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Tuesday, September 29, 2015

Automatic Suspension for Refusal to Take Drug Test Unconstitutional

Section 11-501.6 of the Illinois Vehicle Code provides that a driver who is arrested for a traffic violation related to a fatality or other serious personal injury automatically consents to having his or her blood, breath, or urine tested for the presence of alcohol or drugs. According to the statute, refusal to submit to the testing results in an automatic suspension of the person’s driver’s license. 625 ILCS 5/11-501.6. On September 24, 2015, the Illinois Supreme Court held that his statute was unconstitutional “as applied," upholding a previous circuit court decision. McElwain v. Office of the Ill. Sec. of State, 2015 IL 117170 (Sept. 24, 2015). 

The plaintiff was involved in a traffic accident, in which he collided with a motorcycle. The driver of the motorcycle received substantial injuries, and the passenger died as a result of the injuries she sustained. On the day of the accident, plaintiff was not issued any tickets or asked to take any chemical tests.  However, during their investigation of the accident, the police discovered cannabis paraphernalia in plaintiff’s car.

Two days after the accident, plaintiff was asked to come to the police station, where he was questioned and admitted he smoked marijuana two weeks prior to the accident. The police issued plaintiff a traffic citation and asked him to submit to a drug test, but he refused. Because he refused to take the drug test, the Secretary of State suspended plaintiff’s driver’s license for three years pursuant to Section 11-501.6. After an administrative law judge denied plaintiff’s request to invalidate his license suspension, he filed a lawsuit claiming violations of his due process and fourth amendment rights.

The court first determined that the law did not limit the time in which the drug test must be performed. Second, the court found the law was applied to the plaintiff in an unconstitutional manner, because the police requested the drug test two days after the accident, rather than shortly after the accident. That, the court held, “is obviously much less probative of the question whether the person was driving while impaired, and carries the risk of serious prejudice by possibly indicating impairment at a time other than at the time of the accident.” The court did not, however, draw a bright line as to how soon after the accident the testing must be requested, stating that this was a task best left to the legislature.  

Post Authored by Elizabeth Barton, Ancel Glink


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