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People v. Eubanks

Supreme Court of Illinois

December 5, 2019

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant,
v.
RALPH EUBANKS, Appellee.

          JUSTICE THOMAS delivered the judgment of the court, with opinion. Justices Kilbride, Garman, and Karmeier concurred in the judgment and opinion.

          OPINION

          THOMAS, JUSTICE

         ¶ 1 Shortly before 9 p.m. on December 21, 2009, Maria Worthon was killed by a hit-and-run driver near the intersection of Greenview and Greenleaf Avenues in Chicago. Worthon's son, Jeremiah, was seriously injured in the accident. The State charged defendant, Ralph Eubanks, with numerous offenses arising out of the incident. A jury ultimately convicted defendant of first degree murder (720 ILCS 5/9-1(a)(2) (West 2008)), failure to report an accident involving death or injury (625 ILCS 5/11-401(b), (d) (West 2008)), and aggravated driving under the influence (DUI) (id. § 11-501(a)(6), (d)(1)(C), (d)(1)(F) (driving with any amount of a controlled substance in the person's blood, breath, or urine)). Defendant appealed, and the Appellate Court, First District, reversed defendant's aggravated DUI conviction, holding that section 11-501.2(c)(2) of the Illinois Vehicle Code (id. § 11-501.2(c)(2)) is facially unconstitutional because it permits compelled chemical testing without a warrant "in all cases where an officer has probable cause to believe that a driver under the influence has caused death or personal injury to another." 2017 IL App (1st) 142837, ¶ 66. The court also reversed defendant's conviction for first degree murder and remanded for a new trial, holding that the Cook County circuit court abused its discretion in denying defendant's request for a reckless homicide instruction. Finally, the court reduced the felony class of defendant's conviction of failure to report an accident. We allowed the State's petition for leave to appeal. Ill. S.Ct. R. 315 (eff. July 1, 2018).

         ¶ 2 BACKGROUND

         ¶ 3 Motions to Suppress and to Declare Statute Unconstitutional

         ¶ 4 Prior to trial, defendant filed a motion to suppress the results of blood and urine testing that was done against his will. Defendant contended that he did not consent to chemical testing of his blood and urine, the police did not have a warrant for the testing, and no exigent circumstances were present that would have prevented the police from obtaining a warrant. Accordingly, defendant alleged that the testing amounted to an unconstitutional search. Defendant also moved to declare section 11-501.2(c)(2) of the Vehicle Code unconstitutional on its face and as applied to his case. At the relevant time, this statute provided as follows:

"Notwithstanding any ability to refuse under this Code to submit to these tests or any ability to revoke the implied consent to these tests, if a law enforcement officer has probable cause to believe that a motor vehicle driven by or in actual physical control of a person under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof has caused the death or personal injury to another, that person shall submit, upon the request of a law enforcement officer, to a chemical test or tests of his or her blood, breath or urine for the purpose of determining the alcohol content thereof or the presence of any other drug or combination of both.
This provision does not affect the applicability of or imposition of driver's license sanctions under Section 11-501.1 of this Code." [1] 625 ILCS 5/11-501.2(c)(2) (West 2008).
Defendant contended that this section was unconstitutional under Missouri v. McNeely, 569 U.S. 141 (2013), as it allowed the police to obtain chemical testing in the absence of a case-specific determination of exigency.

         ¶ 5 At the hearing on defendant's motions, the parties stipulated to the following facts. On December 21, 2009, defendant was arrested in connection with a hit-and-run accident that resulted in the death of Maria Worthon and injuries to her son, Jeremiah. The police had probable cause for the arrest. Defendant was initially taken to district 24 but was eventually transferred to area 3 for processing and questioning. An officer informed him that he was being charged with DUI, read him the DUI motorist warnings, and asked defendant to take a breath test. Defendant refused. Defendant also refused to submit to blood and urine testing. An officer noted the time of the refusal at 12:05 a.m.

