                                                                                 FILED
                                    2014 IL App (4th) 130346                   November 4, 2014
                                                                                  Carla Bender
                                         NO. 4-13-0346                         th
                                                                              4 District Appellate
                                                                                   Court, IL
                                 IN THE APPELLATE COURT

                                          OF ILLINOIS

                                      FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,
                                               )    Appeal from
         Plaintiff-Appellee,                   )    Circuit Court of
         v.
                                               )    Macon County
CHRISTOPHER M. GAEDE,                          )    No. 12DT81
         Defendant-Appellant.
                                               )
                                               )    Honorable
                                               )    Timothy J. Steadman,
                                               )    Judge Presiding.
___________________________________________________________________________

               JUSTICE POPE delivered the judgment of the court, with opinion.
               Justices Knecht and Turner concurred in the judgment and opinion.

                                            OPINION

¶ 1            In January 2013, a jury found defendant, Christopher M. Gaede, guilty of driving

under the influence (625 ILCS 5/11-501(a)(2) (West 2012)). In March 2013, the trial court

sentenced defendant to 24 months' court supervision. Defendant appeals, arguing he is entitled

to a new trial because the implied-consent statute (625 ILCS 5/11-501.1(a) (West 2012)) is

facially unconstitutional and also unconstitutionally punishes individuals who assert their fourth-

amendment (U.S. Const., amend. IV) right to refuse to consent to chemical analysis. We affirm.

¶ 2                                    I. BACKGROUND

¶ 3            On February 19, 2012, defendant was arrested for driving under the influence

(625 ILCS 5/11-501(a)(2) (West 2012)), operating an uninsured vehicle (625 ILCS 5/3-707

(West 2012)), failing to report an accident to police authority (625 ILCS 5/11-407 (West 2012)),
and failing to give information after striking an unattended vehicle (625 ILCS 5/11-404 (West

2012)). Defendant refused to submit to a chemical breath test requested by the arresting officer.

¶ 4            A jury trial was held in January 2013. Randy Clem, a Decatur police officer,

testified he received a dispatch at approximately 8 p.m. for a hit-and-run crash involving a blue,

chopper-style motorcycle. He stopped defendant, who was driving a motorcycle matching the

description. Defendant denied being in an accident and had a nonchalant, cavalier attitude.

Officer Clem smelled the odor of alcohol on defendant's breath. Defendant also had bloodshot,

glassy eyes.

¶ 5            Officer Kyle Daniels of the Decatur police department testified he was working

on the evening in question and was dispatched to the parking lot behind Maustell's Pizza Inn and

the Flashback Lounge because of a reported hit-and-run. A truck in the parking lot had damage

to the front driver's side fender. Officer Daniels took the truck's owner to the location where

defendant had been stopped, and the owner identified defendant as the person who had driven

away from the accident in the parking lot.

¶ 6            Decatur police officer Chris Snyder testified he was dispatched to the accident

scene but instead went to the location where Clem had stopped defendant. Snyder testified

defendant's breath smelled of alcohol, his eyes were glassy and bloodshot, and his speech was

slurred. Defendant stated he had consumed a couple of beers.

¶ 7            Officer Snyder noticed several scrapes on the right side of defendant's motorcycle

and the motorcycle was missing its right turn signal lens cover. The scrapes appeared to be

fresh. When asked about the lens cover, defendant said it had been missing for a long time.




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Snyder radioed officers at the accident scene to see if the lens cover was there. Defendant said

police would not find the lens cover at the scene of the accident.

¶ 8            Based on defendant's odor of alcohol, bloodshot and glassy eyes, and slurred

speech, Snyder requested defendant perform field sobriety tests. During the horizontal gaze

nystagmus (HGN) test, defendant did not keep his head still as directed. As a result, Snyder had

to restart the test at least twice. The HGN test indicated defendant was under the influence of

alcohol. Defendant's performance on the walk-and-turn test also indicated defendant might be

under the influence of alcohol. Defendant also performed poorly on the one-legged-stand test.

Based on the totality of the circumstances, Snyder arrested defendant for driving under the

influence of alcohol. During the search incident to arrest, Snyder found the missing amber lens

cover in defendant's sweatshirt pocket. The lens cover had damage consistent with having

broken off the motorcycle. It also had paint transfers that matched the color of the paint on the

truck that had been scraped in the parking lot. Defendant was adamant he did not put the lens

cover in his pocket.

