                                      2019 IL 123525



                                        IN THE
                               SUPREME COURT
                                            OF
                          THE STATE OF ILLINOIS




                                   (Docket No. 123525)

              THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
                         RALPH EUBANKS, Appellee.


                             Opinion filed December 5, 2019.



        JUSTICE THOMAS delivered the judgment of the court, with opinion.

        Justices Kilbride, Garman, and Karmeier concurred in the judgment and
     opinion.

        Chief Justice Burke specially concurred, with opinion.

        Justice Theis concurred in part and dissented in part, with opinion.

        Justice Neville took no part in the decision.

                                         OPINION

¶1       Shortly before 9 p.m. on December 21, 2009, Maria Worthon was killed by a
     hit-and-run driver near the intersection of Greenview and Greenleaf Avenues in
     Chicago. Worthon’s son, Jeremiah, was seriously injured in the accident. The State
     charged defendant, Ralph Eubanks, with numerous offenses arising out of the
     incident. A jury ultimately convicted defendant of first degree murder (720 ILCS
     5/9-1(a)(2) (West 2008)), failure to report an accident involving death or injury
     (625 ILCS 5/11-401(b), (d) (West 2008)), and aggravated driving under the
     influence (DUI) (id. § 11-501(a)(6), (d)(1)(C), (d)(1)(F) (driving with any amount
     of a controlled substance in the person’s blood, breath, or urine)). Defendant
     appealed, and the Appellate Court, First District, reversed defendant’s aggravated
     DUI conviction, holding that section 11-501.2(c)(2) of the Illinois Vehicle Code
     (id. § 11-501.2(c)(2)) is facially unconstitutional because it permits compelled
     chemical testing without a warrant “in all cases where an officer has probable cause
     to believe that a driver under the influence has caused death or personal injury to
     another.” 2017 IL App (1st) 142837, ¶ 66. The court also reversed defendant’s
     conviction for first degree murder and remanded for a new trial, holding that the
     Cook County circuit court abused its discretion in denying defendant’s request for
     a reckless homicide instruction. Finally, the court reduced the felony class of
     defendant’s conviction of failure to report an accident. We allowed the State’s
     petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1, 2018).


¶2                                     BACKGROUND

¶3              Motions to Suppress and to Declare Statute Unconstitutional

¶4       Prior to trial, defendant filed a motion to suppress the results of blood and urine
     testing that was done against his will. Defendant contended that he did not consent
     to chemical testing of his blood and urine, the police did not have a warrant for the
     testing, and no exigent circumstances were present that would have prevented the
     police from obtaining a warrant. Accordingly, defendant alleged that the testing
     amounted to an unconstitutional search. Defendant also moved to declare section
     11-501.2(c)(2) of the Vehicle Code unconstitutional on its face and as applied to
     his case. At the relevant time, this statute provided as follows:

        “Notwithstanding any ability to refuse under this Code to submit to these tests
        or any ability to revoke the implied consent to these tests, if a law enforcement
        officer has probable cause to believe that a motor vehicle driven by or in actual
        physical control of a person under the influence of alcohol, other drug or drugs,



                                              -2-
         or intoxicating compound or compounds, or any combination thereof has
         caused the death or personal injury to another, that person shall submit, upon
         the request of a law enforcement officer, to a chemical test or tests of his or her
         blood, breath or urine for the purpose of determining the alcohol content thereof
         or the presence of any other drug or combination of both.

             This provision does not affect the applicability of or imposition of driver’s
         license sanctions under Section 11-501.1 of this Code.” 1 625 ILCS 5/11-
         501.2(c)(2) (West 2008).

     Defendant contended that this section was unconstitutional under Missouri v.
     McNeely, 569 U.S. 141 (2013), as it allowed the police to obtain chemical testing
     in the absence of a case-specific determination of exigency.

¶5       At the hearing on defendant’s motions, the parties stipulated to the following
     facts. On December 21, 2009, defendant was arrested in connection with a hit-and-
     run accident that resulted in the death of Maria Worthon and injuries to her son,
     Jeremiah. The police had probable cause for the arrest. Defendant was initially
     taken to district 24 but was eventually transferred to area 3 for processing and
     questioning. An officer informed him that he was being charged with DUI, read
     him the DUI motorist warnings, and asked defendant to take a breath test.
     Defendant refused. Defendant also refused to submit to blood and urine testing. An
     officer noted the time of the refusal at 12:05 a.m.

¶6       Defendant was left alone in the interview room until 1:37 a.m., when Officer
     Michael Deneen told him that he was going to take him to the hospital because he
     was required to give blood and urine samples. At 2:53 a.m., an officer took
     defendant to the hospital. At the hospital, defendant refused to comply with the
     blood test, and he was physically restrained by hospital security. His wrists were
     cuffed to separate rails of a hospital bed, and blood was forcibly taken from him at
     4 a.m. A nurse then asked him to provide a urine sample, and defendant refused.
     The nurse threatened to take the urine with a catheter, and she ordered a catheter at


         1
          The statute was later amended to add (1) the phrase “the law enforcement officer shall request,
     and” before the phrase “that person shall submit” and (2) “other bodily substance” to the list of
     things that may be tested. See Pub. Act 97-471 § 5 (eff. Aug. 22, 2011); Pub. Act 99-697 § 20 (eff.
     July 29, 2016); 625 ILCS 5/11-501.2(c)(2) (2018).




                                                    -3-
       4:56 a.m. When the nurse approached defendant with the catheter, defendant agreed
       to provide a urine sample. Defendant provided the sample at 5:20 a.m.

¶7         The blood and urine samples were sent to the Illinois State Police crime lab for
       analysis. The blood tested negative for alcohol or any illegal substance. The urine
       tested positive for cannabis, ecstasy, and cocaine metabolite.

¶8         The trial court denied both motions. The court found that the statute was valid
       under Schmerber v. California, 384 U.S. 757 (1966), and People v. Jones, 214 Ill.
       2d 187 (2005). In Jones, this court interpreted Schmerber as allowing compulsory
       blood testing when the police have probable cause to believe that a person has been
       driving while intoxicated. Jones, 214 Ill. 2d at 195-96. The court acknowledged the
       later authority of McNeely but found that McNeely had reasserted the validity of
       Schmerber. With respect to the motion to suppress, the court found that the totality
       of the circumstances presented a sufficient exigency that the police were justified
       in taking the blood and urine without defendant’s consent and without a warrant.


¶9                                             Trial

¶ 10       The following facts were developed at trial. Shortly before 9 p.m. on December
       21, 2009, Chicago police officers Brian Murphy and Chris Wertepny were on
       routine patrol in the Rogers Park neighborhood when they saw a green Pontiac,
       with no headlights on, traveling at a high rate of speed. The officers activated their
       emergency lights and began following the vehicle. The officers could see two
       individuals in the vehicle. The car eventually stopped, and the officers approached
       it on foot. As the officers got to the car, the driver sped away and did not stop at
       any stop signs. The officers attempted unsuccessfully to follow the vehicle but were
       able to obtain its license plate number. Officer Murphy gave a description of the
       vehicle and its license plate number to dispatch.

¶ 11       Shortly after losing sight of the vehicle, the officers came across what appeared
       to be an accident involving two pedestrians near the intersection of Greenleaf and
       Greenview Avenues. Witnesses described the vehicle that had hit the pedestrians,
       and the information matched the description of the vehicle that had fled the traffic
       stop. Two of the witnesses that approached the officers were Calvin Tanner and
       Dennis Jeter. Tanner had blood on his face.




                                               -4-
¶ 12        Shortly before 9 p.m. on that same evening, Felix Worthon went to meet his
       wife, Maria, at the bus stop. The Worthons’ six-year-old son, Jeremiah, was with
       him. After Maria got off the bus, the three of them began walking home. As they
       passed a church near Greenleaf and Greenview Avenues, they saw a man whom
       they knew from church, Maurice Glover. Maria and Jeremiah stopped to talk to
       Glover, and Felix crossed Greenview Avenue. Felix thought that he heard
       something and went back to Greenview to see what it was. As he crossed the street,
       he was almost hit by a car with no headlights on. Felix then saw the vehicle strike
       his wife and son. The car did not appear to apply the brakes at all and kept going
       after it struck Maria and Jeremiah. Felix got to Jeremiah first and found him
       bleeding from the back of the head and spitting up blood. Felix eventually found
       his wife almost a block from where he found Jeremiah. The top of Maria’s head
       was gone. Felix described her face as “unrecognizable” and testified that blood was
       coming “from everywhere.” After an ambulance arrived, Felix heard a paramedic
       tell the police that Maria was gone. Jeremiah suffered permanent injuries.

¶ 13        Maurice Glover witnessed the accident. He saw Maria and Jeremiah cross the
       street between two parked cars, and he also saw a dark car without its headlights on
       coming down the street. He estimated that the car was going 80 to 90 miles per
       hour. He heard a scream and a boom. He saw Maria’s body come down out of the
       air, and gray matter and parts of her brain landed on the street. The car that hit her
       never stopped.

