People v. Eubanks, 2017 IL App (1st) 142837 (December). Episode 438 (Duration 12:56)
On December 21, 2009 defendant ran over a mom and child killing the mom when he refused to give blood or urine they held him done so they could draw it.
In this case, Eubanks was arrested in connection with a hit-and-run accident that killed Maria and injured Jeremiah. The police had probable cause to arrest Eubanks for driving under the influence. At the police station, Eubanks refused to take a breathalyzer test or to submit to blood and urine tests.
Shortly before 9 p.m. on December 21, 2009, in the Rogers Park neighborhood of Chicago, Felix Worthon was walking home with his wife Maria and their son Jeremiah near the intersection of Greenview and Greenleaf Avenues. Maria and Jeremiah stopped to talk to Maurice Glover, a man from their church.
Felix crossed the street ahead of them. As he was crossing, he heard a sound behind him; he turned around and was nearly hit by a car. The car struck Maria and Jeremiah and kept going without stopping. The force of the impact knocked Maria’s body a block away. Maria died immediately, and Jeremiah suffered permanent injuries.
Defendant Arrested & Restrained
A passenger in the car came back to the scene to tell police Defendant was the hit and run driver. He was quickly arrested.
At 2:53 a.m., an officer took Eubanks to the hospital, telling him that he was required by law to submit to blood and urine tests.
Eubanks was physically restrained by hospital security and a blood sample was taken at 4 a.m. The nurse then asked for urine, but Eubanks refused to urinate. The nurse threatened to catheterize him. As she approached him with a catheter, he urinated, and a sample was collected at 5:20 a.m.
The samples were sent to the crime lab for analysis. Eubanks’s blood produced negative results for alcohol or any illegal substance, but his urine tested positive for cannabis, ecstasy, and cocaine metabolite.
The body converts drugs to metabolites over time as part of the metabolic process.
He Doesn’t Get The Reckless Instruction
Eubanks requested that the jury be instructed on reckless homicide as a lesser included offense of first degree murder. The court denied his request, stating that if the State’s evidence was believed, Eubanks’s actions “could only create a strong probability of death or great bodily harm to some individual.” The jury found Eubanks guilty of first degree murder, failure to report a motor vehicle accident involving death or injury, and aggravated driving under the influence.
Eubanks was sentenced to 40 years’ imprisonment.
Was It Error To Deny Reckless Instruction?
Eubanks first argues that he was entitled to a jury instruction on reckless homicide since there was some evidence that he acted recklessly in causing Maria’s death.
He’s not saying the evidence is insufficient to convict him of first degree murder, nor could he reasonably do so. There are plenty of high speed cases where courts have said first degree murder was proved because death or serious injury was a certainty.
Rather, Eubanks argues that there was sufficient evidence of his recklessness that the jury should have been instructed on both reckless homicide and first degree murder.
Standard On Lesser Included
A defendant is entitled to an instruction on a lesser-included offense if there is some evidence in the record that, if believed by the jury, would reduce the crime charged to a lesser offense. People v. McDonald, 2016 IL 118882, ¶ 25. That is, the evidence must permit a rational jury to acquit the defendant of the greater offense but still find him guilty of the lesser offense.
Murder v. Reckless Homicide
The primary distinction between first degree murder and reckless homicide is the mental state of the defendant. People v. Pollard, 2015 IL App (3d) 130467, ¶ 27.
Under section 9-1(a)(2) of the Criminal Code of 1961, a defendant commits first degree murder when he kills an individual without lawful justification and “knows that such acts create a strong probability of death or great bodily harm to that individual or another.” 720 ILCS 5/9-1(a)(2).
It is not necessary that defendant intended to kill or that he was certain that someone would die as a result of his actions.
As this court has explained: “A person who knows, i.e., is consciously aware, that his acts create a strong probability of death to another may not have such death as his conscious objective or purpose. He may simply not care whether the victim lives or dies. Under these circumstances, the person would be guilty of murder although the death was caused unintentionally.
A person acts recklessly when “he consciously disregards a substantial and unjustifiable risk *** and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” 720 ILCS 5/4-6.
It’s up to a jury to determine if the defendant’s acts create a “strong probability” of death or great bodily harm or whether they are merely “likely” to cause such a result.
Error To Deny Reckless Homicide Instruction
We find that there was sufficient evidence of Eubanks’s recklessness to instruct the jury on reckless homicide.
See People v. Belk, 203 Ill. 2d 187 (2003). Belk stole a van and, while being pursued by police at a high rate of speed, crashed into another vehicle, killing both occupants. At the time of the crash, Belk was under the influence of alcohol and driving at over 100 miles per hour in an area with “numerous restaurants and other establishments that were still open for business.
The court reduced Belk’s felony murder conviction to reckless homicide.
Eubanks’s actions are sufficiently comparable to Belk’s actions that a rational jury could find that Eubanks acted recklessly. In fact, Belk’s flight from police was arguably more dangerous than Eubanks’s since Belk was in an area with numerous establishments open for business and other vehicular and pedestrian traffic was present, while Eubanks was in a “quiet neighborhood.”
