Criminal law practitioners are familiar with scenarios where a defendant is arrested for driving under the influence of alcohol by the police and taken to a hospital for chemical testing. In those cases, the officer has already made an arrest, and will wait to send notice of suspension until the results of the analysis are obtained. But what happens when the usual order is reversed? What if a police officer wants to be sure as to the level of impairment of a defendant and requests either a blood draw or a urine sample and then releases the individual pending the results of the test? What if months pass between the test and the issuance of an arrest warrant? I recently was involved in a discussion of just such a case with colleagues in the field and was amazed that even seasoned practitioners did not always have ready answers. Below are considerations, thoughts and legal principles discussed in an effort to arrive at a likely resolution of the case.
Defendant is involved in a car accident where he rear-ends another vehicle. The police officer observes an odor of alcohol on defendant’s breath and finds two empty beer bottles in his car. Because of injuries, he is transported to the hospital via ambulance. At some point while at the hospital the defendant refuses any further medical treatment and is discharged by hospital personnel. The police officer then reads the defendant a warning to motorists and he consents to a blood draw at the officer’s request. Once the blood is drawn, the officer tells the defendant that he is free to leave and will be contacted by the officer in the future. Two months later, the officer receives the blood result from the Illinois State police which discloses an amount of alcohol above the legal limit. He prepares a complaint and goes before a judge who issues an arrest warrant for the defendant. The officer calls the defendant and arrests him on the original arrest warrant.
I. Statutory Summary Suspension
The statutory summary suspension aspect of this case requires very little analysis. Statutory summary suspensions are governed by 625 ILCS 5/11-501.1. Specifically, section (a) states that:
any person who drives or is in actual physical control of a motor vehicle upon the public highways of this State shall be deemed to have given consent, subject to the provisions of Section 11-501.2, to a chemical test or tests of blood, breath, or urine for the purpose of determining the content of alcohol, other drug or drugs, or intoxicating compound or compounds or any combination thereof in the person’s blood if arrested, as evidenced by the issuance of a Uniform Traffic Ticket, for any offense as defined in Section 11-501 or a similar provision of a local ordinance, or if arrested for violating Section 11-401.
The statute makes it clear that an arrest must precede a chemical test request. In the case of People v. Wozniak, the suspension was rescinded because an arrest did not precede the testing.1 What exactly constitutes an arrest? Case law indicates that there need not be a formal declaration of arrest or the issuance of a traffic ticket. A ticket is just one of several factors that are to be considered in determining whether a defendant is under arrest. 2 The other factors are whether field sobriety tests were performed, the length of the detention, whether or not the officer continues to hold defendant’s license, the use of handcuffs and transport in a squad.3
In this case, there is no formal declaration of arrest, no issuance of a traffic ticket, no field sobriety tests, no hand cuffs and no transport in a squad. Most telling is the fact that the officer sought an arrest warrant months later. Clearly an arrest had not been effectuated prior to the chemical testing. The suspension should be rescinded.
II. DUI Case
In the case at hand, there is little doubt that the defendant would be found not guilty of the DUI if the chemical testing was suppressed. If the result cannot be used at trial, then the only evidence remaining is an odor of alcohol, the accident and the two empty bottles of beer. Therefore, the outcome of the case is directly related to whether or not the chemical test is suppressed.
We first need to determine whether defendant had blood drawn as part of his treatment while at the hospital. If he did, this result is admissible as a business record. In People v. Lendabarker, the court held that Supreme Court rule 236 which prohibits medical records from being submitted as business record exceptions only applies to civil proceedings.4 According to 625 ILCS 5/11-501.4(a):
Notwithstanding any other provision of law, the results of blood or urine tests performed for the purpose of determining the content of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof, of an individual’s blood or urine conducted upon persons receiving medical treatment in a hospital emergency room are admissible in evidence as a business record exception to the hearsay rule only in prosecutions for any violation of Section 11-501 of this Code or a similar provision of a local ordinance, or in prosecutions for reckless homicide brought under the Criminal Code of 1961, when each of the following criteria are met:5
(1) the chemical tests performed upon an individual’s blood or urine were ordered in the regular course of providing emergency medical treatment and not at the request of law enforcement authorities;
(2) the chemical tests performed upon an individual’s blood or urine were performed by the laboratory routinely used by the hospital; and
(3) results of chemical tests performed upon an individual’s blood or urine are admissible into evidence regardless of the time that the records were prepared.
