                               Illinois Official Reports

                                       Appellate Court



                           People v. Armer, 2014 IL App (5th) 130342



Appellate Court           THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                   JAKE P. ARMER, Defendant-Appellee.


District & No.            Fifth District
                          Docket No. 5-13-0342


Filed                     October 27, 2014


Held                       In a prosecution for driving while under the influence of alcohol
(Note: This syllabus arising from a single-vehicle accident in which defendant’s car rolled
constitutes no part of the over and blood was drawn from him without his consent pursuant to
opinion of the court but an officer’s directions after he was taken to a hospital, the trial court
has been prepared by the did not err in suppressing the results of the blood-alcohol analysis and
Reporter of Decisions prohibiting the State from presenting the incriminating evidence at
for the convenience of defendant’s trial, notwithstanding the State’s contention that the
the reader.)               exigent circumstances justified acting without a warrant, since the
                           record showed that three officers were present to handle the situation,
                           there was no evidence that securing a warrant would result in an
                           unreasonable delay, and the officer who went to the hospital with
                           defendant and directed that defendant’s blood be drawn did not state
                           that he faced an emergency and that crucial evidence would be lost if
                           he took time to obtain a warrant; rather, he stated that a warrant was
                           not necessary because he had probable cause and the implied consent
                           law applied.


Decision Under            Appeal from the Circuit Court of Washington County, No. 12-DT-28;
Review                    the Hon. Daniel J. Emge, Judge, presiding.



Judgment                  Affirmed; cause remanded.
     Counsel on              Heath Hooks, State’s Attorney, of Nashville (Patrick Delfino, Stephen
     Appeal                  E. Norris, and Patrick D. Daly, all of State’s Attorneys Appellate
                             Prosecutor’s Office, of counsel), for the People.

                             Michael J. Pelletier, Ellen J. Curry, and Lawrence J. O’Neill, all of
                             State Appellate Defender’s Office, of Mt. Vernon, for appellee.



     Panel                   JUSTICE CATES delivered the judgment of the court, with opinion.
                             Presiding Justice Welch and Justice Chapman concurred in the
                             judgment and opinion.


                                              OPINION

¶1         The defendant, Jake P. Armer, was charged with driving while under the influence (DUI)
       of alcohol in violation of sections 11-501(a)(1) and (2) of the Illinois Vehicle Code (Code)
       (625 ILCS 5/11-501(a)(1), (2) (West 2012)). He filed a motion to suppress the results of a
       blood-alcohol analysis on grounds that his blood was drawn without his consent, without a
       warrant, and in the absence of exigent circumstances which would excuse the arresting
       officer from obtaining a search warrant. Following an evidentiary hearing, the trial court
       found that the arresting officer was not faced with exigent circumstances that would justify
       acting without a warrant, and it granted the defendant’s motion to suppress. The State filed a
       certificate of impairment and appealed. On appeal, the State claims that the trial court erred
       in finding that there was no exigency and in granting the defendant’s motion to suppress,
       where the arresting officer could have reasonably believed that the time delay attendant to
       processing the motor vehicle accident and transporting the defendant to a hospital would lead
       to the destruction of evidence, namely, the dissipation of alcohol from the defendant’s blood.
       We affirm.
¶2         The appeal was filed pursuant to Illinois Supreme Court Rule 604(a)(1) (eff. Jan. 1,
       2013), and challenges the circuit court’s order suppressing the results of a blood-alcohol
       analysis in a DUI case. Joshua Cross, a Washington County sheriff’s deputy, was called by
       the defendant and was the only witness to testify at the suppression hearing. A summary of
       his testimony follows.
¶3         Deputy Cross testified that he was dispatched to a rollover accident at 11:25 p.m. on June
       30, 2012. He arrived at the scene at 11:35 p.m., and another officer, Corporal Bauer, pulled
       up moments later. Upon arrival, Deputy Cross observed a damaged vehicle. It had rolled over
       and was in a ditch. He also observed a man, later identified as the defendant, who was
       bloody, but walking around. An ambulance responded to the scene and transported the
       defendant to a hospital for evaluation. Deputy Cross followed the ambulance to the hospital,
       while Corporal Bauer remained at the scene. The ambulance departed the scene at 12:08 a.m.
       on July 1, 2012, and arrived at the hospital at 12:30 a.m. Another officer arrived at the
       hospital at 12:44 a.m. and remained there until 1:10 a.m.


