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DRUG & ALCOHOL EVIDENCE: PLEADINGS, PROOFS & PRACTICAL TIPS

DRUG & ALCOHOL EVIDENCE: PLEADINGS, PROOFS & PRACTICAL TIPS. October 25, 2012. Pleading Requirements 735 ILCS 5/2-604.1. Plaintiff must file a written motion requesting leave to amend the complaint to add punitive damages

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DRUG & ALCOHOL EVIDENCE: PLEADINGS, PROOFS & PRACTICAL TIPS

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

  2. 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

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

  4. Drug & alcohol evidence is considered highly probative, but “extremely prejudicial” Its relevance will be carefully scrutinized

  5. Relevance of drug & alcohol consumption NUMBER 1 RULE: INTOXICATION & IMPAIRMENT

  6. 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

  7. 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)

  8. RELEVANCE & SPECIFIC ISSUES • Defendant’s negligence – YES • Plaintiff’s contributory negligence – YES • Establishing foreseeability – MAYBE • Impeachment -- MAYBE

  9. 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.

  10. 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

  11. HOW TO PROVE IMPAIRMENT: • Direct or circumstantial evidence • Testimony from lay witnesses • Testimony from expert witnesses • Blood alcohol tests, toxicology reports & autopsy reports

  12. 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

  13. 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.

  14. 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)

  15. JURY INSTRUCTIONS • IPI 12.01 -- Intoxication • IPI 150.15 -- Dram Shop: Intoxication Definition • IPI 60.01 -- Statutory Violations

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