                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Crossley, 2011 IL App (1st) 091893




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                    MARTHA CROSSLEY, Defendant-Appellee.



District & No.             First District, Third Division
                           Docket No. 1-09-1893


Filed                      December 7, 2011


Held                       In the prosecution of defendant for DUI, the appellate court dismissed the
(Note: This syllabus       State’s appeal from the trial court’s denial of the State’s petition for an
constitutes no part of     order certifying the keeper of the records of the hospital where
the opinion of the court   defendant’s blood was drawn as a material witness for the purpose of
but has been prepared      establishing that a trained phlebotomist drew defendant’s blood under the
by the Reporter of         supervision of a licensed physician and that a state trooper took the
Decisions for the          correct sample into custody for transportation to the State Police lab,
convenience of the         since the order did not prevent the State from presenting any evidence at
reader.)
                           trial and the State could call the phlebotomist and the trooper to testify
                           about the information included in the medical records, thereby satisfying
                           the foundation requirements for admitting the blood-alcohol test results
                           into evidence.


Decision Under             Appeal from the Circuit Court of Cook County, Nos. 35271851,
Review                     M9229879; the Hon. Patrice Ball-Reed, Judge, presiding.



Judgment                   Appeal dismissed.
Counsel on                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Appeal                      Susan Schierl Sullivan, and Veronica Calderon Malavia, Assistant
                            State’s Attorneys, of counsel), for the People.

                            Abishi Cunningham, Jr., Public Defender, of Chicago (Michelle
                            Hendrickson, Assistant Public Defender, of counsel), for appellee.


Panel                       JUSTICE NEVILLE delivered the judgment of the court, with opinion.
                            Presiding Justice Steele and Justice Salone concurred in the judgment and
                            opinion.




                                              OPINION

¶1          Martha Crossley suffered injuries in a car accident in Illinois on August 17, 2008. A state
        trooper found her at the scene of the accident and arranged transportation to take her to St.
        Margaret Mercy Hospital in Hammond, Indiana. Prosecutors charged Crossley with driving
        under the influence of alcohol and driving with a blood-alcohol concentration in excess of
        0.08. See 625 ILCS 5/11-501(a)(2), (a)(1) (West 2008).
¶2          The State alleged that a phlebotomist at St. Margaret Mercy drew Crossley’s blood after
        the accident and gave the blood sample to an Illinois state trooper for analysis in an Illinois
        police lab. The State claimed that the lab test showed a blood-alcohol level of 0.128. The
        State petitioned the court for an order certifying the keeper of records at St. Margaret Mercy
        as a material witness for the prosecution of Crossley. The State explained that it sought the
        medical records as a necessary step in proving that a trained phlebotomist drew the blood
        under the supervision of a licensed physician and the state trooper took the correct blood
        sample into custody for transportation to the Illinois State Police lab.
¶3          The trial court denied the petition to certify the keeper of records as a material witness.
        The State now appeals.

¶4                                            ANALYSIS
¶5          The State asserts that Supreme Court Rule 604(a) (Ill. S. Ct. R. 604(a) (eff. July 1, 2006))
        gives this court jurisdiction to consider the appeal. The rule permits this court to consider the
        State’s appeal in a criminal case from an order suppressing evidence. In re K.E.F., 235 Ill.
        2d 530, 537 (2009). Crossley argues that we lack jurisdiction to consider this appeal because
        the trial court’s order does not suppress any evidence. We review de novo the issue of
        whether this court has jurisdiction to hear the State’s appeal. K.E.F., 235 Ill. 2d at 538.
¶6          An order suppresses evidence “within the meaning of Rule 604(a)(1) when the trial

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       court’s order ‘prevents [the] information from being presented to the fact finder.’ ” K.E.F.,
       235 Ill. 2d at 538 (quoting People v. Drum, 194 Ill. 2d 485, 492 (2000)). An order that only
       affects the means by which the State may present information does not suppress evidence,
       so this court lacks jurisdiction to consider appeals from such orders. K.E.F., 235 Ill. 2d at
       540.
¶7         In K.E.F., the State sought to use K.M.F.’s out-of-court statements to prove that K.E.F.
       committed offenses against K.M.F. The trial court denied the motion to admit the out-of-
       court statements, holding that the State needed to first question K.M.F. in court about the
       alleged occurrences. The trial court clarified that it would admit K.M.F.’s prior statements
       into evidence after the State presented her live testimony. The State invoked Rule 604 as
       authority permitting the reviewing court to hear the State’s appeal from the denial of its
       motion to use the out-of-court statements. Our supreme court held that it lacked jurisdiction
       to consider a similar appeal, because the trial court’s order only required the State to present
       live testimony from K.M.F. The order did not effectively suppress information about what
       K.M.F. said K.E.F. did to her. K.E.F., 235 Ill. 2d at 540.
¶8         The K.E.F. court analogized the case to People v. Truitt, 175 Ill. 2d 148 (1997),
       overruled in part on other grounds by People v. Miller, 202 Ill. 2d 328 (2002). In Truitt, the
       State sought to use a lab report to prove that the material it recovered from the defendant
       contained a controlled substance. The trial court denied the motion, thereby requiring the
       State to present live testimony to prove the chemical composition of the substance. Our
       supreme court held:
           “The order will not prevent any facts or opinions from being presented to the jury. From
           the record before us, it appears that its sole impact will be on the manner in which those
           facts and opinions are presented. Instead of being able to rely on a piece of paper, the
           State will have to present testimony from an actual witness. There is no way this can
           reasonably be viewed as a suppression.” Truitt, 175 Ill. 2d at 152 (quoted in K.E.F., 235
           Ill. 2d at 539).
¶9         Here, the State admits that it can call the phlebotomist and the state trooper as witnesses
       to testify about most of the relevant information included in the medical records. The State
       asks us to distinguish this case from K.E.F. and Truitt because the State here does not know
       the name of the physician who supervised the phlebotomist, and medical privacy rules may
       prevent the phlebotomist from naming the physician. However, we see no law that requires
       the State to name the supervising physician, as long as the State can present admissible
       evidence that a physician supervised the phlebotomist. The State has not stated grounds for
       us to conclude that the phlebotomist could not present the requisite testimony. The State
       concedes that we should dismiss the appeal if the phlebotomist and the state trooper, along
       with personnel from the Illinois State Police lab, can present sufficient testimony to meet the
       foundation requirements for admitting the blood-alcohol test results into evidence.
¶ 10       We agree with Crossley that testimony from those witnesses could suffice to meet the
       foundation requirements for the evidence the State seeks to admit. Because the court’s order
       does not prevent the State from presenting any evidence at trial, we dismiss the appeal.
¶ 11       Finally, the State argues that our order dismissing the appeal should estop Crossley from


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       objecting to the blood-alcohol test results on grounds that the supervising physician failed
       to testify to his credentials. We note that Crossley asserted the position in this appeal that the
       phlebotomist and the state trooper could testify to all the information the State sought to use
       from the medical records. We also note that Crossley’s argument persuaded this court to
       grant Crossley the relief she sought, the dismissal of this appeal. The trial court should
       consider the estoppel effect of our decision if Crossley objects to the admissibility of the
       blood test on grounds inconsistent with the position she took in this appeal.

¶ 12       Appeal dismissed.




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