Defense in Avalos Case Will Try to Invalidate Blood Alcohol Test

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Hector Avalos. Photo courtesy of the family

Last week, the attorney for Robert Vais, the driver accused of fatally striking cyclist Hector Avalos while drunk, indicated that the defense will file a motion to invalidate Vais’ blood alcohol content test, according to Avalos family lawyer Michael Keating.

Avalos, a 28-year-old former marine and aspiring chef, was biking on the 2500 block of West Ogden in Douglas Park on December 6, when Vais, 54, fatally struck him from behind. Vais is charged with a felony aggravated DUI and two misdemeanor DUI charges.

The defense revealed its strategy at a status hearing last Tuesday, attended by many of Avalos’ friends and family members, according to Keating, a Streetsblog Chicago sponsor. Also in attendance were a coworker of Bobby Cann, who was also killed on his bike by an allegedly drunk driver last year, as well as victim advocates from the police department, the Alliance Against Intoxicated Motorists, and the Active Transportation Alliance.

The defense will argue that blood alcohol testing is unreliable, so the fact that Vais was found to have a BAC of .118, well above the legal limit of .08, on the night of the crash, should not be held as evidence, Keating said. He added that this is a common tactic in DUI cases. Last month the attorney for Ryne San Hamel, the defendant in the Cann case, filed a similar motion.

In response, the State’s Attorney’s office will use an expert toxicologist to verify that BAC tests are generally accurate, Keating said. The expert will likely testify at the next hearing, scheduled for June 30 at 9:30 a.m. at the Cook County Courthouse, 26th and California, room 702.

Meanwhile, the Avalos family’s civil suit against Vais, as well as Francesca’s on Taylor, the restaurant where the driver reportedly drank prior to the crash, is moving forward. The parties are currently engaging in written discovery, the exchange of evidence between the parties, according to Keating. The deposition of the responding police officer is expected to take place next month, Keating said.

  • disqus_IG93K4Xq6q

    It’s times like this when I WILL NOT feel sorry for the drunk driver of this accident. It’s an insult to the victim and his family to try to escape being sent to prison by using a loop-hole or technicality. He should have just pleaded guilty and asked the judge for mercy because it was an accident. But it’s insulting to try and lie his way out of this situation. What a bum.

    I’ll be grinning when he gets that nice long prison sentence.

  • Dennis McClendon

    Ours is an adversarial system where both sides present their best arguments, both challenging and validating evidence and testimony, in search of the objective truth. We don’t rely on remorse of the defendant—or on a popular vote among blog readers—to determine a criminal’s guilt or innocence.

  • Fred

    Exactly how does invalidating a BAC test based on a technicality reveal the “objective truth”? Invalidating the test that says he was drunk doesn’t magically make him sober at the time of the incident.

  • BlueFairlane

    It weeds out the possibility of some mishap with the test. If it is shown that the test was properly used and functioned correctly, then it proves the objective truth that the defendant was drunk. If, however, it is shown there was some problem with the test, then we can’t know the objective truth.

  • Mishellie

    OK – so how do we get accurate blood tests then? That’s my question. I truly fail to see how a blood test can be “innaccurate” at that level of intoxication.

  • rohmen

    For better or worse, this type of motion (as the article somewhat notes) is common place in a DUI case and part of the process. The defendant challenges the reliability of the test (either generally, or based on a challenge as to how it was specifically administered in this case), and the state presents an expert to confirm that the test–generally, and/or as administered here–was reliable.

    The vast majority of these motions fail.

    This is criminal law 101 stuff, and this type of motion plays a part in almost any situation/case where a scientific test is going to factor into the conviction (be it DNA, fingerprints, handwriting analysis, etc…). For a defense attorney not to raise some type of challenge to this type of evidence if even a hint of a grounds exist to challenge would border on malpractice.

  • Sharon Johnson

    Everyone, please do not call this an accident. It was a preventable crash. This man made a choice to drive intoxicated. Hector had no choice at all.

  • BlueFairlane

    Well, I don’t see much profit in going into how blood tests work. Suffice it to say, in a legal system in which a defendant is considered innocent until proven guilty, it is well within the rights of this defendant to question any evidence that proves his guilt. Unless it can be shown that something incredibly unusual occurred with this test (something which would involve gross incompetence that, frankly, we’d want to know about), the motion will be denied, and all the hand-wringing will be for nothing.

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