             NOTICE
                                          2014 IL App (5th) 130342
 Decision     filed 10/27/14,
 corrected 10/28/14. The text of               NO. 5-13-0342
 this decision may be changed
 or corrected prior to the filing of
 a Petition for Rehearing or the                  IN THE
 disposition of the same.

                                       APPELLATE COURT OF ILLINOIS

                                FIFTH DISTRICT
________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,        )     Appeal from the
                                            )     Circuit Court of
      Plaintiff-Appellant,                  )     Washington County.
                                            )
v.                                          )     No. 12-DT-28
                                            )
JAKE P. ARMER,                              )     Honorable
                                            )     Eugene E. Gross,
      Defendant-Appellee.                   )     Judge, presiding.
________________________________________________________________________

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

                                            OPINION

¶1          The defendant, Jake P. Armer, was charged with driving while under the influence

of alcohol in violation of sections 11-501(a)(1) and (2) of the Illinois Vehicle Code

(Code) (625 ILCS 5/11-501(a)(1), (2) (West 2012)). He filed a motion to suppress the

results of a blood-alcohol analysis on grounds that his blood was drawn without his

consent, without a warrant, and in the absence of exigent circumstances which would

excuse the arresting officer from obtaining a search warrant. Following an evidentiary

hearing, the trial court found that the arresting officer was not faced with exigent

circumstances that would justify acting without a warrant, and it granted the defendant's
                                           1
motion to suppress. The State filed a certificate of impairment and appealed. On appeal,

the State claims that the trial court erred in finding that there was no exigency and in

granting the defendant's motion to suppress, where the arresting officer could have

reasonably believed that the time delay attendant to processing the motor vehicle accident

and transporting the defendant to a hospital would lead to the destruction of evidence,

namely the dissipation of alcohol from the defendant's blood. We affirm.

¶2     The appeal was filed pursuant to Illinois Supreme Court Rule 604(a)(1) (eff. Jan.

1, 2013), and challenges the circuit court's order suppressing the results of a blood-

alcohol analysis in a DUI case. Joshua Cross, a Washington County sheriff's deputy, was

called by the defendant and was the only witness to testify at the suppression hearing. A

summary of his testimony follows.

¶3     Deputy Cross testified that he was dispatched to a rollover accident at 11:25 p.m.

on June 30, 2012. He arrived at the scene at 11:35 p.m., and another officer, Corporal

Bauer, pulled up moments later.      Upon arrival, Deputy Cross observed a damaged

vehicle. It had rolled over and was in a ditch. He also observed a man, later identified as

the defendant, who was bloody, but walking around. An ambulance responded to the

scene and transported the defendant to a hospital for evaluation. Deputy Cross followed

the ambulance to the hospital, while Corporal Bauer remained at the scene.             The

ambulance departed the scene at 12:08 a.m. on July 1, 2012, and arrived at the hospital at

12:30 a.m. Another officer arrived at the hospital at 12:44 a.m., and remained there until

1:10 a.m.

¶4     While at the hospital, Deputy Cross charged the defendant with driving while
                                         2
under the influence of alcohol in violation of section 11-501(a)(2) of the Code. The

citation was issued at 12:45 a.m. Deputy Cross then read the "Warning to Motorist" to

the defendant. Deputy Cross testified that the defendant fell asleep as the warning was

being read to him. He attempted to wake the defendant, but was unable to rouse him.

After reading the warning to the sleeping defendant, Deputy Cross requested the hospital

staff to draw the defendant's blood with a DUI kit. The blood draw was completed at

1:15 a.m., and it was delivered to the police laboratory for analysis. The results revealed

a blood-alcohol concentration of .159.

¶5     Upon receiving the results of the blood draw, Deputy Cross issued a second

citation, charging the defendant with driving under the influence of alcohol in violation of

section 11-501(a)(1) of the Code. Deputy Cross prepared a sworn report which advised

the defendant that his driving privileges would be revoked for a minimum of 12 months

based on the results of the blood-alcohol analysis. In the report, Deputy Cross stated that

he had reasonable grounds to believe that the defendant was driving under the influence.

He noted that the defendant was involved in a traffic crash, his eyes were bloodshot and

glassy, there was an odor of an alcoholic beverage, his speech was slurred, and the

defendant indicated he was "drunk."

