For most people, when they hear DUI, they assume there was a breathalyzer. But, the state can also attempt to prove your client is over the legal limit through a blood or urine test. A blood test is no reason to be intimidated and below I will explain why. First you should review your discovery and speak with your client to determine which type of blood draw and test was done. There are two statutes that allow the state to introduce a blood alcohol test result into evidence in a DUI prosecution. First, there is a consent blood draw under 725 ILCS 5/11-501.2. A consent blood draw will also be referred to as a DUI Kit. The second type is an emergency blood draw under 725 ILCS 5/11-501.4. This is most common when there has been an accident with injuries and your client was transported to the hospital and blood was drawn at the hospital. Each type of blood draw has its own legal requirements for admission into evidence at trial. It is these requirements that provide the opportunity to defeat the blood evidence.

Consent Blood Draw/DUI Kit

First, a consent draw or DUI Kit under 725 ILCS 5/11-501.2 is the most similar to evidence of a breathalyzer. It requires the consent of the client and warnings to the motorist should be read before the blood is drawn. The hospital usually has the DUI kit in a secure location within the emergency room and officers should use kits provided by the department and/or hospital. The police officer must obtain consent from the defendant and then request the hospital personnel to obtain the kit. A consent draw blood kit will not be done by the hospital without the police officer’s request for it. The consent draw must be obtained pursuant to Illinois State Police regulations found in the Administrative Code.1 A kit contains two vials for blood with industry standard anti-coagulant and preservative indicated by a gray vacuum top.2 A kit will also contain vials for the collection of urine. Urine is the preferred evidence for testing for drugs, not alcohol.3 The Illinois State Police regulation requires that the blood be collected by a licensed physician, registered nurse, trained phlebotomist, or certified paramedic.4 The identity of the person collecting the blood may appear in the officer’s Alcohol Drug Influence Report or at the least in the medical records from the hospital. A law enforcement officer shall be present when the sample is drawn to authenticate the sample.5 The medical records may indicate which officer requested the DUI kit and which one was present for the draw.

The tubes of blood must be labeled with the name of the patient and date of withdrawal and treated as biohazard evidence.6 The kit is subject to chain of custody requirements.7 The kit should be sealed in front of the officer and both the hospital personnel and officer should initial the tape on the box. The officer then takes custody of the kit and submits it to the Illinois State Police laboratory for analysis as soon as practicable.8 A forensic scientist with the Illinois State Police will photograph the kit in its box and each vial prior to analysis. Through discovery, you may request or receive photocopies of the seals and chain of custody documents from the Illinois State Police Laboratory. Consider your trial strategy before subpoenaing these items, you may want to argue a lack of chain of custody and the state may not tender the entire laboratory file.

It is not necessary for every person involved the chain of custody to testify at trial.9 People v. Bishop states that the evidence may be admitted with a missing link if there is testimony sufficiently describing the condition of the evidence when collected and delivered that matches the description of the evidence when examined.10 At trial, this means that the officer who was present for the draw and took custody of the DUI Kit must describe the kit, the seals, the initials and that description must match the one given by the forensic scientist who examined it at the Illinois State Police Laboratory. If the witnesses cannot sufficiently describe the evidence or the state fails to elicit sufficient descriptions, then there is an argument that the chain of custody is compromised and that the state has failed to meet its burden to show that reasonable measures were used to protect the evidence from being altered.11

The DUI kit containing the blood should be kept in a cool environment because it is biohazard evidence and improper handling could destroy the sample. The forensic scientist will describe a cooler at the lab and you can cross on its security and appropriate regulation. It is important to question the officer about the transportation of the DUI Kit. Ask if he placed it in the trunk of his squad car and for how long and then to whom and when it was transferred. Blood evidence can be damaged by mishandling.12 If there is lack of testimony regarding the safekeeping of the blood evidence, you have an argument that it was damaged and thus the results are not reliable. The state must show that reasonable measures were employed to protect the evidence.13 You should also note that the arresting officer is probably not the officer who transports the evidence to the ISP lab and the forensic scientist witness is probably not the person at the lab who receives the evidence. Watch for dates and names on the discovery from the ISP laboratory to build your chain of custody argument.

The ISP laboratory will conduct an analysis using headspace gas chromatography and return a result in whole blood.14 This is important because a whole blood result is required by statute and it is the state’s burden to present whole blood result.15 There will not be a conversion of this result. You can cross the forensic scientist on the testing procedures and lab certifications. The forensic scientist may run fifteen samples or more at one time.16 If you are arguing chain of custody, be sure to ask the forensic scientist about how blood decomposes and whether it could be detected by the human eye.17

The consent blood draw/DUI Kit requires at least three witnesses. The state must present the officer, the person who drew the blood, and the scientist who analyzed the blood. You can create doubt about the chain of custody and the reliability of the sample.