¶ 9            Defendant was taken to the Macon County jail and again performed poorly on the

walk-and-turn test and the one-legged-stand test. Officer Snyder testified defendant still showed

signs he was under the influence of alcohol. Officer Snyder read defendant the warning-to-

motorist form, which defendant appeared to understand. Defendant refused to take the chemical

breath test.

¶ 10           At the end of the State's case, the trial court granted defendant's motion for a

directed verdict with regard to the charge of operating an uninsured vehicle.




                                                -3-
¶ 11           Defendant called witnesses and testified on his own behalf he had two beers at the

Wild Dog and nothing at Flashback's. As defendant is not challenging the sufficiency of the

evidence to convict, we need not go into the specifics of this testimony.

¶ 12           At the end of defendant's case, the State moved to dismiss the charge alleging

defendant failed to report the accident to the police, which the trial court granted. After

deliberating, the jury found defendant guilty of driving under the influence of alcohol and not

guilty of failing to give information after striking an unattended vehicle.

¶ 13           In March 2013, the trial court sentenced defendant to court supervision for 24

months.

¶ 14           This appeal followed.

¶ 15                                      II. ANALYSIS

¶ 16           Defendant argues the implied-consent statute is facially unconstitutional.

According to defendant, under the statute, any person who drives on public roads is "deemed to

have given consent" to chemical analysis of the "blood, breath, or urine for the purpose of

determining the content of [intoxicating substances]." 625 ILCS 5/11-501.1(a) (West 2012). He

also argues any consent is implicitly extracted by law and therefore is not freely and voluntarily

given. Accordingly, defendant contends a search warrant is necessary to comport with fourth-

amendment protections against unreasonable searches and seizures.

¶ 17           Defendant also argues the statute unconstitutionally punishes individuals who

assert their fourth-amendment right to withdraw their implied consent to chemical analysis. The

punishment occurs when the trial court allows evidence of a defendant's refusal of chemical

testing as evidence on the ultimate issue of driving under the influence. According to defendant,



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drivers are also punished civilly when they exercise their fourth-amendment right to refuse a

consent search by loss of driving privileges for at least one year. Defendant contends he is

entitled to a new trial because his conviction resulted from a constitutionally infirm statute.

¶ 18           At issue are several sections of the Illinois Vehicle Code. Section 11-501.1(a) of

the Vehicle Code states, in relevant part:

               "Any person who drives or is in actual physical control of a motor

               vehicle upon the public highways of this State shall be deemed to

               have given consent, subject to the provisions of Section 11-501.2,

               to a chemical test or tests of blood, breath, or urine for the purpose

               of determining the content of alcohol, other drug or drugs, or

               intoxicating compound or compounds or any combination thereof

               in the person's blood if arrested, as evidenced by the issuance of a

               Uniform Traffic Ticket, for any offense as defined in Section 11-

               501 or a similar provision of a local ordinance, or if arrested for

               violating Section 11-401. If a law enforcement officer has

               probable cause to believe the person was under the influence of

               alcohol, other drug or drugs, intoxicating compound or

               compounds, or any combination thereof, the law enforcement

               officer shall request a chemical test or tests which shall be

               administered at the direction of the arresting officer. The law

               enforcement agency employing the officer shall designate which of

               the aforesaid tests shall be administered. A urine test may be



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               administered even after a blood or breath test or both has been

               administered." (Emphasis added.) 625 ILCS 5/11-501.1(a) (West

               2012).

Section 11-501.1(c) provides "[a] person requested to submit to a test as provided above shall be

warned by the law enforcement officer requesting the test that a refusal to submit to the test will

result in the statutory summary suspension of the person's privilege to operate a motor vehicle, as

provided in Section 6-208.1 of this Code." 625 ILCS 5/11-501.1(c) (West 2012). Section 6-

208.1(a)(1) of the Vehicle Code (625 ILCS 5/6-208.1(a)(1) (West 2012)) provides for a

summary suspension of a person's driving privileges if he withdraws his implied consent after an

officer's request. Section 11-501.2(c) of the Vehicle Code (625 ILCS 5/11-501.2(c) (West

2012)) allows an individual's refusal to take a breath test at the officer's request to be admitted as

evidence against the individual.

