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                              Appellate Court                            Date: 2019.04.30
                                                                         16:33:54 -05'00'




                   People v. Hayes, 2018 IL App (5th) 140223



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           CHAD B. HAYES, Defendant-Appellant.



District & No.    Fifth District
                  Docket No. 5-14-0223



Filed             February 15, 2018



Decision Under    Appeal from the Circuit Court of Lawrence County, No. 11-CF-119;
Review            the Hon. Mark L. Shaner, Judge, presiding.



Judgment          Reversed.


Counsel on        Michael J. Pelletier, Ellen J. Curry, and Jennifer M. Lassy, of State
Appeal            Appellate Defender’s Office, of Mt. Vernon, for appellant.

                  Michael L. Strange, State’s Attorney, of Lawrenceville (Patrick
                  Delfino, David J. Robinson, and David Mannchen, of State’s
                  Attorneys Appellate Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE CHAPMAN delivered the judgment of the court, with
                  opinion.
                  Presiding Justice Barberis and Justice Goldenhersh concurred in the
                  judgment and opinion.
                                               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.
¶2       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

                                                  -2-
       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 speeding.
¶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 struck.
¶ 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

                                                    -3-
       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)).1 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 Vehicle
       Code].”
¶ 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 lab.
¶ 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 component of this “paperwork,” was dated July 26,

           1
             The statute provides that the warning “shall” be given. The officer is required to warn the motorist
       that if he refuses to submit to testing or if the tests indicate the presence of alcohol or illegal drugs, his
       license may be suspended. This case involves a prosecution for aggravated DUI, not the suspension of
       the defendant’s license. 625 ILCS 5/11-501.6(c) (West 2010). In light of our conclusion that the testing
       violated the fourth amendment, we need not consider what, if any, impact Chief Murray’s failure to
       provide the warning would have on the admissibility of the test results.

                                                         -4-
       2011. He stated, “I couldn’t really tell you exactly the order all that paperwork was
       completed.”
¶ 18       The following exchange then took place between defense counsel and Deputy Ash:
                    “Q. What date *** did you write the tickets?
                    A. The tickets would have been written on the day of this report when all this other
               stuff was done.
                    Q. Are you sure they weren’t written on July 26?
                    A. Yeah, I’m sure. He was—this was the date he was held on these charges, and
               they are all listed on the back of the report.”
       At this point the court interrupted and asked, “So what date—what date are you saying they
       were written?” Deputy Ash replied, “The 25th.” He acknowledged, however, that the date
       appearing on both citations was July 27. Later, on cross-examination, Deputy Ash admitted
       that he issued the tickets on that date, stating, “I was wrong in the date of the 25th.”
¶ 19       Asked to explain why he took the unusual step of ordering a second drug test, Deputy Ash
       explained that someone from the state’s attorney’s office informed him that the initial test
       might not be valid because the defendant was not given the warning to motorists and because
       he was not given any traffic citations prior to the tests. He testified that the second test was
       intended to remedy this flaw. Deputy Ash first testified that both tests indicated the presence of
       drugs. After looking at the reports from the police crime lab, however, he admitted that the
       second test came back negative for the presence of drugs.
¶ 20       Finally, on cross-examination, Deputy Ash testified that he was familiar with the defendant
       due to the defendant’s prior contact with other officers and other police departments. He noted
       that the defendant had some marijuana and methamphetamine offenses, as well as traffic
       offenses, a DUI conviction, driving with his license suspended, “and things like that.” The
       presentence investigation report prepared in this case indicates that in Lawrence County, the
       defendant had three prior charges for possession of marijuana and two prior charges for
       possession of drug paraphernalia between 2005 and 2011, a 2010 traffic citation for driving
       with an expired registration, and a 2000 citation for operating an uninsured vehicle. The report
       also showed four Wabash County charges for driving with a revoked or suspended license, all
       of which occurred between November 2000 and October 2001, and a 2000 charge for
       possession of drug paraphernalia. The report did not include any prior DUI charges.
¶ 21       The parties submitted written arguments to the court after the hearing. On August 27, 2013,
       the court announced its ruling from the bench, denying the defendant’s motions to exclude the
       evidence. The court first made express findings of fact. It found that none of the investigating
       officers noticed anything unusual about the defendant’s demeanor, but that Deputy Ash was
       aware that the defendant had prior drug offenses “as well as a DUI.” The court further found
       that Deputy Ash believed that the Illinois Vehicle Code authorized the drug testing of any
       driver involved in an injury accident. The court also found that the defendant was not under
       arrest at the time he was transported to the hospital for testing. The court found that there was
       no evidence that the defendant either objected to the testing or gave verbal consent to the
       testing. However, the court concluded that the testing was consensual. In explaining its
       rationale, the court noted that the defendant was on probation at the time and was subject to
       random drug testing as a condition of probation. The court stated, “I think the defendant,
       knowing he was on probation and subject to random testing, consented to the blood and urine