¶ 14       Madeline Moratto and Alex Montejo also witnessed the accident. They were
       walking down Greenview Avenue on the sidewalk. Moratto described the area as a
       quiet residential neighborhood, and she said there were a few other people out
       walking at the time. After they passed the Worthon family on the sidewalk, they
       heard the sound of a car’s engine revving and tires squealing. They heard the sound
       of a loud impact and then saw a woman flipping head over heels in the air. Moratto
       estimated that the woman was thrown 30 feet in the air. The woman’s body landed
       approximately 100 feet from where it was hit. Moratto saw a dark sedan with its
       headlights off keep driving past the body at about 80 miles per hour. The car did
       not stop at the stop sign at the intersection of Greenview and Greenleaf. Montejo
       described seeing a woman smashed up against the passenger side of a car’s
       windshield before she was thrown through the air. The car’s headlights were off,
       and it never slowed down or stopped. The woman’s body was thrown high enough




                                               -5-
       that it went through the tree branches. Montejo estimated the car’s speed at about
       60 to 70 miles per hour.

¶ 15       Officers Jennifer Escher, Scott Pierson, and Patrick McHugh were on patrol
       when they received a radio call about a hit-and-run accident involving a green
       Pontiac. Escher saw the Pontiac in an alleyway and approached it at 50 miles per
       hour. The Pontiac sped away, and Escher lost sight of it. The three officers all saw
       the Pontiac on Newgard Avenue. Pierson drove his squad car in front of the Pontiac.
       Pierson approached the car on foot, following which the Pontiac went into reverse,
       lost control, and started “ping-ponging” off parked cars. Defendant jumped out of
       the Pontiac and attempted to flee on foot, but he was apprehended by Officer John
       Ventrella and taken into custody at 9:05 p.m.

¶ 16       Calvin Tanner testified that he was the passenger in the car with defendant when
       the collision occurred. Defendant is friends with Tanner and Tanner’s cousin,
       Dennis Jeter. On December 21, 2009, defendant drove Calvin in Dennis’s 1998
       green Pontiac to the home of Tanner’s grandmother, where they met Dennis. Calvin
       and Dennis drank alcohol at the house but claimed not to have seen whether
       defendant was drinking. Jeter testified that he assumed that defendant was drinking.

¶ 17       Later that night, defendant borrowed Jeter’s car and took Tanner to pick up a
       futon on the north side, near Tanner’s new apartment. When they approached
       Jonquil Terrace and Greenview Avenue, defendant pulled over because they heard
       an ambulance. He continued driving, and as he approached Greenview and
       Greenleaf Avenues, there was a U-Haul in front of a church. Defendant hit
       something, and Tanner told him, “I hope you didn’t do what I thought you did.”
       Tanner hoped it was a parked car that defendant hit but feared that it was a person.
       The collision caused the front windshield to shatter, and Tanner had glass and blood
       in his mouth. Tanner testified that defendant had been driving fast and that he had
       told defendant to slow down. At trial, he claimed that the fast driving occurred on
       the expressway. But in his statement to a prosecutor and in his grand jury testimony,
       Tanner stated that defendant had been driving fast in a residential area. Tanner
       testified before the grand jury that defendant was driving around 50 to 60 miles per
       hour. Tanner denied that he told the police that there was no obstruction in the area
       and insisted that he had mentioned a parked U-Haul. Tanner had said in his
       statement to the prosecutor that defendant was driving at a high rate of speed, and




                                               -6-
       Tanner was afraid he was going to get hurt. He said that when he told defendant
       that he hoped he didn’t hit what he thought he hit, defendant replied, “It’s too late.”
       At trial, Tanner acknowledged that he was allowed to review his statement to the
       prosecutor but said that he did not know how to read or write and that the police
       had pressured him to cooperate.

¶ 18        After the collision, Tanner got defendant to stop the car and let him out. Tanner
       asked defendant to go back to the scene of the accident with him, but defendant
       refused. Defendant drove away without him. Tanner called Jeter and told him that
       his car had been wrecked. Jeter testified that, when Tanner called him to tell him
       that defendant had had an accident in Jeter’s car, Tanner sounded hyper, scared,
       and startled. Jeter met up with Tanner, and Tanner had glass and blood on his face.
       Tanner and Jeter went to the scene of the accident and saw that someone had been
       hit. Tanner told the police that he had been a passenger in the car.

¶ 19       Officer Ventrella took defendant to the police station. At midnight, Ventrella
       found defendant asleep in the interview room. Ventrella woke him up, and
       defendant refused to take a breath test or to provide blood or urine samples. At 2:57
       a.m.,2 Ventrella and a fellow officer took defendant to Louis A. Weiss Memorial
       Hospital to have his blood and urine tested. A nurse attempted to draw blood from
       defendant, and he became combative and refused to comply with the test. Before
       that, defendant had been carefree and was making jokes, and Ventrella noticed an
       odor of alcohol emanating from him. Ventrella testified that defendant seemed
       unaffected by the whole incident. Because defendant refused to comply with the
       test, Ventrella told him that they would have to hold him down. Additional security
       officers came into defendant’s room, and he was handcuffed to the bed. The officers
       held defendant’s arm down, and the nurse drew blood at 4:10 a.m. Defendant also
       refused to provide a urine sample, and the nurse told him he would be catheterized
       if he did not comply. Defendant finally gave the sample at 5:20 a.m. Defendant was
       then taken back to the interview room at the police station. Defendant told Ventrella
       that he needed to use the restroom and explained that he had been drinking a fifth
       of Hennessy earlier.

¶ 20       Defendant’s blood tested negative for drugs or alcohol. His urine, however,
       tested positive for cannabis and its metabolite, ecstasy and its metabolite, and

          2
           In the stipulation of facts, the time was listed as 2:53 a.m.




                                                       -7-
       cocaine metabolite. A forensic toxicologist testified that the body converts drugs to
       metabolites as part of the metabolic process.

¶ 21       Defendant testified on his own behalf. Defendant denied being the driver on the
       night of the crash. According to defendant, Jeter had called him and asked him to
       return his car so that Jeter and Tanner could go get a futon. Defendant dropped off
       the car at Jeter’s grandmother’s house and then hung out there with Jeter and
       Tanner. Defendant drank from a pint of Hennessy that he brought with him.
       Defendant testified that Jeter and Tanner asked him to hold Jeter’s parking spot
       while they went to pick up the futon. While he was standing in the parking spot, he
       received a call from Tanner, who said he had just been in an accident. Defendant
       asked where Tanner was and began walking in that direction. When defendant saw
       the police, he ran because he was carrying cannabis. The police chased and arrested
       him. On cross-examination, defendant admitted to drinking a quart of Hennessy
       earlier in the day. He denied smoking marijuana on the day in question. He said
       they had planned to smoke some later, after Jeter and Tanner had picked up the
       futon. Defendant said that he had not smoked marijuana for “probably a week
       almost.” Defendant said that he had taken ecstasy two days before the incident. He
       denied using cocaine and explained that the cocaine that showed up in his system
       must have been mixed in with the ecstasy.

¶ 22       Defendant asked that the jury be instructed on reckless homicide, which
       defendant contended was the appropriate charge in this case. Focusing primarily on
       the speed of the vehicle and the severity of the impact with Maria Worthon and that
       the accident took place in a highly populated area, the trial court denied the
       instruction. The court explained that there was not sufficient evidence of
       recklessness and that “[i]t’s an issue of first degree murder or not guilty.”

¶ 23       The jury convicted defendant of first degree murder, aggravated DUI, and
       failure to report a motor vehicle accident involving death or injury. The trial court
       sentenced defendant to consecutive prison terms of 30, 6, and 4 years, respectively.

¶ 24        Defendant appealed, raising four issues: (1) he was entitled to a new trial on
       first degree murder because the trial court erred in refusing to instruct the jury on
       reckless homicide, (2) the State failed to prove beyond a reasonable doubt that he
       failed to report the accident at a police station within half an hour, (3) his
       aggravated DUI conviction had to be reversed because the warrantless



                                               -8-
       nonconsensual testing of his blood and urine was an unconstitutional search, and
       (4) he was denied a fair trial by the prosecutor’s repeated misstatements of fact and
       attempts to inflame the jurors’ emotions.

¶ 25       The appellate court agreed with defendant that the trial court should have
       instructed the jury on reckless homicide. The court explained that the primary
       distinction between reckless homicide and first degree murder is the defendant’s
       mental state and noted that this court had held in People v. DiVincenzo, 183 Ill. 2d
       239, 253 (1998), that “inferences as to [a] defendant’s mental state are a matter
       particularly within the province of the jury.” (Internal quotation marks omitted.)
       2017 IL App (1st) 142837, ¶ 34. The court relied heavily on this court’s decision
       in People v. Belk, 203 Ill. 2d 187 (2003), in which the defendant drove under the
       influence of alcohol at over 100 miles per hour through an area with many
       restaurants and other establishments open for business. The defendant crashed into
       another vehicle and killed both of its occupants. Id. at 190. This court reduced the
       defendant’s felony murder conviction to reckless homicide because the defendant’s
       act of stealing the van was not a “forcible felony.” Id. at 195-96. This court held
       that evidence that the intoxicated defendant drove at an excessive rate of speed
       through an area where he was likely to encounter pedestrians or other vehicles
       supported an inference that the defendant “acted recklessly and contemplated that
       in attempting to elude police he was likely to cause death or great bodily harm.” Id.
       at 195. This court explained that such an inference clearly supported a reckless
       homicide conviction. Id. Here, the appellate court found the present case
       sufficiently similar to Belk that, if such an inference supported a reckless homicide
       conviction there, it would also support one here. 2017 IL App (1st) 142837, ¶ 37.
       Accordingly, the court reversed defendant’s first degree murder conviction and
       remanded for a new trial. Id. ¶ 41.

