                                                       NO. 5-09-0300
                 N O TIC E

 D ecision filed 07/09/10, corrected
                                                          IN THE
 08/23/10.    T he text of this decision

 m ay be changed or corrected prior to
                                               APPELLATE COURT OF ILLINOIS
 the filing of a P etition for R ehearing or

 the disposition of the sam e.
                             FIFTH DISTRICT
________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, )      Appeal from the
                                       )    Circuit Court of
      Plaintiff-Appellee,              )    Effingham County.
                                       )
v.                                     )    Nos. 08-CF-8 & 09-DT-36
                                       )
CHRISTOPHER J. BAUER,                  )    Honorable
                                       )    James J. Eder,
      Defendant-Appellant.             )    Judge, presiding.
________________________________________________________________________

             JUSTICE WEXSTTEN delivered the opinion of the court:

             After he was indicted on two counts of felony aggravated driving under the influence

of alcohol (DUI) (625 ILCS 5/11-501(d)(1)(C) (West 2008)) in the circuit court of

Effingham County, the defendant, Christopher J. Bauer, filed a motion to suppress evidence

that he alleged the State had obtained by misusing the grand jury's subpoena power.

Following a hearing, the circuit court denied the defendant's motion, and after a stipulated

bench trial, the defendant was convicted of misdemeanor DUI (625 ILCS 5/11-501(a)(1)

(West 2008)), with which he had been charged by information after the indictment had

issued. We affirm.

                                                      BACKGROUND

             On March 18, 2007, the defendant was involved in a motor vehicle collision in which

he and the driver of one of the other vehicles were seriously injured and transported by

helicopter to Carle Foundation Hospital (Carle) in Urbana, Illinois. In the course of his

medical treatment at Carle, a specimen of the defendant's blood was drawn and tested for

serum-alcohol level by hospital personnel.


                                                             1
       Between March 18, 2007, the date of the accident, and January 15, 2008, the date the

bill of indictment was issued, the grand jury issued a subpoena duces tecum on two

occasions. A transcript of the grand jury proceedings on April 17, 2007, reveals that the

Effingham State's Attorney appeared before and requested the grand jury to issue the first

subpoena duces tecum for the results of the defendant's blood-alcohol test performed during

the treatment he received on March 18, 2007. Accordingly, on April 17, 2007, the grand

jury issued a subpoena duces tecum directing Carle to produce "to the Effingham County

[g]rand [j]ury" records of "any and all blood and/or urine tests done and the results pertaining

to [the defendant] for treatment received on or about March 18, 2007 [in addition to] reports

*** for purposes of determining blood alcohol concentration of [the defendant]." In response

to the subpoena duces tecum, Carle returned to the State's Attorney a document dated May

3, 2007, that indicated, "There were labs drawn, but none of them pertaining to [b]lood

[a]lcohol [c]oncentration."

       At the grand jury proceedings held on May 15, 2007, the State's Attorney appeared

before and delivered to the grand jury the documents that had been sent to his office by Carle.

The State's Attorney indicated that he had reviewed the documents that Carle had sent

because when he received them in the mail, he did not recognize them to be grand jury

material. The State's Attorney nevertheless asked the grand jury to release the documents to

him so that he might look further into the matter with Carle, because he had a "hard time

believing [Carle] did [not] somehow or other run blood alcohol on" the defendant.

Accordingly, the grand jury released the documents to the State's Attorney.

       At the grand jury proceedings on August 16, 2007, the State's Attorney requested the

grand jury to issue the second subpoena duces tecum to Carle to acquire copies of general

hospital records regarding the defendant, in an attempt to acquire blood test results that were

not included in the documents returned in response to the grand jury's earlier subpoena.


