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Legal Cloud Surrounds "No Refusal" Weekends in Illinois

Illinois law enforcement agencies have used "no refusal" weekends over the past few years to make their jobs easier: the "no refusal" in a "no refusal" weekend means that any person stopped and detained on suspicion of drunk driving will be requested to take a breath or blood test for the presence of alcohol, and if the person refuses, he or she can be pressured to take the test with the threat of a search warrant. On "no refusal" weekends, prosecutors, a judge and a phlebotomist (a person trained to draw blood) are on call to draft search warrants for blood samples from the suspect.

The main goal of "no refusal" weekends is to close an unintended loophole in Illinois law. Any motorist who is pulled over on suspicion of DUI in Illinois has two options: refuse to take the blood or breath test or take the test. If the motorist already has one drunken driving conviction, he or she faces a three-year license suspension for refusing. If the same motorist provides a sample, and is convicted of DUI, his or her driving privileges will be revoked for five years. Thus, someone who already has a DUI conviction actually faces fewer legal consequences for refusing to provide critical evidence to the prosecution.

Challenges to the "No Refusal" Weekends

Since the inception of the "no refusal" weekends, legal questions have surrounded it. In an initial challenge, a defendant argued that the use of a search warrant in "no refusal" weekends was inherently coercive and violated his right not to incriminate himself. In that case, an Assistant State Attorney obtained a search warrant and told the motorist that he would face contempt of court if he did not comply. A judge admitted the evidence finding that the search warrant was not inherently coercive.

In more recent challenges, suspected drunk drivers refused to provide blood or breath samples, even after facing threats of contempt of court. In the first case, a judge dismissed the contempt of court citation ruling that a contempt of court charge did not hold water. In the second case, the prosecution pursued a charge of obstruction of justice and that case is still pending.

Many defendants, criminal defense attorneys, constitutional scholars and judges feel that evidence forcibly obtained by physical intrusion of a person's body is constitutionally suspect. The prosecution's need for evidence of, for example, alcohol in a driver's blood stream, runs up against the Fifth Amendment right not to be forced to self-incriminate.

Attempts to Strengthen the "No Refusal" Law?

Attempts have already been made to strengthen the "no refusal" weekends, despite the constitutional concerns. A bill proposed this year would give law enforcement the authority to forcibly withdraw blood. Last year, a similar bill was proposed but did not pass. According to statements from the State's Attorney office, some prosecutors acknowledge the shaky legal ground they stand on. Without a strengthened law that explicitly authorizes forcible removal of blood, the State's Attorney seems reluctant to push the bounds on "no refusal" weekends by taking blood samples without the suspect's consent.