Tuesday, February 7, 2012

Probable Cause in Drug and Alcohol Testing

A recent decision from the Second District highlights the importance of refusing any blood, breath and urine tests when one is suspected of driving under the influence of alcohol or drugs. In the case of People v. Miranda 2012 IL App (2d) 100769, No. 2-10-0769, the Second District held that the results of a urinalysis test which showed that a driver arrested for drunk driving had traces of cannabis and cocaine in his system was invalid because there was no probable cause to allow for the search warrant after he refused testing.
In Miranda, an Elmhurst police officer pulled over Miranda because he believed that he was intoxicated. The officer noticed an open beer bottle and after some investigation, arrested the defendant for driving under the influence of alcohol. Miranda refused the breathalyzer as well as the blood and urine test. The officer applied for a search warrant in which he said that in “his professional opinion... [defendant was] under the influence of alcohol and/or drugs.” After a search warrant was acquired, Miranda’s blood was taken to be tested for alcohol and a urine sample was taken for drug testing.
The results came back positive for metabolites of cannabis and cocaine. The trial court granted defendant's motion to suppress the evidence as it was taken based on a warrant that lacked probable cause, specifically, that the officer only had probable cause to suspect that driver may have been drunk but there was no mention in the warrant or his affidavit concerning drugs. On appeal, the Second District upheld the trial courts decision to suppress the evidence.
The state additionally argued that the implied consent statute meant that the defendant had no right to have the evidence suppressed. However, the appellate court found that because defendant had refused a drug testing, the state had no right to use the implied consent statute to force the withdrawal of the blood and urine, as he was revoking the implied consent.
This is an important case for any attorney defending a driving under the influence of drugs case because it reiterates the importance of probable cause for the type of testing (alcohol as opposed to drugs) as well as the importance of refusing consent.
Additionally, other drug metabolites can stay in a persons system for days longer than the effect of the drug has lasted. For example, metabolites from cannabis can stay in the system for up to 30 days, sometimes even more, depending on the weight of the individual as well as the quantity of cannabis they are smoking. This means that many people who might have had a joint a week ago would be considered under the influence of drugs, as a positive test result would be considered proof of influence in Illinois because of its strict per se DUI law, even if there is no indication that they were otherwise impaired. The only way for a person who may have drug metabolites in their system to avoid a conviction when a test is likely is to do as Miranda did and refuse the test, then challenge on probable cause grounds if it proceeds anyways.
Most of the public doesn’t realize these rules, as they seem counterintuitive, and may give the police a blood or urine sample when they might test positive. Just as you would advise your clients never to perform field sobriety tests or give a breath sample, they should avoid giving a blood or urine sample when suspected of driving under the influence of drugs and Miranda shows how it can be challenged.

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