from the Circuit Court of Lawrence County. No. 11-CF-119
Honorable Mark L. Shaner, Judge, presiding.
CHAPMAN JUSTICE delivered the judgment of the court, with
opinion. Presiding Justice Barberis and Justice Goldenhersh
concurred in the judgment and opinion.
1 The event underlying this appeal is the tragic death of a
seven-year-old boy. The defendant, Chad B. Hayes, struck the
boy with his vehicle when the boy rode his bicycle in front
of the defendant's vehicle. An officer investigating the
accident requested that another officer drive the defendant
to the hospital to provide blood and urine samples for drug
testing. The test indicated the presence of drugs, and the
defendant was charged with aggravated driving under the
influence (DUI) (625 ILCS 5/11-501 (d)(1)(F) (West 2010)).
The defendant appeals his conviction on this charge, arguing
that (1) he did not actually consent to the tests, (2) he did
not impliedly consent to the tests under section 11-501.6(a)
of the Illinois Vehicle Code (id. §
11-501.6(a)), (3) the test was not supported by probable
cause or any exigent circumstances that would justify failure
to seek a warrant, (4) he was not proven guilty beyond a
reasonable doubt, and (5) he did not knowingly waive his
right to a jury trial. We reverse.
On July 25, 2011, the defendant was driving home from the
store with two of his children. According to the
defendant's statement to police, one of the children
attempted to hand the defendant a piece of candy to unwrap
for him. The defendant looked back to talk to the child. As
he did, his vehicle struck seven-year-old David Kirby. The
defendant did not see David beforehand. According to a
statement given to police by Pamela Clem, who witnessed the
accident, David rode his bicycle between two parked cars onto
the roadway and into the path of the defendant's van.
Clem did not believe that the defendant could have done
anything to avoid the accident.
3 The accident took place near city hall in Sumner, Illinois.
The defendant ran into city hall asking for help. Brent
Parrott, a volunteer firefighter who was there that day,
administered CPR to David. Several police officers responded
to the accident, including Lawrence County Deputy Danny Ash,
Illinois State Police Trooper Brooks Thomann, and Bridgeport
Police Chief Scott Murray. Deputy Ash asked Chief Murray to
transport the defendant to Lawrence County Memorial Hospital
to provide blood and urine samples for drug screening. Chief
Murray drove the defendant to the hospital. Deputy Ash
arrived after the samples were taken and drove the defendant
back to the police station. The results of initial tests
performed by the hospital's lab were faxed to Deputy Ash
later that afternoon. The tests revealed the presence of THC
and amphetamine. After receiving these results, Deputy Ash
placed the defendant under arrest for DUI.
4 The following day, July 26, 2011, Deputy Ash completed a
police report. In it, he noted that testing of the samples by
the hospital's lab indicated the presence of THC and
amphetamine in the defendant's system, and he stated that
"Chad Hayes was soon after placed under arrest." In
addition, Deputy Ash indicated that the defendant could be
charged with endangering the health or life of a child (720
ILCS 5/12-21.6(a) (West 2010)), aggravated DUI (625 ILCS
5/11-501(d)(1)(F) (West 2010)), failure to exercise due care
(id. § 11-1003.1), and failure to reduce speed
to avoid an accident (id. § 11-601(a)).
5 At some point between July 25 and July 27, an assistant
state's attorney discussed the matter with Deputy Ash.
She told him that she was concerned about the fact that Chief
Murray did not read the defendant the warning to motorists
before the blood and urine samples were taken. See
id. § 11-501.6(c). She also expressed concern
about the fact that no traffic citation had been issued to
the defendant. Due to these concerns, Deputy Ash asked the
defendant to submit to a second drug test on July 27. The
samples drawn on both dates were submitted to the Illinois
State Police crime lab in Springfield. Testing of the blood
drawn on July 25 indicated the presence of less than 50 ug/L
of methamphetamine. The blood sample tested negative for any
other substances. Testing of the urine sample collected on
that date, however, indicated the presence of
methamphetamine, amphetamine, THC, and naproxen. Both the
blood and urine samples collected on July 27 tested negative
for the presence of any drugs.
6 Deputy Ash also issued two traffic citations to the
defendant for failing to exercise due care (id.
§ 11-1003.1) and failing to reduce speed to avoid an
accident (id. § 11-601(a)). Both citations were
dated July 27, 2011. On July 28, the defendant was charged
with aggravated DUI (id. § 11-501(d)(1)(F)).
7 On July 23, 2012, the defendant filed a motion in
limine seeking to exclude the results of the July 25,
2011, blood and urine tests. He filed amended motions on
September 7 and September 11, 2012. He argued that (1) Deputy
Ash lacked probable cause to require the defendant to submit
to drug testing and (2) statutory requirements for the
admission of test results were not satisfied. The matter came
for a hearing on October 31, 2012.
