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09/25/96 PEOPLE STATE ILLINOIS v. GRANT E. NOHREN

September 25, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
GRANT E. NOHREN, DEFENDANT-APPELLEE.



Appeal from Circuit Court of Douglas County. Nos. 95TR3550, 95TR3551, 95TR3552. Honorable Art Powers, Jr., Judge Presiding.

Released for Publication October 25, 1996. As Corrected January 2, 1997.

Honorable Rita B. Garman, J., Honorable John T. McCullough, J. - Concur, Honorable Frederick S. Green, J. - Special Concurrence. Justice Garman delivered the opinion of the court.

The opinion of the court was delivered by: Garman

JUSTICE GARMAN delivered the opinion of the court:

Following a one-car accident with injuries in October 1995, defendant Grant Nohren was issued citations for improper lane usage, illegal transportation of alcoholic liquor, and failure to wear a seat belt. 625 ILCS 5/11-709, 11-502, 12-603.1 (West 1994). Prior to charging defendant with driving under the influence (DUI) (625 ILCS 5/11-501 (West 1994)), the State caused a subpoena duces tecum to be issued for the results of blood-alcohol tests performed on defendant on the night in question. Defendant objected when the State made a motion to view the subpoenaed records, and the trial court denied the State's motion to view. The State then filed its notice of impairment, and this interlocutory appeal followed, pursuant to Supreme Court Rule 604(a)(1) (145 Ill. 2d R. 604(a)(1)). On appeal, the State argues the trial court abused its discretion in denying the motion, contending that there was nothing improper in subpoenaing defendant's records prior to charging him with DUI and that the records were not otherwise privileged. We agree and reverse.

The facts of this matter are not disputed. According to the police report, at approximately 1:20 a.m. on October 8, 1995, the Douglas County sheriff's dispatcher received a report of a one-car accident which had occurred in Douglas County. Douglas County sheriff's deputy Dustin Morgan was dispatched to the scene of the accident and received backup support from Officers Milton Wyrick and James Nees of the Tuscola police department. When Morgan arrived at the scene, he observed defendant's 1992 Mitsubishi sitting upside down off the roadway. Two males were lying on the ground 30 yards from the car, and a female was lying behind the vehicle. Morgan asked the female lying on the ground, Angela Long, about the accident, and Long replied she had no knowledge of how the accident had occurred. Long acknowledged that everyone in the car had been drinking before the accident.

Morgan was then approached by a second female, Leigh Boyce, who also claimed to have been a passenger in the car. She informed Morgan she and the other occupants of the car had been in Mattoon earlier and had been drinking. She stated that they were returning home when the driver, Nohren, lost control of the car while attempting to maneuver through a curve. Boyce identified one of the men lying on the ground as Andrew Hardin. Morgan tried to speak with defendant but could not get a response from him. An ambulance arrived and transported all of the car's occupants to Carle Hospital in Urbana.

Morgan remained at the scene to investigate the accident. He observed a blue and white cooler lying next to the car. The cooler contained fourteen 12-ounce Bud Light beer cans, one of which was opened. Morgan noted a strong odor of alcoholic beverages emanating from the inside of defendant's automobile.

At 6:45 p.m. on the same day, Morgan went to Carle Hospital. While there, he asked an emergency room nurse whether blood had been drawn from defendant earlier and was advised that blood had indeed been drawn. Morgan then questioned Long about the accident. Long told Morgan she had gone with the three others to a tavern in Mattoon at approximately 9 p.m. The four left the tavern at almost 1 a.m. According to Long, defendant had been drinking Bud Light that night, although she was unsure how much he had consumed. When they left the tavern, defendant was driving at a high rate of speed prior to the accident. Long could not recall the details of the accident. Morgan then tried to speak with Hardin, but Hardin was in surgery at the time.

Morgan next went to defendant's residence to speak with defendant. Defendant's version of events was identical to that of Long. Defendant admitted to Morgan that he had consumed alcohol before attempting to drive home that night. Defendant admitted he was driving in excess of 55 miles per hour prior to the wreck. Defendant claimed he had turned to say something to one of the girls prior to losing control of the car. When asked whether he thought he was "under the influence" at the time the accident occurred, defendant lowered his head, looked down at the table, and replied, "I don't know."

Boyce's statement was not significantly different from that of defendant and Long. Boyce denied drinking that night and said that if anyone in the car was drinking that night, it was defendant.

Morgan issued defendant traffic citations for improper lane usage, illegal transportation of alcoholic liquor, and failure to wear a seat belt. 625 ILCS 5/11-709, 11-502, 12-603.1 (West 1994). On October 19, 1995, the State caused the clerk of the circuit court to issue a subpoena duces tecum upon the records custodian at Carle Hospital. The subpoena called for production of defendant's blood-alcohol test results for the dates October 7 through October 9 for a hearing before Judge Frank Lincoln on November 27. Compliance could be accomplished by sending the medical records directly to the court, and the subpoena specifically stated that the records were not to be sent to the State's Attorney's office. The records arrived and bore a circuit clerk file stamp of November 20.

On November 29, the State filed a motion to view the subpoenaed medical records. Defendant objected to this motion, and a hearing was set for December 19. At that hearing, defense counsel argued that the subpoenaed materials were privileged and not relevant to the pending charges, as defendant had yet to be charged with DUI (625 ILCS 5/11-501 (West 1994)). The trial judge stated he was inclined to deny the State's motion, but he declined to make a final ruling. The matter was recessed until January 9, 1996, and counsel were given additional time to submit authority in support of their respective positions. The subpoenaed documents were ordered sealed and returned to the court file.

On December 28, 1995, the State charged defendant with DUI. On January 9, defendant renewed his objections to the State's motion to view the subpoenaed materials. The matter was continued until February 13, 1996, and that date was also selected as the date for the preliminary hearing on the DUI charge. On February 13, the trial court denied the State's petition without giving a ...


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