Erin Zilka Verdict: Prosecutor Failed To Prove Felony DUI Charge

JOLIET, IL? Will County Judge Dave Carlson spent several minutes on Friday outlining the reasons why the evidence presented at trial by Ilinois special prosecutor Bill Elward failed to prove that off-duty Joliet police officer Erin Zilka committed the felony offense of aggravated DUI causing death.

By 11 a.m., Carlson informed a packed courtroom on Friday that Zilka was not guilty of aggravated DUI, and she was not guilty of failure to reduce speed to avoid a crash. On Jan. 19, 2020, Zilka crashed into a disabled box truck that was blocking the right turn lane to exit Interstate 55 for Route 30. Zilka's passenger, off-duty Berwyn police officer, Chuck Schauer, died on impact.

Carlson spent several minutes, before announcing his decision, explaining his legal logic and rationale for arriving at the verdict.

Carlson said he wrote the whole thing even though judges, like jurors, do not have to. He said he thinks it's incumbent on judges to explain "why we do what we do."

The parents of Chuck Schauer sat in one of the front row benches in the gallery. Chuck Schauer's father was a retired police officer in the Chicago suburbs.

"To the Schauers, I want to express my sympathy," Carlson said, informing Mrs. Schauer that he knew of all the nights she stayed up late at night fearing "for the Godawful phone call" and never got it until the crash.

"This, it's heartbreaking," the judge told the parents. "My heart goes out to you."

Carlson said he's been on the bench 10 years next month and nine years as a felony judge. Erin Zilka's trial reminded him "that there is such a human element," in tragedies like this.

The challenge for Carlson, he said, is putting aside his own emotions and feelings as a father, as a son as a human being "because the decisions sometimes seem cold. We have to use the evidence presented in court and the facts presented."

Carlson said that judges cannot make decisions "based on public perception" and "emotions, and just go along with you think is right. I can't live with myself doing that. I can't do that.

"This (verdict) has a huge impact on the lives going forward, whether you want to call it closure, and I can tell you right now I wish someone else was doing this ... There is not a thing I can do to bring back a life, to make anything better."

In arriving at his verdict, Judge Carlson explained that Zilka was traveling in her proper lane of traffic when she crashed into the disabled Hino box truck, driven by Felix Ocampo. His truck became disabled minutes earlier when a four-time drunken driver, Rodrigo Marin, of Plainfield, collided with the box truck, before trying to walk away from the I-55 wreck.

The crash happened along a curve in the road, and it was dark outside. There was no evidence presented indicating Zilka was driving recklessly prior to the crash.

Judge Carlson explained that Zilka was traveling in her proper lane at the time of her crash killing her passenger and "driving within a reasonable" speed, perhaps even 1 mph below the posted speed limit of 65. Even though 20 other cars may have swerved around the box truck to avoid hitting, Carlson said, there was no evidence that any of those motorists tried to get off at the Route 30 exit as Zilka tried to do.

On the felony DUI charge, Carlson said that Illinois law requires prosecutors to prove that Zilka's blood alcohol level was at least 0.08 and that she was so impaired as to cause her act without thought or ordinary care.

"Ms. Zilka was drinking ... the simple consumption of alcohol ... is not evidence of impairment," Carlson declared. "There has to be evidence of impairment."

During her trial, at least five Illinois State Police, firefighter-paramedics and a nurse at St. Joe's hospital all testified that Zilka did not appear impaired or intoxicated in the aftermath of the fatal wreck killing Schauer.

Except for one Illinois State Police trooper who claimed he smelled alcohol on Zilka's breath at the hospital, "there is no other testimony of any additional signs of impairment, swaying or staggering. There simply wasn't any evidence of that."

A blood draw taken of Zilka at the hospital registered 0.07, which is slightly below the legal limit in Illinois to be considered intoxicated.

"I have real issues with the blood draw in this case," Carlson announced. According to the nurse, there may have been alcohol used with the needle in preparation of the IV.

"I, as the trier of fact, cannot make the leap that the alcohol was at a level either coming down. The only alcohol related blood draw came up at 0.07. Under Illinois law, there is no presumption to be taken on that."

Lastly, Carlson talked about the open can of White Claw recovered in the wreckage of Zilka's vehicle. Clearly, there was open alcohol in the car, the judge said, but the special prosecutor made the decision not file that particular charge.

"There's really not much else I want to put on the record," Carlson said, as he then told everyone that Zilka was not guilty on all her criminal charges.

A Joliet Patch Facebook Live video showing criminal defense attorney Jeff Tomczak's press conference outside the courthouse after the verdict is at the bottom of this story.