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¶4         While at the hospital, Deputy Cross charged the defendant with driving while under the
       influence of alcohol in violation of section 11-501(a)(2) of the Code. The citation was issued
       at 12:45 a.m. Deputy Cross then read the “Warning to Motorist” to the defendant. Deputy
       Cross testified that the defendant fell asleep as the warning was being read to him. He
       attempted to wake the defendant, but was unable to rouse him. After reading the warning to
       the sleeping defendant, Deputy Cross requested the hospital staff to draw the defendant’s
       blood with a DUI kit. The blood draw was completed at 1:15 a.m., and it was delivered to the
       police laboratory for analysis. The results revealed a blood-alcohol concentration of 0.159.
¶5         Upon receiving the results of the blood draw, Deputy Cross issued a second citation,
       charging the defendant with driving under the influence of alcohol in violation of section
       11-501(a)(1) of the Code. Deputy Cross prepared a sworn report which advised the defendant
       that his driving privileges would be revoked for a minimum of 12 months based on the
       results of the blood-alcohol analysis. In the report, Deputy Cross stated that he had
       reasonable grounds to believe that the defendant was driving under the influence. He noted
       that the defendant was involved in a traffic crash, his eyes were bloodshot and glassy, there
       was an odor of an alcoholic beverage, his speech was slurred, and the defendant indicated he
       was “drunk.”
¶6         Deputy Cross acknowledged that the defendant had not given verbal consent for the
       blood draw. He stated that according to his training, there is implied consent if a suspect does
       not refuse testing. Deputy Cross testified that he did not attempt to contact the State’s
       Attorney or a judge to request a search warrant before he directed the hospital staff to draw
       the defendant’s blood. He stated that the hospital is about one mile from the sheriff’s
       department and that the courthouse is 200 to 300 feet from the sheriff’s department.
¶7         During cross-examination by the prosecutor, Deputy Cross testified that he did not
       consider calling the State’s Attorney because of the late hour and because he was confident
       that he had enough probable cause to make the arrest and “didn’t need her assistance.” He
       did not feel this was a situation where a warrant needed to be issued under the implied
       consent law.
¶8         At the close of the testimony, the defendant argued that his blood was drawn without his
       consent and without a warrant, and that the State failed to establish that the police were faced
       with exigent circumstances which would have excused them from securing a warrant before
       ordering the blood draw. The defendant asserted that the blood draw was an unreasonable
       seizure that violated his rights under the fourth amendment to the United States Constitution
       (U.S. Const., amend. IV), and he asked that the results of the blood-alcohol analysis be
       excluded from evidence in the criminal trial.
¶9         After considering the testimony and the totality of the circumstances, the trial court found
       that Deputy Cross was not faced with an emergency that justified acting without a warrant,
       that the defendant did not consent to the blood draw, and that the blood draw violated the
       defendant’s rights under the United States Constitution and the Illinois Constitution. The
       court granted the defendant’s motion to suppress and prohibited the State from introducing
       the results of the blood-alcohol analysis during the trial.
¶ 10       On appeal, the State contends that the trial court erred in suppressing the results of the
       blood-alcohol analysis. The State argues that there was an exigent circumstance permitting
       the warrantless drawing of the defendant’s blood in that the arresting officer could have
       reasonably believed that the time delay attendant to processing the motor vehicle accident

