McHenry County police to implement 'no refusal' DUI policy

Suspected drunken drivers who refuse breath test will have blood tested for alcohol, state’s attorney says

State's Attorney Patrick Kenneally
State's Attorney Patrick Kenneally

Nine McHenry County police departments are instituting a new driving under the influence refusal policy that aims to ensure prosecutors have all the evidence needed to successfully prosecute drunken drivers.

Starting Sunday, a warrant for a blood draw will be obtained for any DUI suspect who refuses breath tests to determine blood-alcohol levels, according to a news release from the McHenry County State’s Attorney’s Office.

Algonquin, Cary, Harvard, Huntley, Johnsburg, Lake in the Hills, McHenry, Spring Grove and Woodstock police departments will participate in collaboration with the state’s attorney’s office.

State’s Attorney Patrick Kenneally said he’d like to see the policy become the new norm for law enforcement nationwide.

“The strongest evidence for the prosecution to have when presenting DUI cases is BAC,” Kenneally said. “This will create really strong cases.”

Currently, police can’t force a suspect to take a breath test. Although a blood sample can be sought with a search warrant, a breath test can’t because it requires some level of cooperation from the driver.

A suspect who fights medical staff’s efforts to draw blood could be hit with felony charges for obstructing justice, Kenneally said.

In the past, suspects who believe their blood-alcohol content is above the legal limit of 0.08 might refuse to take the test, so prosecutors wouldn’t have a blood-alcohol level to use against them in court, Kenneally said.

In those situations, the driver’s license is subject to suspension, and prosecutors are forced to rely on police descriptions of the charged person’s demeanor at the time, including whether they slurred words or had trouble walking.

The new policy is aided by an electronic warrant system launched in January 2017 that allows police to quickly obtain warrants.

Officers can create search warrants online, send the warrant for review to a judge, interact with the judge through video conferencing and obtain a warrant through the judge’s electronic signature.

If the warrant is granted, the suspect will be taken to an emergency room where his or her blood will be drawn and tested for blood-alcohol concentration.

Peoria-based independent drug and alcohol consultant Ronald Henson said the lapse of time between stopping a driver and having their blood tested can take about an hour, in which time a person’s blood might test higher or lower for alcohol than when they were actually driving.

Woodstock attorney Phil Prossnitz anticipates lawyers relying on that defense to disprove blood evidence.

“What time is it now and how relevant is the BAC obtained at that time of the driving that occurred hours before hand?” Prossnitz said. “I think that’s going to be an area that’s going to be questioned.”

There often is a similar lapse of time, however, between when police can get a cooperative driver back to the station in time to have them take a breath test, Henson said.

Police would need additional physical or behavioral evidence to charge a driver for being under the influence of any other substances that might be found in their system.

Test results could take weeks to develop, Kenneally said. Payment for the test itself also will be determined on a case-by-case basis.

Cary Police Chief Patrick Finlon said the policy will create stronger cases for prosecution, encouraging the defendant to seek plea negotiations and reducing the need for investigating officers to appear in court. Then, more officers will be available for patrol staffing.

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