                                               2
During these proceedings, Ron Kilman, the State's Attorney's investigator, testified that Carle

had disclosed that its emergency room might have administered on the defendant a

preliminary breath test, as opposed to a blood evidence test. Accordingly, on August 16,

2007, the grand jury issued a second subpoena duces tecum requesting Carle to produce by

September 13, 2007, to "the Effingham County [g]rand [j]ury" the "[g]eneral [h]ospital

records pertaining to [the defendant] for treatment received on or about March 18[] and

March 19, 2007." The first and the second subpoenas duces tecum were directed to Carle,

the hospital where the defendant received treatment for his injuries. Both requested the

production of documents to the Effingham County grand jury at its address, and both listed

the State's Attorney's name and address on the lower left corner of the subpoena.

       The "general hospital records" produced by the hospital on August 20, 2007, in

response to the second subpoena duces tecum, did not include a record of blood-alcohol

testing. The State's Attorney thereafter contacted the hospital, and on October 23, 2007, the

hospital personnel disclosed to the State's Attorney the "lab blood alcohol serum results,"

indicating the defendant's serum-alcohol-concentration test result of .104.

       At the grand jury proceedings held on November 15, 2007, the State's Attorney

appeared before and delivered to the grand jury the Carle documents that included the

defendant's serum-alcohol test results. While questioning Trooper Timothy Mehl, the State's

Attorney stated, "[A]fter a lot of requests from both yourself and my office, for whatever

reason, [Carle] figured out that there were *** documents under one patient number at the

hospital," and "they have now sent to the grand jury a couple of more pages of documents

that do include a blood alcohol level as opposed to a preliminary breath test that they had also

done in the emergency room." The State's Attorney explained that Carle had again mailed

the documents to his office and that he had opened them because Carle had not marked the

envelope as grand jury material. The State's Attorney asked the grand jury to turn those


                                               3
documents over to his office. Accordingly, on November 15, 2007, the grand jury released

the materials from Carle to the Effingham County State's Attorney's office.

        At the grand jury proceedings held on January 15, 2008, a special prosecutor with the

appellate prosecutor's office presented evidence seeking an indictment against the defendant.

Trooper Timothy Mehl testified regarding the accident of March 18, 2007, and the

defendant's .104-serum-alcohol-concentration results. The special prosecutor requested the

grand jury to issue a bill of indictment charging the defendant with two counts of aggravated

DUI. Accordingly, on January 15, 2008, the defendant was indicted on two counts of

aggravated DUI (625 ILCS 5/11-501(d)(1)(C) (West 2008)).

        On September 16, 2008, the defendant moved to suppress the chemical-test evidence,

which he alleged the State had obtained by misusing the grand jury's subpoena power. In his

motion to suppress, the defendant alleged that the State had improperly acquired confidential

medical information, including the result of the defendant's chemical analysis, by directing

Carle to deliver the materials to the State through the use of the subpoena power of the grand

jury.

        In its motion in opposition to exclude the chemical-test evidence, the State asserted

that, although some of the materials were misdelivered to the State's Attorney and he

screened them prior to presentation to the grand jury, all materials obtained were derived

from subpoenas which were properly issued by and returnable to the grand jury.

        On November 10, 2008, after hearing evidence, the court by docket entry entered its

order denying the defendant's motion to exclude the chemical-test evidence. In its order, the

circuit court concluded that the defendant had failed to present sufficient evidence to

establish an abuse of the grand jury subpoena power by the Effingham County State's

Attorney. The court concluded that the blood-alcohol test results were obtained pursuant to

a subpoena duly issued by the grand jury pursuant to its statutory powers, pursuant to a


                                              4
proper request by the State's Attorney. The circuit court concluded that the State's Attorney

first requested the grand jury to issue the subpoena, made the subpoena returnable to the

Effingham County grand jury, presented the documents obtained to the grand jury, and

formally requested the release of the documents on each occasion. The circuit court

concluded that no evidence was presented to demonstrate that the State's Attorney had acted

in bad faith or had intentionally caused Carle to return the documents to the State's Attorney's

office rather than to the grand jury.