         ¶ 6 Defendant was left alone in the interview room until 1:37 a.m., when Officer Michael Deneen told him that he was going to take him to the hospital because he was required to give blood and urine samples. At 2:53 a.m., an officer took defendant to the hospital. At the hospital, defendant refused to comply with the blood test, and he was physically restrained by hospital security. His wrists were cuffed to separate rails of a hospital bed, and blood was forcibly taken from him at 4 a.m. A nurse then asked him to provide a urine sample, and defendant refused. The nurse threatened to take the urine with a catheter, and she ordered a catheter at 4:56 a.m. When the nurse approached defendant with the catheter, defendant agreed to provide a urine sample. Defendant provided the sample at 5:20 a.m.

         ¶ 7 The blood and urine samples were sent to the Illinois State Police crime lab for analysis. The blood tested negative for alcohol or any illegal substance. The urine tested positive for cannabis, ecstasy, and cocaine metabolite.

         ¶ 8 The trial court denied both motions. The court found that the statute was valid under Schmerber v. California, 384 U.S. 757 (1966), and People v. Jones, 214 Ill.2d 187 (2005). In Jones, this court interpreted Schmerber as allowing compulsory blood testing when the police have probable cause to believe that a person has been driving while intoxicated. Jones, 214 Ill.2d at 195-96. The court acknowledged the later authority of McNeely but found that McNeely had reasserted the validity of Schmerber. With respect to the motion to suppress, the court found that the totality of the circumstances presented a sufficient exigency that the police were justified in taking the blood and urine without defendant's consent and without a warrant.

         ¶ 9 Trial

         ¶ 10 The following facts were developed at trial. Shortly before 9 p.m. on December 21, 2009, Chicago police officers Brian Murphy and Chris Wertepny were on routine patrol in the Rogers Park neighborhood when they saw a green Pontiac, with no headlights on, traveling at a high rate of speed. The officers activated their emergency lights and began following the vehicle. The officers could see two individuals in the vehicle. The car eventually stopped, and the officers approached it on foot. As the officers got to the car, the driver sped away and did not stop at any stop signs. The officers attempted unsuccessfully to follow the vehicle but were able to obtain its license plate number. Officer Murphy gave a description of the vehicle and its license plate number to dispatch.

         ¶ 11 Shortly after losing sight of the vehicle, the officers came across what appeared to be an accident involving two pedestrians near the intersection of Greenleaf and Greenview Avenues. Witnesses described the vehicle that had hit the pedestrians, and the information matched the description of the vehicle that had fled the traffic stop. Two of the witnesses that approached the officers were Calvin Tanner and Dennis Jeter. Tanner had blood on his face.

         ¶ 12 Shortly before 9 p.m. on that same evening, Felix Worthon went to meet his wife, Maria, at the bus stop. The Worthons' six-year-old son, Jeremiah, was with him. After Maria got off the bus, the three of them began walking home. As they passed a church near Greenleaf and Greenview Avenues, they saw a man whom they knew from church, Maurice Glover. Maria and Jeremiah stopped to talk to Glover, and Felix crossed Greenview Avenue. Felix thought that he heard something and went back to Greenview to see what it was. As he crossed the street, he was almost hit by a car with no headlights on. Felix then saw the vehicle strike his wife and son. The car did not appear to apply the brakes at all and kept going after it struck Maria and Jeremiah. Felix got to Jeremiah first and found him bleeding from the back of the head and spitting up blood. Felix eventually found his wife almost a block from where he found Jeremiah. The top of Maria's head was gone. Felix described her face as "unrecognizable" and testified that blood was coming "from everywhere." After an ambulance arrived, Felix heard a paramedic tell the police that Maria was gone. Jeremiah suffered permanent injuries.

         ¶ 13 Maurice Glover witnessed the accident. He saw Maria and Jeremiah cross the street between two parked cars, and he also saw a dark car without its headlights on coming down the street. He estimated that the car was going 80 to 90 miles per hour. He heard a scream and a boom. He saw Maria's body come down out of the air, and gray matter and parts of her brain landed on the street. The car that hit her never stopped.

