 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Village of Algonquin v. Ford6/20/1986
BR>
ATTORNEY: On the basis it was not voluntary?
THE COURT: Yes."
Our supreme court in People v. Mulack (1968), 40 Ill.2d 429, clearly held that breath-alcohol results constituted physical evidence and, as such, should not be afforded the procedural protections encompassed by the Miranda warnings. (See also Schmerber v. California (1966), 384 U.S. 757, 16 L.Ed.2d 908, 86 S.Ct. 1826; People v. Cook (1981), 94 Ill. App.3d 73.) In Schmerber, the admittance of a blood test, taken in spite of defendant's refusal, was held admissible by the Supreme Court on the grounds that it was not communicative in nature. (Schmerber v. California (1966), 384 U.S. 757, 16 L.Ed.2d 908, 86 S.Ct. 1826.) In Cook, the defendant was charged with driving a motor vehicle under the influence of alcohol. On the evening of his arrest, a lab technician of a local hospital extracted a vial of blood from the defendant to determine the presence of alcohol. The test indicated 0.199% blood alcohol. The trial court granted the motion to suppress because the defendant was not advised of his Miranda rights, but this court reversed, stating that the Miranda warnings are required only when the evidence obtained is of a testimonial nature. (People v. Cook (1981), 94 Ill. App.3d 73, 76.) The taking of a breath-analysis test is not of a testimonial nature. 94 Ill. App.3d 73, 76.) The taking of a breath-analysis test is not of a testimonial nature. 94 Ill. App.3d 73, 76.
• 1 No consent is necessary to admit a breath-alcohol test into evidence in a DUI case. It is well settled that a compulsory blood test, taken without the consent of the donor, does not violate any constitutional right of an individual. (People v. Todd (1975), 59 Ill.2d 534; People v. Lentini (1982), 106 Ill. App.3d 695.) Although the above cases deal specifically with the taking of a blood sample, the reasoning applies to the taking of a breath sample. (See People v. Mulack (1968), 40 Ill.2d 429.) Absent a limiting statutory provision, there is no prohibition against the taking of a breath-alcohol test without the consent of the donor. (Cf. People v. Todd (1975), 59 Ill.2d 534, 545.) Prior to July 1982, Illinois imposed a statutory requirement of consent prior to the administration of a test to determine the alcohol content of the blood. Section 11-501(c)(3) of the Illinois Vehicle Code provided in relevant part:
"Evidence based upon a chemical analysis of blood, urine, breath or other bodily substance shall not be admitted unless such substance was procured and such analysis made with the consent of the person as provided by this Chapter, whose bodily substance was so analyzed." (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-501(c)(3).)
That section provided the basis for the consent requirement found in all Illinois cases concerning the admittance of the results of a breath, blood or urine test into evidence. See People v. Lentini (1982), 106 Ill. App.3d 695; People v. Kenning (1982), 110 Ill. App.3d 679; People v. Cook (1981), 94 Ill. App.3d 73.
The statutory basis for such a consent requirement has now been written out of the statute. Public Act 82-311, section 1, effective January 1, 1982, added section 11-501.2 and deleted the statutory requirement concerning consent. (See Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501.2.) Breath tests resulting from DUI arrests occurring after January 1, 1982, are no longer subject to the consent requirement once found in section 11-501(c)(3). Without the provisions of section 11-501(c)(3), there is no authority for imposing the requirement of consent prior to admitting the results of a breath-alcohol test into evidence.
• 2 Defendant admits t
Page 1 2 3 Illinois DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|