8 The first witness to testify was Trooper Brooks Thomann of
the Illinois State Police. He explained that the state police
were asked to assist in the investigation because they have
more experience and expertise than local police departments
in handling crash investigations. Trooper Thomann noted that
he is not an accident reconstruction specialist, and his
involvement in the investigation was limited. He testified
that upon arriving at the scene, he spoke with Deputy Ash,
who advised him of the statement given to him by Pamela Clem
describing the accident. Trooper Thomann took measurements at
the scene of the accident, and determined that the
defendant's vehicle dragged David Kirby on his bicycle 47
feet before coming to a stop. Trooper Thomann testified that
he then proceeded to interview the defendant. The defendant
told Trooper Thomann the same thing he told Deputy Ash.
Trooper Thomann asked the defendant what speed he was
driving, and the defendant indicated that he did not know.
Trooper Thomann saw no indication that the defendant was
9 Trooper Thomann testified that he had both training and
experience in recognizing the signs of intoxication or
influence of drugs in motorists. He did not notice anything
about the defendant's demeanor or appearance that would
lead him to believe that the defendant was intoxicated or
under the influence. He did not detect the odor of alcohol or
drugs, and he noted that the defendant did not slur his
speech. Asked what his conclusion was as to the cause of the
accident, Trooper Thomann replied, "as far as I could
see, the child had just ridden out into the street. And when
he came around that vehicle, shot out in the middle of the
street, and then Mr. Hayes struck him." Trooper Thomann
testified that he did not issue any traffic citation to the
defendant, explaining, "There was no violation, as far
as Mr. Hayes."
10 The next witness to testify was Chief Scott Murray. Chief
Murray did not actively participate in the investigation. He
explained that because Sumner and Bridgeport have small
police departments, the officers from the two departments
help each other as needed. Chief Murray indicated that he was
the first officer to arrive at the scene. He directed traffic
around the accident scene while Brent Parrott and the medics
were attempting to administer CPR to the young child that was
11 Chief Murray testified that Deputy Ash asked him to
transport the defendant to Lawrence County Memorial Hospital
for drug testing. Chief Murray did so. He testified that he
did not know whether Deputy Ash had placed the defendant
under arrest prior to this time. He further testified that
during the 10-minute ride to the hospital, the defendant was
not handcuffed. At the hospital, Chief Murray accompanied the
defendant to the restroom while he provided a urine sample
and remained with him while his blood was drawn. Chief Murray
testified that he waited with the defendant until Deputy Ash
arrived to transport him from the hospital. Chief Murray
handed Deputy Ash the DUI kit completed by hospital staff and
then left. He assumed that Deputy Ash transported the
defendant back to the police station, but he left the
hospital before they did.
12 Chief Murray acknowledged that he did not give the
defendant the warning to motorists required by section
11-501.6(c) of the Illinois Vehicle Code (625 ILCS
5/11-501.6(c) (West 2010)). He explained that the reason he
did not do so was that it was not his investigation. He
testified that he did not personally place the defendant
under arrest at any time, and he did not issue the defendant
any traffic citations.
13 The last witness to testify was Deputy Ash. He testified
that he called for a tow truck "to have it on
standby." He explained that the vehicle "would be
stored until the investigation of the accident was
complete." Deputy Ash testified that he then spoke with
the defendant, who told him that when he looked back at a
child who asked for help unwrapping a piece of candy, the
little boy on the bicycle rode out in front of his vehicle.
14 Deputy Ash was then asked about his decision to have the
defendant transported to the hospital for drug testing.
Defense counsel asked him on what basis he made that
decision. Deputy Ash responded, "He was involved in a
personal injury accident. He was the driver of a vehicle
involved in a personal injury accident." Deputy Ash then
testified that "consent is implied whenever you receive
a driver's license to obey all the rules in the [Illinois
15 Deputy Ash acknowledged that providing a motorist with the
warning to motorists prior to drug testing is standard
operating procedure. See id. He further acknowledged
that this procedure was not followed in this case.
16 Deputy Ash testified about the timing of the
defendant's arrest for DUI and the issuance of the two
traffic citations. He noted that he believed the statute
governing implied consent to drug testing required only the
issuance of a traffic citation, rather than an arrest. He
conceded that the defendant was not under arrest at the time
he was transported to the hospital for testing, testifying
that he arrested the defendant on the charge only after
receiving the initial test results from the hospital's
17 Defense counsel asked Deputy Ash whether he had
issued traffic citations to the defendant prior to
directing him to be taken to the hospital for drug testing.
In response, Deputy Ash stated that the defendant had not
been handed a citation prior to this point. He
acknowledged that he did not give the citations to the
defendant until July 27, two days after the initial tests,
but he testified that the citations were written earlier. He
testified that he wrote them at some point while he was
filling out all the paperwork relevant to the investigation.
Deputy Ash acknowledged that his police report, a ...