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People v. Pezzette

OPINION FILED JANUARY 26, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

EILEEN PEZZETTE, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of De Kalb County; the Hon. James K. Marshall, Judge, presiding.

JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

The State appeals from a pretrial order suppressing evidence of a blood alcohol analysis made of defendant, Eileen Pezzette, who is charged with driving under the influence of intoxicating liquor (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-501(a)).

In this appeal we consider whether the results of a chemical analysis of defendant's blood, to which she consented and which she requested, are inadmissible for failure to conform to the testing requirements of section 11-501(d) of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-501(d)).

On October 16, 1981, defendant was charged with reckless homicide (Ill. Rev. Stat. 1979, ch. 38, par. 9-3(a)), subsequently dismissed, and driving under the influence of intoxicating liquor. She filed a motion to suppress evidence of a chemical analysis made of her blood, and a motion in limine to prohibit use of the results in trial, on the grounds that statutory procedures regulating such testing were not followed. At the hearing of the motions defendant and the State entered into a stipulation that if certain witnesses were called they would testify as follows:

Officer James Rhoades of the city of De Kalb Police Department would testify that on July 1, 1981, at 1:45 a.m., he was investigating an automobile collision and had a conversation with defendant in Kishwaukee Community Hospital; that he requested she submit to a blood test in order to determine the percentage of alcohol in her blood and she stated she needed time to consider that decision; he again made the request at 3:15 a.m. and she advised him she would not agree to do so, whereupon Officer Rhoades left the hospital.

Sharon Whitlock would testify that on July 1, 1981, she was employed as a medical technician at the hospital and was so certified by the American Society of Clinical Pathologists, having passed the Board of Registry examination; that she did not possess a permit issued by the State Department of Public Health to perform chemical analysis of blood, pursuant to section 11-501(d) of the Illinois Vehicle Code; that at 3:22 a.m. on July 1, 1981, defendant, Eileen Pezzette, requested Whitlock to draw a sample of Pezzette's blood and analyze in order to determine the percentage of alcohol in the blood; that Whitlock thereupon withdrew two samples of defendant's blood, according to these procedures: (a) the area of injection was wiped with a nonalcoholic and nonorganic disinfectant, (b) the injection was made with a sterile, dry hypodermic needle, and (c) the blood sample was deposited in a clean container with an inert stopper; alcohol was not used to clean the container and the blood was mixed with an anti-coagulant and a preservative; that Whitlock thereafter analyzed the blood sample by means of enzymatic reduction.

Dr. Krishna P. Reddy would testify that on July 1, 1981, he was employed by Kishwaukee Community Hospital as a medical doctor and pathologist, that the medical laboratory of the hospital under his direction has met the standards of accreditation of the College of American Pathology and was so accredited on July 1, 1981; that Sharon Whitlock was a medical technician who worked under his immediate supervision.

Dan Gerace would testify that on July 2, 1981, he was a police officer and interviewed defendant who told Gerace she had submitted to a blood test at the hospital on July 1 and the results were either 180 or 108, she was not sure.

In addition to the stipulation, testimony was presented at the hearing.

Defendant testified, inter alia, that Officer Rhoades asked her to take a blood test and she declined to do so in response to his request; after the officer left the hospital, defendant spoke to a nurse who made arrangements for a test at her request and a blood sample was taken from defendant by hospital personnel.

Donna Kubetz testified she was an employee of the hospital and explained blood tests to defendant; that defendant asked whether she could have a blood test done for her own interest to determine the results for herself and advised defendant she could do so; when defendant asked whether the test results could be used against her, Kubetz responded she could not say what would happen, but that the results could be subpoenable as part of defendant's medical record; Kubetz also testified that defendant consented to the blood test, it was given to her, and Kubetz thereafter communicated the results to the De Kalb police.

After argument, the trial court made findings that defendant had refused to take the blood test requested by Officer Rhoades; she did request and submit to a blood test for her use which was performed by Sharon Whitlock; that Whitlock did not possess a permit issued by the Department of Public Health to perform chemical analysis of blood as required by section 11-501(d) of the Illinois Vehicle Code; that the Kishwaukee Community Hospital also lacked such a permit; that the test was for defendant's own use, not in response to the officer's requests; and, the test was not made in response to paragraph (f) of section 11-501 of the Code as it was not in addition to a test made at the direction of a law enforcement officer. Defendant's motions to suppress evidence and in limine were thereupon granted, and the State appeals after filing a certificate of impairment of its case.

• 1 The State contends that compliance with the provision of section 11-501(d) of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-501(d)) that chemical analysis of a person's blood must be performed by one having a permit from the Department of Public Health is not a prerequisite to the admissibility of evidence of a blood test taken at defendant's own request and not at the request of a law enforcement officer. Defendant asserts that as neither the hospital nor person analyzing ...


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