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06/27/94 PEOPLE STATE ILLINOIS v. JERRY P. HATHAWAY

June 27, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
JERRY P. HATHAWAY, DEFENDANT-APPELLEE.



Appeal from Circuit Court of Vermilion County. Nos. 92TR2194, 92TR2198. Honorable James K. Borbely, Judge Presiding.

Released for Publication July 25, 1994. As Corrected September 6, 1994.

Honorable Robert J. Steigmann, J., Honorable James A. Knecht, J., Honorable Carl A. Lund, J.

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

In August 1993, the trial court granted defendant's motion to suppress all evidence obtained through the alleged improper use of the subpoena power by the Vermilion County State's Attorney's office. The State appeals, and we reverse.

I. BACKGROUND

In December 1991, defendant, Jerry Hathaway, was involved in a one-car accident in Vermilion County. Deputy William Cottrell, the first officer to arrive at the scene, noticed the smell of alcohol about defendant before he was taken by ambulance to United Samaritan's Medical Center (USMC). While at the hospital, a blood sample was obtained from defendant, and two blood-alcohol tests were performed, one pursuant to police request, the other in the regular course of medical care and treatment.

In March 1992, the Vermilion County State's Attorney's office charged defendant by information with driving under the influence of alcohol (count I) (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 11-501(a)(2)), and driving with a blood-alcohol concentration of greater than 0.10 (count II) (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 11-501(a)(1)).

The day after the State filed the information, a worker in the records department of USMC was served with a subpoena duces tecum. The subpoena commanded USMC to produce all medical records relating to defendant's blood-alcohol analysis to the trial court "forthwith." The subpoena did not contain a date on which the records must be produced, and no hearings were scheduled on the day the subpoena was served or the day when USMC ultimately produced the records. Defendant was not notified of the subpoena or the State's interest in his medical records.

Pursuant to the subpoena and USMC's usual practice with the State's Attorney's office, USMC gave the records directly to the State's Attorney's office, not to the trial court. These records included material related to the blood-alcohol tests and approximately 18 pages of other medical records. Staff from the State's Attorney's office placed this material in the public court file in March 1992. In November 1992, defendant filed a motion to suppress the blood test requested by the police based on his assertion that the police did nothave probable cause to arrest him at that time and, therefore did not have the authority to order the blood test.

Also in November 1992, a second subpoena was served on USMC. This subpoena commanded the production--in a sealed condition to the trial court--of records relating to the blood tests conducted upon defendant on the day of the accident. This subpoena once again required production "forthwith" rather than on a particular date. In response to this subpoena, a sealed envelope addressed to "Judge Skowronski" and containing the material sought was placed in the court file.

In January 1993, the trial court conducted a hearing on defendant's motion to suppress and ordered the suppression of the blood test ordered by Cottrell. In July 1993, defendant filed a motion to suppress the second blood test, alleging breach of the physician-patient privilege. The court denied that motion, relying on section 11-501.4 of the Illinois Vehicle Code (Code) (625 ILCS 5/11-501.4 (West 1992)), which allows the admission of written blood tests when conducted in the regular course of emergency medical treatment.

In August 1993, defendant filed a motion seeking to enjoin the use of defendant's blood test, alleging improper use of the subpoena process. The trial court, treating this motion as a motion to suppress, conducted a hearing and made the following findings: (1) the subpoenas did not contain return dates; (2) they commanded a return "forthwith"; (3) no hearings were scheduled on the day when the subpoenas were served or when USMC complied with them; (4) the responses were given to the State's Attorney's office instead of the court; and (5) defendant never consented to the release of this medical information. The court then granted defendant's motion and suppressed all information received in response to the second subpoena. The State appeals that ruling.

We add that although the matter is not as clear as it should be, it appears to us that the State is challenging on appeal only the trial court's ruling as to the second subpoena. Thus, we address solely that ruling. For the reasons that follow, however, if the State were appealing the ...


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