “No Refusal” Weekend

The State's Attorney of Peoria County, Kevin W. Lyons, and the Peoria police department implemented what Lyons called a “no-refusal policy” for suspected drunk driving over this past Memorial Day weekend. Lyons sees the new procedures as giving the police the “last word” on Breathalyzer tests. This policy was put into effect for the duration the 2008 Memorial Day Weekend. Because this policy requires greater than usual staffing to implement, it will not be done on a regular basis. Lyons promised that it will likely be used again over the Fourth of July weekend and Labor Day weekend. However, there will be no announcements prior to any new implementations of the policy.

The Procedure
The “no-refusal” procedure does not radically differ from the traditional procedure for a DUI arrest under current Illinois law; however, it does add some additional steps for Peoria police to follow if a person arrested for DUI refuses a Breathalyzer test. Currently, Illinois law does not require a person to submit to chemical testing for Blood Alcohol Content (BAC), which includes a breath test (Breathalyzer) and a blood test. However, if a person under arrest for DUI refuses chemical testing, their driver's license is automatically suspended under an administrative process called Statutory Summary Suspension (see other blog entries on this subject). Some arrestees will refuse chemical testing despite the threat of a suspended license, hoping to thwart the collection of evidence against them.

Under the “no-refusal policy,” a person arrested for DUI will be given the opportunity to take a Breathalyzer test. If he refuses, the Peoria police will seek a search warrant authorizing the seizure of the arrestee's blood. To do so, the officer will have to submit a petition for a search warrant to a duty judge. The petition must detail facts that would support the issuance an order to force blood withdrawal. If the driver who refused testing physically resists a court-ordered blood test, he can be arrested for Resisting a Peace Officer. A person who has refused initial testing and is subsequently convicted after a court ordered blood test will be charged $545 for that blood test.

Breathalyzer v. Field Sobriety Testing
It is important to remember that the Breathalyzer test at issue here is the one taken after a suspected drunk driver has already been arrested on a charge of DUI. This test should not be confused with the Field Sobriety Testing (FST) done prior to an arrest. Field Sobriety Testing is the process by which a police officer assembles facts against a person that will lead to probable cause. For example, if you are unable to stand on one leg or say the alphabet backwards, those facts can be used to make a case for probable cause. Once a police offer has assembled enough facts for probable cause, he will make the arrest. Some police officers will use a portable Breathalyzer device as part of the Field Sobriety Testing. However, you are not required to submit to a Breathalyzer test and are not subject to the “no-refusal policy” until after you are arrested.

What Happened Memorial Day in Peoria?
The 2008 Memorial Day weekend resulted in five DUI arrests in Peoria. Of those five arrests, two people refused the initial Breathalyzer test, but both submitted to a blood test “with no struggles” after a warrant to draw blood was obtained.

Coming to a County Near You
Kane County State's Attorney John Barsanti plans his own “no-refusal policy” weekend sometime in the future. He is hoping to reduce the number of people who refuse the Breathalyzer test. In April, over 40% of the 158 people arrested for DUI in Kane County refused to submit to chemical testing. Similar programs have been popping up in other parts of the country. For example, El Paso, Texas has conducted its own “no-refusal policy” weekends on Christmas 2007, New Years Eve 2007, and Memorial Day 2008. We will have to wait to see if these policies are constitutionally challenged, and, if so, what that result will be.

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