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April 19, 1996


Appeal from Circuit Court of Macon County. No. 94CF1078. Honorable John K. Greanias, Judge Presiding.

Released for Publication April 19, 1996. As Corrected August 28, 1996.

Justices: Honorable Rita B. Garman, J., Honorable Robert J. Steigmann, J., Honorable James A. Knecht, J., Concurring. Justice Garman delivered the opinion of the court: Steigmann and Knecht, JJ., concur.

The opinion of the court was delivered by: Garman

The Honorable Justice GARMAN delivered the opinion of the court:

Following a stipulated bench trial, defendant Robert D. Wilber was convicted of reckless homicide (720 ILCS 5/9-3(e) (West 1994)) and aggravated driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(d)(2) (West 1994)). He was sentenced to concurrent terms of eight years' and three years' imprisonment. Defendant now appeals, arguing the trial court (1) erred in allowing the introduction of the blood-alcohol test results contained in his medical records; (2) erred in allowing the testimony of paramedics who treated him; and (3) abused its discretion in sentencing. We disagree and affirm.

The stipulated facts showed that at approximately 7 p.m. on November 9, 1994, defendant was driving his sport-utility vehicle over Staley Bridge, a four-lane highway, in Decatur, Illinois. After passing several vehicles at a high rate of speed, defendant swerved into the left lane and collided with a Mercury Grand Marquis that was stopped behind a pickup truck. John Decesaro, who sat in the backseat of the Mercury, suffered a serious head injury which left him in a coma for seven days. His eight-year-old daughter, Dana, died as a result of her head injuries.

Paramedics Bill Kallenbach and Ingred Kimnitz arrived at the scene, examined defendant, and transported him to St. Mary's Hospital (St. Mary's). Both paramedics noticed that defendant had bloodshot eyes and Kallenbach detected an odor of alcohol. Defendant informed the paramedics that he "had 6 to 8 beers prior to the collision."

When defendant arrived at the emergency room of St. Mary's, Dr. Richard Wolfe noticed an odor of alcohol on defendant's breath and ordered that a blood test be performed. The blood test was taken at 8:10 p.m. and sent to the hospital laboratory. The sample showed defendant's blood-alcohol concentration at 0.172 grams per decileter.

Officer Dan Street of the Decatur police department spoke briefly with defendant at the scene of the accident and interviewed him later at St. Mary's, where he noticed defendant's eyes were glassy and bloodshot, his speech slow and deliberate, and that he smelled of alcohol. Defendant stated that he had consumed four to five beers. Street placed defendant under arrest for DUI at 10:15 p.m. At 10:35 p.m., defendant consented to a blood test, which was taken at St. Mary's and sent to the State Police crime laboratory. This analysis showed defendant's blood-alcohol concentration to be 0.093 grams per decileter.

On November 10, 1994, the State obtained a search warrant to seize from St. Mary's "any and only those medical records including but not limited to any lab results which show or tend to show the blood[-]alcohol content of [defendant] *** who received emergency room treatment on or about November 9, 1994[,] as a result of an automobile accident." Officer Street executed the search warrant on St. Mary's and acquired the entire medical record (18 pages) relating to defendant's treatment following the accident. Included in the record were the results of the first blood-alcohol test conducted by St. Mary's.

On November 15, 1994, defendant was charged by information of two counts of reckless homicide and two counts of aggravated DUI.

On November 23, 1994, defendant filed a motion to suppress the medical records, arguing that the records were protected under the physician-patient privilege (735 ILCS 5/8-802 (West 1994)). On December 13, 1994, defendant filed a motion in limine, claiming that the testimony of the paramedics should be prohibited under the physician-patient privilege as well.

On February 17, 1995, the trial court denied defendant's motion in limine but granted defendant's motion to suppress, holding that although the search warrant was limited to blood-alcohol test results, the warrant was violated when defendant's entire record was seized. Further, the issuing court failed to conduct in camera proceedings to determine the existence of privileged records and defendant was precluded from objecting to the release of his records. Thus, the records were ordered returned to defendant.

On March 29, 1995, the State issued a subpoena duces tecum upon the records custodian at St. Mary's. The subpoena commanded that the custodian appear in court on May 3, 1995, and produce medical records relating to any blood or urine tests conducted on defendant following the accident. On April 6, 1995, defendant filed a motion to quash the subpoena, which the trial court denied. On May 9, 1995, the trial ...

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