         ¶ 14 Madeline Moratto and Alex Montejo also witnessed the accident. They were walking down Greenview Avenue on the sidewalk. Moratto described the area as a quiet residential neighborhood, and she said there were a few other people out walking at the time. After they passed the Worthon family on the sidewalk, they heard the sound of a car's engine revving and tires squealing. They heard the sound of a loud impact and then saw a woman flipping head over heels in the air. Moratto estimated that the woman was thrown 30 feet in the air. The woman's body landed approximately 100 feet from where it was hit. Moratto saw a dark sedan with its headlights off keep driving past the body at about 80 miles per hour. The car did not stop at the stop sign at the intersection of Greenview and Greenleaf. Montejo described seeing a woman smashed up against the passenger side of a car's windshield before she was thrown through the air. The car's headlights were off, and it never slowed down or stopped. The woman's body was thrown high enough that it went through the tree branches. Montejo estimated the car's speed at about 60 to 70 miles per hour.

         ¶ 15 Officers Jennifer Escher, Scott Pierson, and Patrick McHugh were on patrol when they received a radio call about a hit-and-run accident involving a green Pontiac. Escher saw the Pontiac in an alleyway and approached it at 50 miles per hour. The Pontiac sped away, and Escher lost sight of it. The three officers all saw the Pontiac on Newgard Avenue. Pierson drove his squad car in front of the Pontiac. Pierson approached the car on foot, following which the Pontiac went into reverse, lost control, and started "ping-ponging" off parked cars. Defendant jumped out of the Pontiac and attempted to flee on foot, but he was apprehended by Officer John Ventrella and taken into custody at 9:05 p.m.

         ¶ 16 Calvin Tanner testified that he was the passenger in the car with defendant when the collision occurred. Defendant is friends with Tanner and Tanner's cousin, Dennis Jeter. On December 21, 2009, defendant drove Calvin in Dennis's 1998 green Pontiac to the home of Tanner's grandmother, where they met Dennis. Calvin and Dennis drank alcohol at the house but claimed not to have seen whether defendant was drinking. Jeter testified that he assumed that defendant was drinking.

         ¶ 17 Later that night, defendant borrowed Jeter's car and took Tanner to pick up a futon on the north side, near Tanner's new apartment. When they approached Jonquil Terrace and Greenview Avenue, defendant pulled over because they heard an ambulance. He continued driving, and as he approached Greenview and Greenleaf Avenues, there was a U-Haul in front of a church. Defendant hit something, and Tanner told him, "I hope you didn't do what I thought you did." Tanner hoped it was a parked car that defendant hit but feared that it was a person. The collision caused the front windshield to shatter, and Tanner had glass and blood in his mouth. Tanner testified that defendant had been driving fast and that he had told defendant to slow down. At trial, he claimed that the fast driving occurred on the expressway. But in his statement to a prosecutor and in his grand jury testimony, Tanner stated that defendant had been driving fast in a residential area. Tanner testified before the grand jury that defendant was driving around 50 to 60 miles per hour. Tanner denied that he told the police that there was no obstruction in the area and insisted that he had mentioned a parked U-Haul. Tanner had said in his statement to the prosecutor that defendant was driving at a high rate of speed, and Tanner was afraid he was going to get hurt. He said that when he told defendant that he hoped he didn't hit what he thought he hit, defendant replied, "It's too late." At trial, Tanner acknowledged that he was allowed to review his statement to the prosecutor but said that he did not know how to read or write and that the police had pressured him to cooperate.

         ¶ 18 After the collision, Tanner got defendant to stop the car and let him out. Tanner asked defendant to go back to the scene of the accident with him, but defendant refused. Defendant drove away without him. Tanner called Jeter and told him that his car had been wrecked. Jeter testified that, when Tanner called him to tell him that defendant had had an accident in Jeter's car, Tanner sounded hyper, scared, and startled. Jeter met up with Tanner, and Tanner had glass and blood on his face. Tanner and Jeter went to the scene of the accident and saw that someone had been hit. Tanner told the police that he had been a passenger in the car.

         ¶ 19 Officer Ventrella took defendant to the police station. At midnight, Ventrella found defendant asleep in the interview room. Ventrella woke him up, and defendant refused to take a breath test or to provide blood or urine samples. At 2:57 a.m., [2] Ventrella and a fellow officer took defendant to Louis A. Weiss Memorial Hospital to have his blood and urine tested. A nurse attempted to draw blood from defendant, and he became combative and refused to comply with the test. Before that, defendant had been carefree and was making jokes, and Ventrella noticed an odor of alcohol emanating from him. Ventrella testified that defendant seemed unaffected by the whole incident. Because defendant refused to comply with the test, Ventrella told him that they would have to hold him down. Additional security officers came into defendant's room, and he was handcuffed to the bed. The officers held defendant's arm down, and the nurse drew blood at 4:10 a.m. Defendant also refused to provide a urine sample, and the nurse told him he would be catheterized if he did not comply. Defendant finally gave the sample at 5:20 a.m. Defendant was then taken back to the interview room at the police station. Defendant told Ventrella that he needed to use the restroom and explained that he had been drinking a fifth of Hennessy earlier.