                                                   -5-
       draw.” Because the court found the test to be consensual, it did not address the parties’
       arguments concerning probable cause, exigent circumstances, or implied consent.
¶ 22        The defendant filed a motion to reconsider this ruling, arguing that no evidence was
       presented that the defendant was even asked to consent to the test. In response, the State argued
       that consent need not be verbal. The State also urged the court to consider the alternative
       grounds for denying the defendant’s motion which the court did not previously address.
¶ 23        On January 28, 2014, the court entered a written order ruling on the defendant’s motion to
       reconsider. The court reversed its finding regarding consent, explaining that “the State failed to
       prove the defendant did anything more than merely or silently acquiesce.” However, the court
       found that the tests were supported by probable cause. It reasoned that Deputy Ash’s
       knowledge that the defendant had a history of drug charges and a prior DUI coupled with the
       defendant’s admitted lack of attention to the road gave Deputy Ash probable cause to believe
       the defendant may have been under the influence of drugs.
¶ 24        On February 13, 2014, the defendant filed another motion to reconsider, calling to the
       court’s attention the fact that the presentence investigation showed that the defendant did not
       have any prior DUI charges and that Pamela Clem’s statement to police showed that the
       defendant was not driving erratically at the time the accident occurred. At a hearing, the State
       argued that the body of the young child was sufficient to show probable cause. The court found
       probable cause to support the tests. In explaining its ruling, the court noted that Deputy Ash
       might reasonably have decided that he did not believe the defendant’s version of events and
       that Deputy Ash might reasonably have concluded that the presence of drugs may have been a
       contributing factor to the defendant’s inattentiveness.
¶ 25        On February 27, 2014, the matter proceeded to a stipulated bench trial, at which the court
       found the defendant guilty. The defendant subsequently filed a motion for a new trial, which
       the court denied. The court sentenced the defendant to 54 months in prison. This appeal
       followed.
¶ 26        The question before us is whether the results of the drug tests performed on July 25 should
       have been excluded because they were obtained in violation of the fourth amendment to the
       United States Constitution. The fourth amendment guarantees the right to be free from
       “unreasonable searches and seizures.” U.S. Const., amend. IV. The Illinois Constitution
       provides this same protection. People v. Kratovil, 351 Ill. App. 3d 1023, 1030 (2004) (citing
       Ill. Const. 1970, art. I, § 6). The compulsory testing of a defendant’s blood or other bodily
       fluids is a search within the meaning of the fourth amendment. Missouri v. McNeely, 569 U.S.
       141, 148 (2013); Schmerber v. California, 384 U.S. 757, 767 (1966). Indeed, it is a particularly
       intrusive type of search. McNeely, 569 U.S. at 148 (explaining that “[s]uch an invasion of
       bodily integrity implicates an individual’s ‘most personal and deep-rooted expectations of
       privacy’ ” (quoting Winston v. Lee, 470 U.S. 753, 760 (1985))).
¶ 27        To be reasonable under the fourth amendment, a search must ordinarily be conducted
       pursuant to a warrant supported by probable cause. There are, however, “a few specifically
       established and well-delineated exceptions” to the requirement of a warrant. Katz v. United
       States, 389 U.S. 347, 357 (1967). Two of these recognized exceptions were addressed by the
       trial court in this case. Under one exception, a warrantless search is reasonable—and therefore
       permissible—if exigent circumstances exist that create a compelling need for officers to
       conduct the search before there is time to obtain a warrant. McNeely, 569 U.S. at 148-49. The
       existence of such exigent circumstances must be determined on a case-by-case basis in light of

