Judge refuses to dismiss DUI evidence

A Kane County judge Thursday denied a Geneva man's motion to suppress evidence that he was driving under the influence that he says was obtained unlawfully.

David Schonback, 25, of the 2000 block of Pepper Valley Drive, was one of 14 drivers pulled over on suspicion of drunken driving during Kane County's first "No Refusal" program during the 2008 Memorial Day weekend.

Defense attorney Glenn Sowa argued Schonback, who was initially pulled over because he did not have a front license plate on his 2006 Subaru Impreza WRX, was coerced into submitting to a Breathalyzer test. Sowa said after numerous admonitions and threats of a search warrant to take blood by Assistant State's Attorney Scott Schwertley - whom Sowa described as "a large man" at 6 feet 6 inches tall, Schonback consented to a breath test. He returned a blood-alcohol level of .184, more than twice the legal threshold.

Sowa also said Schonback, who twice refused to take a breath or blood test, was told that if he refused to consent, a blood draw would be taken involuntarily from him and he could be held in contempt of court.

"The threat of drawing blood is inherently coercive," Sowa said. "The threat of obtaining a search warrant is inherently coercive. He was held in a booking room and the fact that a phlebotomist was present and ready, willing and able to stick a needle in my client's arm, all led to the coercive nature ..."

Assistant State's Attorney Steve Sims said the state did not need Schonback's consent because it had a search warrant.

"We were asking for cooperation," Sims said. "It was out of kindness ... to take the less intrusive breath sample."

Sims also said Schonback spoke frankly with Schwertley, telling him he wanted more time for his blood-alcohol content to get lower.

"He seemed quite comfortable with Scott Schwertley," Sims said. "He had no problem telling him he wasn't going to take the breath test."

Judge Kevin Busch denied the motion to suppress the evidence but did say the statement that the defendant would be violating a court order or would be held in contempt of court for failing to comply was "patently untrue."

"Officers did not act unreasonably when executing the search warrant," Busch said. "It was not force that resulted in the taking of a breath sample. The service of the search warrant - and perhaps some trickery - led to the defendant cooperating."