¶ 26       Next, the appellate court considered defendant’s argument that his conviction
       for failure to report the accident within 30 minutes had to be reversed. It is a Class
       1 felony for a driver to flee the scene of a motor vehicle accident resulting in death
       and fail to report the accident at a police station or sheriff’s office within half an
       hour. See 625 ILCS 5/11-401(b), (d) (West 2008). The court noted, however, that
       defendant was arrested and taken into police custody less than 10 minutes after the
       accident occurred. Because a defendant’s postarrest silence is not admissible in the
       State’s case-in-chief (see People v. Simmons, 293 Ill. App. 3d 806, 811 (1998)), the




                                               -9-
       court held that the State could not establish that defendant failed to report the
       accident within half an hour. The court thus reduced defendant’s conviction from
       the Class 1 version of the offense to the Class 4 version, which provides that a driver
       must stop at the scene of the accident and remain there until the requirements of
       section 11-403 of the Vehicle Code have been fulfilled3 (see 625 ILCS 5/11-401(a),
       (c) (West 2008)). 2017 IL App (1st) 142837, ¶ 49.

¶ 27        Finally, the court agreed with defendant that section 11-501.2(c)(2) is facially
       unconstitutional under McNeely. The court explained that the United States
       Supreme Court in McNeely had declined to adopt an approach that a per se
       exigency exists in every DUI case because of the dissipation of alcohol in the blood.
       Id. ¶ 59. Rather, the Supreme Court held that exigency must be determined under a
       totality-of-the-circumstances approach on a case-by-case basis. Id. The appellate
       court thus held that section 11-501.2(c)(2) is unconstitutional on its face because it
       allows compelled chemical testing without a warrant in every case in which a
       person drives under the influence and causes injury or death. Id. ¶ 66. The court
       further noted that the State had not demonstrated exigent circumstances, as
       defendant was taken into custody at 9:05 p.m. and told he was under arrest at 12
       a.m. but not taken to the hospital for testing until 2:57 a.m. The court stated that
       “[n]othing in the record indicates that Ventrella or another officer could not have
       obtained a warrant in that three-hour period.” Id. ¶ 67. Accordingly, the court
       reversed defendant’s aggravated DUI conviction outright, as the State conceded
       that there was insufficient evidence to sustain the conviction without it. Id. ¶ 74.
       The court further ordered that the evidence be excluded at defendant’s new trial on
       first degree murder charges. Id. Because of the way it resolved these three issues,
       the court declined to address defendant’s arguments about prosecutorial
       misconduct. Id. ¶ 77.

¶ 28       Justice Pucinski dissented. The dissent contended that defendant was not
       entitled to a new trial on first degree murder. According to the dissent, defendant’s
       denial that he was involved in the accident precluded him from obtaining a lesser
       included offense instruction. Id. ¶ 81 (Pucinski, J., dissenting). Because defendant
       claimed that he was not the driver of the car, the dissent argued that he could not

           3
             Section 11-403 requires a driver involved in an accident that causes injury or death to render
       aid to anyone injured in the accident and to give certain information such as his name, address,
       registration number, and the name of the vehicle’s owner. See 625 ILCS 5/11-403 (West 2008).




                                                     - 10 -
       request a reckless homicide instruction. Id. ¶ 82. Next, the dissent disagreed with
       the majority’s decision to reduce the class of defendant’s failure-to-report
       conviction. The dissent noted that defendant had not made a self-incrimination
       argument and contended that the majority erred in making such an argument for
       him. Id. ¶ 109. Defendant had argued that the State did not prove that he failed to
       make a timely report, and the dissent explained that the jury could have easily
       inferred that defendant made no such report, as defendant had consistently denied
       even being at the scene of the accident. Id. ¶¶ 110-11. On the blood draw issue, the
       dissent would have found that defendant was subjected to an unconstitutional
       search because the police had ample opportunity to obtain a warrant but had not
       done so. Id. ¶ 120. The dissent argued,

           “There are about 400 judges in Cook County. The State’s Attorney’s felony
           review unit operates 24 hours per day, seven days per week. It is simply not
           credible that the police could not find some way to find a judge to hear the
           question of the warrant between 9:05 p.m., when defendant was arrested, and
           4:10 a.m., when the blood was drawn with force, and 5:20 a.m., when the urine
           sample was collected under pressure.” Id.

       The dissent believed that it was unnecessary to decide whether section 11-
       501.2(c)(2) is unconstitutional. Id. ¶ 119.


¶ 29                                             ANALYSIS

¶ 30                        I. Constitutionality of Blood and Urine Testing

¶ 31       The State originally made two arguments with respect to the appellate court’s
       suppression of the blood and urine test results. First, citing the principle of
       constitutional avoidance, the State contended that the appellate court majority erred
       in addressing the constitutionality of section 11-501.2(c)(2). Because the court
       found that the warrantless search of defendant was unconstitutional under McNeely
       in that it was conducted without defendant’s consent and in the absence of exigent
       circumstances, the State argued that the court should have ended its analysis there
       without addressing the facial constitutionality of the statute. 4 Second, the State

           4
            The State originally did not dispute that the search was conducted in violation of defendant’s
       fourth amendment rights.




                                                     - 11 -
       argued that, if this court does address the constitutionality of section 11-501.2(c)(2),
       it should find it unconstitutional as applied to defendant instead of facially
       unconstitutional. The State argued that the statute is not invalid in all its
       applications and, therefore, it is not facially unconstitutional. According to the
       State, the statute could be validly applied in three situations: when the police have
       a warrant, when the defendant consented to the chemical testing, or when exigent
       circumstances are present.

¶ 32       Following oral argument, this court ordered the parties to file supplemental
       briefs addressing the relevance of two United States Supreme Court opinions:
       Mitchell v. Wisconsin, 588 U.S. ___, 139 S. Ct. 2525 (2019) (plurality opinion) (the
       most recent United States Supreme Court case involving the constitutionality of
       warrantless blood draws in DUI cases), and City of Los Angeles v. Patel, 576 U.S.
       ___, 135 S. Ct. 2443 (2015) (giving guidance on how to analyze facial challenges
       under the fourth amendment). In its supplemental brief, the State withdraws its
       concession that defendant’s fourth amendment rights were violated. Based on the
       reasoning in Mitchell, the State contends that the testing of defendant’s blood and
       urine was valid under the exigent circumstances exception to the warrant
       requirement. The State now argues that this court should address the
       constitutionality of section 11-501.2(c)(2) and find it facially valid. The State
       withdraws its argument that the statute can be validly applied when the police have
       a warrant but maintains its argument that section 11-501.2(c)(2) is validly applied
       when the defendant consents to the search or when exigent circumstances are
       present.

¶ 33       When reviewing the trial court’s ruling on a motion to suppress evidence, we
       ordinarily apply a two-part standard of review. People v. Grant, 2013 IL 112734,
       ¶ 12. We will reverse the trial court’s factual findings only if they are against the
       manifest weight of the evidence, but we review de novo the trial court’s ultimate
       ruling on whether the evidence should be suppressed. Id. Here, the trial court was
       not required to engage in fact finding or to make credibility determinations because
       the parties elected to proceed by way of stipulated facts. Thus, we need only
       consider the trial court’s application of the law to undisputed facts. Accordingly,
       de novo review is appropriate. See People v. Ceja, 204 Ill. 2d 332, 347 (2003); see
       also People v. Coats, 269 Ill. App. 3d 1008, 1012 (1995) (de novo review is




                                                - 12 -
       appropriate when parties proceeded by way of stipulated facts at hearing on motion
       to suppress).

¶ 34        The constitutionality of a statute is also a question that we review de novo.
       People v. Madrigal, 241 Ill. 2d 463, 466 (2011). A party bringing a facial challenge
       to a statute faces a particularly heavy burden. People v. Rizzo, 2016 IL 118599,
       ¶ 24. Demonstrating that the statute could be found unconstitutional under some set
       of circumstances does not establish its facial unconstitutionality. Oswald v. Hamer,
       2018 IL 122203, ¶ 40. Rather, a statute will be found facially unconstitutional only
       if there is no set of circumstances under which the statute would be valid. People
       v. Gray, 2017 IL 120958, ¶ 58. If it is reasonably possible to construe the statute in
       a manner that preserves its constitutionality, we have a duty to do so. People v.
       Hollins, 2012 IL 112754, ¶ 13.


¶ 35                                         A. McNeely

¶ 36       The appellate court’s facial invalidation of section 11-501.2(c)(2) was based on
       McNeely, 569 U.S. 141. In McNeely, the Supreme Court resolved a conflict over
       how to interpret Schmerber, 384 U.S. 757. In Schmerber, the defendant was taken
       to the hospital to receive treatment for injuries he suffered during a traffic accident.
       Id. at 758.While at the hospital, he was arrested for driving under the influence of
       alcohol. Id. On the advice of counsel, the defendant refused to submit to a blood
       test. Id. at 759. A police officer then ordered a physician to withdraw a blood
       sample. Id. at 758. At trial, the defendant objected to the admission of the test results
       on several grounds, including that he had been subjected to an unlawful search in
       violation of the fourth amendment. Id. at 759.