                                                   -6-
       the totality of circumstances. Id. at 149. In DUI cases, the natural dissipation of alcohol or
       other substances in the blood stream often supports a finding of exigent circumstances. Id. at
       156. However, the United States Supreme Court held in McNeely that this does not create a
       per se exigency applicable in all DUI cases. Id. at 144. A warrantless search based on exigent
       circumstances must also be supported by probable cause. People v. Ferral, 397 Ill. App. 3d
       697, 706 (2009).
¶ 28        Another recognized exception to the warrant requirement is voluntary consent to a search.
       People v. Anthony, 198 Ill. 2d 194, 202 (2001); Kratovil, 351 Ill. App. 3d at 1030. Consent to a
       search is the waiver of a constitutional right. Kratovil, 351 Ill. App. 3d at 1030. The validity of
       a warrantless search based on consent thus “depends on the voluntariness of the consent.”
       Anthony, 198 Ill. 2d at 202. Whether consent is voluntary is a question of fact that must be
       determined by evaluating the totality of the circumstances. The State has the burden of proving
       that the defendant’s consent to the search “was truly voluntary.” Id.
¶ 29        In reviewing a trial court’s ruling on a motion to suppress evidence, we will not reverse the
       trial court’s findings of historical fact unless those findings are against the manifest weight of
       the evidence. Kratovil, 351 Ill. App. 3d at 1029-30. However, “we review de novo the ultimate
       question of whether the evidence should be suppressed.” Id. at 1030.
¶ 30        Here, the court found that the defendant did not consent to the blood and urine tests.
       However, the court found that the tests were justified by the existence of exigent circumstances
       plus probable cause. On appeal, the State does not argue that Deputy Ash had probable cause to
       order the tests. Instead, the State asks us to affirm the trial court’s ruling on the alternative basis
       that the ordering the tests without a warrant was reasonable because of the defendant’s actual
       or implied consent. See People v. Ringland, 2015 IL App (3d) 130523, ¶ 33 (noting that an
       appellate court may affirm a trial court’s ruling on any basis appearing in the record, even if it
       was not the basis relied upon by the trial court, and even if the trial court’s reasoning was not
       correct).
¶ 31        The defendant correctly notes that arguments not asserted in a party’s appellate brief are
       forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016). He thus urges us to find that the State
       has conceded the point. See In re Deborah S., 2015 IL App (1st) 123596, ¶ 27 (finding the
       failure of an appellee to respond to an appellant’s arguments on an issue tantamount to a
       concession). We agree. We also agree that the July 25 test was not supported by probable
       cause. Probable cause to conduct a search exists when the facts and circumstances known to
       the officer prior to the search are such that the officer could reasonably believe that the search
       will likely yield evidence of a crime. People v. Lukach, 263 Ill. App. 3d 318, 323 (1994). Here,
       the court’s finding of probable cause was based on the court’s belief that it would be
       reasonable for Deputy Ash to disbelieve the version of events given by the defendant, but
       Deputy Ash never testified that this was the case. In addition, the court found that it would be
       reasonable for Deputy Ash to conclude that the presence of drugs might have contributed to
       inattention on the part of the defendant. However, this reasoning is bootstrapping, and Deputy
       Ash never testified that he in fact reached that conclusion.
¶ 32        We note that because Deputy Ash did not have probable cause to test the defendant for
       drugs, we need not consider whether exigent circumstances were present under McNeely. We
       conclude that the court erred in finding the tests to be justified on the basis of the
       exigent-circumstances-plus-probable-cause exception. We turn our attention to the question of
       consent.