         ¶ 20 Defendant's blood tested negative for drugs or alcohol. His urine, however, tested positive for cannabis and its metabolite, ecstasy and its metabolite, and cocaine metabolite. A forensic toxicologist testified that the body converts drugs to metabolites as part of the metabolic process.

         ¶ 21 Defendant testified on his own behalf. Defendant denied being the driver on the night of the crash. According to defendant, Jeter had called him and asked him to return his car so that Jeter and Tanner could go get a futon. Defendant dropped off the car at Jeter's grandmother's house and then hung out there with Jeter and Tanner. Defendant drank from a pint of Hennessy that he brought with him. Defendant testified that Jeter and Tanner asked him to hold Jeter's parking spot while they went to pick up the futon. While he was standing in the parking spot, he received a call from Tanner, who said he had just been in an accident. Defendant asked where Tanner was and began walking in that direction. When defendant saw the police, he ran because he was carrying cannabis. The police chased and arrested him. On cross-examination, defendant admitted to drinking a quart of Hennessy earlier in the day. He denied smoking marijuana on the day in question. He said they had planned to smoke some later, after Jeter and Tanner had picked up the futon. Defendant said that he had not smoked marijuana for "probably a week almost." Defendant said that he had taken ecstasy two days before the incident. He denied using cocaine and explained that the cocaine that showed up in his system must have been mixed in with the ecstasy.

         ¶ 22 Defendant asked that the jury be instructed on reckless homicide, which defendant contended was the appropriate charge in this case. Focusing primarily on the speed of the vehicle and the severity of the impact with Maria Worthon and that the accident took place in a highly populated area, the trial court denied the instruction. The court explained that there was not sufficient evidence of recklessness and that "[i]t's an issue of first degree murder or not guilty."

         ¶ 23 The jury convicted defendant of first degree murder, aggravated DUI, and failure to report a motor vehicle accident involving death or injury. The trial court sentenced defendant to consecutive prison terms of 30, 6, and 4 years, respectively.

         ¶ 24 Defendant appealed, raising four issues: (1) he was entitled to a new trial on first degree murder because the trial court erred in refusing to instruct the jury on reckless homicide, (2) the State failed to prove beyond a reasonable doubt that he failed to report the accident at a police station within half an hour, (3) his aggravated DUI conviction had to be reversed because the warrantless nonconsensual testing of his blood and urine was an unconstitutional search, and (4) he was denied a fair trial by the prosecutor's repeated misstatements of fact and attempts to inflame the jurors' emotions.

         ¶ 25 The appellate court agreed with defendant that the trial court should have instructed the jury on reckless homicide. The court explained that the primary distinction between reckless homicide and first degree murder is the defendant's mental state and noted that this court had held in People v. DiVincenzo, 183 Ill.2d 239, 253 (1998), that "inferences as to [a] defendant's mental state are a matter particularly within the province of the jury." (Internal quotation marks omitted.) 2017 IL App (1st) 142837, ¶ 34. The court relied heavily on this court's decision in People v. Belk, 203 Ill.2d 187 (2003), in which the defendant drove under the influence of alcohol at over 100 miles per hour through an area with many restaurants and other establishments open for business. The defendant crashed into another vehicle and killed both of its occupants. Id. at 190. This court reduced the defendant's felony murder conviction to reckless homicide because the defendant's act of stealing the van was not a "forcible felony." Id. at 195-96. This court held that evidence that the intoxicated defendant drove at an excessive rate of speed through an area where he was likely to encounter pedestrians or other vehicles supported an inference that the defendant "acted recklessly and contemplated that in attempting to elude police he was likely to cause death or great bodily harm." Id. at 195. This court explained that such an inference clearly supported a reckless homicide conviction. Id. Here, the appellate court found the present case sufficiently similar to Belk that, if such an inference supported a reckless homicide conviction there, it would also support one here. 2017 IL App (1st) 142837, ¶ 37. Accordingly, the court reversed defendant's first degree murder conviction and remanded for a new trial. Id. ¶ 41.