Thus, the admissibility of the police blood becomes irrelevant as the State will be allowed to introduce the results of the alcohol concentration in his blood as part of his treatment.6
Assuming there was no hospital blood, the next step of the analysis is to determine whether or not there was a violation of the statute or the procedures in the collection and testing of the police blood. The attorney for either side should not treat these requirements lightly as strict compliance is mandated by the statute and there are a myriad requirements that must be satisfied. The controlling statute is 625 ILCS 5/11-501.2. It reads in part as follows:
(a) Upon the trial of any civil or criminal action or proceeding arising out of an arrest for an offense as defined in Section 11-501 or a similar local ordinance or proceedings pursuant to Section 2-118.1, evidence of the concentration of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof in a person’s blood or breath at the time alleged, as determined by analysis of the person’s blood, urine, breath or other bodily substance, shall be admissible. Where such test is made the following provisions shall apply:
1. Chemical analyses of the person’s blood, urine, breath or other bodily substance to be considered valid under the provisions of this Section shall have been performed according to standards promulgated by the Department of State Police by a licensed physician, registered nurse, trained phlebotomist, certified paramedic, or other individual possessing a valid permit issued by that Department for this purpose. The Director of State Police is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, to issue permits which shall be subject to termination or revocation at the discretion of that Department and to certify the accuracy of breath testing equipment. The Department of State Police shall prescribe regulations as necessary to implement this Section.7
2. When a person in this State shall submit to a blood test at the request of a law enforcement officer under the provisions of Section 11-501.1, only a physician authorized to practice medicine, a registered nurse, trained phlebotomist, or certified paramedic, or other qualified person approved by the Department of State Police may withdraw blood for the purpose of determining the alcohol, drug, or alcohol and drug content therein. This limitation shall not apply to the taking of breath or urine specimens.
In People v. Emrich, the Court found that the blood results were inadmissible because an anticoagulant was not used as required.8
For the sake of continuing our exploration of the legal issues, we shall assume that the police blood was properly collected and tested. This brings us to the complicated issues in the case.
Suspension Requirements Irrelevant for Admissibility in a DUI Prosecution
There are several statutory requirements which govern suspensions. Case law makes clear that the requirements of 625 ILCS 5-11-501-1 are applicable only to suspensions and not to the DUI case itself. One requirement is that a defendant be driving on a public highway. Suspensions on private property are to be rescinded. Yet if a defendant submits to testing even though he was on private property, the result of the test is admissible in the criminal case.9Another suspension requirement is that the defendant must be warned as to the consequences of a suspension. In People v. Byrd, we learn that the trial court is not required to determine whether the defendant was misadvised as to the consequences of his refusal to take a breath test. There the trial court suppressed the result of the breath test, but the appellate court reversed stating that for purposes of the DUI, the results would be admissible.10
The last question to analyze is whether the arrest provision applicable in suspensions is also applicable in the criminal case. If it is, then the blood test should be suppressed. People v. Wozniak answers the question in the negative. It also stands for the proposition that the legislature did not intend to extend the arrest provision of the summary suspension statute to DUI prosecutions.11
The final phase of the analysis is to determine what constitutional safeguards, if any, apply to this case. Clearly, consent is not required to take a blood sample. In Schmerber v. California, the United States Supreme Court held the taking of a blood sample without the defendant’s consent or a search warrant was a "reasonable" search under the fourth amendment where there was probable cause to believe the defendant was intoxicated, and the delay caused by obtaining a search warrant might have resulted in loss of evidence of the defendant’s intoxication, given the natural dissipation of the alcohol in the defendant’s blood.12
Miranda warnings do not apply either we are taught in People v. Haas. In that case, the fifth district ruled that suppression of blood test without Miranda did not require suppression as blood tests are physical evidence and non-testimonial.13
Trickery by police is also allowed. In People v. Carey, a police officer was arrested and refused chemical testing. He was told by a supervisor that for purposes of an internal investigation he needed to submit to testing or face firing. The supervisor went on to say that the test would not be allowed in a criminal prosecution. The first district court held the test results admissible in the DUI trial.14
There is also no per se rule that blood tests are inadmissible when there is injury to a defendant while in police custody. In People v. Poncar, defendant became injured after his arrest. The defendant was taken to the hospital for medical treatment and his blood was drawn for purposes of treatment. The trial court ruled that as a matter of policy, if a defendant gets injured at the hands of the police, whether intentional or not, the results should be suppressed in order to discourage police from acting maliciously. The appellate court reversed, indicating cases would need to be reviewed on a case by case basis.15
The final analysis centers on whether there were any fourth amendment violations here that would result in the suppression of the chemical test.16 It can be argued that after the defendant refused any further medical treatment, he was unlawfully detained by the police as they had no probable cause to arrest the defendant for DUI. Since they had no probable cause to arrest, then the blood test was obtained illegally and should be suppressed.
