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Brandon M.
Brandon M., Counselor at Law
Category: Criminal Law
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Experience:  Attorney
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In Illinois, can the state collect urine and blood from an

Resolved Question:

In Illinois, can the state collect urine and blood from an unconscious driver based upon positive results of taking prescription opiates?
Submitted: 5 years ago.
Category: Criminal Law
Expert:  Brandon M. replied 5 years ago.
Hello there:

I am not clear on how the state would have the positive results prior to a urine and blood collection, or why the state is taking samples prior to sending the driver for medical attention. What is the situation?
Customer: replied 5 years ago.
Driver hit parked car. Airbag deployed into driver's chest, she was unconscious. After driver was intubated and at the hospital, the Paramedic told the Doctor that Paramedic's diagnosis was Narcotic Overdose. Within 20 minutes at the hospital, "trauma blood and urine" were taken from Unconscious Driver. Results indicated positive for opiates, which were consistent with the Driver's shown list of prescribed medications. Thereafter, Sheriff arrested Unconscious Driver of DUI of medications taken that could cause drowsiness. A second "chain of custody" urine and blood draw was taken.
Was this a valid search and siezure of driver's blood and urine based upon the mere signing the back of my Illinois driver's license?
Expert:  Brandon M. replied 5 years ago.
Interesting. So, your question pertains to the legality of the second "chain of custody" draw, is that correct?
Customer: replied 5 years ago.
No. Use the same facts as stated above. Driver was arrested for DUI based solely on the first "trauma blood draw." Driver was unconscious when initial blood draw was taken. Results of the "trauma blood draw" were positive for opiate. DUI is based on Misuse of Prescribed Opiate medication causing drowsiness. (As a side note, the second "chain of custody blood & urine draw" will be thrown out b/c Fentanyl was given to Unconscious driver after the FIRST blood draw.) (It's a large stretch. . . .but, it is entirely true.)

Does the rule of law from Schmerber v. California, allow the State of Illinois to: 1) draw blood and urine from an unconscious driver who hits a parked car, wearing a Fentanyl patch, which causes suspicion of DUI based on Opiate causing drowsiness? Even if the initial blood draw has no "chain of custody?"
Expert:  Brandon M. replied 5 years ago.
I am still not getting it, but I promise to not get frustrated if you promise the same. You said that the hospital was responsible for the blood draw. How do you figure that the state of Illinois made the draw?
Customer: replied 5 years ago.
Good Point, Mr. B.T. Meyer. ( I hear fireworks from my window. . . . after your response)

Well, now you have wrinkled the space b/t my eye brows.

Should I be asking you the question, "Can I be charged and placed under arrest for a DUI, not from alcohol, based solely on the hospital's initial "trauma blood draw?" where the Driver was unconscious and needed a ventilator to breathe for her. (Which, as stated, had no chain of custody.) Adding to this, that there does not exist an official blood and urine draw with "chain of custody" due to it being tainted, as described above.

The Sheriff used the initial "trauma blood and urine draw" as his preliminary test to see if I was positive for alcohol, which was negative. However, finding that the blood draw was positive for opiate, he arose w/ an Arrest for DUI based on Opiate.

The Sheriff and the Trauma Doctor knew and had in the Doctor's possession my Medications History that was given to the Doctors upon my ER appearance.
Expert:  Brandon M. replied 5 years ago.
If this answer does not answer the question to your satisfaction, just let me know and we will keep working on it. I am not going to defend the law, but please allow me to explain it. Technically, law enforcement does not need any blood or urine test to arrest and successfully prosecute a DUI. The prosecution must have proof beyond a reasonable doubt, and it is possible to have sufficient proof for a reasonable person to have no doubt of guilt even without a chemical test. I would speculate that, in your years, you have encountered people who were drunk or high and you could make that assessment without seeing the result of chemical tests.

When a driver is admitted to a hospital in an unconscious state, it is normal procedure to administer some chemical tests and those test results are generally admissible as evidence in a case. Under those circumstances, the draws are lawful. The chain of custody can become an issue if there is ambiguity about who handled the samples in the course of custody, but, as I mentioned, it would not necessarily be fatal to a prosecution.

Again, it gives me no pleasure to announce this, but please keep in mind that the experts are not credited for unaccepted answers and even where I can not get you out of your trouble, my hope is that you can at least feel confident in your knowledge of your rights so you can get the best legal outcome under the circumstances, whatever that outcome may be.

I understand that you may have follow-up questions. Let me know if further clarification is needed. Thank you.
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