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I was hit by a drunk driver blood tested at the hospital an hour after the crash and he wasn't charged with a DUI

Crystal Lake, IL |

The man who hit me was about 25 years old and his level of intoxication is clearly stated in the police report as .162. I spent several hours talking to the police about why this was and they claimed that since no officer had suspicion of him drinking that he couldn't be charged. Is this true?

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Attorney answers 3

Posted

No it isn't true. It is also possible that the officers in the hospital were not aware of what was happening back at the station with regard to pressing charges.

I anticipate a question on AVVO soon: "I was not arrested at the scene of the accident, can they send me a summons a week after the accident charging me with DUI based on the hospital blood test?" The answer to that one will be yes.

If he was driving and if he had a .162 shortly after, the police are not doing their job if this operator is not charged.

This answer is provided for informational purposes only. Actual legal advice can only be provided in an office consultation by an attorney licensed in your jurisdiction, with experience in the area of law in which your concern lies.

Asker

Posted

Police are not allowed to take blood or breath without having formed a valid suspicion of there being blood in the suspect. If they do, without showing a chain of events that includes the formation of a valid suspicion, the evidence (blood, breath) will be considered invalid due to unlawful seizure.

Andrew Daniel Myers

Andrew Daniel Myers

Posted

Thanks for the anonymous unfounded conclusion. Attorneys here are required to put our names on our answers, and having practiced for 20 years I stand by mine.

Asker

Posted

And I stand by mine, because it's not unfounded, it's true. Taking a breath or blood sample without reasonable suspicion is unlawful seizure. That's also why the cop told the OP that there was no charge because they didn't suspect the driver of drinking, hence the evidence is not admissable.

Posted

Contact your McHenry County State's Attorney.

http://www.co.mchenry.il.us/departments/statesattorneyoffice/Pages/ToughOnCrime.aspx

Let him know your concern.

Good luck to you.

God bless.

NOTE: This answer is made available by the out-of-state lawyer for educational purposes only. By using or participating in this site you understand that there is no attorney client privilege between you and the attorney responding. This site should not be used as a substitute for competent legal advice from a licensed professional attorney that practices in the subject practice discipline and with whom you have an attorney client relationship along with all the privileges that relationship provides. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance described in the question.

Posted

Generally, depending on the jurisdiction DUI charges are treated diffrently. It very well may be, as previously stated, that he will receive a summons in the mail at a later date to appear in court.

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