¶ 19           According to defendant, "[t]his scheme is fundamentally unfair and facially

unconstitutional under the United States and Illinois Constitutions." Defendant argues:

                        "Because people have a constitutional right to refuse

               consent to chemical analysis and demand compliance with the

               warrant requirement in [driving under the influence (DUI)]

               investigations, it reasonably follows that people cannot be

               punished for asserting that right. In short, State action that makes

               the assertion of a constitutional right costly constitutes a

               punishment for exercising the right—a punishment that is thereby

               itself a violation of that very constitutional right."



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We disagree with defendant as his argument is based on a false premise.

¶ 20           We first note statutes are presumed constitutional. People v. Devenny, 199 Ill. 2d

398, 400, 769 N.E.2d 942, 943 (2002). An individual challenging the constitutionality of a

statute bears the burden of demonstrating it is unconstitutional. Id. Our supreme court has

stated:

               "A facial challenge to the constitutionality of a statute is the most

               difficult challenge to mount. [Citations.] A statute is facially

               unconstitutional only if there are no circumstances in which the

               statute could be validly applied. [Citations.] The fact that the

               statute could be found unconstitutional under some set of

               circumstances does not establish the facial invalidity of the statute.

               [Citation.] Thus, a facial challenge must fail if any situation exists

               where the statute could be validly applied." People v. Davis, 2014

               IL 115595, ¶ 25, 6 N.E.3d 709.

Further, courts have a duty to construe a statute in a reasonable manner that upholds the validity

of the statute. Devenny, 199 Ill. 2d at 400, 769 N.E.2d at 943. We apply a de novo standard of

review when analyzing the constitutionality of a statute. Id.

¶ 21            We note the United States Supreme Court has stated a breath test like the one

here is a search within the meaning of the fourth amendment. Skinner v. Ry. Labor Executives'

Ass'n, 489 U.S. 602, 616-17 (1989). However, the fact a breath test constitutes a search does not

mean a warrantless breath test is always unconstitutional. As the Supreme Court has stated:




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"[T]he Fourth Amendment does not proscribe all searches and

seizures, but only those that are unreasonable. [Citations.] What is

reasonable, of course, 'depends on all of the circumstances

surrounding the search or seizure and the nature of the search or

seizure itself. [Citation.] Thus, the permissibility of a particular

practice 'is judged by balancing its intrusion on the individual's

Fourth Amendment interests against its promotion of legitimate

governmental interests.' [Citations.]

                                 ***

       We have recognized *** that the government's interest in

dispensing with the warrant requirement is at its strongest when, as

here, 'the burden of obtaining a warrant is likely to frustrate the

governmental purpose behind the search.' [Citations.] ***

[A]lcohol and other drugs are eliminated from the bloodstream at a

constant rate, [citation], and blood and breath samples taken to

measure whether these substances were in the bloodstream when a

triggering event occurred must be obtained as soon as possible.

[Citation.] Although the metabolites of some drugs remain in the

urine for longer periods of time and may enable the ***

estimat[ion] whether the [person] was impaired by those drugs at

the time of a covered accident, incident, or rule violation,




                                 -8-
               [citation], the delay necessary to procure a warrant nevertheless

               may result in the destruction of valuable evidence." Id. at 619-23.

¶ 22           Defendant contends Illinois's implied-consent law is unconstitutional pursuant to

the Supreme Court's decision last year in Missouri v. McNeely, __ U.S. ___, 133 S. Ct. 1552

(2013). In McNeely, the issue before the Supreme Court was "whether the natural

metabolization of alcohol in the bloodstream presents a per se exigency that justifies an

exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all

drunk-driving cases." (Emphasis added.) Id. at ___, 133 S. Ct. at 1556.