       In its order, the circuit court further held that, unlike the grand jury subpoena

challenged in People v. DeLaire, 240 Ill. App. 3d 1012 (1993), the grand jury subpoenas

were issued preindictment, in an effort to determine whether there was sufficient evidence

to charge the defendant with felony DUI. The circuit court also held that, unlike People v.

Wilson, 164 Ill. 2d 436 (1994), and People v. Feldmeier, 286 Ill. App. 3d 602 (1997), the

State's Attorney did not attempt to circumvent the Effingham County grand jury but

repeatedly appeared before it to keep it informed and to seek permission to act under its

authority.

       On February 17, 2009, the parties proceeded to a stipulated bench trial on a charge of

misdemeanor DUI, with which the State, by information, had charged the defendant on

February 12, 2009. At the stipulated bench trial, the State submitted that, if the case were to

go to trial, it would present Trooper Mehl's testimony that the defendant's vehicle crossed the

centerline of the highway and hit two vehicles and Ronald Thoele's testimony that he and the

defendant were consuming alcohol on the night and early morning of March 17 and 18, 2007,

and that he was driving a vehicle behind the defendant's vehicle when he saw the defendant's

vehicle swerve sharply to the left and collide with the vehicles for no apparent reason. The

State also would have presented the testimony of Beth Spence, a phlebotomist employed at

Carle, who would have testified that she drew blood from the defendant on March 18, 2007,


                                               5
approximately 1½ hours after the accident, and the State would have presented evidence from

the technicians that this blood sample was tested and revealed a serum-alcohol-concentration

level of .104 grams per deciliter. The State would also have introduced evidence from Dr.

Daniel Brown, Ph.D., an expert in blood-alcohol analysis, who would have testified that, to

a reasonable degree of medical certainty, the defendant's blood-alcohol-concentration level

at the time of the collision was .109 grams per deciliter.

         After the stipulated bench trial, the circuit court found the defendant guilty of DUI,

a Class A misdemeanor (625 ILCS 5/11-501(a)(1) (West 2008)). On March 13, 2009, the

defendant filed a motion for a new trial.

         On May 15, 2009, the circuit court entered a judgment and sentenced the defendant

to 2 years' probation, 60 days' home confinement, and 180 hours of community service, plus

fines and court costs. On the same date, the circuit court denied the defendant's motion for

a new trial. On June 12, 2009, the defendant filed a notice of appeal.

                                          ANALYSIS

         The defendant contends that the State's Attorney's misuse of the grand jury's subpoena

power facilitated the State's Attorney's unauthorized access to the defendant's confidential

medical information, including the lab report of the .104-serum-alcohol-concentration test

result. The defendant argues that, as a result, the chemical evidence was inadmissible at the

trial.

         "In determining whether a trial court has properly ruled on a motion to suppress,

findings of fact and credibility determinations made by the trial court are accorded great

deference and will be reversed only if they are against the manifest weight of the evidence."

People v. Slater, 228 Ill. 2d 137, 149 (2008). "We review de novo, however, the ultimate

question posed by the legal challenge to the trial court's ruling on a suppression motion."

Slater, 228 Ill. 2d at 149.


                                                6
       "The grand jury has the power to issue subpoenas to obtain documents relevant to its

inquiry when an individual is under investigation for a crime." Wilson, 164 Ill. 2d at 457;

725 ILCS 5/112-4(b) (West 2008). "Grand jury subpoenas are returnable to the grand jury,

similar to how a witness, who is subpoenaed by the grand jury, must report to the grand jury."

Wilson, 164 Ill. 2d at 457. "Issues of privilege and relevance of the documents are not

relevant at the grand jury stage of an investigation, since the rules of evidence do not apply."

Wilson, 164 Ill. 2d at 457-58. "The grand jury has the power to disclose subpoenaed

documents to the State's Attorney for the purpose of the State's Attorney's furthering his

responsibility of enforcing the law." Wilson, 164 Ill. 2d at 458.