¶6     Deputy Cross acknowledged that the defendant had not given verbal consent for

the blood draw. He stated that according to his training, there is implied consent if a

suspect does not refuse testing. Deputy Cross testified that he did not attempt to contact

the State's Attorney or a judge to request a search warrant before he directed the hospital

staff to draw the defendant's blood. He stated that the hospital is about one mile from the
                                             3
sheriff's department and that the courthouse is 200 to 300 feet from the sheriff's

department.

¶7     During cross-examination by the prosecutor, Deputy Cross testified that he did not

consider calling the State's Attorney because of the late hour, and because he was

confident that he had enough probable cause to make the arrest and "didn't need her

assistance." He did not feel this was a situation where a warrant needed to be issued

under the implied consent law.

¶8     At the close of the testimony, the defendant argued that his blood was drawn

without his consent and without a warrant, and that the State failed to establish that the

police were faced with exigent circumstances which would have excused them from

securing a warrant before ordering the blood draw. The defendant asserted that the blood

draw was an unreasonable seizure that violated his rights under the fourth amendment to

the United States Constitution (U.S. Const., amend. IV), and he asked that the results of

the blood-alcohol analysis be excluded from evidence in the criminal trial.

¶9     After considering the testimony and the totality of the circumstances, the trial

court found that Deputy Cross was not faced with an emergency that justified acting

without a warrant, that the defendant did not consent to the blood draw, and that the

blood draw violated the defendant's rights under the United States Constitution and the

Illinois Constitution. The court granted the defendant's motion to suppress and prohibited

the State from introducing the results of the blood-alcohol analysis during the trial.

¶ 10   On appeal, the State contends that the trial court erred in suppressing the results of

the blood-alcohol analysis. The State argues that there was an exigent circumstance
                                         4
permitting the warrantless drawing of the defendant's blood in that the arresting officer

could have reasonably believed that the time delay attendant to processing the motor

vehicle accident and transporting the defendant to a hospital would lead to the destruction

of evidence, namely the dissipation of alcohol from the defendant's blood.

¶ 11   The fourth amendment protects the people from unreasonable searches and

seizures by the State. U.S. Const., amend. IV. The act of drawing blood from a person is

considered a form of a seizure, and ordinarily requires a warrant, unless there are exigent

circumstances that make obtaining a warrant impractical. See Missouri v. McNeely, ___

U.S. ___, ___, 133 S. Ct. 1552, 1560-63 (2013); Schmerber v. California, 384 U.S. 757,

769-70 (1966). Exigent circumstances have been found to exist in situations where the

time needed to obtain a warrant would result in the destruction of evidence. Schmerber,

384 U.S. at 770-72. In determining whether exigent circumstances justified a warrantless

search, the totality of the circumstances must be evaluated on a case-by-case basis.

McNeely, ___ U.S. at ___, 133 S. Ct. at 1559; Schmerber, 384 U.S. at 770-72.

¶ 12   In Schmerber, the Supreme Court upheld the admission into evidence of the

results of a nonconsensual, warrantless blood draw from an individual who had been

involved in a traffic accident and was suspected of driving under the influence of alcohol

based on the "special facts" of that case. Schmerber, 384 U.S. at 770-71. The "special

facts" included the time delays attendant to investigating the traffic accident and

transporting the defendant to the hospital. The Supreme Court concluded that given the

totality of the circumstances, the police officer might have reasonably believed that he

was confronted with an emergency in which further delay in seeking out a magistrate and
                                         5
obtaining a warrant for a blood draw threatened the destruction of the blood-alcohol

evidence. Schmerber, 384 U.S. at 770-72.

