Can Police Force Me to Give Blood, Breath or Urine When Arrested for DUI?

Can Police Force Me to Give Blood, Breath or Urine When Arrested for DUI? Illinois is one of only a handful of states that has expanded the ability of police to obtain certain scientific evidence even when the accused does not consent or is incapable of consent.

What Does Implied Consent Mean?

Implied Consent means that when you ask for and receive a driver’s license in Illinois, it is “implied” (which means that it’s understood to be true even though it may not be mentioned) that you will give your “consent” (which means that you will agree to) a request for chemical testing by a law enforcement officer when:

  • You have been issued a Uniform Traffic Ticket under Section 11-501 (or a similar ticket under any Illinois local ordinance) for any DUI offense (whether based on alcohol, drugs, cannabis or other intoxicating substance), or
  • You have been given a ticket for Leaving the Scene of a Personal Injury Accident under Section 11-401, and
  • The police officer has probable cause (which basically means a justifiable basis) to believe that you are under the influence of alcohol, drugs, cannabis or other intoxicating compound).

So, what this means is that if you want a driver’s license in Illinois, you have to at least promise to blow in the machine if asked by Chicago Police (or another police department). The laws that cover Chicago and the whole state of Illinois in relation to this subject are contained in ILCS Section 5/11-501.1.

When a police officer asks for chemical testing, it is up to the discretion of the to determine which tests will be requested; not the driver. Police can ask for a breath test, a blood test or a urine screening. Or they can ask for any two of these tests or all three of the tests. Even once a blood or breath test has been administered, the officer can still request up to two more tests of urine or other bodily substance.

Can I Refuse a Breathalyzer?

The answer is yes. After all, no one can actually force another person to exhale air out of their lungs. It’s not physically possible, so of course it’s true that a person can refuse a breathalyzer. A loss of driving privileges (called a Statutory Summary Suspension) will however result which will either be a suspension of one year or three years in length, a revocation (when a serious “Type A” injury has occurred), and/or in the case of CDL (truck) drivers, a disqualification of their right to drive a CDL vehicle. So, there are consequences.

Yet, although no one can physically force a person to blow into a machine, the bigger (and more ominous) question is what about taking blood, urine, or hair samples against a driver’s will? Is that even possible in Chicago? In Illinois? In America? The answers to those questions are much more complex and we’ll address them below.

Can the Police Test Unconscious or Dead People?

You may be very surprised to learn that a person isn’t immune to chemical testing in Illinois just because they’re unconscious or dead or otherwise incapable of a refusal. There are actually many reasons why the police might want to chemically test an unresponsive or even deceased person. Some of these considerations include:

  • If another party has been seriously injured or killed in an accident in which the police suspect the defendant of drug or alcohol consumption, they will obviously want chemical testing to confirm their suspicions.
  • The line between unconscious and highly intoxicated is sometimes a fine line. Just as voluntary intoxication is not a defense to criminal activity, neither is it a barrier that will necessarily serve to prevent the police from obtaining the scientific information they need to prosecute a case.

This statutory authority that allows the police to test dead, unresponsive or unconscious drivers when proper probable cause exists is a direct outgrowth of the Illinois “Implied Consent” laws described above. Basically, the idea is that when a person requests the privilege of driving on Illinois roads, they agree to take chemical testing, whether dead or alive (or unconscious).

Can the Police Take Your Blood or Urine Against Your Will?

If, under certain circumstances, the police in Chicago and across Illinois are allowed to take the bodily fluids of those incapable of consent, then it should come as no great surprise that our courts have also been willing to allow police to force some people to submit to chemical testing, even though they are in fact capable of refusing and do in fact refuse! This is often referred to as a “No Refusal Weekend”, and although it first because popular some years ago in Kane County and DuPage County, it has since spread to other counties such as Cook County, Lake County, Will County, McHenry County and other Illinois counties. Usually, these “No Refusal Weekends” happen on (you guessed it) weekends, and more times than not on holiday weekends, when the incidence of drunk driving and drugged driving often occurs with the greatest frequency.

What Does “No Refusal” Mean?

The police aren’t allowed to simply force a citizen to give blood or urine, even when they have probable cause to believe that they are committing a DUI. But what they can do is to get a Judge involved and obtain a search warrant. Usually, warrants are used to search cars and houses for weapons, drugs or stolen property. The way that this is done is as follows: A police officer will appear in front of a Judge and explain what evidence they have as it relates to a crime having occurred and the likelihood that proof of a crime will be recovered if the police are allowed to search the location requested. If the officer’s presentation is deemed sufficient by the judge, a warrant will be granted allowing the police to legally search the location for certain items. This process can be slow and time consuming though. Judges are not always available when police want to request a warrant, and it can take many hours or sometimes even days to accomplish.

Although some drugs may stay in a person’s system for days or weeks, alcohol rapidly eliminates from the body over time, so that with every passing minute, a suspected drunk driver’s alcohol level is dropping. As police want to obtain scientific evidence proving the presence and extent of drugs or alcohol in the defendant’s system, time is therefore of the essence. It is in response to this need, that the concept of “No Refusal” was created. When such a program is in effect, a Judge and State’s Attorney are usually considered “on call” and police contact them immediately to request a warrant at any hour of the night or day.

How Can They Take My Bodily Fluids if I Don’t Consent?

Once a Judge has issued such a warrant, the police are empowered to obtain the blood or urine regardless of the defendant’s consent. Medical technicians and phlebotomists are usually “on call” during “No Refusal” periods and can be called to the scene of an arrest, accident or hospital to collect the sample. As a warrant is considered a Court Order, a failure to comply with such an order can result in a “Contempt of Court” citation which may be punishable by jail. Defendants who fail to promptly comply and/or wrestle with police can also be charged with resisting police, a Class A misdemeanor in Illinois. In order to obtain blood, in some circumstances, defendants have been restrained, tied to beds or had police sit on them while the blood was extracted. In other situations, some defendants have even been involuntarily catheterized to extract urine for testing.

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Since 1990, the experienced attorneys at Mitchell S. Sexner & Associates LLC have been helping people charged with criminal and traffic offenses obtain the best possible results available. Call us any time of day at (312) 644-0444 for a free initial consultation.

Written by Mitchell S. Sexner Last Updated : August 24, 2021