People v. Pratt, 2018 IL App (5th) 170427 (December). Episode 574 (Duration 6:41)
Warrantless blood draw after an accident deemed unconstitutional blood results excluded.
The Ford Expedition he was driving struck a tractor trailer, causing extensive damage to the defendant’s vehicle. Daniel Tutor, a passenger in the defendant’s vehicle, died at the scene. The defendant sustained serious injuries to his face.
An emergency room nurse drew blood from the defendant at a detective’s request.
The defendant was subsequently charged with aggravated DUI.
The defendant filed a motion to suppress the results of the blood test, arguing that it violated his right to be free from unreasonable searches under the fourth amendment to the United States Constitution (U.S. Const., amend. IV).
At a hearing on the motion, the defendant testified that he was treated at St. Louis University Hospital for injuries sustained in a motor vehicle accident. He testified that he did not give any police officer permission to have his blood drawn while he was there. Asked if he spoke to any officers from the Sauget Police Department while he was in the hospital, the defendant testified that he did not remember even seeing any officers at the hospital.
On cross-examination, the defendant testified that he did not remember having blood drawn that night.
He explained that he was “out of it” that night and noted that he lost enough blood that he required a blood transfusion. The court shifted the burden.
Officer At The Scene
One officer testified that he “thought [the defendant] could have been under the influence.” He explained that the defendant had slurred speech and he was unable “to answer straight questions.” When the defendant exited his vehicle, he needed help getting out of the vehicle and walking. This officer didn’t know what kind of injury the driver had sustained.
Defendant was not placed under arrest at the scene of the accident.
This officer found an open bottle of Crown Royal on the driver’s seat under debris. There was still some alcohol in the bottle.
Detective At The Hospital
After nurses were done treating defendant the detective read the defendant the warning to motorists (see 625 ILCS 5/11-501.1(c), 11-501.6(c)) and asked the defendant if he understood. Defendant “just gave [him] a grunt.” He then approached the defendant to ask him to provide a blood sample, but the defendant did not respond. He stated that the defendant appeared to be “either unconscious or in a deep, deep sleep.”
The detective then asked one of the nurses to take a blood sample from the defendant.
Detective did not observe the defendant displaying any signs of intoxication. Asked to describe the defendant’s injuries, the detective replied, “His nose was just laid open.” A nurse obtained a blood sample from the defendant and gave it to the detective.
Trial Court Excluded The Blood
The court stated that, after reviewing the pertinent statutes and applicable case law, it found that “the sole path to admissibility” of the defendant’s blood test results was the exigent circumstances exception to the requirement of a warrant. The court further found that the State’s evidence did not satisfy the requirements for this exception. The court therefore granted the defendant’s motion to suppress the evidence.
Should The Trial Court Have Shifted The Burden?
The State correctly argues that the defendant bore the initial burden of proving both that a search occurred and that the search was not valid.
In this case, the State points out, the defendant testified that he did not remember the emergency room nurse drawing his blood, and he did not present any evidence that the blood draw occurred at all. The State acknowledges that the detective later testified that the blood draw occurred. It emphasizes, however, that it is the defendant’s initial burden to prove that a search occurred.
We are not persuaded.
For one thing, we believe that this case is distinguishable from Brooks. The defendant in that case, who was conscious at the relevant time, testified that he refused to consent to a blood draw. But he never testified that he was, in fact, subjected to a blood draw. A police officer testified that he accompanied the defendant to the hospital, where he observed nurses treating the defendant. However, the officer testified that he did not know whether any blood draw took place. Thus, in Brooks, there was no evidence in the record to establish that the defendant’s blood was actually drawn.
The record in this case does contain such evidence.
Plus, the State has forfeited this claim by failing to raise it before the trial court. Allowing the State to raise this argument for the first time on appeal would unfairly deprive the defendant of the opportunity to present evidence to address the issue.
The implied consent provisions are found in three sections of the Illinois Vehicle Code— sections 11-501.1, 11-501.2, and 11-501.6 (625 ILCS 5/11-501.1, 11-501.2, 11-501.6).
Section 11-501.1(a) provides that any motorist driving on the roads of this state “shall be deemed to have given consent” to the administration of drug or alcohol testing if he is arrested for DUI. Id. § 11-501.1(a).
Section 11-501.6(a) contains similar language, which provides that a motorist “shall be deemed to have given consent” to such tests if he is in a motor vehicle accident involving a personal injury or fatality and he is arrested for any nonequipment violation of the Illinois Vehicle Code. Id. § 11-501.6(a).
Both statutes also provide that a motorist who is deceased, unconscious, or otherwise rendered unable to refuse testing “shall be deemed not to have withdrawn” his implied consent to the testing. Id. §§ 11-501.1(b), 11-501.6(b).
Section 11-501.2 does not itself provide that motorists give implied consent to drug or alcohol testing, but it governs the procedures for obtaining and admitting such tests into evidence. Subsection (a) provides that evidence of intoxication obtained through tests performed pursuant to these provisions is admissible in “any civil or criminal *** proceeding arising out of an arrest” for DUI or in statutory summary suspension proceedings, subject to certain requirements not relevant here. Id. § 11-501.2(a). Subsection (c)(1) provides that “[i]f a person under arrest refuses to submit” to testing, evidence of the person’s refusal is admissible. Id. § 11 501.2(c)(1).