                                                      -7-
¶ 33        We first consider whether the testing was supported by the defendant’s actual consent. As
       noted earlier, the validity of the search depends on whether the defendant’s consent was truly
       voluntary. Anthony, 198 Ill. 2d at 202. Acquiescence to apparent authority is not the same thing
       as consent. Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968); Anthony, 198 Ill. 2d at
       202. Consent to a search “must be received, not extracted.” Anthony, 198 Ill. 2d at 202 (citing
       Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973)).
¶ 34        A defendant can consent to a search without making an express verbal statement of
       consent; he can instead convey his consent to officers through nonverbal conduct. Id.
       However, “ ‘there is little authority as to what constitutes consent in the absence of an express
       verbal statement.’ ” Id. (quoting People v. Henderson, 142 Ill. 2d 258, 298 (1990)). As the
       Illinois Supreme Court observed in Anthony, “dueling inferences [can] easily arise from a
       single ambiguous gesture.” Id. at 203. As we explained earlier, consent to a search is the
       waiver of a constitutional right. Kratovil, 351 Ill. App. 3d at 1030. As such, a “defendant’s
       intention to surrender this valuable constitutional right should be unmistakably clear.”
       Anthony, 198 Ill. 2d at 203.
¶ 35        Moreover, even unmistakably clear consent is not valid unless it is given voluntarily.
       People v. Green, 358 Ill. App. 3d 456, 462 (2005). Consent is voluntary when it is “given
       freely without duress or coercion.” Id. (citing People v. LaPoint, 353 Ill. App. 3d 328, 332
       (2004)). In determining whether this standard is met, courts consider “whether, in light of all
       the circumstances surrounding the officer’s request for consent, a reasonable person in the
       defendant’s position would have felt free to leave” or to refuse to consent to the search. Id. at
       463 (citing LaPoint, 353 Ill. App. 3d at 332).
¶ 36        Courts have found requests for consent to search to be coercive under many different sets
       of circumstances. In some cases, courts have found that consent was not voluntary because
       police falsely represented that they had authority to conduct the search with or without consent.
       In Bumper, for example, police officers informed the defendant’s grandmother that they had a
       warrant to search her home even though they did not have a warrant. She believed the officers
       and told them to “ ‘Go ahead’ ” and search the house. Their search led to evidence against the
       defendant. Bumper, 391 U.S. at 546. The United States Supreme Court held that her consent to
       the search was not valid under these circumstances. Id. at 548. The Court explained that by
       telling the defendant’s grandmother that they had a warrant, the officers in effect told her that
       she had “no right to resist the search.” Id. at 550. The Court found that their deception
       amounted to “coercion—albeit colorably lawful coercion.” Id.
¶ 37        In other cases, courts have found consent not to be voluntary because intimidating or
       coercive conduct on the part of police led defendants to feel that they had no choice but to
       consent to the search. In Anthony, for example, the Illinois Supreme Court found an officer’s
       request for consent to search the defendant’s person to be coercive due to “the intimidating
       presence of an armed and uniformed police officer who had just asked a series of subtly and
       increasingly accusatory questions.” Anthony, 198 Ill. 2d at 203. Similarly, in Green, the
       appellate court found that the defendant did not voluntarily consent to a search of her backpack
       after a police officer explicitly told her that she was not free to leave. Green, 358 Ill. App. 3d at
       463. The Green court found further support for its conclusion from the fact that the officer
       falsely told her that he could obtain a warrant to search the backpack. Id.
¶ 38        Although these cases are illustrative of the type of police conduct that might render a
       defendant’s consent to a search involuntary, every case must be evaluated in light of the