         ¶ 26 Next, the appellate court considered defendant's argument that his conviction for failure to report the accident within 30 minutes had to be reversed. It is a Class 1 felony for a driver to flee the scene of a motor vehicle accident resulting in death and fail to report the accident at a police station or sheriffs office within half an hour. See 625 ILCS 5/11-401(b), (d) (West 2008). The court noted, however, that defendant was arrested and taken into police custody less than 10 minutes after the accident occurred. Because a defendant's postarrest silence is not admissible in the State's case-in-chief (see People v. Simmons, 293 Ill.App.3d 806, 811 (1998)), the court held that the State could not establish that defendant failed to report the accident within half an hour. The court thus reduced defendant's conviction from the Class 1 version of the offense to the Class 4 version, which provides that a driver must stop at the scene of the accident and remain there until the requirements of section 11-403 of the Vehicle Code have been fulfilled[3] (see 625 ILCS 5/11-401(a), (c) (West 2008)). 2017 IL App (1st) 142837, ¶ 49.

         ¶ 27 Finally, the court agreed with defendant that section 11-501.2(c)(2) is facially unconstitutional under McNeely. The court explained that the United States Supreme Court in McNeely had declined to adopt an approach that a per se exigency exists in every DUI case because of the dissipation of alcohol in the blood. Id. ¶ 59. Rather, the Supreme Court held that exigency must be determined under a totality-of-the-circumstances approach on a case-by-case basis. Id. The appellate court thus held that section 11-501.2(c)(2) is unconstitutional on its face because it allows compelled chemical testing without a warrant in every case in which a person drives under the influence and causes injury or death. Id. ¶ 66. The court further noted that the State had not demonstrated exigent circumstances, as defendant was taken into custody at 9:05 p.m. and told he was under arrest at 12 a.m. but not taken to the hospital for testing until 2:57 a.m. The court stated that "[n]othing in the record indicates that Ventrella or another officer could not have obtained a warrant in that three-hour period." Id. ¶ 67. Accordingly, the court reversed defendant's aggravated DUI conviction outright, as the State conceded that there was insufficient evidence to sustain the conviction without it. Id. ¶ 74. The court further ordered that the evidence be excluded at defendant's new trial on first degree murder charges. Id. Because of the way it resolved these three issues, the court declined to address defendant's arguments about prosecutorial misconduct. Id. ¶ 77.

         ¶ 28 Justice Pucinski dissented. The dissent contended that defendant was not entitled to a new trial on first degree murder. According to the dissent, defendant's denial that he was involved in the accident precluded him from obtaining a lesser included offense instruction. Id. ¶ 81 (Pucinski, J., dissenting). Because defendant claimed that he was not the driver of the car, the dissent argued that he could not request a reckless homicide instruction. Id. ¶ 82. Next, the dissent disagreed with the majority's decision to reduce the class of defendant's failure-to-report conviction. The dissent noted that defendant had not made a self-incrimination argument and contended that the majority erred in making such an argument for him. Id. ¶ 109. Defendant had argued that the State did not prove that he failed to make a timely report, and the dissent explained that the jury could have easily inferred that defendant made no such report, as defendant had consistently denied even being at the scene of the accident. Id. ¶¶ 110-11. On the blood draw issue, the dissent would have found that defendant was subjected to an unconstitutional search because the police had ample opportunity to obtain a warrant but had not done so. Id. ¶ 120. The dissent argued,

"There are about 400 judges in Cook County. The State's Attorney's felony review unit operates 24 hours per day, seven days per week. It is simply not credible that the police could not find some way to find a judge to hear the question of the warrant between 9:05 p.m., when defendant was arrested, and 4:10 a.m., when the blood was drawn with force, and 5:20 a.m., when the urine sample was collected under pressure." Id.

         The dissent believed that it was unnecessary to decide whether section 11-501.2(c)(2) is unconstitutional. Id. ¶ 119.