¶ 37       The Supreme Court acknowledged that the withdrawal of the defendant’s blood
       in these circumstances constituted a search under the fourth amendment. Id. at 767.
       The Court noted that the police had probable cause for the arrest and the same facts
       that established probable cause suggested the relevance and likely success of a
       blood alcohol test. Id. at 770. However, in the absence of an emergency, a warrant
       was required before the police could draw defendant’s blood. Id. The Court then
       explained that the police were facing such an emergency:




                                                - 13 -
              “The officer in the present case, however, might reasonably have believed
          that he was confronted with an emergency, in which the delay necessary to
          obtain a warrant, under the circumstances, threatened ‘the destruction of
          evidence,’ Preston v. United States, 376 U. S. 364, 367. We are told that the
          percentage of alcohol in the blood begins to diminish shortly after drinking
          stops, as the body functions to eliminate it from the system. Particularly in a
          case such as this, where time had to be taken to bring the accused to a hospital
          and to investigate the scene of the accident, there was no time to seek out a
          magistrate and secure a warrant. Given these special facts, we conclude that the
          attempt to secure evidence of blood-alcohol content in this case was an
          appropriate incident to petitioner’s arrest.” Id. at 770-71.

¶ 38        A conflict then developed in the courts over whether Schmerber stood for the
       proposition that the dissipation of alcohol in the blood was a per se exigency that
       allowed the police to take a blood sample in every case in which they had probable
       cause to suspect someone of driving under the influence of alcohol. This court
       implicitly read Schmerber as approving a per se exigency. In People v. Todd, 59
       Ill. 2d 534, 544 (1975), this court stated that,

          “[s]ince Schmerber v. California[, 384 U.S. 757 (1966)], it is clear that a
          compulsory blood test does not violate any constitutional rights of an individual
          merely because he objected to such tests. Further, the absence of a formal arrest
          may not taint a limited search, given probable cause and evidence that may
          dissipate.”

       In Jones, this court described Schmerber’s holding as follows:

          “[T]he taking of a blood sample without the defendant’s consent or a search
          warrant was a ‘reasonable’ search under the fourth amendment where there was
          probable cause to believe the defendant was intoxicated, and the delay caused
          by obtaining a search warrant might have resulted in loss of evidence of the
          defendant’s intoxication, given the natural dissipation of the alcohol in the
          defendant’s blood.” Jones, 214 Ill. 2d at 195.

       Other states held that Schmerber did not stand for the proposition that the natural
       dissipation of alcohol in the blood was a per se exigency. These courts held that the
       finding of exigency in Schmerber was based on the specific facts in that case and




                                              - 14 -
       that the dissipation of alcohol in the blood was only one of several factors
       supporting the determination of exigency. See, e.g., State v. Johnson, 744 N.W.2d
       340, 344 (Iowa 2008); State v. Rodriguez, 2007 UT 15, ¶¶ 30-31, 156 P.3d 771.

¶ 39       In McNeely, the Supreme Court endorsed the latter interpretation. In that case,
       the defendant was stopped after a police officer observed him speeding and
       repeatedly crossing the centerline. McNeely, 569 U.S. at 145. The officer observed
       signs of intoxication, and the defendant admitted that he had been drinking. Id.
       After performing poorly on field sobriety tests, the defendant refused to submit to
       a breath test. Id. The officer arrested the defendant and began to transport him to
       the police station. Id. However, when the defendant stated that he would still refuse
       to give a breath test at the station, the officer changed course and took the defendant
       to the hospital for blood testing. Id. at 145-46. At the hospital, the defendant refused
       to consent to the blood sample, and the officer ordered a lab technician to take it
       anyway. Id. at 146. The sample was drawn approximately half an hour after the
       defendant had been stopped for the traffic violation. Id. The officer had not
       attempted to get a warrant. Id.

¶ 40       The defendant was charged with driving while intoxicated, and he moved to
       suppress the results of the blood test. Id. The trial court agreed with the defendant
       that his fourth amendment rights had been violated because the warrantless search
       was not supported by exigent circumstances. Id. The Missouri Supreme Court
       affirmed, holding that Schmerber “ ‘requires more than the mere dissipation of
       blood-alcohol evidence to support a warrantless blood draw in an alcohol-related
       case.’ ” Id. at 147 (quoting State v. McNeely, 358 S.W.3d 65, 74 (Mo. 2012)).

¶ 41       The Supreme Court affirmed the Missouri Supreme Court’s decision, holding
       that, “in drunk-driving investigations, the natural dissipation of alcohol in the
       bloodstream does not constitute an exigency in every case sufficient to justify
       conducting a blood test without a warrant.” McNeely, 569 U.S. at 165. The Court
       explained that, when determining whether exigent circumstances exist to justify
       dispensing with a warrant, courts must examine the totality of the circumstances.
       Id. at 149-50. The Court explained that it had not dispensed with the totality-of-the-
       circumstances approach in Schmerber. Id. at 150-51. Rather, Schmerber’s holding
       was based on the “special facts” before the Court, and the determination of
       exigency was based on other factors in addition to the dissipation of alcohol in the




                                                - 15 -
       blood, such as the fact that time had to be taken to bring the accused to the hospital
       and to investigate the scene of an accident. Id. at 151.

¶ 42       After dispensing with the argument that Schmerber had created a per se rule
       that exigent circumstances exist whenever a person is suspected of driving under
       the influence, the Court declined the State of Missouri’s request that they adopt
       such a rule in the case before it. Rather, the Court held that, “[i]n those drunk-
       driving investigations where police officers can reasonably obtain a warrant before
       a blood sample can be drawn without significantly undermining the efficacy of the
       search, the Fourth Amendment mandates that they do so.” Id. at 152. The Court
       noted that there will usually be some delay before testing may be done because of
       the need to transport the defendant to a medical facility for testing. Accordingly,
       there will be situations where the warrant process will not delay testing because one
       officer can attempt to obtain a warrant while another is transporting the defendant
       to the medical facility. Id. at 153. The Court further explained that the State’s
       proposed per se rule failed to take into account how streamlined the warrant process
       had become in the 47 years since Schmerber was decided, both because of standard-
       form warrant applications for drunk-driving investigations and technological
       advances allowing remote requests for warrants. Id. at 154-55. Three years later in
       Birchfield v. North Dakota, 579 U.S. ___, ___, 136 S. Ct. 2160, 2180 (2016), the
       Supreme Court reiterated that the exigent circumstances exception to the warrant
       requirement “always requires case-by-case determinations.”

¶ 43       Defendant argued in the appellate court that section 11-501.2(c)(2) was
       unconstitutional both facially and as applied. The appellate court acknowledged
       this (2017 IL App (1st) 142837, ¶ 51) but addressed only the facial challenge. In its
       original brief to this court, the State acknowledged that the statute contained an
       impermissible per se exigency. However, the State argued that the appellate court
       had erred in holding that it was unconstitutional on its face. The State contended
       that the statute was not invalid in all its applications but rather could be validly
       applied in three circumstances: when the police have a warrant, when the defendant
       consents to the blood draw, and when exigent circumstances are present. Thus, the
       State asked that we find the statute unconstitutional only as applied to this
       defendant.




                                               - 16 -
¶ 44                                           B. Patel

¶ 45       Neither the State nor defendant addressed City of Los Angeles v. Patel, 576 U.S.
       ___, 135 S. Ct. 2443, in their original briefs. In Patel, the Supreme Court gave
       guidance on how to analyze facial challenges under the fourth amendment. Patel
       involved a facial challenge to a Los Angeles Municipal Code provision that
       required hotel operators to allow the police to search their guest registers. Pursuant
       to a different provision of the code, Los Angeles requires hotel operators to record
       certain information about their guests. Id. at ___, 135 S. Ct. at 2447-48. The
       Los Angeles Municipal Code section at issue—section 41.49(3)(a)—required that
       these guest records “ ‘be made available to any officer of the Los Angeles Police
       Department for inspection.’ ” Id. at ___, 135 S. Ct. at 2448 (quoting Los Angeles
       Municipal Code § 41.49(3)(a) (eff. Mar. 8, 2008)). The section further provided
       that “ ‘[w]henever possible, the inspection shall be conducted at a time and in a
       manner that minimizes any interference with the operation of the business.’ ” Id. at
       ___, 135 S. Ct. at 2448 (quoting Los Angeles Municipal Code § 41.49(3)(a) (eff.
       Mar. 8, 2008)). No showing of probable cause was required before police could ask
       to search the records. Failure to comply with such a request would be a
       misdemeanor punishable by up to six months in jail and a $1000 fine. Id. at ___,
       135 S. Ct. at 2448. A group of motel operators and a lodging association sought
       declaratory and injunctive relief, arguing that section 41.49(3)(a) was facially
       unconstitutional under the fourth amendment. Id. at ___, 135 S. Ct. at 2448. The
       city prevailed in the trial court and in the Ninth Circuit. Patel v. City of Los Angeles,
       686 F.3d 1085 (9th Cir. 2012). However, after the Ninth Circuit reheard the case
       en banc, it held the statute facially unconstitutional. Patel, 576 U.S. at ___, 135 S.
       Ct. at 2448; see Patel v. City of Los Angeles, 738 F.3d 1058 (9th Cir. 2013)
       (en banc).