                                                     -8-
       totality of its own circumstances. See Anthony, 198 Ill. 2d at 202; Green, 358 Ill. App. 3d at
       463; Kratovil, 351 Ill. App. 3d at 1030. With these principles in mind, we turn to the
       circumstances surrounding the search that took place in this case.
¶ 39       The defendant argues that the trial court correctly determined that there was no evidence
       that he consented to the search and no evidence that he was even asked to consent. He argues
       that he cannot be deemed to have consented merely because he got into the vehicle with Chief
       Murray. The State argues that the defendant unambiguously consented to the search through
       his conduct by getting into the vehicle. The State further argues that his consent was voluntary
       because there was no evidence that he objected to the request that he submit to the test. The
       State contends that the instant case is distinguishable from Bumper, Anthony, and Green
       because there is no evidence that any officer explicitly told him he could not lawfully refuse to
       take the test, as occurred in Bumper and Green, nor was there any evidence that the officers
       were as confrontational as the officers in Anthony and Green. We agree with the defendant.
¶ 40       Here, the record contains no evidence at all concerning how the test was presented to the
       defendant or how the defendant responded. We do not know whether Deputy Ash asked the
       defendant to take the test or demanded that he do so. We do not know whether Deputy Ash told
       the defendant that he had no right to refuse the test. We do not know whether the defendant
       agreed to take the test, objected, or merely acquiesced. The State asks us to presume based on
       this record that the defendant deliberately got into Chief Murray’s vehicle because he willingly
       agreed to submit to a test he felt free to refuse. We cannot find the waiver of an important
       constitutional right based on these circumstances.
¶ 41       Moreover, even assuming the defendant did anything to unambiguously convey consent,
       the surrounding circumstances indicate that any such consent was not voluntary. He was
       transported to the hospital for the test by a uniformed police officer. The officer remained with
       him at all times, even when he went to the restroom to provide a urine sample. Deputy Ash had
       the defendant’s vehicle towed from the scene of the accident to be stored until Deputy Ash
       completed his investigation. We do not believe that a reasonable person confronted with these
       circumstances would feel free to leave the hospital or refuse to take the test. See Green, 358 Ill.
       App. 3d at 463. We note that the State essentially concedes that the defendant was not free to
       leave in support of its claim that he was under arrest for purposes of triggering the implied
       consent provision (625 ILCS 5/11-501.6(a) (West 2010)), as we will discuss next. Considering
       the totality of these circumstances, we find that the State failed to meet its burden of
       demonstrating that the defendant voluntarily consented to the tests. See Anthony, 198 Ill. 2d at
       202.
¶ 42       Finally, we consider the parties’ arguments concerning implied consent. Section
       11-501.6(a) of the Illinois Vehicle Code provides that any motorist “shall be deemed to have
       given consent” to drug testing if the motorist is “arrested as evidenced by the issuance of a
       Uniform Traffic Ticket for any violation of the Illinois Vehicle Code *** with the exception of
       equipment violations.” 625 ILCS 5/11-501.6(a) (West 2010). The statute, by its express terms,
       applies only if the defendant has been arrested for a violation of the Illinois Vehicle Code when
       asked to submit to testing. We agree with the defendant that this condition was not met in this
       case.
¶ 43       There is no dispute in this case that Deputy Ash did not issue any traffic citations to the
       defendant until two days after he directed the defendant to submit to the test. The State argues,
       however, that although traffic citations are evidence of an arrest, they are not the only such