¶ 13   In Missouri v. McNeely, the Supreme Court reaffirmed its holding that the

presence of exigent circumstances justifying a warrantless search must be determined

after considering the totality of the circumstances in the particular case at bar. See

McNeely, ___ U.S. at ___, 133 S. Ct. at 1558.          In McNeely, the Supreme Court

considered whether the natural dissipation of alcohol in the blood stream constituted a

per se exigency that would justify a nonconsensual, warrantless blood draw. McNeely,

___ U.S. at ___, 133 S. Ct. at 1558. The Court held that the natural dissipation of alcohol

does not create a per se exigency that would categorically justify an exception to the

fourth amendment's warrant requirement for nonconsensual blood testing in drunk-

driving cases. McNeely, ___ U.S. at ___, 133 S. Ct. at 1563. The Court noted that the

natural dissipation of alcohol may support a finding of an exigency in a specific case,

where other factors, such as the procedures in place for obtaining a warrant and the

availability of a judge, may affect whether the police can obtain a warrant within a time

frame that preserves the opportunity to obtain reliable evidence. McNeely, ___ U.S. at

___, 133 S. Ct. at 1568. The Court concluded that a nonconsensual, warrantless blood

draw could not be justified without a showing that the exigencies of a situation made a

warrantless search imperative, and it upheld the suppression of the evidence. McNeely,

___ U.S. at ___, 133 S. Ct. at 1568.

¶ 14   After reviewing the totality of the circumstances in the record before us, we do not

find that the arresting officer was faced with exigent circumstances that would justify the
                                              6
drawing of the defendant's blood without a warrant. In this case, the defendant was

involved in a single-vehicle accident. He sustained some injuries and was taken by

ambulance to the hospital for evaluation. Deputy Cross followed the ambulance to the

hospital, and Corporal Bauer remained at the scene. Another officer arrived at the

hospital just after Deputy Cross. In this case, the record shows that while there may have

been some delay attendant to securing the accident scene and transporting the defendant

to the hospital, three officers were available to assist with the investigation. Deputy

Cross did not work this accident by himself. He, or one of the other officers, could have

attempted to contact the State's Attorney to secure a search warrant. Nothing in the

record suggests any circumstances which would have prevented one of the officers from

attempting to secure a warrant. There is no evidence that the officers would have faced

an unreasonable delay in securing a warrant. In this case, Deputy Cross admitted that he

did not attempt to secure a warrant. He stated that he did not believe he needed a warrant

in this case because he had probable cause and because of the implied consent law.

Additionally, Deputy Cross never stated that he believed he was faced with an emergency

where the time delay in obtaining a warrant would threaten the loss of crucial evidence.

¶ 15   In this case, the record does not support the State's position that an arresting

officer might have reasonably believed that he was faced with an exigency that would

justify the warrantless blood draw. Upon considering the totality of the circumstances in

this record, we conclude that the warrantless blood draw violated the defendant's fourth

amendment right to be free from unreasonable searches. The trial court did not err in

granting the defendant's motion to suppress the results of the blood-alcohol analysis and
                                           7
prohibiting the State from offering that evidence at trial.

¶ 16   Accordingly, the order of the circuit court is affirmed, and the cause is remanded

for further proceedings.



¶ 17   Affirmed; cause remanded.




                                              8
                                  2014 IL App (5th) 130342

                                       NO. 5-13-0342

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,            )     Appeal from the
                                                )     Circuit Court of
      Plaintiff-Appellant,                      )     Washington County.
                                                )
v.                                              )     No. 12-DT-28
                                                )
JAKE P. ARMER,                                  )     Honorable
                                                )     Eugene E. Gross,
      Defendant-Appellee.                       )     Judge, presiding.
______________________________________________________________________________

Opinion Filed:         October 27, 2014
______________________________________________________________________________

Justices:          Honorable Judy L. Cates, J.

                  Honorable Thomas M. Welch, P.J., and
                  Honorable Melissa A. Chapman, J.,
                  Concur
______________________________________________________________________________

Attorneys          Hon. Heath Hooks, State's Attorney, Washington County
for                Courthouse, Nashville, IL 62263
Appellant
                  Patrick Delfino, Director, Stephen E. Norris, Deputy Director,
                  Patrick D. Daly, Staff Attorney, Office of the State's Attorneys
                  Appellate Prosecutor, Fifth District Office, 730 E. Illinois Hwy 15,
                  Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864
______________________________________________________________________________

Attorneys         Michael J. Pelletier, State Appellate Defender, Ellen J. Curry,
for               Ellen J. Curry, Deputy Defender, Lawrence J. O'Neill, Assistant
Appellee          Appellate Defender, Office of the State Appellate Defender, Fifth
                  Judicial District, 909 Water Tower Circle, Mt. Vernon, IL 62864
______________________________________________________________________________