       "Except when investigating possible criminal conduct by the police themselves, the

grand jury works in concert with the police to investigate alleged criminal behavior and to

bring charges based thereon when probable cause exists to do so." January 1996 Term

Grand Jury, 283 Ill. App. 3d 883, 891 (1996). "Further, the State's Attorney, who is the

county's chief law enforcement officer, coordinates the work of the grand jury and the

police." January 1996 Term Grand Jury, 283 Ill. App. 3d at 891.

       "Article 112 of the Code of Criminal Procedure of 1963 (725 ILCS 5/112-1 et seq.

(West 1994)), which governs grand jury proceedings, makes clear the close working

relationship between the State's Attorney, the grand jury, and the police." January 1996

Term Grand Jury, 283 Ill. App. 3d at 891. Section 112-3(b) provides that the grand jury shall

convene as ordered by the circuit court "on its own motion or that of the State's Attorney."

725 ILCS 5/112-3(b) (West 2008). The Code of Criminal Procedure of 1963 also provides

that "[t]he [g]rand [j]ury shall hear all evidence presented by the State's Attorney" (725 ILCS

5/112-4(a) (West 2008)) and has "the right to subpoena and question any person against

whom the State's Attorney is seeking a [b]ill of [i]ndictment, or any other person, and to

obtain and examine any documents or transcripts relevant to the matter being prosecuted by


                                               7
the State's Attorney" (725 ILCS 5/112-4(b) (West 2008)). A disclosure of matters before the

grand jury, which would otherwise be prohibited, may be made to a State's Attorney for use

in the performance of his duty and such government personnel as are deemed necessary by

the State's Attorney in the performance of his duty to enforce state criminal law. 725 ILCS

5/112-6(c)(1) (West 2008).

       "The only limitation–if it even can be called that–on the State's Attorney's power to

disclose grand jury proceedings to 'government personnel' (an intentionally broad term

which, at a minimum, includes the police) is that the State's Attorney must promptly provide

the court that impaneled the grand jury with the names of the persons to whom such

disclosure has been made." January 1996 Term Grand Jury, 283 Ill. App. 3d at 891-92; 725

ILCS 5/112-6(c)(2) (West 2008).

       The broad investigative power of the grand jury has been described as follows:

       "The grand jury occupies a unique role in our criminal justice system. It is an

       investigatory body charged with the responsibility of determining whether probable

       cause that a crime has occurred exists. The grand jury can investigate merely on a

       suspicion that the law is being violated or even just because it wants assurance that

       it is not. [Citation.] *** The State is not required to justify the issuance of a

       subpoena by establishing probable cause because the very purpose of the request is

       to ascertain whether probable cause exists." DeLaire, 240 Ill. App. 3d at 1021.

       In Wilson, 164 Ill. 2d at 457, the defendant claimed that the State's Attorney abused

the grand jury's subpoena power to obtain his records. "The State's Attorney served a

subpoena on the McLean County Center for Human Services for production of all clinical

records regarding defendant. The subpoena and records were made returnable to the State's

Attorney's office, rather than to the grand jury. The subpoena stated that the records were

needed by the grand jury in the investigation of a homicide and that the records were related


                                             8
directly to the immediate circumstances of a homicide. The subpoena was not prepared at

the direction of the grand jury, but at the direction of the State's Attorney. The State's

Attorney claimed that he acted 'in anticipation of the grand jury's consideration of matters

under investigation' when issuing the subpoenas. The records were never shown to the grand

jury." Wilson, 164 Ill. 2d at 457.

       The Illinois Supreme Court in Wilson concluded that the State's Attorney misused the

grand jury process in obtaining the subpoenas, by substituting his authority to obtain

subpoenas for that of the grand jury and by not requiring that the documents be returnable

to the grand jury. The court held, however, that the defendant was not prejudiced by the

process used to obtain his mental health records because if the proper procedures had been

followed, the State's Attorney could still have received the documents from the grand jury.

