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01/25/89 the People of the State of v. Rickey R. Saulsburry

January 25, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

RICKEY R. SAULSBURRY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

533 N.E.2d 1154, 178 Ill. App. 3d 857, 128 Ill. Dec. 66 1989.IL.72

Appeal from the Circuit Court of Kane County; the Hon. John L. Petersen, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. NASH and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Defendant, Rickey R. Saulsburry, was found guilty following a jury trial in the circuit court of Kane County of the offenses of reckless driving (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-503) and felony driving while under the influence of alcohol , causing great bodily harm to another (Ill. Rev. Stat. 1985, ch. 95 1/2, pars. 11-501(a)(2), (f)). Judgment was entered on the DUI verdict only, and defendant was sentenced to a three-year term of imprisonment.

On appeal, defendant contends that the circuit court erred in admitting the testimony of the emergency room physician who treated defendant which should have been barred under the physician-patient privilege. Defendant further contends that the results of a blood-alcohol test were inadmissible because the test was not performed in accordance with the standards formulated by the Illinois Department of Public Health and listed in section 510.110 of the Illinois Administrative Code (77 Ill. Adm. Code 510.110 (1985)).

In a pretrial motion, not contained in the record, defendant sought to exclude the testimony of Dr. Tye Stein, the emergency room physician who treated defendant after the accident, and of an attending nurse and laboratory technician who took and analyzed defendant's blood. Defendant argued that the physician-patient privilege barred this testimony. The court denied defendant's motion based on a New Jersey decision, State of New Jersey v. Dyal (1984), 97 N.J. 229, 478 A.2d 390. In that case, the New Jersey Supreme Court held that the physician-patient privilege could be broached in the interest of public policy when the prosecution seeks to introduce evidence of a defendant's blood-alcohol level if the arresting officer had a reasonable basis to believe that the defendant was intoxicated. Dyal, 97 N.J. at 241, 478 A.2d at 396.

Prior to trial, defendant also filed a motion to exclude evidence of the blood-alcohol test. Although the motion also is not in the record, the parties stipulated that the blood-alcohol test was not performed in accordance with statutory requirements. The trial court granted the motion pertaining to the DUI offense only as it related to the presumption of intoxication but denied it as to the reckless driving offense.

Evidence adduced at trial showed that at approximately 11 p.m. on July 19, 1986, the pickup truck defendant was driving hit a jeep as the jeep attempted to make a left turn after stopping at a four-way stop sign intersection. A passenger in the jeep, Shelly McGuigan, suffered permanent, serious injuries.

Lucinda Saltzman testified that she and defendant had been drinking beer at a wedding reception prior to the accident. They left the reception in defendant's pickup truck. Saltzman further testified that defendant was intoxicated, but she thought he was okay to drive. Saltzman claimed that she did not remember the accident because she had too much to drink.

Kimberly Hook, one of the paramedics who was called to the scene of the accident, testified that she attempted to get defendant out of the truck. Defendant was not stuck in the truck, rather, he clung to the steering wheel and fought with the paramedics to stay in the truck. Hook further testified that defendant swung at several of the paramedics and struck her in the arm. When the paramedics did get defendant into the ambulance, Hook smelled alcohol on defendant's breath and noticed his slurred speech. In Hook's opinion, defendant was intoxicated and impaired at the time of the accident. She based her opinion on defendant's aberrant behavior of resisting assistance, his belligerence, his slurred speech, and the odor of alcohol on his breath.

Another paramedic, Randy Miller, testified that defendant fought with the paramedics. Miller also rendered an opinion that defendant was intoxicated at the time of the accident based on defendant's actions and slurred speech.

Gale Kendrick testified that she was the night nursing supervisor at the hospital when the paramedics brought defendant in. Kendrick testified that defendant would not cooperate with the hospital personnel and that he used foul ...


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