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Petite Lake boater wants blood-alcohol tests tossed

David Hatyina

David Hatyina

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Updated: April 21, 2013 3:08AM

Defense attorneys are seeking to suppress a boater’s blood-alcohol level tests after he fatally ran over a Libertyville boy last summer.

David Hatyina, 51, faces reckless homicide and aggravated DUI charges for the July 28 incident. Hatyina, of Bartlett, is alleged to have been under the influence of alcohol and cocaine when he operated a boat on Petite Lake when he hit Tony Borcia, 10.

The Libertyville boy was boating with his family and had fallen off an inner tube when he was run over, authorities said.

Authorities said Hatyina had a blood-alcohol level between .09 and .128 at the time of the accident, above the legal limit of .08.

His blood was drawn four hours after the incident and recorded at .052, according to Lake County Assistant State’s Attorney Ari Fisz.

A scientific principle called retrograde extrapolation was applied to determine Hatyina was above the legal limit.

Defense attorney John Donahue is seeking to suppress the blood testing results from Hatyina’s upcoming trial, which is scheduled for May 6.

Donahue said the retro extrapolation used to determine Hatyina’s blood alcohol content “is not accepted in the scientific community,” and wants to keep an expert’s findings about the method out the trial.

The expert opinion does not take into account “the vast differences that individuals have in the rate of absorption of alcohol,” Donahue wrote in his motion.

Attorneys met Tuesday before Kane County Judge Clint Hull to schedule a hearing to address the blood results.

Hull is presiding over the case because a Lake County judge is related to the boy. The hearing will be held April 9 through April 11.

Hatyina “substantially passed” some field sobriety tests for Lake County Sheriff’s deputies about half an hour after his watercraft struck Tony Borcia, Donahue wrote in his motion to suppress the blood-alcohol level.

Hatyina also passed a “variety” of field sobriety tests administered by Illinois Conservation Police. Hatyina agreed to submit to a portable breath test with a result of .69 — an hour and a half after the accident, Donahue wrote in his motion.

Law enforcement officers then took Hatyina to get his blood drawn.

“He was never given a choice whether he could refuse blood testing ... he was never given any consent forms to sign for the blood draw. He never gave his free and voluntary consent,” Donahue wrote.

Donahue alleged that proper procedure was not followed when taking the blood draw and that “boating fumes may have contributed to blood test results.”

Hatyina has pleaded not guilty to the criminal charges.

The Borcia family has filed a wrongful death lawsuit against Hatyina seeking damages in excess of $50,000. That lawsuit is pending.

Hatyina remains free on bond after Gene Decker of Lake Geneva, Wis., one of three supervisors in the town of Geneva, posted 10 percent of Hatyina’s $1 million bond in August. He is due back in court March 5.

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