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June 8, 1994


Appeal from the Circuit Court of Kane County. No. 91-CF-1291. Honorable Thomas E. Hogan and James T. Doyle, Judges, Presiding.


The opinion of the court was delivered by: Mclaren

Justice McLAREN delivered the opinion of the court:

The State appeals from the circuit court's order granting defendant's motion to suppress evidence of a blood-alcohol concentration test (BAC) after reconsidering its prior denial of defendant's motion. We affirm.

Defendant, Robert J. Lukach, was indicted for the offense of reckless homicide (Ill. Rev. Stat. 1991, ch. 38, par. 9-3(a) (now 720 ILCS 5/9-3(a) (West 1992))) stemming from his involvement in a single-car accident which occurred on July 11, 1991, in Aurora, Illinois. After defendant was admitted to the hospital following the accident, the police requested a BAC test in reliance on the implied consent provision of section 11-501.6 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 11-501.6 (now 625 ILCS 5/11-501.6 (West 1992))). Defendant's motion to suppress evidence or, alternatively, to declare the implied consent statute unconstitutional was initially denied. Upon reconsideration, the trial court granted defendant's motion to suppress, relying on our supreme court's decision in King v. Ryan (1992), 153 Ill. 2d 449, 180 Ill. Dec. 260, 607 N.E.2d 154 (section 11-501.6 facially unconstitutional in the absence of particularized probable cause requirement).

The State appeals, having filed a certificate of impairment which avers that suppressing the laboratory test result of defendant's BAC of 0.022 substantially impairs its ability to prosecute the reckless homicide charge despite an apparent presumption of nonintoxication based upon a BAC of less than 0.05. (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 11-501.6(e)(1) (now 625 ILCS 5/11-501.6(e)(1) (West 1992))). The State contends that the trial court erred in suppressing the test result even though the test was taken pursuant to a statute that was declared unconstitutional. The State specifically argues that (1) defendant consented to the taking of the blood test; and (2) even if the test is deemed involuntary, the warrantless and involuntary test of the defendant's bodily substances does not violate his fourth amendment right to be free from unreasonable searches so long as the "search" is supported by probable cause, the evidence is of an evanescent nature, and the means are reasonable. (See, e.g., People v. Byrd (1991), 215 Ill. App. 3d 468, 470-71, 158 Ill. Dec. 876, 574 N.E.2d 1269 (and cases cited therein).) The record does not support either of the two theories now argued on appeal by the State.

The record discloses that, at the initial hearing of September 18, 1992, on defendant's motion to suppress, Officer Anthony Russo of the Aurora police department testified concerning his response to the accident on July 11, 1991. Russo had been a police officer for 17 1/2 years. He had received training concerning drinking drivers, and he had been certified as a breathalyzer operator for 10 years. He had observed drivers under the influence of alcohol hundreds of times. On July 11, at about 1:52 a.m., he responded to an accident at Cochran Street where he observed a Pontiac Grand Prix that had driven off the road onto a parkway and had struck a tree. The driver, whom Russo identified as defendant, was standing at the back of the vehicle. Russo asked him about the accident. Russo observed that defendant had a head injury and appeared to be dazed, but otherwise his condition appeared normal. Defendant did not have any odor of alcohol on his breath, and there was nothing unusual about his eyes or the way he was standing. The passenger in the car was injured. Defendant admitted he had been driving and handed over his license without difficulty in retrieving it when Russo asked to see it.

Russo examined the vehicle and found nothing unusual such as contraband or open alcohol containers. Russo formed no decision on whether defendant was driving under the influence of alcohol, made no decision to arrest defendant at this point, and waited to see defendant at the hospital. At about 3 a.m., Russo saw defendant at the hospital; defendant had a gash above one of his eyes; his speech seemed clear; and he had none of the customary signs of intoxication. Russo did not believe that there was probable cause to arrest defendant or to issue any citations. At about 9:30 a.m., Russo went to defendant's hospital room. Russo had been directed by a superior officer to read defendant a statement to collect defendant's blood for alcohol testing and to ask defendant to submit to the test.

On cross-examination, Russo acknowledged that he saw an injured passenger in defendant's car and that the passenger later died. Russo had observed defendant's vehicle on the parkway and did not discern any cause, outside of defendant's driving, for the vehicle to have been off the road. There were no other cars, and defendant had not indicated that a deer or anything else had run out in front of him. The road was a quiet two-lane residential road which was not heavily traveled. The road was "somewhat straight" but there may have been "a little curve." Defendant admitted he had been drinking. Russo had never seen defendant intoxicated before and acknowledged that he knew of defendant before the accident from defendant's occupation as a fire fighter.

On redirect examination, Russo said he did not test defendant because he did not feel defendant was intoxicated. Russo was not sure that the policy of the police department regarding the duty to test would have covered the situation, and he believed that testing was discretionary. He exercised what he thought was his discretion because he saw no customary signs of intoxication. When blood was later taken from defendant, he was not under arrest.

On re-cross-examination, Russo said the test was not taken at defendant's request. Russo asked that defendant submit to the test using the forms of the Aurora police department. Russo read him the warning to the motorist.

The State argued that the authority to test arose from section 11-501.6 of the Code which states in pertinent part:

"(a) Any person who drives or is in actual control of a motor vehicle upon the public highways of this State shall be deemed to have given consent * * * to a chemical test or tests of blood, breath, or urine for the purpose of determining the alcohol or other drug content of such person's blood if there is probable cause to believe that such person was the driver at fault, in whole or in part, for a motor vehicle accident which resulted in the death or personal injury of any person." (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 11-501.6 (a) (now 625 ILCS 5/11-501.6(a) (West 1992)).)

Defendant argued, among other things, that there had to be probable cause that defendant was intoxicated in considering the fault of the driver in order for the test to be constitutionally ...

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