DRUG & ALCOHOL EVIDENCE: PLEADINGS, PROOFS &

PRACTICAL TIPS

October 25, 2012

Pleading Requirements735 ILCS 5/2-604.1

Plaintiff must file a written motion requesting leave to amend the complaint to add punitive damages

Plaintiff must establish “a reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages”

The motion must be made no later than 30 days after the close of discovery

Nature of section 2-604.1 hearing

It is within the discretion of the trial court to determine what type of hearing is appropriate

It does not need to be an “evidentiary hearing”

Court may decide the motion based on pleadings, affidavits, answers to interrogatories & depositions.

Stojkovich v. Monadnock Building, 281 Ill.App.3d 733 (1st Dist., 1996)

Drug & alcohol evidence is considered highly probative, but “extremely

prejudicial”

Its relevance will be carefully scrutinized

Relevance of drug & alcohol consumption

NUMBER 1 RULE:

INTOXICATION & IMPAIRMENT

Without Evidence of Intoxication:

NO reference to drinking or consumption of drugs

NO “insinuations or innuendos” of intoxication based on drinking or drug use

NO (maybe) reference to surroundings at time of injury

RELEVANCE RULE # 2

The relevance of drug & alcohol evidence must be assessed in the context of the

disputed factual issues.

Carrillo v. Ford Motor Company, 325 Ill.App.3d 955 (1st Dist., 2001)

RELEVANCE & SPECIFIC ISSUES

Defendant’s negligence – YES

Plaintiff’s contributory negligence – YES

Establishing foreseeability – MAYBE

Impeachment -- MAYBE

WHAT IS INTOXICATION?

IMPAIRMENT of mental or physical abilities & a diminution in the ability to act with ordinary care.

Some “act, action, conduct, appearance, observation or circumstance…[which] either directly or by reasonably inference demonstrates” impairment at the time of the occurrence.

Intoxication Is Not:

Synonymous with “under the influence”

Mere miscalculations or errors in judgment

Driving at excessive speeds (without more)

Mere involvement in an accident

Alcohol or drug consumption

HOW TO PROVE IMPAIRMENT:

Direct or circumstantial evidence

Testimony from lay witnesses

Testimony from expert witnesses

Blood alcohol tests, toxicology reports & autopsy reports

EXPERT TESTIMONY

MUST have adequate foundation (generate record of AIP’s food, alcohol & drug consumption, as well as activities & time between consumption & testing)

May utilize extrapolation or retrograde analysis of BAC results

TEST RESULTS

Positive test results, without more, may not be adequate to prove impairment. (BEWARE: Conflict between Wade I, Steward & Petraski)

BAC level based on a blood serum level requires evidence of a conversion factor.

LEGAL PRESUMPTION

Section 11-501.2(b)(3) of the Vehicle Code creates a presumption for BAC levels of 0.08 or more

What is the presumption? See, Wade I, Steward & Petraski

Presumption may only apply to “whole blood” samples. People v. Olsen, 388 Ill.App.3d 704 (2d Dist., 2009)

JURY INSTRUCTIONS

IPI 12.01 -- Intoxication

IPI 150.15 -- Dram Shop: Intoxication Definition

IPI 60.01 -- Statutory Violations