THURSDAY, FEBRUARY 5, 2009
ILLINOIS SUPREME COURT RULING 02/05/09
The Supreme Court of Illinois has denied the Lodge’s petition for leave to appeal the case of People v. Carey. As has already been reported, the Appellate Court ruled that the use of an administrative breathalyzer examination at a criminal proceeding is permissible. The Lodge filed a petition with the Supreme Court seeking an opportunity to argue our position. The Supreme Court denied our request. Accordingly, the ruling of the Appellate Court remains in effect. Evidence obtained by IAD, whether for a criminal case or an administrative case, will be admitted into evidence at any subsequent criminal proceeding, as long as the recovery of the evidence does not violate the exclusionary rule. To be clear, the fact that evidence was obtained administratively does not in and of itself violate the exclusionary rule and will be admitted into evidence. The Lodge will continue to monitor what it believes was an incorrect ruling by the Appellate Court and will inform the membership of any new developments.
It is the right of a law enforcement officer to be free from compulsory self-incrimination. The basic thrust of the Garrity Rule is that a department member may be compelled to give statements under threat of discipline or discharge but those statements may not be used in the criminal prosecution of the individual officer. The courts have held that choosing to work in a police department does not give a person a “watered-down” version of their Fifth Amendment right against self-incrimination.
Apparently a citizen has the right to refuse to submit to a breathalyser and a police officer is not afforded the same protection. In essence evidence is gathered from the officer because he is compelled to incriminate himself while under duress.
How is this not a violation of Garrity?
This is in no way an endorcement of drinking and driving.