People v. Durden, 2017 IL App (3d) 160409 (November). Episode 420 (Duration 7:33)
Can police ask for blood after you pass the breathalyzer?
Defendant is arrested for DUI. He passes the breathalyzer. Then he refuses to submit to blood or urine testing, and he’s suspended. On appeal he challenges the denial of his petition to rescind the statutory summary suspension of his DL.
The trial court denied defendant’s petition to rescind.
The officer testified that he was on patrol at approximately 1:12 a.m., when he observed defendant commit “multiple lane violations.”
According to Middleton, defendant’s vehicle veered toward his patrol car, crossed over the double yellow line three times, veered into the painted median twice, and “began to veer towards the opposite lane of traffic.” After observing defendant commit “approximately five lane violations,” Middleton of the Shorewood police department activated his overhead lights.
Defendant stopped his vehicle, and Middleton approached and asked for defendant’s driver’s license.
In attempting to retrieve his license, defendant’s “hands slipped off his wallet numerous times” and before handing the license to Middleton, defendant dropped it in his lap.
Defendant also dropped his cell phone in his lap. Middleton asked defendant if he had consumed any alcoholic beverages or was on any medication. Defendant denied both. Middleton returned to defendant’s vehicle and asked him to step out of the car.
- At that time, Middleton smelled a “moderate” odor of an alcoholic beverage.
- Middleton also observed that defendant had “slurred speech, glossy, bloodshot eyes” and “unusual behavior.”
- He fails the FSTS but declines the PBT.
He’s arrested based on defendant’s “slurred speech, *** very dangerous driving, [and] performance on the field sobriety tests.”
Defendant blew a 0.035, which is well below the legal limit of 0.08.
Probable Cause For DUI Arrest
A defendant alleging that an arresting officer did not have reasonable grounds to believe that he was driving under the influence bears the burden to produce prima facie evidence that the officer lacked reasonable grounds.
“Probable cause is not guilt beyond a reasonable doubt.”
Probable cause deals with probabilities and involves factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The existence of probable cause depends upon the totality of the circumstances at the time of the arrest.
Erratic driving, such as crossing the centerline, is sufficient to justify an investigatory stop.
Additionally, slurred speech, red and glassy eyes, the odor of an alcoholic beverage, difficulty producing documents, and failed field sobriety tests “have repeatedly been held to be indicia of intoxication adequate to support an arrest for driving under the influence of alcohol.”
Chemical Tests Of Blood, Breath, or Urine
Once an officer has probable cause to arrest a driver for DUI, the officer may request “a chemical test or tests of blood, breath, or urine for the purpose of determining the content of alcohol, other drug or drugs, or intoxicating compound or compounds or any combination thereof in the person’s blood.” 625 ILCS 5/11-501.1(a).
“Multiple testing is not always proper.”
However, “a police officer can first require a breath test for alcohol and then require a blood or urine test for drugs.” People v. Krosse, 262 Ill. App. 3d 509, 511 (1994). When a defendant submits to one test and the results indicate that defendant is not under the influence of alcohol, the officer must “present reasonable evidence for requesting a second test.” People v. Klyczek, 162 Ill. App. 3d 557, 560 (1987).
Where an officer requests further testing to determine whether there are drugs in defendant’s system, the second test is “reasonable, and the defendant’s refusal to perform that test warrants suspension of his driver’s license.”
Here, Officer Middleton pulled over defendant because of erratic driving.
After speaking to defendant, Middleton noticed that defendant had glossy eyes, slurred speech, and difficulty handling small objects, such as his cell phone and driver’s license.
Middleton had defendant perform three field sobriety tests, which defendant failed because he could not follow instructions. These observations were sufficient to justify defendant’s arrest for DUI.
When the results of defendant’s breath test showed that defendant’s blood alcohol concentration was less than 0.05, defendant was presumed not to be under the influence of alcohol. See 625 ILCS 5/11-501.2(b)(1).
Schloesser testified that he requested defendant’s blood or urine because defendant’s actions were inconsistent with his low blood alcohol concentration. Middleton also testified that defendant made “unusual statements” and exhibited “unusual behavior,” supporting the request for additional testing.
Because the officers found defendant’s actions and behavior inconsistent with his blood alcohol level, it was reasonable for Schloesser to request that defendant undergo further testing to determine if he was under the influence of drugs.
The judgment of the circuit court of Will County denying defendant’s petition is affirmed.
In regards to the Warnings being only read once to defendant, nothing in the Code requires that officers provide the “Warning to Motorist” more than once if more than one test is requested. Nor have we found any Illinois case law interpreting the Code in such a way.