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
 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