Emergency Treatment Blood Draw

The second type of blood draw is the emergency room draw exception under 725 ILCS 5/11-501.4. This statute states that a blood alcohol test conducted as part of emergency medical treatment is admissible in a DUI prosecution.18 The state will generally request the court to sign a Qualified Protective Order for use with a subpoena for your client’s medical records. Upon receipt of the medical records by the court, an in camera inspection will be done by the court prior to releasing the records to the parties. When you review the medical records, look for the injuries and diagnosis to determine what treatment was being rendered and to see if it qualifies as necessary emergency medical treatment. The lab report and relevant medical records can be admitted under the business record exception to the hearsay rule.19 Most often, the state will call the person who collected the blood and qualify them as the custodian of records. To meet the business record exception, the witness must testify to the business record and additionally foundation found in the statute.20 The witness must testify that the sample was tested by the lab the hospital routinely uses and there must be some testimony that test was ordered in the regular course of treatment.21 It is not necessary that the witness testify to a chain of custody.22 The lab technician who received and tested the blood is not required to testify, nor is subject to cross-examination. An objection can be made that this violates Defendant’s right to confront witnesses.23

The issue with the hospital blood draw is that hospitals generally will conduct a serum blood test.24 They spin out the water in the blood and then test it for the presence of ethanol. So the alcohol test result will be higher than a whole blood test result.25 A serum result can be anywhere from 12 percent to 20 percent higher than a whole blood result because alcohol is attracted to water in the body and the serum has a higher relative percentage of water which results in the higher concentration of alcohol.26 The state must then convert the serum test result into a whole blood test result.27 The administrative code has provided a regulation and conversion factor specifically for this situation. The administrative code requires the serum result to be divided by 1.18.28

The state may utilize a forensic toxicologist with the Illinois State Police to perform this calculation and present a conversion report. This expert can be cross-examined regarding how the conversion factor is determined, the studies done to determine the average conversion factor, and what medical conditions may affect an individual’s specific conversion factor. The state may ask the court to take judicial notice of the conversion rate and not present this expert with his report.29 However, you should object and argue that judicial notice is proper for the conversion factor, but not for the result. A court is limited to the exhibits offered and admitted; it should not be completing its own math equations to determine if the defendant’s whole blood alcohol concentration was over .08 beyond a reasonable doubt.30 The court has held that the conversion factor is not a mandatory presumption, but a permissive one. The court does not have to accept the conversion factor and resulting math.31

Over the years, there have been many challenges to blood evidence. Most of these issues—whether medication was given to the defendant, or whether alcohol was used to swab the arm, or the effect of an IV on the blood test—have been found to be unconvincing and not a bar to admissibility of the blood result. Overall, the appellate court has held that there must be evidence that the medication, IV, or alcohol swab affected the test results to make it unreliable.32

There is still plenty of room for argument in a DUI with blood evidence and opportunities for success. ■

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1. 20 Ill. Admin. Code ‘ 1286.320 (2011).

2. 20 Ill. Admin. Code ‘ 1266.320(d).

3. 20 Ill. Admin. Code ‘1286.330.

4. 20 Ill. Admin. Code ‘ 1286.320(b).

5. 20 Ill. Admin. Code ‘ 1286.320(a).

6. 20 Ill. Admin. Code ‘ 1286.320(e).

7. People v. Bishop, 354 Ill. App. 3d 549, 559 (1st Dist. 2004).

8. 20 Ill. Admin. Code ‘ 1286.320(f).

9. Bishop, 354 Ill. App. 3d at 560.

10. Bishop, 354 Ill. App. 3d at 560.

11. See People v. Harris, 352 Ill. App. 3d 63, 69 (1st Dist. 2004) (citing People. v. Irpino, 122 Ill. App. 3d 767, 775 (2nd Dist. 1984)).

12. Don Ramsell, Illinois Practice Series, Vol 25: IL DUI Practice & Guidebook, Appendix A (West 2010).

13. People v. Bynum, 257 Ill. App. 3d 502, 510 ( 1st Dist. 1994).

14. For a detained explanation, please see Don Ramsell, Illinois Practice Series, Vol. 25: IL DUI Practice & Guidebook ‘4:71.

15. See 726 ILCS 5/11-501 (2011); People v. Thoman, 329 Ill. App. 3d 1216 (5th Dist. 2002).

16. Don Ramsell, Illinois Practice Series, Vol. 25: IL DUI Practice & Guidebook ‘ 4:71.

17.Id.

18. 725 ILCS 5/11-501.4 (2011).

19. 725 ILCS 5/11-501.4.

20. People v. Massie, 713 N.E.2d 110 (1st Dist. 1999); 725 ILCS 5/11-501.4.

21. 725 ILCS 5/11-501.4

22. People v. Lach, 302 Ill. App. 3d 587 (1st Dist. 1998), appeal denied, 184 Ill. 2d 566 (1999).

23. See Crawford v. Washington, 541 U.S. 36, 54 (2004); Melendez-Diaz v. Massachussets, 129 S. Ct. 2527 (2009); Bullcoming v. New Mexico, 11 S. Ct. 2705 (2011).

24. Ramsell, supra note 16.

25. See People v. Menssen, 263 Ill. App. 3d 946, 953 (5th Dist. 1994).

26. People v. Green, 294 Ill. App. 3d 139 (1st Dist. 1997).

27. People v. Thoman, 329 Ill. App. 3d 1216, 1219 (5th Dist. 2002).

28. 20 Ill. Admin. Code ‘ 1286.40 (2011).

29. People v. Thoman, 329 Ill. App. 3d 1216, 1219 (5th Dist. 2002).

30. See State v. Rivers, 410 Ill. 410 (1951); Murdy v. Edgar, 103 Ill.2d 384, 394 (1984).

31. See People v. Olsen, 388 Ill. App. 3d 704, 716 (2nd Dist. 2009).

32. See People v. Miller, 166 Ill. App. 3d 155 (3rd Dist. 1988); People v. Rushton, 254 Ill. App. 3d 56 (2nd Dist. 1993); People v. Hirsch, 355 Ill App. 3d 611 (2nd Dist. 2005).