Both defendants fled from police at a high rate of speed (60 to 90 miles per hour for Eubanks, 100 miles per hour for Belk). At no point did either defendant apply the brakes or attempt to slow down before the fatal collision.
The trial court erred in denying Eubanks’s request for an instruction on reckless homicide. Accordingly, we reverse Eubanks’s conviction for first degree murder and remand for a new trial on that charge.
This Section Is Probably Unconstitutional
625 ILCS 5/11-501.2(c)(2) says:
“[I]f a law enforcement officer has probable cause to believe that a motor vehicle driven by or in actual physical control of a person under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof has caused the death or personal injury to another, that person shall submit, upon the request of a law enforcement officer, to a chemical test or tests of his or her blood, breath or urine for the purpose of determining the alcohol content thereof or the presence of any other drug or combination of both.”
- But see Episode 186 – Birchfield v. North Dakota, 136 S. Ct. 2160, 2174 (2016) which has thrown the constitutionality of this section into question.
- See Also Episode 319 How Can Police Enforce A Blood Warrant | A Discussion With Anthony Cameron.
- More Illinois DUI Case Law
The fourth amendment of the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const., amend. IV; see Schmerber v. California, 384 U.S. 757, 770 (1966) (warrant requirement generally applies to searches within the human body, such as blood tests).
Similarly, under article I, section 6, of the Illinois Constitution, “[t]he people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches [and] seizures.” Ill. Const. 1970, art. I, § 6.
Under both of these constitutional provisions, a warrantless search is per se unreasonable unless it is a search conducted pursuant to consent, a search incident to arrest, or a search predicated upon probable cause where there are exigent circumstances which make it impractical to obtain a warrant.
No Exigent Circumstances
The State bears the burden of showing the existence of exigent circumstances.
Eubanks does not dispute that the police had probable cause to believe that he was driving under the influence. Rather, he argues that there were no exigent circumstances that made it impractical to obtain a warrant. More specifically, he argues that
(i) causing death or personal injury to another individual does not constitute a per se exigency and
(ii) the State did not sustain its burden of showing exigent circumstances in his particular case.
Don’t Forget McNeely
The United States Supreme Court has considered whether exigent circumstances existed to justify a warrantless blood draw in both Schmerber, 384 U.S. 757, and Missouri v. McNeely, 569 U.S. 141 (2013). In McNeely, the Court’s answer was no.
McNeely said courts cannot consider the natural dissipation of alcohol in the bread stream to be a per se exigent circumstance.
McNeely is clear that courts should undertake a “careful case-by-case assessment of exigency” instead of “accept[ing] the considerable overgeneralization that a per se rule would reflect.”
Therefore, we hold that, under McNeely, section 11-501.2(c)(2) is unconstitutional on its face, insofar as it permits compelled chemical testing without a warrant in all cases where an officer has probable cause to believe that a driver under the influence has caused death or personal injury to another.
The State proposes replacing the per se rule rejected in McNeely with another per se rule: exigent circumstances necessarily exist whenever there is probable cause to believe an individual has been driving under the influence of alcohol or other intoxicants and, in doing so, has injured or killed another individual.
No doubt some such cases will involve exigencies, but when such cases arise, the State can and should prove the existence of an exigency on a case-by-case basis rather than relying upon the “considerable overgeneralization”.
The facts of this case are illustrative since they do not reflect any exigency that would have prevented officers from obtaining a warrant.
Eubanks was taken into custody at 9:05 p.m. Tanner gave a statement to police at around 10 p.m. in which he informed them that Eubanks was the driver in the fatal collision.
At 12 a.m., Officer Ventrella spoke with Eubanks and informed him that he was under arrest for driving under the influence.
Eubanks refused to take a breathalyzer test or submit blood and urine samples. Nearly three hours passed before Ventrella brought Eubanks to the hospital at 2:57 a.m.
Nothing in the record indicates that Ventrella or another officer could not have obtained a warrant in that three-hour period. Eubanks was taken into custody minutes after the accident and placed in an interview room at 10:30 p.m., where he remained for the next 4½ hours.
The good-faith exception does not apply, and the results of Eubanks’s blood and urine samples must be suppressed.
On remand, Eubanks’s new trial on the first-degree murder charge should exclude this evidence.
His conviction for aggravated driving under the influence must be reversed outright, since there is insufficient evidence to prove the offense without the suppressed evidence.
Thus, we reverse Eubanks’s conviction for aggravated driving under the influence. We hold that section 11-501.2(c)(2) of the Illinois Vehicle Code (625 ILCS 5/11-501.2(c)(2) (West 2008)) is unconstitutional on its face, insofar as it sets forth a categorical exception to the fourth amendment’s warrant requirement of the kind rejected by the Supreme Court in McNeely, 569 U.S. 141.