                                                    -9-
       evidence, and a citation is not a prerequisite to an arrest for a violation of the Illinois Vehicle
       Code. As such, the State contends, the implied consent provision is applicable if an officer
       arrests a defendant for a violation of the Illinois Vehicle Code before requesting that a motorist
       submit to drug testing even if the officer does not issue a citation until later. The State further
       argues that the defendant was under arrest before submitting to the drug tests because a
       reasonable person in his position would not have felt free to leave. This is the definition of an
       arrest for purposes of triggering the fourth amendment’s protections against unreasonable
       seizures. See People v. Lopez, 229 Ill. 2d 322, 346 (2008). The State thus asks us to find that
       the defendant was under arrest for a violation of the Illinois Vehicle Code when he was
       transported to the hospital for testing.
¶ 44       In support of its position, the State cites People v. Gamblin, 251 Ill. App. 3d 769 (1993),
       People v. Brantley, 248 Ill. App. 3d 580 (1993), and People v. Wozniak, 199 Ill. App. 3d 1088
       (1990). We note that all three of these cases arise under a different statute than the one at issue
       here—section 11-501.1 of the Illinois Vehicle Code. See Gamblin, 251 Ill. App. 3d at 769;
       Brantley, 248 Ill. App. 3d at 581; Wozniak, 199 Ill. App. 3d at 1089. The two statutes apply
       under different, but overlapping, sets of circumstances. Section 11-501.1 only applies to
       motorists who have been arrested for DUI, whether or not they were involved in an injury
       accident, while the statute at issue in this case applies to motorists who have been arrested for
       any violation of the Illinois Vehicle Code but only if they have been involved in an accident
       involving a fatality or serious injury. However, the statutes contain implied consent provisions
       that are otherwise identical in all relevant respects. See 625 ILCS 5/11-501.1(a) (West 1992).
       Thus, the courts’ interpretations of section 11-501.1(a) are pertinent here.
¶ 45       In Gamblin, the defendant was arrested for DUI and four other traffic violations. Police
       officers administered field sobriety tests and asked her to submit to a Breathalyzer test, which
       she refused to do. Gamblin, 251 Ill. App. 3d at 770. One officer then read the defendant her
       Miranda warnings while the other officer prepared tickets for the violations. The defendant’s
       driver’s license was summarily suspended due to her refusal to take the Breathalyzer test. Id.;
       see 625 ILCS 5/11-501.1(d) (West 1992).
¶ 46       The defendant filed a motion to quash her arrest and rescind the suspension of her license.
       She argued that the pertinent statute did not apply because the issuance of a citation was a
       prerequisite to a valid arrest for DUI. Gamblin, 251 Ill. App. 3d at 770. The trial court agreed
       with this reasoning and rescinded the summary suspension, but the Second District reversed
       that decision.
¶ 47       In reaching this conclusion, the court explained that the relevant inquiry for application of
       the implied consent provision was “not whether or when a citation was issued, but whether and
       when a defendant was arrested for DUI.” Id. at 771. The court noted that while a citation “is
       one manner of evidencing an arrest,” it is not the only manner of showing that a defendant has
       been arrested. Id. The defendant in that case underwent field sobriety tests and received tickets
       for multiple offenses. She was told that she was under arrest and was transported to the police
       station. The court found that all of these things were evidence that she was under arrest for
       DUI. Id. The court held that “[t]he standard for determining if and when an arrest has occurred
       is whether, under those circumstances and innocent of any crime, a reasonable person would
       have felt restrained from leaving.” Id.
¶ 48       Brantley was a consolidated appeal involving the summary suspension of three defendants’
       licenses under circumstances similar to those involved in Gamblin. There, each of the