¶ 46       The Supreme Court granted certiorari to answer two questions: (1) whether
       facial challenges may be brought under the fourth amendment and, if so,
       (2) whether section 41.49(3)(a) is facially unconstitutional. Id. at ___, 135 S. Ct. at
       2447. The Court answered both questions in the affirmative. The Court first
       explained that “facial challenges under the Fourth Amendment are not categorically
       barred or especially disfavored.” Id. at ___, 135 S. Ct. at 2449. The Court explained
       that, following its decision in Sibron v. New York, 392 U.S. 40 (1968), some courts
       had concluded that facial challenges may not be brought under the fourth




                                                - 17 -
       amendment, based on Sibron’s statement that “ ‘[t]he constitutional validity of a
       warrantless search is pre-eminently the sort of question which can only be decided
       in the concrete factual context of the individual case.’ ” Patel, 576 U.S. at ___, 135
       S. Ct. at 2449 (quoting Sibron, 392 U.S. at 59). The Patel Court rejected this reading
       of Sibron and listed several cases in which it had entertained facial challenges under
       the fourth amendment to statutes authorizing warrantless searches. Id. at ___, 135
       S. Ct. at 2450. The Court further noted several instances in which it had declared
       statutes facially invalid under the fourth amendment. Id. at ___, 135 S. Ct. at 2450.

¶ 47       The Court then addressed the City’s argument that statutes authorizing
       warrantless searches will never satisfy the requirement for a successful facial
       challenge that the law must be invalid in all its applications. The City pointed to
       situations in which the police have a warrant, when the subject of the search
       consents to the search, and when the police are responding to an emergency. Id. at
       ___, 135 S. Ct. at 2450-51. The Court noted that acceptance of the City’s argument
       would necessarily preclude facial invalidation under the fourth amendment of every
       statute authorizing warrantless searches. The City’s argument thus could not be
       correct, as the Court’s precedents showed that facial challenges to statutes
       authorizing warrantless searches have succeeded. Id. at ___, 135 S. Ct. at 2451.

¶ 48       The Court then explained that the City had misunderstood what it meant for a
       law to be unconstitutional in all its applications. The Court said that, “when
       assessing whether a statute meets the standard, the Court has considered only
       applications of the statute in which it actually authorizes or prohibits conduct” (id.
       at ___, 135 S. Ct. at 2451) and that the proper focus is on “ ‘the group for whom
       the law is a restriction, not the group for whom the law is irrelevant’ ” (id. at ___,
       135 S. Ct. at 2451 (quoting Planned Parenthood of Southeastern Pennsylvania v.
       Casey, 505 U.S. 833, 894 (1992))). The Court then explained that the examples that
       the City had given would not involve applications of the statute:

              “Similarly, when addressing a facial challenge to a statute authorizing
          warrantless searches, the proper focus of the constitutional inquiry is searches
          that the law actually authorizes, not those for which it is irrelevant. If exigency
          or a warrant justifies an officer’s search, the subject of the search must permit
          it to proceed irrespective of whether it is authorized by statute. Statutes
          authorizing warrantless searches also do no work where the subject of a search




                                               - 18 -
          has consented. Accordingly, the constitutional ‘applications’ that petitioner
          claims prevent facial relief here are irrelevant to our analysis because they do
          not involve actual applications of the statute.” Id. at ___, 135 S. Ct. at 2451.

       The Court ultimately held the statute facially unconstitutional because it did not
       afford hotel operators an opportunity for precompliance review. Id. at ___, 135 S.
       Ct. at 2451. The Court had previously explained that, “absent consent, exigent
       circumstances, or the like, in order for an administrative search to be constitutional,
       the subject of the search must be afforded an opportunity to obtain precompliance
       review before a neutral decisionmaker.” Id. at ___, 135 S. Ct. at 2452.


¶ 49                                        C. Mitchell

¶ 50       While the present case was pending before us, the Supreme Court decided
       Mitchell v. Wisconsin, 588 U.S. ___, 139 S. Ct. 2525. The question in Mitchell was
       whether the police could conduct a warrantless blood test of an unconscious DUI
       suspect. In Birchfield, the Supreme Court had held that a warrantless breath test
       could be administered as a search incident to an arrest of a DUI suspect but a
       warrantless blood test could not. Birchfield, 579 U.S. at ___, 136 S. Ct. at 2185.
       The difference is that breath tests “do not ‘implicat[e] significant privacy
       concerns’ ” (id. at ___, 136 S. Ct. at 2176 (quoting Skinner v. Railway Labor
       Executives’ Ass’n, 489 U.S. 602, 626 (1989))), while blood tests are considered
       “ ‘significant bodily intrusions’ ” (id. at ___, 136 S. Ct. at 2178 (quoting McNeely,
       569 U.S. at 174 (Roberts, C.J., concurring in part and dissenting in part, joined by
       Breyer and Alito, JJ.))).

¶ 51       Mitchell presented the problem of a driver suspected of DUI who could not be
       administered a breath test because he was unconscious. Wisconsin has a statute that
       permits the testing of unconscious DUI suspects on the basis that they have not
       withdrawn statutory implied consent. The statute provides that a “ ‘person who is
       unconscious or otherwise not capable of withdrawing consent is presumed not to
       have’ withdrawn it.” Mitchell, 588 U.S. at ___, 139 S. Ct. at 2532 (quoting Wis.
       Stat. § 343.305(3)(b) (2013-14)). The Court noted that more than half the states




                                               - 19 -
       have similar statutes.5 Id. at ___, 139 S. Ct. at 2532. In the state courts, Wisconsin
       argued that compliance with the implied-consent law rendered the blood test
       consensual and thus valid under the fourth amendment. Id. at ___, 139 S. Ct. at
       2532. The Supreme Court granted certiorari to decide “ ‘[w]hether a statute
       authorizing a blood draw from an unconscious motorist provides an exception to
       the Fourth Amendment warrant requirement.’ ” Id. at ___, 139 S. Ct. at 2532.

¶ 52      The Supreme Court declined to resolve the case on the basis that the driver had
       consented to the blood draw. The Court explained:

           “ ‘Our prior opinions have referred approvingly to the general concept of
           implied-consent laws that impose civil penalties and evidentiary consequences
           on motorists who refuse to comply.’ Birchfield, 579 U.S., at –––– (slip op., at
           36). But our decisions have not rested on the idea that these laws do what their
           popular name might seem to suggest—that is, create actual consent to all the
           searches they authorize.” Id. at ___, 139 S. Ct. at 2532-33.

       Instead, the Court resolved the case on the basis of exigent circumstances. The
       Court did so even though Wisconsin had not argued at any level that exigent
       circumstances were present and indeed had affirmatively conceded that it was not
       relying on exigent circumstances. Id. at ___, 139 S. Ct. at 2545 (Sotomayor, J.,
       dissenting, joined by Ginsburg and Kagan, JJ.).

¶ 53       The Court first explained that there is a compelling need for a blood test of
       drunk-driving suspects when the driver’s condition renders a breath test impossible.
       Id. at ___, 139 S. Ct. at 2537. The Court then stated that most cases involving an
       unconscious driver will be controlled by Schmerber. Id. at ___, 139 S. Ct. at 2537.
       The Court read Schmerber as standing for the proposition that

           “exigency exists when (1) [blood alcohol content (BAC)] evidence is
           dissipating and (2) some other factor creates pressing health, safety, or law




           5
             Illinois is one of these states. See 625 ILCS 5/11-501.1(b) (West 2008) (“Any person who is
       dead, unconscious, or who is otherwise in a condition rendering the person incapable of refusal,
       shall be deemed not to have withdrawn the consent provided by paragraph (a) of this Section and
       the test or tests may be administered, subject to the provisions of Section 11-501.2.”).




                                                    - 20 -
          enforcement needs that would take priority over a warrant application.” Id. at
          ___, 139 S. Ct. at 2537.

       The Court explained that both factors will be present when the police are faced with
       an unconscious DUI suspect. Id. at ___, 139 S. Ct. at 2537.

¶ 54      The Court explained how Schmerber’s test for exigency applied to a situation
       involving an unconscious DUI suspect:

              “In Schmerber, the extra factor giving rise to urgent needs that would only
          add to the delay caused by a warrant application was a car accident; here it is
          the driver’s unconsciousness. Indeed, unconsciousness does not just create
          pressing needs; it is itself a medical emergency. It means that the suspect will
          have to be rushed to the hospital or similar facility not just for the blood test
          itself but for urgent medical care. Police can reasonably anticipate that such a
          driver might require monitoring, positioning, and support on the way to the
          hospital; that his blood may be drawn anyway, for diagnostic purposes,
          immediately on arrival; and that immediate medical treatment could delay (or
          otherwise distort the results of) a blood draw conducted later, upon receipt of a
          warrant, thus reducing its evidentiary value. [Citation.] All of that sets this case
          apart from the uncomplicated drunk-driving scenarios addressed in McNeely.
          Just as the ramifications of a car accident pushed Schmerber over the line into
          exigency, so does the condition of an unconscious driver bring his blood draw
          under the exception. In such a case, as in Schmerber, an officer could
          ‘reasonably have believed that he was confronted with an emergency.’ 384
          U. S., at 770.” (Emphasis omitted.) Id. at ___, 139 S. Ct. at 2537-38.

       The Court explained that an unconscious DUI suspect presents “just the kind of
       scenario for which the exigency rule was born.” Id. at ___, 139 S. Ct. at 2538.

