Becoming More Common to Deny Breathalyzer

Breath tests refused: 'It's becoming more common to deny Breathalyzer'
The Chicago Sun Times by Mark J. Konkol - May 30, 2009
mkonkol@suntimes.com

When Chicago Police Officer Richard Bolling was stopped by police after a hit-and-run crash that killed a 13-year-old boy earlier this month, he refused to take a Breathalyzer test. That's the trend. More than two out of five people arrested in drunken driving cases -- 41.4 percent -- refused to submit to breath testing in 2007, according to the most recent Illinois Secretary of State statistics available. Every year since 2001, the percentage who balk at the Breathalyzer test has steadily increased, state data shows. "It's the dirty little secret that isn't really a secret anymore. If you don't have any scientific evidence, you are in much better shape in court. It's becoming way more common to deny the Breathalyzer," said David Malham of Mothers Against Drunk Driving Illinois. "I don't know how you do it, but it's a loophole that needs to be addressed."

Susan McKeigue, executive directive of MADD of Illinois, blames some of the spike in Breathalyzer denials on criminal defense attorneys who specialize in getting people acquitted of DUI charges. "The first instruction they give you is to not take that test," she said. "People are being educated on how to beat the system. . . . Unfortunately, people are making a living teaching people how to get away with it." Defense attorney Don "DUI Don" Ramsell said he doesn't tell clients not to submit to blood-alcohol breath tests to "beat the system." "Knowing your rights is very important, but equally important and true is the legitimate concern over police testing . . . and machine accuracy," Ramsell said. He has defended 13,000 DUI cases since 1986, including beating two DUI charges of his own. His law practice Web site includes a section called, "40 ways to beat an Illinois DUI" and he used to sell a $100 "Ramsell's Road Kit" that included a push-button recording that drivers could use to inform an officer -- without saying a word -- that they would not get out of the car or submit to sobriety testing. Ramsell is among a contingent of defense lawyers who think Breathalyzer test results can have up to a 25 percent margin of error and shouldn't be trusted. "No one should participate in an investigation of themselves for a crime," he said. "Why risk your freedom and innocence by submitting to a test done by a machine that is controlled by the police? That's what a Breathalyzer is."

Take test or lose license for year

Police and prosecutors say the machines are accurate, reliable and tested at least every 62 days as required by state law. "We are very confident in the Breathalyzer and [its accuracy] already has been held up in judicial court," Chicago Police Lt. David Blanco said. "The case history on that says it's a reliable machine. The machines are tested by the State Police." A state law that went into effect Jan. 1 aims to get more drivers to submit to breath tests by increasing the mandatory license suspension for drivers who refuse from six months to 12 months. The new law also requires DUI offenders have a breath-test machine hooked up to their car's ignition to prevent the car from starting if they've been drinking. "We're really looking at the numbers and hope the new law changes the trend," said Susan McKinney, director of the state's Breath Alcohol Ignition Interlock Device Program. "I think it increases the incentive to take the Breathalyzer." Ramsell says the increased mandatory suspensions shouldn't scare people into submitting to a breath test. "If you are really guilty, you're going to face the consequences anyway. The statutory suspension you can fight in court. A judge can throw that out, too," Ramsell said. "I still say if you're given an option, refuse to take it."

There are times when drivers can't refuse tests for alcohol and drugs. Get in a serious crash where people are hurt or dead and you must submit to a blood test, according to state law. That's what happened in Bolling's case. The off-duty Chicago cop who allegedly fatally struck Trenton Booker on May 23 and drove off refused a Breathalyzer test, authorities said. He took a breath test four hours later as part of the Chicago Police Department's separate, administrative investigation. That test revealed a blood-alcohol level of .079, just shy of the .08 legal limit, prosecutors said. Hours later, Bolling submitted to a mandatory blood test. Under a 2005 Illinois Supreme Court decision, police can require drivers to submit to blood tests against their will even if they're not involved in a serious or fatal accident. In that case, the court ruled in a split decision that a DuPage man accused of DUI did not have the right to refuse chemical testing from a blood draw. Effectively, that ruling means anyone who refuses a Breathalyzer can be forced to give a blood sample. But few officers take such measures. Some prosecutors say the high court ruling did not give officers the right to forcibly take blood.

'No refusal' weekends

In Kane County, prosecutors came up with a way to take away a driver's chance to refuse testing. Since last year, they have had two "no refusal" weekends. That's when police set up a safety checkpoint with a county judge on hand to issue search warrants giving police permission to take blood from DUI suspects who refuse breath tests. "Court rulings seem to indicate we can take blood on every case. We are being conservative by getting warrants," said Kane County assistant state's attorney Steve Sims. "That way we have judicial review of probable cause before doing any testing." The very threat of a blood test has been extremely successful, Sims said. On Memorial Day last year, 57 percent of people charged with DUI initially refused a breath test. After officers told them they would obtain a search warrant for a blood sample, all but one submitted to breath testing, he said. A lone holdout was charged with criminal contempt of court. The contempt charge was thrown out on appeal because the warrant allowed police to get the blood sample, but it did not order the defendant to give a sample When he refused, he was not violating any court order. Despite that adverse ruling, Kane County held another no refusal weekend on St. Patrick's Day. All three people who refused the breath test changed their minds when told a warrant would be issued to obtain a blood sample. Ramsell says "no refusal" weekends are "just a bunch of hype" and a way to intimidate drivers into taking the Breathalyzer test. But Sims says that's not true. "We tell them we are about to get a search warrant, do you still want to refuse," Sims said. "There's nothing intimidating about it. . . . They are calmly informed and told they can comply or wait for the warrant, which we are perfectly willing and able to do."