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       defendants was arrested for DUI during a traffic stop, taken into custody, and then asked to
       submit to a breath test. Brantley, 248 Ill. App. 3d at 581. Each defendant either refused to take
       the test or failed the test. In each of the three cases, the officer issued a citation for DUI after the
       defendant refused or failed the breath tests. Id. at 582. The Brantley court employed similar
       reasoning to the Gamblin court. It concluded that as long as there is sufficient evidence that the
       defendant has been arrested for DUI prior to being asked to submit to the test, the implied
       consent provision applies even if no citation is issued until after the test. Id. at 582-84.
¶ 49       Unlike Gamblin and Brantley, the issue in Wozniak was the admissibility of a breath test in
       a criminal prosecution for DUI. Wozniak, 199 Ill. App. 3d at 1089. There, the defendant was
       involved in an accident with another vehicle. After issuing a citation to the other driver for
       failure to yield the right of way, the investigating officer noticed that the defendant was
       staggering and having difficulty speaking and that his breath smelled of alcohol. Id. The officer
       administered field sobriety tests, which the defendant failed. The officer then transported the
       defendant to the police station for a breath test, which the defendant also failed. The officer
       only then issued a citation for DUI. Id.
¶ 50       The defendant’s license was summarily suspended. However, the defendant filed a petition
       to rescind the summary suspension, arguing that he was not properly arrested before being
       asked to take the breath test because the ticket had not yet been issued. Id. The trial court
       agreed and granted his motion to rescind. Id. The defendant later filed a motion to suppress the
       results of the breath test in a criminal prosecution for DUI, raising the same argument. Id. at
       1089-90. The trial court granted the motion, and the State appealed that ruling. Id. at 1090.
¶ 51       On appeal, the State did not argue that the defendant was arrested for DUI prior to
       submitting to the breath test even though the ticket was issued later. In fact, the State assumed
       that, in a proceeding involving the summary suspension of the defendant’s license, the timing
       of the ticket would not be relevant. Id. The State argued only that for purposes of a DUI
       prosecution, test results are admissible as long as the test was supported by probable cause,
       regardless of when the defendant was arrested or issued a ticket. Id.
¶ 52       The Third District agreed. It held that the protections found in the applicable statute, which
       governed summary suspension, were not applicable in DUI prosecutions—including the
       requirement that a motorist be arrested for DUI prior to being deemed to have consented to
       testing. Id. at 1091. Significantly, the court also held that in criminal cases, the “admissibility
       of blood-alcohol test results is subject to fourth amendment constraints.” Id.
¶ 53       In dicta, the court went on to note that it disagreed with the trial court’s conclusion that the
       defendant was not under arrest before submitting to breath test. Id. at 1092. Like the courts in
       Gamblin and Brantley, the Wozniak court based this conclusion on its determination that a
       reasonable person in the defendant’s position would not have felt free to leave. Id.
¶ 54       The State argues that these three cases support its position for two reasons. First and
       foremost, the State argues that under all three cases, once the defendant’s circumstances were
       such that a reasonable person in his position would not have felt free to leave, he was under
       arrest, and it did not matter that the citations were issued two days later. In arguing that a
       reasonable person in the defendant’s position would not have felt free to leave, the State points
       to the same circumstances that led us to conclude earlier that the defendant did not voluntarily
       consent to the tests—he was transported to the hospital by a uniformed police officer who
       remained with him at all times, even while he was in the restroom providing a urine sample,
       and he was transported back to the police station by another officer. As we have already