¶ 55       The Court was careful to note, however, that it was not departing from the
       totality-of-the-circumstances approach to determining exigent circumstances. The
       Court explained that, although a totality-of-the-circumstances approach must be
       used to determine exigency, the circumstances in drunk driving cases are often
       typical, and thus the Court may set forth “general rules” for the police to follow. Id.
       at ___, 139 S. Ct. at 2535 n.3. Accordingly, the Court stopped short of saying that




                                               - 21 -
exigent circumstances are always present when the police are faced with an
unconscious drunk driving suspect:

        “When police have probable cause to believe a person has committed a
    drunk-driving offense and the driver’s unconsciousness or stupor requires him
    to be taken to the hospital or similar facility before police have a reasonable
    opportunity to administer a standard evidentiary breath test, they may almost
    always order a warrantless blood test to measure the driver’s BAC without
    offending the Fourth Amendment. We do not rule out the possibility that in an
    unusual case a defendant would be able to show that his blood would not have
    been drawn if police had not been seeking BAC information, and that police
    could not have reasonably judged that a warrant application would interfere
    with other pressing needs or duties. Because Mitchell did not have a chance to
    attempt to make that showing, a remand for that purpose is necessary.”
    (Emphasis added.) Id. at ___, 139 S. Ct. at 2539.6

Thus, Mitchell makes clear that, although the determination of exigent
circumstances requires a totality-of-the-circumstances approach, courts may
identify “general rules” that will apply in most cases. One of these “general rules”
is that exigency will exist when BAC is dissipating and “some other factor creates
pressing health, safety, or law enforcement needs that would take priority over a
warrant application.” Id. at ___, 139 S. Ct. at 2537. Two such factors have been
expressly identified: (1) when there has been a traffic accident causing personal
injury (Schmerber) and (2) when the suspect is unconscious (Mitchell).




    6
      The plurality opinion, authored by Justice Alito, garnered the votes of three other justices.
Justice Thomas concurred in the judgment. Justice Thomas argued that the natural metabolism of
alcohol in the blood means that exigent circumstances are present whenever someone is suspected
of driving under the influence of alcohol. Mitchell, 588 U.S. at ___, 139 S. Ct. at 2539-41 (Thomas,
J., concurring). Because Justice Alito’s opinion is based on a narrower ground, it represents the
Court’s holding. See Marks v. United States, 430 U.S. 188, 193 (1977) (“When a fragmented Court
decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the
holding of the Court may be viewed as that position taken by those Members who concurred in the
judgments on the narrowest grounds….’ ” (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15
(1976) (plurality opinion))).




                                               - 22 -
¶ 56                           D. Application of Patel and Mitchell

¶ 57       Not surprisingly, the parties disagree over what Patel and Mitchell mean for the
       State’s argument that section 11-501.2(c)(2) is not facially unconstitutional.
       Defendant argues that Patel confirms the statute’s facial invalidity. The State
       originally argued that there are three valid applications of the statute: when the
       police have a warrant, when the defendant consents to the search, and when exigent
       circumstances are present. In Patel, the Supreme Court explained that these
       situations are not applications of a statute authorizing a warrantless search. Thus,
       according to defendant, the State has failed to identify any circumstances in which
       the statute operates validly, and it remains a facially unconstitutional statute setting
       forth a per se exigency. In light of Patel, the State has withdrawn its argument that
       the statute operates validly when the police have a warrant. The State now concedes
       that this is not an application of the statute. The State maintains, however, that the
       statute is distinguishable from the statute at issue in Patel, as it incorporates the
       concepts of consent and exigency. The State maintains that the statute still operates
       validly in at least three circumstances: (1) when a DUI suspect consents to the
       testing, (2) when the DUI suspect has been in a traffic accident, and (3) when the
       DUI suspect is unconscious.

¶ 58       The parties also disagree as to the meaning of Mitchell. Defendant contends that
       Mitchell is not relevant to this case, as it addressed a narrow fact pattern not present
       here. According to defendant, Mitchell only applies to cases involving unconscious
       DUI suspects. Moreover, defendant emphasizes that Mitchell did not depart from
       the Court’s precedents requiring a totality-of-the-circumstances approach to
       determining exigent circumstances. The State argues that Mitchell is broader than
       defendant contends and clearly sets forth a rule that is applicable to cases involving
       accidents as well as to cases involving unconscious drivers. The State points out
       that Mitchell referred to Schmerber as controlling and the Court referred to
       Schmerber as another case involving the general rule that exigency exists when
       BAC is dissipating and some other factor creates pressing needs for law
       enforcement. The State views section 11-501.2(c)(2) as setting forth precisely the
       type of general rule that the Court approved of in Mitchell and indeed views
       Mitchell as so significant that it has withdrawn its previous concession that
       defendant’s fourth amendment rights were violated. The State argues that




                                                - 23 -
       Mitchell’s discussion of exigency in the context of traffic accidents shows that the
       present case is clearly one in which exigent circumstances were present.

¶ 59       We agree with the State that Mitchell compels the conclusion that section 11-
       501.2(c)(2) is not facially unconstitutional. This statute sets forth precisely the type
       of general rule that the Supreme Court held will almost always support a
       warrantless blood test. Again, Mitchell explained that, although the determination
       of exigent circumstances requires a totality-of-the-circumstances approach, the law
       may recognize “general rules” that apply to frequently recurring fact patterns. Id.
       at ___ n.3, 139 S. Ct. at 2535 n.3. In Mitchell, the Supreme Court identified one of
       these general rules as “exigency exists when (1) BAC evidence is dissipating and
       (2) some other factor creates pressing health, safety, or law enforcement needs that
       would take priority over a warrant application.” Id. at ___, 139 S. Ct. at 2537. The
       Court explained that it derived this rule from Schmerber and stated that, “[i]n
       Schmerber, the extra factor giving rise to urgent needs that would only add to the
       delay caused by a warrant application was a car accident; here it is the driver’s
       unconsciousness.” Id. at ___, 139 S. Ct. at 2537. Section 11-501.2(c)(2) sets forth
       just this type of general rule. This section allows warrantless testing of blood,
       breath, and urine only when “a law enforcement officer has probable cause to
       believe that a motor vehicle driven by or in actual physical control of a person under
       the influence of alcohol, other drug or drugs, or intoxicating compound or
       compounds, or any combination thereof has caused the death or personal injury to
       another.” 625 ILCS 5/11-501.2(c)(2) (West 2008). Because the statute sets forth a
       scenario in which warrantless testing will almost always be constitutional, the
       statute cannot be invalid in all its applications. In fact, it is valid in almost all its
       applications. There was no suggestion in Mitchell that the Supreme Court believed
       that the Wisconsin statute allowing for warrantless searches of unconscious drivers
       was facially unconstitutional, and such a conclusion would have sounded absurd
       given everything else the Court said in the opinion.

¶ 60       Patel does not compel a different result. To see why, it is important to
       understand the difference between the ordinance at issue in Patel and section 11-
       501.2(c)(2). The ordinance at issue in Patel required hotel operators to make guest
       registers available for the police to search. No showing of probable cause was
       required, and the statute did not attempt to codify exigent circumstances. The police
       could simply show up and ask to see a guest register, and hotel operators were




                                                - 24 -
       required to comply. It is easy to see why, if the police showed up with a warrant, if
       they asked for consent to search the register, or if they were responding to an
       emergency, they were not acting pursuant to the ordinance. By contrast, section 11-
       501.2(c)(2) is a codified exigency. It allows a warrantless blood draw only when
       the police have probable cause to believe that a person has driven or been in actual
       physical control of a vehicle while under the influence of drugs or alcohol and that
       person has caused death or injury to another person. It makes no sense to say that
       the statute does “no work” when exigent circumstances are present, as the statute is
       specifically designed to operate when exigent circumstances are present. The
       statute sets forth precisely the type of exigency that Mitchell said would “almost
       always” allow a warrantless blood draw. Thus, it would not be correct to say that,
       if exigent circumstances are present, the police are not acting pursuant to section
       11-501.2(c)(2) when they seek a warrantless blood draw from a DUI suspect who
       has caused death or personal injury to another. We find it extremely unlikely, given
       what it held in Mitchell, that the Supreme Court would hold section 11-501.2(c)(2)
       facially invalid under the fourth amendment. Given our identification of a situation
       in which section 11-501.2(c)(2) operates validly, we need not address the State’s
       argument that the statute operates validly when the subject consents to the blood
       draw.

¶ 61       We next consider whether the statute was validly applied in this case. When
       reviewing the trial court’s ruling on a motion to suppress, we may consider
       evidence both from the trial and the suppression hearing. People v. Almond, 2015
       IL 113817, ¶ 55. We note that defendant moved for suppression of both the blood
       and urine test results and has made the same arguments with respect to both. That
       said, the urine test results are the significant ones, as defendant’s blood tested
       negative for drugs or alcohol and the type of aggravated DUI defendant was
       convicted of was driving or being in actual physical control of a vehicle with any
       amount of a drug, substance, or compound in the person’s blood, breath, or urine
       (625 ILCS 5/11-501(a)(6), (d)(1)(C), (d)(1)(F) (West 2008)). The version of section
       11-501.2(c)(2) under consideration applies to tests of blood, breath, and urine and
       includes testing for both drugs and alcohol. None of the authority discussed above
       addressed urine testing for drugs. The Supreme Court has held, nevertheless, that
       urine testing implicates privacy concerns and is a fourth amendment search.
       Skinner, 489 U.S. at 617. The Court explained that the process of collecting a urine
       sample implicates privacy interests and that a urine test, like a blood test, “can



                                              - 25 -
       reveal a host of private medical facts.” Id. For this reason, we assume that the
       Supreme Court would hold that a urine test may not be conducted incident to a DUI
       arrest the way a breath test can but rather would require a warrant, consent, or
       exigent circumstances.