         ¶ 29 ANALYSIS

         ¶ 30 I. Constitutionality of Blood and Urine Testing

         ¶ 31 The State originally made two arguments with respect to the appellate court's suppression of the blood and urine test results. First, citing the principle of constitutional avoidance, the State contended that the appellate court majority erred in addressing the constitutionality of section 11-501.2(c)(2). Because the court found that the warrantless search of defendant was unconstitutional under McNeely in that it was conducted without defendant's consent and in the absence of exigent circumstances, the State argued that the court should have ended its analysis there without addressing the facial constitutionality of the statute.[4] Second, the State argued that, if this court does address the constitutionality of section 11-501.2(c)(2), it should find it unconstitutional as applied to defendant instead of facially unconstitutional. The State argued that the statute is not invalid in all its applications and, therefore, it is not facially unconstitutional. According to the State, the statute could be validly applied in three situations: when the police have a warrant, when the defendant consented to the chemical testing, or when exigent circumstances are present.

         ¶ 32 Following oral argument, this court ordered the parties to file supplemental briefs addressing the relevance of two United States Supreme Court opinions: Mitchell v. Wisconsin, 588 U.S. ___, 139 S.Ct. 2525 (2019) (plurality opinion) (the most recent United States Supreme Court case involving the constitutionality of warrantless blood draws in DUI cases), and City of Los Angeles v. Patel, 576 U.S. ___, 135 S.Ct. 2443 (2015) (giving guidance on how to analyze facial challenges under the fourth amendment). In its supplemental brief, the State withdraws its concession that defendant's fourth amendment rights were violated. Based on the reasoning in Mitchell, the State contends that the testing of defendant's blood and urine was valid under the exigent circumstances exception to the warrant requirement. The State now argues that this court should address the constitutionality of section 11-501.2(c)(2) and find it facially valid. The State withdraws its argument that the statute can be validly applied when the police have a warrant but maintains its argument that section 11-501.2(c)(2) is validly applied when the defendant consents to the search or when exigent circumstances are present.

         ¶ 33 When reviewing the trial court's ruling on a motion to suppress evidence, we ordinarily apply a two-part standard of review. People v. Grant, 2013 IL 112734, ¶ 12. We will reverse the trial court's factual findings only if they are against the manifest weight of the evidence, but we review de novo the trial court's ultimate ruling on whether the evidence should be suppressed. Id. Here, the trial court was not required to engage in fact finding or to make credibility determinations because the parties elected to proceed by way of stipulated facts. Thus, we need only consider the trial court's application of the law to undisputed facts. Accordingly, de novo review is appropriate. See People v. Ceja, 204 Ill.2d 332, 347 (2003); see also People v. Coats, 269 Ill.App.3d 1008, 1012 (1995) (de novo review is appropriate when parties proceeded by way of stipulated facts at hearing on motion to suppress).

         ¶ 34 The constitutionality of a statute is also a question that we review de novo. People v. Madrigal, 241 Ill.2d 463, 466 (2011). A party bringing a facial challenge to a statute faces a particularly heavy burden. People v. Rizzo, 2016 IL 118599, ¶ 24. Demonstrating that the statute could be found unconstitutional under some set of circumstances does not establish its facial unconstitutionality. Oswald v. Hamer, 2018 IL 122203, ¶ 40. Rather, a statute will be found facially unconstitutional only if there is no set of circumstances under which the statute would be valid. People v. Gray, 2017 IL 120958, ¶ 58. If it is reasonably possible to construe the statute in a manner that preserves its constitutionality, we have a duty to do so. People v. Hollins, 2012 IL 112754, ¶ 13.

         ¶ 35 A. McNeely

         ¶ 36 The appellate court's facial invalidation of section 11-501.2(c)(2) was based on McNeely, 569 U.S. 141. In McNeely, the Supreme Court resolved a conflict over how to interpret Schmerber, 384 U.S. 757. In Schmerber, the defendant was taken to the hospital to receive treatment for injuries he suffered during a traffic accident. Id. at 758.While at the hospital, he was arrested for driving under the influence of alcohol. Id. On the advice of counsel, the defendant refused to submit to a blood test. Id. at 759. A police officer then ordered a physician to withdraw a blood sample. Id. at 758. At trial, the defendant objected to the admission of the test results on several grounds, including that he had been subjected to an unlawful search in violation of the fourth amendment. Id. at 759.

