Can you get a DUI without being tested in Illinois?

Can Hospital Blood Tests be Used as Evidence in a DUI Case? | Illinois DUI Law

Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
October 28, 2019

In this article, we will answer a reader’s question: “Can Hospital Blood Tests be Used as Evidence in a DUI Case?”  For some foundational information about Illinois DUI law, check out our article: Illinois DUI Law Explained.  The short answer is that hospital blood tests can be used as evidence in DUI cases.

In 2000, the Supreme Court answered a certified question from the Fourth District, establishing that records of hospital blood tests can be used as evidence in DUI cases. If an individual is arrested for driving under the influence, the results of his or her medical tests can be legally disclosed to police, despite privacy laws concerning health information. Many drivers believe their medical records are protected from disclosure by the Health Insurance Portability and Accountability Act of 1996 (HIPAA). However, federal law clearly states that health information is not protected if it relates to an individual who is in lawful custody of law enforcement.

Also, Section 11-501.4 of the Illinois Vehicle Code states that the results of blood or urine testing conducted at the emergency room may be disclosed to law enforcement and are admissible in evidence in a prosecution for DUI. Health information may be disclosed to law enforcement officials for law enforcement purposes under the following six circumstances:

  • As required by law (including court orders, court-ordered warrants, subpoenas) and administrative requests.
  • To identify or locate a suspect, fugitive, material witness, or missing person.
  • In response to a law enforcement official’s request for information about a victim or suspected victim of a crime.
  • To alert law enforcement of a person’s death, if the covered entity suspects that criminal activity caused the death.
  • When a covered entity believes that protected health information is evidence of a crime that occurred on its premises.
  • By a covered health care provider in a medical emergency not occurring on its premises, when necessary to inform law enforcement about the commission and nature of a crime, the location of the crime or crime victims, and the perpetrator of the crime.

This does not mean, however, that all results of blood and urine testing from the emergency room are admissible in all cases. A DUI conviction requires a blood alcohol level (BAC) of .08% or higher. Police officers have various methods of testing the level of alcohol in a person’s blood. The results or findings of all kinds of tests are admissible in court; but the situation has to fit two statutes:

  1. Evidence must be used in the prosecution of a violation of 11-501 (criminal offense of a DUI)
  2. Evidence is not admissible for the prosecution of any other criminal offense besides DUI and reckless homicide

Drivers should typically not consent to a field sobriety or portable breath test at the scene of the arrest. Drivers may also refuse a police blood test (DUI kit). It’s important to understand the different kinds of blood tests and legal scenarios. For example, there are two types of blood tests: a whole blood test and a blood plasma (serum) test. Each blood test has its own legal requirements to be admissible in court.

Hospitals usually perform blood plasma tests. A blood plasma test is performed on the liquid portion of a drawn blood sample after the solid cellular components have been separated. A legal blood test, on the other hand, is performed on whole blood that has not been broken down into solid and liquid components. The distinction between blood plasma tests and whole blood tests is critical when analyzing the reported BAC levels, because a plasma test will show 10-15% higher results than a whole blood test from the same person.

There are two types of blood draws, as well. First, a consent draw (DUI kit) requires the consent of the client, obtained by the police officer. Next, the police officer officially requests a blood test from the hospital. That officer would typically be present and serve as a legal witness to the drawing in order to confirm authenticity. The Illinois State Police regulation requires the blood to be collected by a licensed physician, registered nurse, training phlebotomist, or certified paramedic. Consent draws are typically used as evidence for prosecution. Police may order a blood test without consent, if one of the following scenarios were to occur:

  • You are dead, unconscious, or otherwise incapable of refusing the test.
  • Police successfully subpoena hospital records to assist them in providing DUI charge.
  • Police are present during treatment and request the results from hospital personnel.
  • Based on BAC, police may ask for a second sample to analyze in their own lab.
  • You consent to police testing separate from blood test given by the doctor.

The second type of blood draw is an emergency room draw. Keep in mind; every police officer has the legal duty of protecting any person in custody. Law enforcement doesn’t want to be sued, so if a person needs immediate medical care, a police officer is going to admit the person in custody to the emergency room (the law does not define an “emergency room”). Likewise, all medical facilities operate on a strict protocol, and failure to follow protocol may be considered negligent or leave the hospital liable for malpractice. One of the medical staff’s first priorities is blood and urine analysis to check for alcohol and drugs, or any preexisting medical conditions. In other words, if you need immediate medical attention, a hospital is usually going to conduct an emergency blood test on you (serum).

Any blood alcohol tests conducted as emergency medical treatment is admissible in a DUI prosecution. However, the defense can file a motion to exclude test results from the case. The state is allowed to request the court to sign a Qualified Protective Order for use with a subpoena for your medical records. Once received, the State may also call a forensic toxicologist with the Illinois State Police to perform this calculation and present a conversion report., The blood test results have to be proved to be conducted in the regular course of providing emergency medical treatment, not at the request of law enforcement, to be admissible in court. If the police were the reason behind the testing, it is not admissible. The police would also not be allowed to circumvent the law for chemical testing by taking an uninjured person to the emergency room.

Additional Financial Considerations
from Financial Experts

From Financial Experts

For many years, financial institutions have been creating a disservice to clients and the industry as a whole for years.
View More Professional Considerations

Presented By O'Flaherty Law

Do you need a warrant to draw blood in Illinois?

Need Legal Help? 

Schedule a

What to Expect From a Consultation

The purpose of a free consultation is to determine whether our firm is a good fit for your legal needs. Although we often discuss expected results and costs, our attorneys do not give legal advice unless and until you choose to retain us. Although most consultations are complimentary, some may carry a charge depending on the type of matter and meeting location.

Leave a Comment With Your Questions

Read more about

DUI, Criminal & Traffic Defense

We offer free, paid & Online Consultaions
Schedule a consultation with our Illinois & Iowa Attorneys

We offer free, paid & online consultation in nearly every area of law throughout Illinois and Iowa. We have a range of options to assist you with your legal needs.

What happens at a legal consultation?
Meet with an attorney for a free consultation to discuss what type of matter you need to discuss with an attorney.
Over the Phone Legal Consultations
Similar to In-person consultations, you discuss your legal needs with one of our attorneys to discuss your legal matter.
An online consultation is like an in-person and an over the phone online Consultation. You meet face to face with our attorneys through our online portal.
Paid Legal Consultations
While a free consultation allows us to discuss what we can do in general terms for your legal matter, a paid consultation allows us to answer direct questions regarding your matter.
contact us

Monday to Friday
9am - 5pm

Contact Us
Disclaimer: Our articles and comment responses do not constitute legal advice and are not intended to create an attorney-client relationship.

Please contact us to schedule a free consultation for legal advice specific to your situation.

Here are some articles that may interest you
Schedule a

Contact us for a Free Consultation

Schedule a free consultation

O'Flaherty Law is happy to meet with you by phone or at our office locations in:

Who We Are
We are your community law firm. Our Illinois & Iowa Attorneys are committed to providing exceptional client service in a cost-effective manner in the areas of Family Law, Probate, Estate Planning, Civil Litigation, Guardianship, Criminal Defense, Corporate & Contract Law, Bankruptcy and Real Estate.

Some of Our Accomplishments

Best Child Support Lawyers in Chicago
DuPage County Probate Attorney
Kevin P. O'Flaherty
Rated by Super Lawyers

loading ...
Naperville attorney
DuPage County Probate Attorney

Subscribe to our mailing list

* indicates required