Appeal from the Circuit Court of Du Page County. No. 02-CF-2957. Honorable Michael J. Burke, Judge, Presiding.
The opinion of the court was delivered by: Justice Grometer
On October 8, 2002, a Du Page County grand jury returned an indictment charging defendant, David DuBose, with five counts of aggravated driving under the influence of alcohol, drugs, or both (DUI) (625 ILCS 5/11--501(d)(1)(C) (West 2000)). Defendant successfully moved to bar the State from introducing evidence of the results of testing performed on a blood sample drawn from defendant following his arrest. Defendant argued that the State was judicially estopped from using the evidence because defendant's driving privileges had previously been suspended on the basis that he refused to submit to testing. The State filed a certificate of impairment and appealed from the order granting defendant's motion. We reverse and remand.
On April 2, 2004, this court rendered an opinion reversing the order of the circuit court and remanding the cause for further proceedings. Thereafter, defendant filed a petition for rehearing, arguing that our decision was based in part on the erroneous finding that defendant received medical treatment for injuries he sustained in the accident that resulted in his arrest for DUI. We now deny defendant's petition for rehearing, but withdraw our opinion of April 2, 2004, and issue this opinion in its stead.
Evidence presented at the hearing on defendant's motion establishes that on June 23, 2000, a vehicle that defendant was operating was involved in a multiple-vehicle accident. The accident caused serious personal injuries to another individual. Defendant was arrested at the accident site for DUI. The arresting officer also issued a traffic citation to defendant for failure to reduce speed to avoid an accident. Defendant was then transported to a local hospital. At the hospital, the arresting officer requested that defendant submit to chemical testing of his blood to determine the level of alcohol or other drugs. The officer also administered the warning prescribed by section 11--501.6(c) of the Illinois Vehicle Code (Code) (625 ILCS 5/11--501.6(c) (West 2000)), advising defendant, inter alia, that refusal to submit to the requested testing would result in the suspension of his driving privileges.
Defendant refused to submit to testing. The arresting officer then consulted with his supervisor about having defendant's blood drawn without defendant's consent pursuant to section 11--501.6(b) of the Code (625 ILCS 5/11--501.6(b) (West 2000)), which provides, in pertinent part, that "if a driver of a vehicle is receiving medical treatment as a result of a motor vehicle accident, any physician licensed to practice medicine, registered nurse or phlebotomist acting under the direction of a licensed physician shall withdraw blood for testing purposes *** upon the specific request of a law enforcement officer." The arresting officer's supervisor arrived at the hospital and informed defendant that his blood could be drawn without his consent. The arresting officer testified that "[a]t that point [defendant] stated that's fine, if you want to do it. I want it to be known on the record I refused." During cross-examination, the officer testified as follows:
"After my supervisor arrived on the scene, my supervisor informed [defendant] of the situation and what the outcome could be. He stated that he, again he would refuse all testing however he would give his blood and urine. He wanted it to be noted on the report that he refused."
Defendant's blood was drawn by a phlebotomist, without any resistance from defendant. The arresting officer submitted to the Secretary of State a sworn report indicating that defendant refused to submit to testing, and the Secretary of State suspended defendant's driving privileges for three years beginning in August 2000.
During the hearing on defendant's motion, his attorney indicated that defendant had filed a request for a hearing before the Secretary of State to contest the suspension (see 625 ILCS 5/11--501.6(e) (West 2000)). Defendant's attorney indicated that he withdrew the request upon learning that it was claimed that defendant had refused to submit to testing. Citing People v. Wisbrock, 223 Ill. App. 3d 173 (1991), defendant contended that the State was judicially estopped from using blood-test results when defendant's driving privileges had been suspended based on his refusal to submit to testing. The trial court granted defendant's motion. The State unsuccessfully moved for reconsideration, and this appeal followed.
Section 11--501.6(a) of the Code provides, in pertinent part:
"Any person who drives or is in actual control of a motor vehicle upon the public highways of this State and who has been involved in a personal injury or fatal motor vehicle accident, shall be deemed to have given consent *** to a chemical test or tests of blood, breath, or urine for the purpose of determining the content of alcohol, other drug or drugs, or intoxicating compound or compounds of such person's blood if arrested *** for any [nonequipment] violation of the Illinois Vehicle Code ***." 625 ILCS 5/11--501.6(a) (West 2000).
Section 11--501.6(d) of the Code (625 ILCS 5/11--501.6(d) (West 2000)) provides for the suspension of the motorist's driving privileges if he or she refuses testing or submits to a test that discloses a blood-alcohol concentration of 0.08 or more or any amount of an illegal drug. As seen, however, in certain circumstances, blood can be drawn for testing without the motorist's consent. The length of the suspension depends on whether the motorist is a "first offender" as defined in section 11--500 of the Code (625 ILCS 5/11--500 (West 2000)) and whether the motorist submits to or refuses testing. 625 ILCS 5/11--501.6(c), 6--208.1(a) (West 2000). Here, defendant was not a first offender. Because the arresting officer's sworn report indicated that defendant refused testing, his suspension was for three years. 625 ILCS 5/6--208.1(a)(3) (West 2000). The suspension period for a non-first offender who submits to testing is only one year. 625 ILCS 5/6--208.1(a)(4) (West 2000).
In Wisbrock, cited by the trial court as the primary basis for its ruling, a motorist arrested for DUI took a breath test, but the test apparatus issued a result reading, ".11 deficient sample." The State took the position that the failure to provide a sufficient sample was equivalent to refusal to submit to the test, and the motorist's driving privileges were suspended on that basis. The Wisbrock court held that the doctrine of judicial estoppel barred the State from introducing the test results in a criminal prosecution for DUI. The court reasoned as follows:
"The doctrine of judicial estoppel provides that when a party assumes a certain position in a legal proceeding, that party is estopped from assuming a contrary position in a subsequent legal proceeding. [Citation.] For the doctrine to apply, five factors must be present: (1) the party must have taken two positions; (2) the positions must have been taken in separate judicial or quasi-judicial administrative proceedings; (3) the party must have intended for the trier of fact to accept the truth of the facts alleged in support of the position; (4) the party ...