Wilson, 164 Ill. 2d at 458.

       In the present case, as held by the circuit court, the case for a misuse of the grand jury

process is not persuasive because the grand jury subpoenas were issued by the grand jury

preindictment (cf. DeLaire, 240 Ill. App. 3d at 1021 (the postindictment use of a grand jury

subpoena duces tecum, to acquire material the State should have obtained through formal

discovery procedures, was held to be improper)), the documents were returnable to the grand

jury (cf. Wilson, 164 Ill. 2d at 457 ("[t]he subpoena and records were made returnable to the

State's Attorney's office")), and the State's Attorney did not attempt to circumvent the grand

jury but repeatedly appeared before it to keep it informed and to seek permission to act under

its authority (cf. Wilson, 164 Ill. 2d at 457 ("[t]he records were never shown to the grand

jury")).

       However, if we were to conclude that the State's Attorney misused the grand jury

process in acquiring the subpoenas, as in Wilson, the defendant here was not prejudiced by

the process used to obtain his medical records. See Wilson, 164 Ill. 2d at 458. If the


                                               9
allegedly improper procedures had not occurred, the State's Attorney could still have received

the documents from the grand jury. See People v. Popeck, 385 Ill. App. 3d 806, 811 (2008)

(because access to the defendant's medical records for the date of his alleged DUI offense

was relevant, material, and not privileged, the subpoena was sufficiently limited in scope and

should have been granted).

       Indeed, the Illinois Vehicle Code provides that the results of blood tests performed

to determine alcohol content in a person receiving treatment in a hospital emergency room

for injuries resulting from a motor vehicle accident may be disclosed to the Department of

State Police or local law enforcement agencies upon a request, and the confidentiality

provisions of law pertaining to those medical records and medical treatment shall not be

applicable with regard to those tests. 625 ILCS 5/11-501.4(a) (West 2008); People v. Jung,

192 Ill. 2d 1, 5 (2000) (when a person obtains a driver's license, he consents to conditions

imposed by the legislature in exchange for that privilege, including the conditions imposed

under statute allowing the results of physician-ordered blood or urine tests conducted in the

course of emergency treatment for injuries resulting from a motor vehicle accident to be

reported directly to state or local law enforcement officials, and a waiver of a driver's privacy

interest in his blood or urine test results in this situation is reasonable and does not violate

his constitutional right to privacy); People v. Nohren, 283 Ill. App. 3d 753, 762 (1996) (the

health care practitioner-patient privilege set forth in section 8-802 of the Code of Civil

Procedure (735 ILCS 5/8-802 (West 1994)) permits the disclosure of the defendant's blood-

alcohol tests in DUI prosecutions, pursuant to section 11-501.4 of the Illinois Vehicle Code

(625 ILCS 5/11-501.4 (West 1994))). Accordingly, we cannot conclude that the defendant

was prejudiced by the process used to obtain his blood-alcohol test records. See Wilson, 164

Ill. 2d at 458.

       In arguing that the State's Attorney obtained unauthorized access to the defendant's


                                               10
confidential medical information with an allegedly invalid grand jury subpoena, the

defendant seems to intimate that the State's conduct violated the Health Insurance Portability

and Accountability Act of 1996 (HIPAA) (45 C.F.R. §164.512 et seq. (2005)). However,

HIPAA does not create a privilege for patients' medical information; it merely provides the

procedures to follow for the disclosure of that information from a "covered entity." United

States v. Bek, 493 F.3d 790, 802 (7th Cir. 2007); Northwestern Memorial Hospital v.

