People v. Ealy, 2015 IL App (2d) 131106 (December 2015). Episode 129 (Duration 5:18)
Harmless error to allow the State to argue consciousness of guilt when defendant refused voluntary DNA testing.
Why was it error for the state to let it slip that Defendant was the only refusal out of 22 people who were asked to provide a voluntary DNA sample?
A Burger King manager was murdered and the the safe was robbed.
Palm prints and fingerprints from 22 current and former employees were collected. However, when asked for a DNA sample, defendant adamantly refused while the 21 other employees complied.
Eventually, the get a warrant.
Immediately, I think of two very similar situations with different outcomes.
It takes no time to “know” that a prosecutor is not allowed to comment a Defendant’s right to refuse to testify or to talk to the police.
This clearly implicates an individual’s right to remain silent.
However, in a DUI arrest a person who refuses to provide a BAC sample can have that point used against them at trial.
A prosecutor can indeed argue to the jury that Defendant refused to provide a BAC sample because he knew he was drunk.
So what gives? Why are these scenarios different?
A compelled DNA extraction undeniably constitutes a search under the fourth amendment to the federal constitution (U.S. Const., amend. IV) and the search-and-seizure provision of the Illinois Constitution (Ill. Const. 1970, art. I, § 6).
Thus, for a DNA sample generally a warrant is required.
At the time of his refusal, defendant had no legal obligation to provide his DNA.
It is fundamental that the admission of evidence that a defendant has exercised his rights is unduly prejudicial and deprives him of a fair trial because it permits the jury to infer consciousness of guilt from the defendant’s exercise of his rights.
The admission of defendant’s refusal to consent to DNA testing was an abuse of discretion because it permitted the jury to infer consciousness of guilt from defendant’s exercise of his rights.
Why BAC is Different?
Under 625 ILCS 5/11-501.1, the so-called ‘implied consent law,’ a motorist operating a vehicle on a public highway in Illinois is deemed to have consented, if arrested for DUI, to chemical testing to determine his or her blood alcohol level.”
Therefore the driver no longer has a “right” to refuse BAC testing. The end result is that it becomes entirely appropriate for the State to then argue consciousness of guilt when a Defendant refuses to blow.
Had the police obtained a warrant for Defendant’s DNA, and he still refused to provide a sample, the prosecution WOULD HAVE BEEN WITHIN THEIR RIGHTS to argue consciousness of guilt.
Obviously, after a warrant defendant no longer has a right to refuse.