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Judge throws out blood evidence in fatal DUI case

Published: Saturday, Aug. 22, 2009 12:39 a.m. CDT • Updated: Tuesday, Aug. 25, 2009 10:19 a.m. CDT

ST. CHARLES – A judge threw out evidence Friday in an aggravated drunken driving case, agreeing that police did not have probable cause to take blood and urine samples from a Campton Hills teen involved in a fatal crash.

Erika Scoliere, now 20, has pleaded not guilty to aggravated DUI and reckless homicide charges in a July 2007 crash in South Elgin that killed 40-year-old motorcyclist Frank Ferraro.

During a hearing Friday, Scoliere's attorney Steve Komie asked Judget Thomas Mueller to dismiss blood and urine evidence, saying that police had no reason to take samples from Scoliere the night of the crash.

"There was no probable cause that a crime had even taken place," Komie said, referring to testimony this afternoon from several South Elgin officers.

Officers testified that they didn't suspect alcohol was a factor in the crash as they were speaking to Scoliere, then 18, the night of the crash at Randall and Silver Glen roads.

However, one firefighter-paramedic testified that he smelled an odor of alcohol while treating Scoliere in an ambulance that night. Scoliere suffers from asthma and was complaining of breathing problems. She was otherwise uninjured in the crash.

But he didn't make a report of his observations until police asked for it after Scoliere was charged, Komie said.

Assistant State's Attorney Steve Sims said Scoliere consented verbally to providing blood and urine samples after the crash. She drove with her parents to the police station and then to St. Joseph Hospital in Elgin. No written consent was signed.

Throughout the night, police never arrested Scoliere nor issued any traffic citations. Officers also told Scoliere that they could not force her to provide samples, so they "needed" her consent, according to testimony. Police also told Scoliere that she would be forced to provide samples if alcohol was a factor, which is not the law in Illinois, according to testimony.

Mueller ruled that "clearly there was no probable cause for the South Elgin Police Department to believe that Erika Scoliere was under the influence at the time of the accident," referring to Friday's testimony.

He further stated, "What this really comes down to … is consent."

"I'm not as bothered by the lack of written consent as I am the misstatement of the law," Mueller said, adding that police should have better explained the law to Scoliere, especially given her young age.

Those circumstances negate any verbal consent Scoliere might have given, Mueller said.

Scoliere returns to court Sept. 16 after prosecutors "consider options." Sims wouldn't say whether that includes dropping the charges, but said he could appeal Mueller's ruling to the 2nd District Appellate Court. That action would put the case on hold.

According to past hearings and public documents, toxicology tests revealed Scoliere's blood-alcohol level was 0.115 – more than the state's 0.08 legal limit – at the time of the crash.

Scoliere was turning left after waiting on a yellow light when Ferraro's motorcycle collided with her SUV, according to testimony. Komie said Friday that witnesses put Ferraro's speed at 70 mph in a 50 mph zone.

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