DRUG & ALCOHOL EVIDENCE: PLEADINGS, PROOFS & PRACTICAL TIPS October 25, 2012

Pleading Requirements 735 ILCS 5/ 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 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 (1 st 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 (1 st 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 (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 Intoxication IPI Dram Shop: Intoxication Definition IPI Statutory Violations