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Smock v. Hwy. Comm'r of Bloomington Twp.

OPINION FILED MAY 19, 1978.

DEBRA SMOCK, PLAINTIFF-APPELLANT,

v.

HIGHWAY COMMISSIONER OF BLOOMINGTON TOWNSHIP ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of McLean County; the Hon. WILLIAM T. CAISLEY, Judge, presiding.

MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:

Plaintiff, Debra Smock, timely appeals judgments entered on jury verdicts in favor of four governmental entities in a negligence action arising out of an automobile collision in McLean County. Debra alleges that the trial court erred in denying her motion to exclude the results of a blood test performed upon the deceased driver of the vehicle in which she was riding.

On August 15, 1973, Debra, then a minor, was riding in a car with Sherry Funk and the driver, Harold Parker, when the accident occurred. Both Funk and Parker died as a result of the accident; Debra was thrown from the car and suffered extensive facial injuries, including the loss of an eye. After Parker's body was transported from the scene, two samples of blood were taken. One sample was sent to the Department of Public Health laboratories in Chicago. The other sample went to a lab in Bloomington.

Debra's complaint against the governmental defendants was based upon their failure to properly post signs and maintain the roads. Prior to the incident in question, defendants were aware of prior collisions and near collisions at the intersection and had received numerous requests to correct the situation. On two different occasions, the county had conducted speed studies which indicated that the speed limit for that portion of road should have been reduced. After the occurrence, certain signs were erected and the speed limit was reduced from 65 mph to 40 mph.

Prior to trial, Debra filed a motion to exclude the blood-alcohol results from the samples and any evidence based thereon. The trial court allowed the motion as to the sample tested at the Department of Public Health laboratory in Chicago, but refused to exclude the results of the sample tested in Bloomington. At trial, Dr. Hans Stroink, a physician, testified that the Bloomington sample revealed a blood-alcohol level of .262 per mille. In his opinion, a person with that level of blood alcohol would be intoxicated. Defendants offered testimony that Parker had been drinking on the day of the accident, but no one who saw him that day, including persons who saw him leave a tavern shortly before the accident, gave an opinion that he was intoxicated. The jury, by special interrogatory, found that plaintiff was not contributorily negligent. The jury found for all of the governmental defendants and judgment was entered on the verdict. The jury verdicts as to others are not before us. Plaintiff's post-trial motion preserving the issue was denied.

We must decide whether a third party may object to the admission into evidence of a blood-alcohol analysis when the blood sample was taken without the person's consent. In short, section 11-501 of The Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 11-501) provides that blood test analysis of the intoxication of an automobile driver cannot be used in any proceeding, unless the testing was done with the consent of the driver. It reads:

"(c) Upon the trial of any action or proceeding arising out of the acts alleged to have been committed by any person while driving * * * 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 * * * blood, * * * is admissible, as provided hereinafter in this paragraph (c) * * *:

3. * * * Evidence based upon a chemical analysis of blood * * * shall not be admitted unless such substance was procured and such analysis made with the consent of the person * * *." Ill. Rev. Stat. 1973, ch. 95 1/2, par. 11-501(c).

Debra argues that this statutory proscription is available to parties other than the driver; the defendants argue that only the driver may invoke the statute. Defendants seek to introduce this evidence to support their theory of the case, i.e., that it was Parker's intoxication, rather than any negligent acts on the defendants' part, that was the proximate cause of the accident.

We recognize this court found that competent blood-alcohol results were relevant evidence as tending to prove someone other than the city proximately caused the accident in French v. City of Springfield (1972), 5 Ill. App.3d 368, 283 N.E.2d 18, but the absence of consent was not raised in that case. Debra argues that section 11-501 expresses a public policy aimed against use of results of nonconsensual blood samples. People v. Todd (1975), 59 Ill.2d 534, 322 N.E.2d 447, is controlling on this point:

"Our analysis of the statutes leads us to the inevitable conclusion that consent must be obtained if evidence based on a blood or similar test is to be used in any trial arising out of acts supposedly committed by a person driving a vehicle while intoxicated." (Emphasis added.) 59 Ill.2d 534, 544, 322 N.E.2d 447, 453.

We would do violence to the plain language of Todd if we were to hold the court construed the statutory limitation as only personal to the individual subject to prosecution or other civil action. If the court intended any such strange result, it most clearly would have said so. In this case, there is no question that the deceased driver could not give his consent to the blood samples taken; he will be presumed to have withheld his consent (accord, Ill. Rev. Stat. 1973, ch. 95 1/2, par. 11-501.1(e)).

This court, in Swank v. Bertuca (1976), 41 Ill. App.3d 229, 353 N.E.2d 415, held that certain sections of "An Act to revise the law in relation to coroners" (Ill. Rev. Stat. 1973, ch. 31, par. 1 et seq.) regarding the inadmissibility of the results of certain blood samples (taken as part of a statistical scheme) could not be stipulated away by the parties in a suit. Section 10 of the Act states, in part:

"In cases of accidental death involving a motor vehicle in which the decedent was (1) the operator * * * the coroner shall require that a blood specimen * * * be withdrawn from the body of the decedent * * *. [The sample shall be analyzed for] * * * the alcohol * * * content of such blood * * *. The results of the statistical examinations referred to in this paragraph shall not be admissible ...


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