Finally, subsection (c)(2) provides as follows:
“Notwithstanding any ability to refuse under this Code to submit to these tests or any ability to revoke the implied consent to these tests, if a law enforcement officer has probable cause to believe that a motor vehicle driven by *** a person under the influence of alcohol [or] other drug or drugs *** has caused the death or personal injury to another, the law enforcement officer shall request, and that person shall submit, upon the request of a law enforcement officer, to a chemical test or tests *** for the purpose of determining the alcohol content thereof or the presence of any other drug or combination of both.” Id. § 11-501.2(c)(2).
We note that in People v. Eubanks, 2017 IL App (1st) 142837, ¶ 66, the First District held that, under the United States Supreme Court’s decision in McNeely, section 11-501.2(c)(2) is unconstitutional on its face.
That case is currently pending on appeal before the Illinois Supreme Court.
None Of The Statues Were Followed Here
Constitutional question does not need to be addressed because none of the statutes were followed in this case.
First, the defendant was not under arrest when the tests were ordered, and second, the State failed to demonstrate that the facts known to the police were sufficient to give them probable cause to believe the defendant had driven under the influence at the time they ordered the blood draw.
As we previously explained, subsection 11-501.2(c)(2) appears within a statute that is otherwise applicable only to motorists who are under arrest. In addition, the provision must be read in conjunction with sections 11-501.1 and 11-501.6—the statutes that actually provide that consent to chemical testing is implied. Both of those statutes, by their express terms, apply only to motorists who are under arrest.
See People v. Hayes
In People v. Hayes, 2018 IL App (5th) 140223, ¶¶ 42, 44 the court explains that section 11-501.1 applies only to motorists under arrest for DUI when asked to submit to testing, while section 11-501.6 applies only to motorists under arrest for any nonequipment Vehicle Code violation in an accident involving a fatality or serious injury.
It is worth noting that the State also relies on section 11-501.6(b), which provides that a driver who is unconscious or otherwise unable to give consent is deemed not to have revoked his implied consent to chemical testing. See 625 ILCS 5/11-501.6(b) (West 2014). Absent an arrest, however, there is no implied consent to revoke. Moreover, even if we were to accept the State’s interpretation of section 11-501.2(c)(2), we do not believe the record in this case establishes that anyone had probable cause to believe that the defendant had driven under the influence.
A Recap Of Recent DUI Probable Cause Cases
See People v. Williams, 2018 IL App (2d) 160683 (October) (odor of alcohol, slurred speech, and red-shot glassy eyes plus anything else constitutes probable cause for a DUI).
Here, the detective asked the nurses to draw the blood because he was ordered to have it done. He did not personally observe any signs that the defendant was intoxicated, and there is no evidence that he read the reports of any of the responding officers before he requested the blood draw.
Additionally, the Chief of Police who gave the order also was not aware of any indicia of intoxication the defendant may have been exhibiting. The prosecutor essentially conceded as much at the probable cause hearing.
Arguably, the officer at the scene could establish probable cause for a DUI arrest, but it doesn’t look like anyone talked to him. Because probable cause is based on the facts and circumstances known to the officer before he conducts a search, the record does not support a finding of probable cause.
Still, The Officer At The Scene Didn’t Know Much
The officer could see that defendant had difficulty answering the paramedic’s questions, slurred speech, and difficulty walking.
These can be indicia of intoxication. However, the undisputed evidence showed that the defendant was seriously injured in a motor vehicle accident. His injuries were likely to cause difficulty speaking and walking whether or not he was intoxicated. There was also an open liquor bottle in the defendant’s vehicle, something which might give rise to a reasonable inference that the defendant consumed at least some of the liquor. However, there was no evidence as to when the liquor was consumed or how much of it was consumed by the defendant.
There was no other evidence of intoxication in this case—there was no evidence that the defendant drove erratically before the collision, no evidence that he had red or glassy eyes, and no evidence that he smelled of alcohol or admitted to drinking.
Without some corroborating evidence, we do not believe these facts known to one officer were sufficient to support a finding of probable cause.
Absent probable cause and an arrest, the implied consent statutes do not apply.
They Could Have Got A Warrant
In addition, there was no evidence presented to show that it would have been impossible for any of the numerous officers involved in the investigation to obtain a warrant before requesting the blood draw. See McNeely, 569 U.S. at 154-55 (explaining that advances in technology and changes to the procedural rules in most states allow officers to apply for warrants remotely and provide for streamlined processing of warrant applications in DUI cases).
We note that the prosecutor admitted at trial that it was “possible [based on] the timeline” that the Detective could have obtained a warrant. We conclude that neither exigent circumstances nor implied consent applied in this case.
Because no recognized exception to the requirement of a warrant was applicable, the warrantless blood draw violated the fourth amendment. Thus, the trial court correctly suppressed evidence of the test results. For the foregoing reasons, we affirm the order of the trial court granting the defendant’s motion to suppress.