McMahon wants to close 'No Refusal' loophole by seeking 1-year suspensions
Kane County State's Attorney Joe McMahon said Wednesday his office will pursue a one-year automatic license suspension for drivers who initially refuse a breath test during "No Refusal" events but acquiesce after police obtain a search warrant.
McMahon addressed the issue this week during his monthly media meeting while discussing the results of the most recent "No Refusal" event the night before Thanksgiving, also known as "Black Wednesday," one of the biggest drinking nights of the year.
That night, he said, Kane County authorities arrested six motorists for driving under the influence of alcohol, including two who refused a breath test, but later consented after prosecutors obtained a search warrant.
McMahon said those people - who eventually registered BACs of .176 and .135 - would not face the one-year automatic driver's license suspension because of their initial refusal. If they had continued to refuse, a blood sample could be taken forcefully or prosecutors could charge the driver with obstruction of justice, a felony.
In a DUI arrest, if a driver refuses field sobriety tests or a breath test, it triggers an automatic one-year driver's license suspension. Drivers arrested for DUI after taking field sobriety tests and a chemical sample may still drive on a very limited basis, such as to and from work, while their cases are pending.
When presented with the scenario that a DUI suspect could refuse a test, sober up a little while the warrant was being obtained, and then provide a breath or blood sample without facing the automatic one-year suspension, McMahon on Tuesday said: "I think that's a valid point and it's something we'll look at."
Late Wednesday, McMahon said via email that "when someone refuses to provide a breath sample and law enforcement has to prepare and apply for a search warrant, we view that as a refusal and will pursue a 1-year statutory suspension."
When Kane County authorities announced the concept of a No Refusal DUI patrol more than a decade ago, part of the rationale was that savvy or repeat DUI suspects would often refuse any testing to prevent police from collecting evidence that could lead to another conviction.
In a No Refusal event, if a driver refuses a breath test, prosecutors work with an on-call judge and phlebotomist to obtain a search warrant for a blood draw, cutting valuable time off the process before the driver can sober up.
McMahon maintains the goal behind the events is to change behavior and get people to use a cab or ride share.
Kane County authorities have held 24 No Refusal events targeting days, such as Super Bowl Sunday and St. Patrick's Day, and have made more than 150 arrests.