Ashcroft, 362 F.3d 923, 925-26 (7th Cir. 2004). Although HIPAA provides for penalties

against entities that fail to comply with its provisions (42 U.S.C. §§1320d-5, 1320d-6

(2006)), law enforcement agencies, including the office of the State's Attorney, are not

covered entities under HIPAA. See 45 C.F.R. §§160.102, 164.104, 164.502(a) (2005) (a

"covered entity" is defined to include health care plans, health care clearinghouses, and

health care providers); see generally Coy v. Washington County Hospital District, 372 Ill.

App. 3d 1077, 1081 (2007) (the application of HIPAA's privacy rule is limited to health

plans, health care clearinghouses, and qualified health care providers, each of which is

defined as a "covered entity").

       Even if the grand jury subpoena had been insufficient pursuant to HIPAA's law

enforcement exception (45 C.F.R. §164.512(f)(1)(ii)(B) (2005) (a health care provider may

disclose protected health information to a law enforcement official "[i]n compliance with and

as limited by the relevant requirements of *** [a] grand jury subpoena")), the defendant fails

to cite any authority which compels that medical information so obtained must be suppressed,

and HIPAA does not contain that remedy. See State v. Eichhorst, 879 N.E.2d 1144, 1154-55

(Ind. App. 2008) (HIPAA does not provide that evidence given in violation of HIPAA should

be suppressed or excluded in a criminal setting); State v. Straehler, 2008 WI App. 14, ¶13,

307 Wis. 2d 360, 745 N.W.2d 431 ("HIPAA does not provide for suppression of the evidence

as a remedy for a HIPAA violation"); State v. Downs, 2004-2402, p. 8 (La. App. 1 Cir.


                                             11
9/23/2005); 923 So. 2d 726, 731 (noting that the district attorney's office is not a "covered

entity" under HIPAA and stating that "if relator's complaint is that a HIPAA violation

occurred, relator should file a complaint against the covered entity that disclosed the

information"); see also United States v. Zamora, 408 F. Supp. 2d 295, 298 (S.D. Tex. 2006)

(HIPAA was not intended to be a means for evading criminal prosecution). Further, the

defendant did not argue that HIPAA provided a basis for suppression in the trial court below.

See People v. O'Neal, 104 Ill. 2d 399, 407 (1984) (issues not raised in the trial court are

generally considered waived on appeal).

       Consequently, we affirm the circuit court's order denying the defendant's motion to

suppress the defendant's serum-alcohol-concentration test results.

                                      CONCLUSION

       For the foregoing reasons, we affirm the judgment of the circuit court of Effingham

County.



       Affirmed.



       GOLDENHERSH, P.J., and STEWART, J., concur.




                                             12
                                         NO. 5-09-0300

                                            IN THE

                              APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
___________________________________________________________________________________

      THE PEOPLE OF THE STATE OF ILLINOIS, )      Appeal from the
                                            )     Circuit Court of
           Plaintiff-Appellee,              )     Effingham County.
                                            )
      v.                                    )     Nos. 08-CF-8 & 09-DT-36
                                            )
      CHRISTOPHER J. BAUER,                 )     Honorable
                                            )     James J. Eder,
           Defendant-Appellant.             )     Judge, presiding.
___________________________________________________________________________________

Opinion Filed:        July 9, 2010
___________________________________________________________________________________

Justices:          Honorable James M. Wexstten, J.,

                 Honorable Richard P. Goldenhersh, P.J.,
                 Honorable Bruce D. Stewart, J.,
                 Concur
___________________________________________________________________________________

Attorney         Lou J. Viverito, Taylor Law Offices, P.C., 122 East Washington Avenue, P.O.
for              Box 668, Effingham, IL 62401-0668
Appellant
___________________________________________________________________________________

Attorneys        David Rands, Special Prosecutor, 308 South Kitchell Avenue, Olney, IL 62450;
for              Patrick Delfino, Director, Stephen E. Norris, Deputy Director, Rebecca E.
Appellee         McCormick, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor,
                 730 E. Illinois Highway 15, P.O. Box 2249, Mt. Vernon, IL 62864
___________________________________________________________________________________
