GARRITY

Via FOP Lodge 7

BREATHALYZER AND GARRITY UPDATE 11/18/08

On Monday, November 11, 2008, the appellate court ruled that prosecutors can use, in criminal proceedings, the results of a police officer’s breathalyzer test that were obtained administratively (by IAD). The court reasoned that such results are non-testimonial; therefore breathalyzer results are not covered under the Fifth Amendment and are not protected under Garrity. This ruling in no way impacts statements made pursuant to an administrative investigation. Since Garrity was decided, the law prohibiting the use of administrative evidence has been watered down very much, especially in Illinois. Garrity only applies to testimonial evidence. Therefore, only statements made by an officer in an administrative investigation will be suppressed at any subsequent criminal proceedings (with rare exception); however all non-testimonial evidence is clearly admissible at criminal proceedings. (i.e. breath/blood test; identifications at line-ups, contraband found in PO’s locker, etc.).

The case at issue involved an off-duty police officer who was involved in a traffic altercation which included a high speed chase and allegations that the officer threatened the individual with his weapon. The officer was placed under arrest on the scene for aggravated assault and driving under the influence. The officer was brought to the 14th District and the arresting officers asked him if he was willing to submit to a breathalyzer test. The off-duty officer refused and accordingly was processed as a “refusal” per the statute. At that point a sergeant from IAD arrived, identified himself and presented the off-duty officer with the standard administrative proceedings rights and notification of charges. As you are aware, included in those rights is the language, “any admission or statement made by you…and the fruits thereof cannot be used against you in a subsequent proceeding.” We are familiar with this as the Garrity rule.

Pursuant to Illinois law, an individual charged with DUI clearly has the right to refuse to submit to a breathalyzer exam, although that right appears to be in jeopardy as other states have legislated away the right to refuse. Regardless of an Illinois driver’s right to refuse, since the Jones case was decided in 2005, the law is clear that when a driver’s blood or breath is taken, despite their refusal, it is admissible in a criminal proceeding. The courts do not allow the police the authority to use physical force to obtain a result, however results obtained any other way are fair game at criminal cases. (i.e. coercion, blood draws at hospitals and administrative searches).

The Lodge is contemplating whether to petition the Illinois Supreme Court to rule on this issue. The decision will be made in the coming weeks.