¶ 62       That leaves the question of whether the Mitchell/Schmerber rule applies to urine
       testing for drugs. The State argues that there is no principled reason why it does
       not. The State contends that there is an even more compelling need for blood and
       urine testing for drugs than for alcohol because there is no less invasive test, such
       as a breath test. The defendant has not challenged this part of the State’s argument
       and has not argued that a different analysis is required for the drug tests of
       defendant’s blood and urine. Accordingly, we will assume, without deciding, that
       the Mitchell rule applies to both the blood and urine tests.

¶ 63        In Mitchell, after setting forth the “general rule,” the Supreme Court remanded
       the case so that the defendant could have a chance to show that “his blood would
       not have been drawn if police had not been seeking BAC information, and that
       police could not have reasonably judged that a warrant application would interfere
       with other needs or duties.” Mitchell, 588 U.S. at ___, 139 S. Ct. at 2539.
       Previously, however, the Supreme Court had been clear that the burden of
       demonstrating exigent circumstances is on the State. See Welsh v. Wisconsin, 466
       U.S. 740, 749-50 (1984); Coolidge v. New Hampshire, 403 U.S. 443, 454 (1971).
       Mitchell appears to be saying that, in cases where the “general rule” applies, the
       burden shifts to defendant to establish the lack of exigent circumstances. 7
       Nevertheless, in Mitchell a remand was required because the State had not relied
       on the exigent circumstances exception below. Here, by contrast, the parties
       litigated the exigent circumstances question in the trial court, and the issue was also
       addressed by the appellate court. The parties agree that a remand is unnecessary,
       but they disagree over what the record shows. The State contends that the record
       establishes that exigent circumstances were present, while defendant contends they
       were not.

¶ 64       Mitchell stated that, in order to avoid application of the general rule, the
       defendant would have to show that his blood was drawn solely for law enforcement
       purposes and that the police could not have reasonably judged that a warrant

          7
           We hope that the Supreme Court will eventually offer more guidance on this point.




                                                  - 26 -
       application would interfere with other pressing needs or duties. The first showing
       is easily established here, as there is no dispute that defendant was taken to the
       hospital solely for the blood draw. For several reasons, we also believe that the
       record clearly demonstrates the second factor.

¶ 65       We find the State’s concession in its initial brief significant. Reviewing this
       record, the State did not believe it could make a good-faith argument that exigent
       circumstances existed and thus conceded that defendant’s fourth amendment rights
       were violated. The State asserted that it was “undisputed that defendant’s blood and
       urine samples were taken in violation of the Fourth Amendment.” The State
       withdrew that concession in its supplemental brief and said that it was doing so in
       light of Mitchell. But this assertion is perplexing, given that Mitchell’s discussion
       of exigent circumstances in DUI accident cases was a straightforward application
       of Schmerber. Indeed, Mitchell said that the facts before it were controlled by
       Schmerber. Mitchell, 588 U.S. at ___, 139 S. Ct. at 2537. Schmerber is a 53-year-
       old case. Thus, the State had the relevant law and the facts available to it when it
       filed its opening brief. In the appellate court, the State clearly realized that
       Schmerber was the relevant authority. In that court, the State argued that the
       “circumstances in the instant case align it squarely with Schmerber and distinguish
       it markedly from McNeely.” The State then argued why the police’s responsibilities
       in investigating the accident made this a case of exigent circumstances—the same
       argument that the State now makes in its supplemental brief. Thus, the State clearly
       could have made the exigent circumstances argument in its original brief but instead
       concluded that it had no choice but to concede the fourth amendment violation.

¶ 66       Given the facts, the State’s original concession that sufficient exigent
       circumstances were lacking is not surprising. No evidence was introduced that the
       police ever attempted to secure a warrant. This is to be expected, as the statute told
       them they did not need one. The police told defendant that the law required him to
       give the blood and urine samples, so they were clearly proceeding under the belief
       that a warrant was unnecessary.

¶ 67       Moreover, the State’s conduct belies any assertion that they were facing an
       emergency in needing to get defendant’s blood and urine samples. Again, the
       reason that the police need to act quickly in these situations is that evidence is
       dissipating. Here, defendant was arrested a few minutes after 9 p.m. He was then




                                               - 27 -
       taken to the police station, where he was not interviewed until 10:30. Officer
       Ventrella interviewed defendant and noticed that he smelled like alcohol. Ventrella
       explained that other officers were working on other aspects of the investigation. At
       midnight, Ventrella returned to the interview room and found defendant asleep.
       Ventrella woke him up and asked him to take a breath test. Defendant refused. He
       also refused to give blood and urine samples. Nearly three hours later, at 2:57 a.m.,
       the officers finally took defendant to the hospital to give blood and urine samples.
       The blood sample was not collected until 4:10 a.m., and the urine sample was not
       taken until 5:20. Thus, a full seven hours passed between the time of defendant’s
       arrest and the time of his blood sample, and nearly 8.5 hours passed before he gave
       the urine sample.

¶ 68       In McNeely, the Supreme Court stated that one of the relevant factors to
       consider in determining whether a warrantless search is reasonable is the practical
       problem of “obtaining a warrant within a timeframe that still preserves the
       opportunity to obtain reliable evidence.” McNeely, 569 U.S. at 164. Here, the police
       waited so long to get the blood and urine samples that defendant’s BAC was zero,
       even though he admitted to drinking Hennessy and he smelled of alcohol when
       Ventrella interviewed him at 10:30 p.m. It simply defies belief that the police could
       not have attempted to gain a warrant without significantly delaying the time of the
       testing. In McNeely, the Supreme Court stated:

          “Consider, for example, a situation in which the warrant process will not
          significantly increase the delay before the blood test is conducted because an
          officer can take steps to secure a warrant while the suspect is being transported
          to a medical facility by another officer. In such a circumstance, there would be
          no plausible justification for an exception to the warrant requirement.” Id. at
          153-54.

       Here, before we even get to the hour that it took to transport defendant from the
       police station to the hospital, we have the three hours that passed between the time
       defendant was arrested and was asked to give blood, breath, and urine samples and,
       then, another three hours that passed between defendant’s refusal and the officers
       taking him to the hospital. The police did not appear to be acting with any urgency
       to get the testing done, and with all the offices who were working on the case, it
       seems obvious that the police could have attempted to get a warrant without




                                              - 28 -
       significantly increasing the delay before testing was conducted or without
       interfering with other pressing needs or duties. The record thus does not show
       sufficient exigent circumstances to dispense with a warrant. For these reasons, the
       general rule set forth in section 11-501.2(c)(2) does not apply here, and the statute
       is unconstitutional as applied to defendant’s case. Accordingly, the blood and urine
       test results should have been suppressed.

¶ 69        Finally, although we do not find section 11-501.2(c)(2) facially unconstitutional,
       it is nevertheless misleading in suggesting that the facts set forth therein amount to
       exigent circumstances whenever they are present. Again, the facts described in
       section 11-501.2(c)(2) will amount to exigent circumstances in most, but not all,
       cases. As written, the statute tells the police that a warrant is unnecessary in all
       cases in which the police have probable cause to believe a person has driven or been
       in actual physical control of a vehicle under the influence of drugs or alcohol and
       has caused a death or injury. However, Mitchell explained that the general rule will
       not apply in those unusual cases in which the blood draw is solely for law
       enforcement purposes and the police could not have reasonably judged that a
       warrant application would interfere with other pressing needs or duties. The
       legislature may wish to clarify this point.


¶ 70                                II. Reckless Homicide Instruction

¶ 71       The State next contends that the appellate court erred in holding that the trial
       court abused its discretion in refusing to instruct the jury on reckless homicide. The
       State’s argument consists of two parts: first, that the appellate court failed to apply
       the proper standard of review and, second, that the trial court’s decision was not an
       abuse of discretion.8

¶ 72       When determining whether a defendant is entitled to a jury instruction on a
       lesser included offense, the trial court is to consider whether there is some evidence
       in the record that, if believed by the jury, will reduce the crime charged to a lesser
       offense. People v. McDonald, 2016 IL 118882, ¶ 25. The trial court should not

           8
            The State does not adopt the argument of the dissent below that defendant’s denial that he was
       the driver precluded him from obtaining a lesser included offense instruction. The State
       characterizes the dissent’s argument as a “legally unsupported assertion.”




                                                     - 29 -
       weigh the evidence when deciding whether the instruction is justified. Id. When the
       court determines that there is insufficient evidence to justify the giving of a lesser
       included offense instruction, the proper standard of review is abuse of discretion.
       Id. ¶ 42.

¶ 73       Defendant was charged with first degree murder under section 9-1(a)(2) of the
       Criminal Code of 1961 (720 ILCS 5/9-1(a)(2) (West 2008)). Under this provision,
       a person is guilty of first degree murder if he kills another individual without lawful
       justification and, in performing the acts that cause the death, “he knows that such
       acts create a strong probability of death or great bodily harm to that individual or
       another.” Id. A person commits reckless homicide when he unintentionally kills
       another person with a vehicle and “his acts whether lawful or unlawful which cause
       the death are such as are likely to cause death or great bodily harm to some
       individual and he performs them recklessly.” Id. § 9-3(a). The parties agree that
       reckless homicide is a lesser included offense of first degree murder. This court has
       held that involuntary manslaughter is a lesser included offense of first degree
       murder. People v. Robinson, 232 Ill. 2d 98, 105 (2008). Reckless homicide and
       involuntary manslaughter are defined in the same statute. See 720 ILCS 5/9-3 (West
       2008). The only difference between the offenses is that reckless homicide is the
       proper charge when the cause of death “consists of the driving of a motor vehicle
       or operating a snowmobile, all-terrain vehicle, or watercraft.” Id. § 9-3(a).

