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08/29/97 PEOPLE STATE ILLINOIS v. JAMES R. KIRK

August 29, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
JAMES R. KIRK, DEFENDANT-APPELLEE.



Appeal from Circuit Court of Livingston County. Nos. 96DT37A, 96DT37. Honorable Charles H. Frank, Judge Presiding.

As Corrected November 13, 1997.

Honorable Rita B. Garman, J., Honorable John T. McCullough, J. - Concur, Honorable Robert W. Cook, J. - Concur. Justice Garman delivered the opinion of the court.

The opinion of the court was delivered by: Garman

The Honorable Justice GARMAN delivered the opinion of the court:

Defendant James R. Kirk was arrested for driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 1994)). After he submitted to blood and urine tests, defendant's driver's license was summarily suspended pursuant to section 11-501.1 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501.1 (West 1994)). Subsequently, he filed a petition to rescind his statutory summary suspension and a motion to quash arrest and suppress evidence of the urine test. Following separate hearings, the circuit court of Livingston County (1) rescinded the summary suspension of defendant's driver's license and (2) barred any evidence of the urine test at trial. The State appeals both orders.

On July 1, 1996, a hearing was held on the petition. Illinois State Trooper Michael Ross testified that on the evening of April 1, 1996, he arrived at an accident scene near Pontiac, Illinois. A few vehicles were parked on the shoulder of the road. Another vehicle had goneoff the road and into a field. As he walked toward the field, Ross observed Sergeant Beoletto assisting defendant away from the car. He also saw a body trapped underneath the car. He felt the body and found it to be cold, with no pulse. He attempted to jack the car up to get it off the body, but the jack sank into the dirt.

The Pontiac fire and rescue squad arrived and used air bags to lift the car, but they were unable to save the victim. Ross walked over to Beoletto and defendant. Beoletto informed Ross that defendant was the driver of the car. Defendant was kneeling down. His eyes were glassy and bloodshot and his face was flushed. He was not crying. Defendant told him the victim was his girlfriend. Ross noticed his speech was a bit slurred. Ross also noticed a strong odor of alcohol. He informed defendant that his girlfriend had died. Defendant began to cry and stated that he wanted to see the body.

Ross walked over to the firemen and spoke with them about defendant viewing the body. They advised against it. When Ross returned, defendant was slowly pacing. He displayed poor balance and coordination as he walked. He seemed disoriented. Ross admitted they were standing in a dirt field and the ground was not flat. He told defendant the fireman advised against him viewing his girlfriend and they wanted him to obtain medical treatment for a cut on his head. Defendant bent over and put his hands on his knees. A fireman asked him if he needed a stretcher, but defendant did not reply. Ross asked defendant if he needed a stretcher and, again, defendant did not reply. Ross told the fireman to bring a stretcher. Ross then asked defendant if he could see his driver's license to obtain some information. Defendant did not reply. Ross asked him if he had some type of identification. Defendant was silent; he remained bent over, but he was not crying. Ross asked defendant if he could see his wallet. Without responding, defendant reached into his pocket, pulled out his wallet, and handed it to Ross. Ross retrieved defendant's license and returned the wallet. After obtaining defendant's information, Ross gave the license to the paramedics. Defendant was then transported to St. James Hospital in Pontiac.

Ross arrived at the hospital at approximately 11 p.m. and was directed to defendant's room. When Ross entered the room, he saw that defendant had just been given a urinal. Ross asked him if he was okay; defendant told him "yes." Ross noticed there was an odor of alcohol in the room and that defendant's eyes were bloodshot. Defendant's speech was still slurred. Ross asked him if he had been drinking and defendant replied affirmatively. Based upon his observations at the scene and in the hospital, Ross believed defendant had been driving under the influence of alcohol. He advised defendantthat he was under arrest. Ross testified there was nothing he saw at the scene or at the hospital to suggest drug influence.

Ross issued defendant a citation for DUI. He read defendant his warning to motorist and defendant agreed to take a blood test and a urine test. Ross testified that he asked for both tests because it is his standard procedure. He was trained to request both tests to check for alcohol and drugs. Again, Ross stated there was nothing to suggest defendant was under the influence of drugs. He then stated defendant's disorientation could have been caused by alcohol or drugs.

Ross identified defendant's exhibit No. 1 as the lab report from the Illinois State Police. The report showed the test results from the blood and urine samples obtained from defendant at the hospital. Defendant's exhibit No. 1 was admitted into evidence. The report showed defendant's blood-alcohol concentration (BAC) was 0.06 and indicated the presence of cannabis in defendant's urine.

Ross again testified that when he entered defendant's hospital room, he saw a nurse give defendant a urinal. Defendant proceeded to urinate while keeping himself covered with the blanket. When he was finished, the nurse placed the urinal on the counter. Approximately 45 minutes later, defendant provided Ross with a urine sample for testing.

No further evidence was presented. Defense counsel argued (1) Ross did not have probable cause for a DUI arrest; (2) if there was probable cause for a DUI arrest, there was no probable cause for Ross to obtain a urine sample from defendant; and (3) the urine sample was not obtained in accordance with the Illinois Department of Public Health (IDPH) regulations.

The trial court held there was probable cause for a DUI arrest. Ross' observations of defendant provided him with reasonable grounds to believe defendant was under the influence of alcohol. However, the court held there was no probable cause to justify Ross' request for a urine sample from defendant. Based upon its reading of the relevant case law, the court stated that an officer cannot request multiple chemical tests if he has no reason to believe drugs other than alcohol are involved. Otherwise, the court opined, law enforcement officers could conduct a "shopping spree" through a motorist's bodily fluids. Further, the court agreed with defendant that the urine sample was not obtained in accordance with IDPH regulations. It found that section 510.110 of title 77 the Illinois Administrative Code (Code) (77 Ill. Adm. Code § 510.110 (1996)) regulated the collection of blood and urine for chemical analysis. However, there were only two standards set out by the section for the collection of urine: "urine collection, if drugs other than alcohol are suspected," and"urine collection, if a blood alcohol could not be determined from other biological sources." 77 Ill. Adm. Code §§ 510.110(c),(d) (1996). The court noted that section 510.110(d) did not apply because defendant's blood alcohol could have been determined by the blood sample that ...


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