Blood evidence thrown out in fatal DUI case
Blood evidence that reportedly showed Erika Scoliere was legally drunk when she was involved in a fatal crash in 2007 was thrown out by a judge Friday.
Kane County Judge Thomas Mueller ruled that South Elgin police did not have probable cause to collect blood from the St. Charles woman, because police officers did not suspect at the time that she was intoxicated, nor had they arrested her or issued a traffic ticket.
Scoliere is charged with reckless homicide and aggravated DUI in the July 13, 2007 death of Frank Ferraro. She was making a left turn on a yellow light at Randall and Silver Glen roads in South Elgin when Ferraro's motorcycle hit her vehicle.
Mueller also ruled there were problems with the consent Scoliere gave for testing. A South Elgin police officer testified he told her that, under Illinois law, drivers involved in serious-injury or suspected DUI-related crashes have to be tested, but because he didn't suspect DUI, she "would need to consent" to testing.
Defense attorney Stephen Komie argued that the words "would need to consent" could be interpreted by Scoliere to mean she had no choice but to consent.
In addition, police did not get any written confirmation of her consent.
"I'm not as bothered by the lack of written consent as I am by the misstatement of the law that preceded the (oral) consent," Mueller said. "I think that anything that happens after you give an 18-year-old bad law negates the voluntariness of what would otherwise appear to be" willing consent.
"I would be the first to admit" the police did not follow the law correctly, assistant state's attorney Steve Sims argued, saying the test should be allowed because police could have issued her a ticket for failure to yield while turning left. The South Elgin officers testified no tickets were issued that night because the investigation was ongoing. They also testified they did not smell alcohol on Scoliere, and that she walked, talked and wrote normally. A paramedic testified that he smelled alcohol on her and told police, but the judge ruled that didn't count because there was no evidence he told officers.
In July, Mueller denied a defense motion to exclude the blood test results, even though police lost the original blood sample, because the disappearance was accidental. Police think they may have thrown it out.
The blood sample reportedly showed Scoliere, 18, had a blood-alcohol concentration of 0.115. The state threshold for DUI is 0.08.
Scoliere, now a student at Elgin Community College, faces up to 14 years in prison if convicted. Her next court date is Sept. 16.