Blogs | Law Office of Jack L Zaremba


Illinois Case Raises Questions Regarding Urine Tests in DUI Cases

Joliet DUI urine tests

Over the last few years, there has been a great deal of discussion regarding implied consent laws and the ability of law enforcement to force a driver to submit to blood-alcohol content (BAC) testing. The issue is multifaceted, as with many subjects in the realm of criminal law, but the debate boiled down to two primary questions: Can police force a person to submit to BAC testing without a warrant when the person is arrested on suspicion of driving under influence ? If so, can that person be criminally prosecuted if he or she refuses a warrantless test? While the United States Supreme Court addressed these questions to a certain extent last year, a case in Illinois seems to have a found a loophole in the court’s ruling.

Birchfield v. North Dakota

Illinois—like every other state—maintains an implied consent law, which means that drivers who use the roads and highways in the state agree to submit to BAC testing if they are arrested on suspicion of DUI. Those who refuse are not subject to additional criminal penalties, but administrative penalties, including the suspension of driving privileges, do apply.

Last spring, the U.S. Supreme Court ruled in Birchfield v. North Dakota that BAC testing fell into two very distinct categories. Breath tests, commonly known as breathalyzers, can be ordered by police without a warrant, and a failure to comply is subject to additional criminal prosecution. Blood tests, the court held, are substantially more invasive. Therefore, law enforcement must obtain a warrant before a suspect can be forced to submit to blood testing. Only then can a refusal be formally prosecuted.

An Unresolved Question

In its Birchfield opinion, the court acknowledged that urine tests are possible in DUI cases but are not used as often as blood and breath tests. Because none of the cases that contributed to Birchfield pertained to urine tests, the court did not address such tests specifically. Depending on the outcome of a case in Stark County, Illinois, the court may need to reconsider the matter in the future.

The case in question involves a man who is accused of causing a deadly accident while driving under the influence of methamphetamines in November 2015. The driver was unconscious in the hospital following the accident when a urine sample was taken without a warrant. The man’s attorney filed a petition to suppress the results of the test based on a 2013 U.S. Supreme Court ruling in Missouri v. McNeely in which the court held that a warrantless, nonconsensual blood test violated a suspect’s rights. Like Birchfield, however, McNeely did not address urine tests specifically.

Last week, a Stark County circuit court judge ruled that Illinois’ implied consent laws are still valid, and he refused to throw out the test results. The case is scheduled for trial in mid-July. Depending on the outcome of the trial, an appeal seems almost certain, leaving the matter of urine tests for higher courts to consider.

Know Your Rights

If you are arrested on suspicion of driving under the influence in Illinois, refusing BAC tests may have consequences, but unless the police obtain a warrant, you cannot face additional criminal charges for the refusal. Contact an experienced Joliet DUI defense attorney to discuss your case and to get the help you need. Call 815-740-4025 for a free consultation today.

Determining a Defendant’s Fitness to Stand Trial

fitness to stand trial

Illinois law presumes that a criminal defendant facing charges for assault or another crime is fit to be tried and receive a sentence. However, the law also recognizes that circumstances might render a defendant unable to comprehend the proceedings against him or to help with his own case. If the defendant has a mental or physical condition that raises a bona fide doubt regarding his fitness to stand trial, then the court will hold a hearing to determine the issue.

The fitness of the defendant can be highlighted by the defense, prosecution or the court any time before a plea is made or prior to or throughout the course of a trial. The defendant may request that a qualified professional examine his fitness. Once the defendant’s fitness has been brought into question, the prosecution is required to show (by a preponderance of the evidence) that the defendant is fit. However, the court may also conduct its own inquiry, including the calling of witnesses.

The defense or prosecution can demand that the defendant’s fitness be determined by a jury. The court may also order a jury trial sua sponte (on its own motion). However, if the issue is raised after the trial has begun or before sentencing, it is too late for a jury trial. In that case the court will determine the defendant’s fitness.

The Fitness Examination

Here are a few things to understand about a fitness examination:

• If the fitness issue involves a mental condition, the court will order a licensed physician, clinical psychologist or psychiatrist to examine the defendant;
• If the fitness issue involves a physical condition, the court will appoint a physician (or other experts as needed) to examine the defendant;
• If the defendant is in custody, the court will direct the location of the examination;
• If the defendant is not in custody, the person conducting the examination will direct the location; and
• The need for a fitness examination will not affect a defendant’s release on bail or pending application for bail.

The person who conducts the fitness examination must submit a written report within 30 days of the court order. That report must include:

• An explanation regarding how the expert reached a diagnosis, including the facts upon which that diagnosis was based; and
• A description of the defendant’s mental or physical condition, including whether it impairs his ability to understand the proceedings against him and/or to assist in his own defense.

If the expert determines that the defendant has a disability that renders him unfit to stand trial, the report must also indicate whether the defendant, under proper treatment, could attain fitness within one year. The expert must provide an explanation if he cannot form an opinion about the likelihood of the defendant attaining fitness.

If criminal charges are brought against you, it is imperative that you understand what is happening. If you (or a loved one) has a mental or physical condition that renders you (or him) unfit to stand trial, then you need a Joliet criminal defense attorney to protect your (his) rights. Contact us today for a free consultation. We can assist those in Frankfort, Joliet and the surrounding area.

Illinois Governor Signs Bail Reform Measure

Illinois bail reform

If you were to ask several random people to list the top three current problems with our criminal justice system, there is a good chance that many of the respondents would include overcrowded jails and prisons in their list. The concern over the nation’s large prison population is certainly founded in truth, and while the issue exists nationwide, taking action to remedy the problem falls largely to each individual state. Earlier this month, Illinois Governor Bruce Rauner signed a bill that is designed to lower the state’s incarceration numbers. The new law promises to reduce the number of criminal suspects who are forced to sit in jail and wait for a trial simply because they cannot afford to post bail.

Bipartisan Cooperation

For many Illinois residents, the cooperation between Republicans and Democrats on the issue of criminal justice reform was welcome and refreshing. “We, as the people of Illinois, can agree (this) is a fair way to address…things that are not done fairly,” said Democratic Senator Donne Trotter of Chicago. Republican House Minority Leader Jim Durkin of Western Springs agreed, “I think it’s important, it’s right, it’s fair, and it’s important for our society.” Durkin also commented that the bill is “tough on crime but also smart on crime.”

Provisions in the New Law

The new law went into effect immediately upon being signed by the governor and includes some noteworthy provisions. It specifies that a suspect has the right to an attorney during bail hearings, an important element in receiving fair treatment. The law also specifies that judges are encouraged to use non-monetary conditions of release whenever possible—such as electronic monitoring and curfews. Monetary bail can still be used in situations where the suspect is found to present a flight risk or a danger to the community. The new law is primarily intended to address the rights of non-violent offenders.

In jurisdictions around Illinois, prosecutors have expressed their intent to cooperate with the law’s efforts to reduce the population of local and county jails. Cook County State’s Attorney Kim Foxx said that her office will immediately begin supporting the release of suspects without cash bond for minor offenses. She acknowledged that forcing suspects to remain in jail because they are poor is unjust and that the new law offers a level of fairness to a difficult situation.

Bail Questions
If a member of your family has been arrested and charged with a crime, you may have many questions about the state’s bail system. Contact an experienced criminal defense attorney in Joliet to get the answers you need. Call 815-740-4025 for a free, confidential consultation today.


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