¶ 23           With regard to nonconsensual blood tests, the Court found a per se exigency did

not exist, holding each case had to be judged by its own particular facts. Id. at ___, 133 S. Ct. at

1561. However, McNeely does not support defendant's position in this case. In Schmerber v.

California, 384 U.S. 757, 770-72 (1966), the Supreme Court held a warrantless, nonconsensual

blood test can be performed in certain situations depending on the totality of the circumstances in

a particular case. The Court in McNeely noted:

               "[T]he natural dissipation of alcohol in the blood may support a

               finding of exigency in a specific case, as it did in Schmerber[;]

               [however,] it does not do so categorically. Whether a warrantless

               blood test of a drunk-driving suspect is reasonable must be

               determined case by case based on the totality of the

               circumstances." McNeely, __ U.S. at ___, 133 S. Ct. at 1563.

¶ 24           Here, defendant withdrew his consent after his arrest. As a result, there was no

warrantless, nonconsensual search. Thus, defendant's fourth-amendment rights could not have



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been violated. As stated earlier, a statute is only facially unconstitutional if the statute can never

be constitutionally applied. Because the implied-consent statute allowed defendant to refuse the

police officer's request to take the warrantless chemical breath test, we cannot find the statute

facially unconstitutional.

¶ 25           Defendant next argues Illinois's implied-consent statutory scheme

unconstitutionally circumvented his constitutional rights by punishing him for exercising his

fourth-amendment right to refuse chemical analysis because his driver's license was suspended

and his refusal was introduced as evidence against him at his criminal trial (625 ILCS 5/11-

501.2(c) (West 2012)). As stated earlier, defendant's argument is built on a false premise.

Defendant erroneously believes he always has a constitutional right to refuse a breath test. This

is not true. In McNeely, the Supreme Court rejected a per se approach to warrantless blood

draws based on the exigency of dissipation of alcohol in the blood over time. McNeely, ___ U.S.

at ___, 133 S. Ct. at 1556. However, the Court noted natural dissipation of alcohol in the blood

may support a finding of exigency in a specific case based on the totality of the circumstances.

Id. at ___, 133 S. Ct. at 1563.

¶ 26           We also note the various opinions in McNeely make clear a majority of the

Supreme Court justices do not question the constitutionality of implied-consent statutes. In

Justice Sotomayor's opinion, which was joined by Justices Scalia, Ginsburg, and Kagan, she

stated:

                       "As an initial matter, States have a broad range of legal

               tools to enforce their drunk-driving laws and to secure [blood

               alcohol content (BAC)] evidence without undertaking warrantless



                                                - 10 -
               nonconsensual blood draws. For example, all 50 States have

               adopted implied consent laws that require motorists, as a condition

               of operating a motor vehicle within the State, to consent to BAC

               testing if they are arrested or otherwise detained on suspicion of a

               drunk-driving offense. See NHTSA Review 173; supra, at 1556

               (describing Missouri's implied consent law). Such laws impose

               significant consequences when a motorist withdraws consent;

               typically the motorist's driver's license is immediately suspended

               or revoked, and most States allow the motorist's refusal to take a

               BAC test to be used as evidence against him in a subsequent

               criminal prosecution." McNeely, __ U.S. at ___, 133 S. Ct. at

               1566.

Further, Chief Justice Roberts, joined by Justices Breyer and Alito, opined:

                   "The Court is correct when it says that every case must be

               considered on its particular facts. But the pertinent facts in drunk

               driving cases are often the same, and the police should know how

               to act in recurring factual situations. Simply put, when a drunk

               driving suspect fails field sobriety tests and refuses a breathalyzer,

               whether a warrant is required for a blood draw should come down

               to whether there is time to secure one." (Emphasis added.) Id. at

               ___, 133 S. Ct. at 1574 (Roberts, C.J., concurring in part and

               dissenting in part, joined by Breyer and Alito, JJ.).



                                               - 11 -
In his dissent, Justice Thomas stated he would hold a "warrantless blood draw does not violate

the Fourth Amendment" after any DUI arrest made with probable cause. Id. at ___, 133 S. Ct. at

1574 (Thomas, J., dissenting).

¶ 27            Defendant has failed to establish his constitutional rights were violated. As a

result, we need not address his argument he is entitled "to a new trial because the constitutional

infirmity of Illinois'[s] implied consent statute contributed to his conviction."

¶ 28                                    III. CONCLUSION

¶ 29           For the reasons stated, we affirm defendant's conviction. As part of our judgment,

we award the State its $75 statutory assessment against defendant as costs of this appeal. 55

ILCS 5/4-2002 (West 2012).

¶ 30           Affirmed.




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