Ex-Joliet cop found not guilty of aggravated DUI in deadly crash

A Will County judge found a former Joliet police officer not guilty of aggravated driving under the influence and failing to reduce speed in a 2020 crash that resulted in the death of a Berwyn police officer who was a passenger in her vehicle.

On Friday, Judge Dave Carlson acquitted Erin Zilka, 39, of the felony aggravated DUI charge and a traffic citation of failure to reduce speed in the crash that killed Charles Schauer, 33, about 6:10 a.m. Jan. 19, 2020, in Plainfield.

Both Zilka and Schauer were off duty and were traveling in the southbound lanes of Interstate 55 in Plainfield after earlier leaving Tipsy’s Tap, a bar in Berwyn, where a party was held with other police officers.

“I truly hope and pray that everyone can move forward in some way, shape or form,” Carlson said.

Special Prosecutor William Elward and Schauer’s parents declined to comment after Friday’s court hearing.

Regardless of Friday’s outcome, Zilka still faces an ongoing lawsuit filed in Cook County against her by Jaron Srain, the brother of Schauer’s widow, Jessa Schauer. Srain was appointed administrator of Schauer’s estate.

Zilka’s Dodge Durango was the second vehicle to strike Felix Ocampo’s box truck Jan. 19, 2020. Ocampo’s box truck became completely disabled on I-55 after it was struck by Rodrigo Marin’s pickup truck. Marin, 45, had been driving drunk at the time and fled the scene after the crash.

Marin, Ocampo and Tipsy’s Tap also were named as defendants in Srain’s lawsuit.

Although Zilka declined to testify at trial, Elward played police squad video in which she told a trooper she had “clipped” the box truck that was “completely blacked out.”

Carlson said the evidence at trial showed Zilka was in the proper lane of traffic and drove at a “reasonable” proximity to the speed limit on I-55 when she was trying to exit the highway before crashing into the box truck.

The box truck was in the middle of the far right lane and the shoulder lane. Elward said Zilka drove between 64 mph and 68 mph before the crash. The speed limit on I-55 is 65 mph.

Carlson said there was nothing presented by Elward to show 20 or so vehicles – which did not strike the box truck before Zilka’s crash – had tried to exit the highway in the same lane that she was traveling in.

Elward had pointed to those other vehicles as evidence that Zilka should have been able to avoid the box truck.

He also bolstered his argument with testimony from Ocampo, who said he had been trying to alert motorists with his reflective heavy jacket, a pocket flashlight and a smartphone flashlight. Ocampo said he did not put out reflective triangles on the road because he didn’t feel it was safe to do so.

Carlson said the evidence appeared to show there was nothing foreseeable about the crash. He said Zilka reacted within the expected response time of an ordinary person.

When it came to the issue of whether Zilka was impaired by alcohol, Carlson acknowledged that there was evidence that Zilka had been drinking, but he said case law in Illinois has long established that the simple consumption of alcohol is not evidence of impairment alone.

Elward argued that video from Tipsy’s Tap showed Zilka arriving at the bar at 12:30 a.m. and drinking there until 5:40 a.m. He argued that Zilka consumed at least five White Claws, an alcoholic seltzer water, and had an open can of that beverage in her vehicle. The drink typically has a 5% alcohol content.

Carlson said that with the exception of Illinois State Police Trooper Michael Trainor, there was no other testimony from first responders as to whether Zilka had been impaired, such as observing her staggering or stumbling.

“There simply wasn’t evidence of that,” Carlson said.

Trainor had testified that he smelled an odor of alcohol on Zilka’s breath from 5 feet away when she was at a hospital after the crash.

Carlson said he had “real issues” with the blood evidence in the case. Elward argued that a blood test showed Zilka’s blood-alcohol concentration was at 0.07% about two hours after the crash, which suggested it was above the 0.08% legal limit before the crash.

Carlson said he was not going to make that assumption “based upon case law.” He also said a nurse had testified that he wasn’t sure if there may have been alcohol used in preparation for the IV during Zilka’s blood draw.

Although Elward did not have direct evidence that Zilka was impaired, he tried to make that case circumstantially by arguing Zilka covered up her impairment by refusing chemical and blood tests. Elward also argued that Zilka asked Illinois State Police Trooper Kevin Wehling, who responded to the crash, for a “favor” by saying she wanted to talk to him “officer to officer.”

Zilka’s attorney, Jeff Tomczak, disagreed that Zilka had been asking for a break from Wehling.

Before Carlson delivered his verdict, he said he wanted to express his sympathy to Schauer’s family.

“My heart goes out to you,” Carlson said.

At the outset of his ruling, Carlson said he has to base his decision on the facts presented at trial and the law, which does not always lead to conclusions that the world may deem just.

He repeated a common theme in his past rulings in other cases by saying there was nothing he could do as a judge to make anything better or “bring back a life.”

Tomczak said at trial that his client’s crash was unavoidable based on the dark conditions and based on Ocampo’s own actions to alert others of his disabled box truck.

“He knew how dangerous and unforeseeable it was, judge,” Tomczak said.

With Zilka acquitted, Marin is the only person convicted of a crime in the tragic chain-reaction crash.

In 2021, Carlson accepted an agreement between Marin and Will County prosecutors that involved Marin pleading guilty to aggravated DUI and serving 50% of a four-year prison sentence. Marin pleaded guilty to a charge that did not say his DUI violation caused Schauer’s death.

Carlson also granted Marin immunity from further prosecution in exchange for his testimony in a pretrial deposition requested by Tomczak. He argued at trial that Marin was responsible for Schauer’s death.

Zilka resigned from the Joliet Police Department last year. She was the second Joliet police officer to resign last year while criminal charges were pending against her. The other was former Joliet police Sgt. Javier Esqueda, whose official misconduct case remains pending in Kendall County.

In a 2021 email to former Joliet Police Chief Dawn Malec, outgoing city attorney Sabrina Spano said the Joliet City Council wanted the administrative review hearings for Zilka and Esqueda to be held after the “conclusion of the respective pending criminal cases.”