In determining whether probable cause exists to arrest, a court must decide whether a reasonable and prudent person, having the knowledge possessed by the officer at the time of the arrest, would believe the defendant committed the offense.17 In People v. Marks, the court ruled that mere traffic violations do not rise to the level of probable cause.18 In People v. Boomer, the second district appellate court held that a strong odor of alcohol and an accident are insufficient for a finding of probable cause.19 And lastly, in Arlington Heights v. Bartelt, the defendant was taken to the hospital after a car accident. The officer observed no indicia of intoxication. There was no arrest that day and the defendant was allowed to leave the hospital. The nurse later told the officer that the defendant had a high alcohol concentration in her system. After being told by fellow officers that he could now use the hospital results, the officer went back and arrested the defendant a week later.20
On the other hand, probable cause was found in both People v. Brodeur and People v. Burke. In Brodeur, the defendant was involved in a car accident and he was found lying across the front seat of the vehicle. He appeared injured but conscious. The other car in the accident told the officer that he had been struck from behind by defendant’s car. The officer observed defendant to have red and bloodshot eyes and could smell a strong odor of an alcoholic beverage on his breath.21 In Burke, weaving on the road, glassy eyes, a strong odor of alcohol on his breath and slurred speech were sufficient to find probable cause to arrest.22
After comparing the facts in the present case to the facts of the various cases above, I feel that the Boomer case is fairly analogous to our situation. Although it is true that in Boomer there were no beer bottles, the bottles in this case are empty. Additionally, in Boomer the odor of alcohol was characterized as strong whereas here we have no modifier. As such, I do not believe that there was probable cause to detain and arrest the defendant at the hospital and the blood result should be suppressed.
The defendant should prevail in both the suspension and the case in chief, but for very different reasons. With respect to the suspension, there was a technical violation of the statute. An arrest was required before an implied consent test could be requested. He wins the DUI because the officer lacked probable cause to detain and arrest the defendant. Therefore, the fruits of that illegal detention should be suppressed.
1 People v Wozniak, 199 Ill. App. 3d 1088, 557 N.E.2d 996 (3d Dist. 1990).
2 People v. Ellerbusch, 118 Ill. App. 3d 500, 454 N. e.2d 1166 (4th Dist. 1983).
3 People v. Jones, 198 Ill. App. 3d 572, 555 N.E.2d 1143 (3d Dist. 1990).
4 People v. Lendabarker, 215 Ill. App. 3d 540, 575 N.E.2d 568 (2nd Dist. 1991).
5 There would still be a rescission of the summary suspension even if there was just a hospital blood as these test results cannot be used for implied consent suspensions. See People v. Ehley, 381 Ill. App. 3d 937, 887 N.E.2d 772 (4th Dist. 2008).
6 People v. Hendersons, 336 Ill.App. 3d 915, 789 N.E.2d 774 (3rd Dist. 2003).
7 The Illinois State Police standards can be found at 20 Illinois Administrative Code 1286.
8 Peple v. Emrich, 113 Ill.2d 343, 498 N.E.2d 1140 (1986).
9 People v. Franciskovich, 202 Ill. App 3d 693, 560 N.E.2d 19 (2nd Dist. 1992).
10 People v. Byrd, 215 Ill. App. 3d 468, 574 N.E.2d 1269 (4th Dist 1991).
11 People v Wozniak, 199 Ill. App. 3d 1088, 557 N.E.2d 996 (3d Dist. 1990).
12 Schmerber v. California, 384 U.S. 757 (1966).
13 People v. has, 203 Ill. App. 3d 779, 560 N.E.2d 1365 (5th Dsit. 1990)
14 People v. Carey, 386 Ill. App. 3d 254, 896 N.E.2d 1127 (1st Dist. 2008).
15 People v. Poncar, 323 Ill. App. 3d 702, 753 N.E. 2d 394 (2nd Dist. 2001).
16 People v. Yant, 210 Ill. App. 3d 961, 570 N.E.2d 3 (2nd Dist. 1991).
17 People v. Fonner, 383 Ill. App. 3d 531, 898 N.E.2d 646 (4th Dist. 2008)
18 People v. Marks, 139 Ill. App. 3d 388, 487 N.E.2d 636 (3rd Dist. 1986)
19 People V. Boomer, 325 Ill. App. 3d 206, 757 N.E.2d 960 (2nd Dist. 2001).
20 Arlington Heights v. Bartelt, 211 Ill. App. 3d 747, 570 N.E.2d 668 (1st Dist. 1991)
21 Prople v. Brodeur, 189 Ill.App. 3d 936, 545 N.E.2d 1053 (2nd Dist. 1989).
22 People v. Burke, 220 Ill. App. 3d 839, 581 N.E. 2d 304 (1st Dist. 1991).
Laura Amador Mitacek is a sole practitioner practicing criminal law in both Cook and DuPage Counties. Prior to private practice she was an assistant state’s attorney in DuPage.Before becoming a lawyer, she worked as a forensic chemist performing analysis on evidence and testifying in court for both the DuPage County Crime Laboratory and the Chicago Police Department Crime Laboratory. Undergraduate degree in chemistry from Loyola University in 1981. Master’s degree in chemistry from the University of Illinois, Circle Campus in 1983.Law Degree from DePaul University in 1993.