No. 45547. Appeal from the Appellate Court for the Second
District; heard in that court on appeal from the Circuit Court of
Du Page County; the Hon. L.L. Rechenmacher, Judge, presiding.
No. 45601. Appeal from the Appellate Court for the Second
District; heard in that court on appeal from the Circuit Court of
Lake County; the Hon. L. Eric Carey, Judge, presiding.
No. 45697. Appeal from the Appellate Court for the Third
District; heard in that court on appeal from the
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
William J. Scott, Attorney General, of Springfield, and Jack Hoogasian, State's Attorney, of Waukegan (James B. Zagel and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and James W. Jerz, Edward N. Morris, and Charles D. Sheehy, Jr., of the Model District State's Attorney's Office, of Elgin, of counsel), for the People.
Paul Bradley, First Deputy Defender, and Kenneth L. Jones, Assistant Defender, Office of State Appellate Defender, of Chicago (Akim Gursel (law student), of counsel), for appellee.
William J. Scott, Attorney General, of Springfield, and L.E. Ellison, State's Attorney, of Sterling (James B. Zagel and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, of counsel), for the People.
Donald E. Blodgett and James L. Reese, both of Rock Falls, for appellee.
The three cases consolidated in this appeal involve the question whether the provisions of the statute relating to driving while under the influence of intoxicating liquor or a narcotic drug (Ill. Rev. Stat. 1969, ch. 95 1/2, par. 144; Ill. Rev. Stat. 1971, ch. 95 1/2, par. 11-501) prohibit the evidentiary use of a blood sample when obtained without the defendant's consent.
The incident involving the defendant, Willie Chambers, occurred on December 23, 1969. Chambers was involved in an auto accident resulting in the death of a passenger in another car. One of the investigating officers observed Chambers to be faint and heard him complain of shoulder and chest pains. Chambers was not boisterous or belligerent, but apparently was incoherent. He was placed in the back of the police car to be taken to the police station. When the police car started, Chambers slid over and seemed to have fainted. The police officer then reached and leaned into the back seat and noted the odor of alcohol on Chambers's breath. Chambers then was taken to a hospital emergency room. The doctor diagnosed Chambers as having received a brain concussion. He did not recall smelling any alcohol on Chambers's breath, but he did draw a blood specimen at the request of the police. The blood test results indicated a .21 percent weight of alcohol in Chambers's blood. This result was admitted into evidence and, apparently, the statutory presumption that a 0.10 percent or more weight of alcohol in the blood indicates "that the person was under the influence of intoxicating liquor" was applied. (Section 47(c)(3) of the Uniform Act Regulating Traffic on Highways, Ill. Rev. Stat. 1969, ch. 95 1/2, par. 144(c)(3).) Two witnesses, including a passenger in Chambers's car, testified that they did not smell alcohol on Chambers's breath. Chambers testified that he drank no liquor on the day in question. He stated that his car skidded prior to the accident, that he assisted the passenger in his car after the accident, and that he entered the squad car. He remembered nothing else until awaking in the hospital. He was unconscious at the time the blood was taken from him at the hospital.
A jury found Chambers guilty of reckless homicide and of driving while under the influence of alcohol. On appeal the appellate court reversed and remanded, holding that under section 47(c)(3) of the Uniform Act Regulating Traffic on Highways the chemical analysis of a driver's blood could not be admitted into evidence unless he had consented to the test and that the protection was applicable to an unconscious person. 8 Ill. App.3d 430.
The incident involving Self occurred on December 26, 1971, resulting in the death of a person following an auto collision. It was stipulated that a blood sample was taken from Self without his consent at a time he was incapable of refusing the action. It further was stipulated that the blood was taken at a hospital by a qualified technician under the direction of a licensed physician, and that the State trooper who requested the taking of the blood sample had probable cause to believe Self may have been intoxicated. Self was indicted for involuntary manslaughter, reckless homicide and driving under the influence of intoxicating liquor. The trial court held that the blood analysis could not be used in evidence because section 11-501(c)(3) of the Illinois Vehicle Code (Ill. Rev. Stat. 1971, ch. 95 1/2, par. 11-501(c)(3)) prohibited the use of such evidence unless defendant first consented to the test. The appellate court affirmed. 8 Ill. App.3d 1003.
The incident involving Todd occurred on December 15, 1969. Todd was the driver of a truck involved in an auto accident resulting in the death of the occupants of the other car. The investigating officer detected a strong odor of alcohol in the cab of Todd's truck. Todd was treated at the hospital for lacerations. The investigating officer was with him at the time. Todd told the officer that he was turning at a particular intersection. The officer knew that the impact was 76 feet short of this intersection. This information, coupled with his own observations, caused him to seek a blood test of Todd, who did not consent. Todd subsequently was indicted for reckless homicide. The trial court granted the motion to suppress the evidence of the blood analysis. The appellate court affirmed (7 Ill. App.3d 617), on the ground that section 47(c)(3) of the Uniform Act Regulating Traffic on Highways required a driver's consent to a blood analysis for it to be used in evidence. We allowed leave to appeal in all three cases.
The bizarre history of the legislation, relating to driving while intoxicated and evidence of the amount of alcohol in the driver's blood, is a necessary preamble to our conclusion.
In 1957 the legislature provided for certain legal presumptions of intoxication resulting from chemical blood tests. Section 47 of the Uniform Act Regulating Traffic on Highways (Ill. Rev. Stat. 1957, ch. 95 1/2, par. 144), entitled, "Persons under the influence of intoxicating liquor or narcotic drugs," provided in pertinent part:
"(b) Upon the trial of any action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a vehicle while under the influence of intoxicating liquor, evidence of the amount of alcohol in the person's blood at the time of the act alleged as shown by a chemical analysis of his breath, blood, urine, saliva or other bodily ...