         ¶ 37 The Supreme Court acknowledged that the withdrawal of the defendant's blood in these circumstances constituted a search under the fourth amendment. Id. at 767. The Court noted that the police had probable cause for the arrest and the same facts that established probable cause suggested the relevance and likely success of a blood alcohol test. Id. at 770. However, in the absence of an emergency, a warrant was required before the police could draw defendant's blood. Id. The Court then explained that the police were facing such an emergency:

"The officer in the present case, however, might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened 'the destruction of evidence,' Preston v. United States, 376 U.S. 364, 367. We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest." Id. at 770-71.

         ¶ 38 A conflict then developed in the courts over whether Schmerber stood for the proposition that the dissipation of alcohol in the blood was a per se exigency that allowed the police to take a blood sample in every case in which they had probable cause to suspect someone of driving under the influence of alcohol. This court implicitly read Schmerber as approving a per se exigency. In People v. Todd, 59 Ill.2d 534, 544 (1975), this court stated that,

"[s]ince Schmerber v. California[, 384 U.S. 757 (1966)], it is clear that a compulsory blood test does not violate any constitutional rights of an individual merely because he objected to such tests. Further, the absence of a formal arrest may not taint a limited search, given probable cause and evidence that may dissipate."

         In Jones, this court described Schmerber's holding as follows:

"[T]he taking of a blood sample without the defendant's consent or a search warrant was a 'reasonable' search under the fourth amendment where there was probable cause to believe the defendant was intoxicated, and the delay caused by obtaining a search warrant might have resulted in loss of evidence of the defendant's intoxication, given the natural dissipation of the alcohol in the defendant's blood." Jones, 214 Ill.2d at 195.

         Other states held that Schmerber did not stand for the proposition that the natural dissipation of alcohol in the blood was a per se exigency. These courts held that the finding of exigency in Schmerber was based on the specific facts in that case and that the dissipation of alcohol in the blood was only one of several factors supporting the determination of exigency. See, e.g., State v. Johnson, 744 N.W.2d 340, 344 (Iowa 2008); State v. Rodriguez, 2007 UT 15, ¶¶ 30-31, 156 P.3d 771.

         ¶ 39 In McNeely, the Supreme Court endorsed the latter interpretation. In that case, the defendant was stopped after a police officer observed him speeding and repeatedly crossing the centerline. McNeely, 569 U.S. at 145. The officer observed signs of intoxication, and the defendant admitted that he had been drinking. Id. After performing poorly on field sobriety tests, the defendant refused to submit to a breath test. Id. The officer arrested the defendant and began to transport him to the police station. Id. However, when the defendant stated that he would still refuse to give a breath test at the station, the officer changed course and took the defendant to the hospital for blood testing. Id. at 145-46. At the hospital, the defendant refused to consent to the blood sample, and the officer ordered a lab technician to take it anyway. Id. at 146. The sample was drawn approximately half an hour after the defendant had been stopped for the traffic violation. Id. The officer had not attempted to get a warrant. Id.

         ¶ 40 The defendant was charged with driving while intoxicated, and he moved to suppress the results of the blood test. Id. The trial court agreed with the defendant that his fourth amendment rights had been violated because the warrantless search was not supported by exigent circumstances. Id. The Missouri Supreme Court affirmed, holding that Schmerber " 'requires more than the mere dissipation of blood-alcohol evidence to support a warrantless blood draw in an alcohol-related case.'" Id. at 147 (quoting State v. McNeely, 358 S.W.3d 65, 74 (Mo. 2012)).

         ¶ 41 The Supreme Court affirmed the Missouri Supreme Court's decision, holding that, "in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant." McNeely, 569 U.S. at 165. The Court explained that, when determining whether exigent circumstances exist to justify dispensing with a warrant, courts must examine the totality of the circumstances. Id. at 149-50. The Court explained that it had not dispensed with the totality-of-the-circumstances approach in Schmerber. Id. at 150-51. Rather, Schmerber's holding was based on the "special facts" before the Court, and the determination of exigency was based on other factors in ...


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