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       and transporting the defendant to a hospital would lead to the destruction of evidence,
       namely the dissipation of alcohol from the defendant’s blood.
¶ 11       The fourth amendment protects the people from unreasonable searches and seizures by
       the State. U.S. Const., amend. IV. The act of drawing blood from a person is considered a
       form of a seizure and ordinarily requires a warrant, unless there are exigent circumstances
       that make obtaining a warrant impractical. See Missouri v. McNeely, 569 U.S. ___, ___, 133
       S. Ct. 1552, 1560-63 (2013); Schmerber v. California, 384 U.S. 757, 769-70 (1966). Exigent
       circumstances have been found to exist in situations where the time needed to obtain a
       warrant would result in the destruction of evidence. Schmerber, 384 U.S. at 770-72. In
       determining whether exigent circumstances justified a warrantless search, the totality of the
       circumstances must be evaluated on a case-by-case basis. McNeely, 569 U.S. at ___, 133 S.
       Ct. at 1559; Schmerber, 384 U.S. at 770-72.
¶ 12       In Schmerber, the Supreme Court upheld the admission into evidence of the results of a
       nonconsensual, warrantless blood draw from an individual who had been involved in a traffic
       accident and was suspected of driving under the influence of alcohol based on the “special
       facts” of that case. Schmerber, 384 U.S. at 770-71. The “special facts” included the time
       delays attendant to investigating the traffic accident and transporting the defendant to the
       hospital. The Supreme Court concluded that given the totality of the circumstances, the
       police officer might have reasonably believed that he was confronted with an emergency in
       which further delay in seeking out a magistrate and obtaining a warrant for a blood draw
       threatened the destruction of the blood-alcohol evidence. Schmerber, 384 U.S. at 770-72.
¶ 13       In Missouri v. McNeely, the Supreme Court reaffirmed its holding that the presence of
       exigent circumstances justifying a warrantless search must be determined after considering
       the totality of the circumstances in the particular case at bar. See McNeely, 569 U.S. at ___,
       133 S. Ct. at 1558. In McNeely, the Supreme Court considered whether the natural
       dissipation of alcohol in the blood stream constituted a per se exigency that would justify a
       nonconsensual, warrantless blood draw. McNeely, 569 U.S. at ___, 133 S. Ct. at 1558. The
       Court held that the natural dissipation of alcohol does not create a per se exigency that would
       categorically justify an exception to the fourth amendment’s warrant requirement for
       nonconsensual blood testing in drunk-driving cases. McNeely, 569 U.S. at ___, 133 S. Ct. at
       1563. The Court noted that the natural dissipation of alcohol may support a finding of an
       exigency in a specific case, where other factors, such as the procedures in place for obtaining
       a warrant and the availability of a judge, may affect whether the police can obtain a warrant
       within a time frame that preserves the opportunity to obtain reliable evidence. McNeely, 569
       U.S. at ___, 133 S. Ct. at 1568. The Court concluded that a nonconsensual, warrantless blood
       draw could not be justified without a showing that the exigencies of a situation made a
       warrantless search imperative, and it upheld the suppression of the evidence. McNeely, 569
       U.S. at ___, 133 S. Ct. at 1568.
¶ 14       After reviewing the totality of the circumstances in the record before us, we do not find
       that the arresting officer was faced with exigent circumstances that would justify the drawing
       of the defendant’s blood without a warrant. In this case, the defendant was involved in a
       single-vehicle accident. He sustained some injuries and was taken by ambulance to the
       hospital for evaluation. Deputy Cross followed the ambulance to the hospital, and Corporal
       Bauer remained at the scene. Another officer arrived at the hospital just after Deputy Cross.
       In this case, the record shows that while there may have been some delay attendant to

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       securing the accident scene and transporting the defendant to the hospital, three officers were
       available to assist with the investigation. Deputy Cross did not work this accident by himself.
       He, or one of the other officers, could have attempted to contact the State’s Attorney to
       secure a search warrant. Nothing in the record suggests any circumstances which would have
       prevented one of the officers from attempting to secure a warrant. There is no evidence that
       the officers would have faced an unreasonable delay in securing a warrant. In this case,
       Deputy Cross admitted that he did not attempt to secure a warrant. He stated that he did not
       believe he needed a warrant in this case because he had probable cause and because of the
       implied consent law. Additionally, Deputy Cross never stated that he believed he was faced
       with an emergency where the time delay in obtaining a warrant would threaten the loss of
       crucial evidence.
¶ 15       In this case, the record does not support the State’s position that an arresting officer might
       have reasonably believed that he was faced with an exigency that would justify the
       warrantless blood draw. Upon considering the totality of the circumstances in this record, we
       conclude that the warrantless blood draw violated the defendant’s fourth amendment right to
       be free from unreasonable searches. The trial court did not err in granting the defendant’s
       motion to suppress the results of the blood-alcohol analysis and prohibiting the State from
       offering that evidence at trial.
¶ 16       Accordingly, the order of the circuit court is affirmed, and the cause is remanded for
       further proceedings.

¶ 17      Affirmed; cause remanded.




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