                                                     - 11 -
       discussed, this is the test for when an individual is under arrest or “seized” within the meaning
       of the fourth amendment. See Lopez, 229 Ill. 2d at 346. We agree that this test was satisfied.
       We nevertheless find the State’s argument unpersuasive.
¶ 55       One flaw in the State’s argument is that being “under arrest” for purposes of triggering the
       fourth amendment’s protections against unreasonable seizures is not necessarily the same
       thing as being under arrest for a specific offense. As we have discussed, the defendants in all
       three cases were administered field sobriety tests and taken into custody before being asked to
       submit to further testing. The officers in all three cases testified that they placed the defendants
       under arrest for DUI prior to administering the breath tests. Here, by contrast, Deputy Ash
       admitted that he did not arrest the defendant for DUI until after he received the initial test
       results from the hospital’s lab, and there is nothing in the record to indicate that he arrested the
       defendant for any other violation of the Illinois Vehicle Code prior to that time either.
       Although Deputy Ash testified that he wrote the citations at some unspecified time before he
       gave them to the defendant, both tickets were dated July 27. That was two days after he sent the
       defendant for testing, and it was after he learned from the state’s attorney’s office that the test
       results might not be admissible because he did not issue any citations. The defendant was
       seized within the meaning of the fourth amendment when he submitted to the tests, but he was
       not under arrest for a violation of the Illinois Vehicle Code as required by the implied consent
       provision.
¶ 56       Second, the State points to language in Wozniak where the court explained that it found “no
       expression of legislative intent to extend the predicate arrest provision of the summary
       suspension statute to DUI prosecutions.” Wozniak, 199 Ill. App. 3d at 1091. The State argues
       that the same rationale should apply to the provision at issue here. We are not persuaded. The
       Wozniak court reached this conclusion after noting that there are “substantive differences
       between civil implied consent proceedings [involving statutory summary suspension] and a
       criminal DUI prosecution.” (Emphasis added.) Id. Moreover, as we emphasized earlier, the
       court also held that the admission of test results in a criminal case “is subject to fourth
       amendment constraints.” Id. Thus, we do not read Wozniak as holding that the implied consent
       provision applies in DUI cases but is not subject to the same limitation applicable in civil
       summary suspension cases. Instead, we read it as holding that if a test is otherwise proper
       under the fourth amendment, its results are admissible regardless of whether the requirements
       for application of the implied consent provision are satisfied.
¶ 57       Accepting the State’s arguments in this case would mean that almost any driver involved in
       an accident involving a fatality or serious injury would be deemed to have consented to drug
       screening. If an officer restricts the driver’s freedom in any meaningful way, the driver would
       be deemed to have consented to the test through the implied consent provision—even if his
       movement is only so restricted because of the officer’s decision to administer the test, as
       happened in this case. If the officer does not restrict the driver’s freedom to the extent
       necessary to constitute a seizure or arrest within the meaning of the fourth amendment, the
       driver will, in many cases, be deemed to have voluntarily consented. Given the particularly
       intrusive nature of the blood testing at issue in this case, such a result would be untenable. We
       therefore hold that before a motorist may be found to have impliedly consented to this intrusive
       search, thereby waiving an important constitutional right, he must be under arrest for a
       violation of the Illinois Vehicle Code. The fact that the defendant’s movement is restricted to
       the degree necessary to be seized within the meaning of the fourth amendment coupled with a

                                                    - 12 -
       decision to issue tickets one to two days after the fact, as occurred in this case, is not sufficient
       to meet this standard.
¶ 58       We note that our holding does not limit the admissibility of test results in cases where the
       defendant has actually given voluntary consent or in cases where some other recognized
       exception to the requirement of a warrant applies. We merely hold that the State cannot rely on
       the implied consent provision unless the defendant has been arrested for a nonequipment
       violation of the Illinois Vehicle Code. Our holding limits application of the provision to those
       situations in which an officer has determined that a defendant has committed an infraction
       serious enough to warrant an arrest. To find that standard met in this case would allow the State
       to do an end-run around the requirements of the fourth amendment.
¶ 59       We conclude that the drug test at issue in this case did not fall within any recognized
       exception to the requirement of a warrant. As such, it was an unreasonable search within the
       meaning of the fourth amendment, and the results should have been excluded. Because there is
       insufficient evidence to convict the defendant without evidence of the test results, we will
       reverse his conviction outright. See Green, 358 Ill. App. 3d at 464. In light of this conclusion,
       we need not address the defendant’s arguments concerning the sufficiency of the evidence that
       was admitted or the waiver of his right to a jury trial.
¶ 60       For the foregoing reasons, we reverse the defendant’s conviction.

¶ 61       Reversed.




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