¶ 74       The main difference between first degree murder and the lesser offenses is the
       defendant’s mental state. See McDonald, 2016 IL 118882, ¶ 51; People v. Alsup,
       373 Ill. App. 3d 745, 750 (2007). In DiVincenzo, 183 Ill. 2d at 249-50, this court
       explained the difference between knowing murder and involuntary manslaughter
       (reckless homicide’s companion offense) as follows:

          “Involuntary manslaughter requires a less culpable mental state than first degree
          murder. Under section 9-1(a)(2) of the Criminal Code of 1961, a defendant
          commits first degree murder when he kills an individual without lawful
          justification and he knows that his acts create a strong probability of death or
          great bodily harm. 720 ILCS 5/9-1(a)(2) (West 1994). In contrast, a defendant
          commits involuntary manslaughter when he performs acts that are likely to
          cause death or great bodily harm to another and he performs these acts
          recklessly. 720 ILCS 5/9-3(a) (West 1994). Recklessness is statutorily defined:




                                               - 30 -
                  ‘A person is reckless or acts recklessly, when he consciously disregards
              a substantial and unjustifiable risk that circumstances exist or that a result
              will follow, described by the statute defining the offense; and such disregard
              constitutes a gross deviation from the standard of care which a reasonable
              person would exercise in the situation.’ (Emphasis added.) 720 ILCS 5/4-6
              (West 1994).

          In general, a defendant acts recklessly when he is aware that his conduct might
          result in death or great bodily harm, although that result is not substantially
          certain to occur. See 1 W. LaFave & A. Scott, Substantive Criminal Law
          § 3.7(f), at 336-37 (1986); 1 T. Decker, Illinois Criminal Law 82 (1986).
          Reckless conduct generally involves a lesser degree of risk than conduct that
          creates a strong probability of death or great bodily harm.”

       This court further explained in DiVincenzo that the defendant’s mental state may
       be inferred from circumstantial evidence and that this task is “particularly suited to
       the jury.” Id. at 252; see also People v. Jones, 404 Ill. App. 3d 734, 744 (2010)
       (whether a defendant acted knowingly or recklessly is generally a question for the
       trier of fact).

¶ 75       The State first argues that the appellate court applied the wrong standard of
       review. Although the appellate court acknowledged that the standard of review is
       abuse of discretion (2017 IL App (1st) 142837, ¶ 33), the State contends that the
       appellate court really applied de novo review. The State contends that the appellate
       court reviewed the evidence, found sufficient evidence to justify a reckless
       homicide instruction, and then substituted its judgment for that of the trial court.
       We need not dwell too long on this argument, as we will be reviewing the trial
       court’s decision ourselves.

¶ 76       We briefly note, however, that we disagree with the State’s characterization of
       the appellate court’s analysis. As we explained in McDonald, although the standard
       of review is abuse of discretion, “[c]ommon sense dictates that, for a reviewing
       court to determine whether the trial court abused its discretion, it must undertake a
       review of the relevant evidence.” McDonald, 2016 IL 118882, ¶ 32. The appellate
       court found an abuse of discretion based on (1) this court’s authority that questions
       as to a defendant’s mental state are generally for the jury (2017 IL App (1st)
       142837, ¶ 34 (citing DiVincenzo, 183 Ill. 2d at 253)) and (2) its determination that



                                               - 31 -
       the type of evidence in this case has been found sufficient in other cases to support
       reckless homicide convictions (id. ¶¶ 35-38)).

¶ 77       We agree with the appellate court that the trial court abused its discretion in
       denying defendant’s request for a reckless homicide instruction. As we explained
       above, there need only be some evidence in the record that would justify giving the
       lesser included offense instruction. The difficulty in cases such as this is that the
       difference between the offenses involves the defendant’s mental state and a
       defendant’s mental state often needs to be inferred from circumstantial evidence.
       See DiVincenzo, 183 Ill. 2d at 252; People v. Yeoman, 2016 IL App (3d) 140324,
       ¶ 19. Moreover, courts have typically focused on the same factors in finding the
       evidence sufficient to prove reckless homicide and knowing murder.

¶ 78        For instance, in finding the evidence sufficient to support a reckless homicide
       conviction, courts have focused on such factors as driving while intoxicated,
       driving at an excessive speed, disobeying traffic signals or lane markings, and
       fleeing the scene of the accident. See, e.g., Belk, 203 Ill. 2d at 189-90, 195
       (intoxicated defendant’s attempt to elude capture by driving over 100 miles per
       hour on a stretch of Western Avenue with numerous restaurants and establishments
       open for business and pedestrians on the sidewalks would support an inference of
       recklessness sufficient for a reckless homicide conviction); People v. Allen, 368 Ill.
       368 (1938) (conviction of voluntary manslaughter with an automobile supported by
       evidence that driver drove in the wrong lane of traffic on Dearborn Street at over
       60 miles per hour and then fled the scene of the accident); People v. Beck, 295 Ill.
       App. 3d 1050, 1060 (1998) (reckless homicide conviction supported by evidence
       that the defendant drove while intoxicated, had his headlights off at night, and
       crossed into the wrong lane of traffic); People v. Mancinelli, 232 Ill. App. 3d 211,
       218 (1992) (reckless homicide conviction supported by evidence that the defendant
       drove his motorcycle 75 to 100 miles per hour at night while trying to smoke a
       cigarette and attempted to pass another motorcycle in the same lane of traffic);
       People v. Seals, 218 Ill. App. 3d 799, 802 (1991) (reckless homicide conviction
       supported by evidence that the defendant drove at a high rate of speed the wrong
       way on a one-way street and disobeyed a traffic signal); People v. Robinson, 199
       Ill. App. 3d 494, 502 (1990) (reckless homicide conviction supported by evidence
       that the defendant drove at twice the speed limit while intoxicated); People v.
       Gittings, 136 Ill. App. 3d 655, 660-61 (1985) (evidence sufficient to support




                                               - 32 -
       reckless homicide conviction where the intoxicated defendant led police on a high-
       speed chase and was driving at speeds of up to 90 miles per hour in 55-mile-per-
       hour and 35-mile-per-hour zones and at 60 to 65 miles per hour on curves with
       cautionary speed limits of 20 miles per hour); People v. Rowe, 9 Ill. App. 3d 460,
       462-63 (1972) (involuntary manslaughter conviction supported by evidence that
       driver swerved around one vehicle and struck it, fled the scene of the accident,
       drove more than 70 miles per hour on city street, violated a traffic signal, and failed
       to yield the right of way); People v. Baier, 54 Ill. App. 2d 74, 76-78 (1964) (reckless
       homicide conviction supported by evidence that defendant drove at an excessive
       speed and failed to stop at a stop sign).

¶ 79       Courts have focused on similar factors in finding defendants guilty of knowing
       murder. See, e.g., People v. Oelerich, 2017 IL App (2d) 141281, ¶ 64 (evidence
       sufficient to convict defendant of first degree murder where defendant drove at
       twice the speed limit, crossed the median, and rammed his car directly into another
       one in the other lane of traffic); Alsup, 373 Ill. App. 3d at 747-48, 754 (evidence
       sufficient to convict the defendant of first degree murder where he led police on a
       high-speed chase, ignored at least 12 traffic control devices, drove through
       residential neighborhoods at over 50 miles per hour and on the interstate at over
       100 miles per hour, tried to ram a police car, and drove through a red light at no
       less than 64 miles per hour); People v. Stevens, 324 Ill. App. 3d 1084, 1093-94
       (2001) (defendant properly convicted of first degree murder based on evidence that
       he drove over 100 miles per hour, drove on the shoulder of the expressway, weaved
       through traffic, and refused to stop for marked police units, all while his passenger
       was begging him to stop the car); People v. Thomas, 266 Ill. App. 3d 914, 926
       (1994) (defendant’s first degree murder conviction supported by evidence that he
       led police on a high-speed chase on a street congested with heavy traffic, did not
       slow down when approaching an obstruction, and drove through a red light at 70
       miles per hour).

¶ 80        Significantly, however, the juries in Oelerich, Alsup, and Thomas were
       instructed on reckless homicide. See Oelerich, 2017 IL App (2d) 141281, ¶ 48;
       Alsup, 373 Ill. App. 3d at 748; Thomas, 266 Ill. App. 3d at 925. Although ultimately
       the juries in these cases found the evidence sufficient to convict the defendants of
       first degree murder, it was left to the jurors to infer the defendants’ mental states
       from the evidence. And this is perfectly consistent with what this court explained




                                               - 33 -
       in DiVincenzo: the task of inferring the defendant’s mental state from the
       surrounding circumstances is “particularly suited to the jury.” DiVincenzo, 183 Ill.
       2d at 252. Here, the trial court took the decision away from the jury.

¶ 81        The court explained in denying the request for the instruction that this was a
       case of “first degree murder or not guilty” and not a case of “first degree murder or
       reckless homicide or not guilty.” We disagree. Madeline Moratto testified that the
       accident happened on a “quiet residential street” in a “quiet neighborhood.” The
       jury could have possibly inferred from the fact that the defendant’s conduct
       occurred in a quiet neighborhood at 9 p.m. in December that defendant’s mental
       state was reckless rather than knowing—an inference that would be more difficult
       if the defendant had driven the same way on a busy street in the middle of a summer
       day. But the jury was never given this option. Ironically, the trial court gave the
       best explanation why its decision was an abuse of discretion. In explaining why it
       had denied the instruction, the trial court explained:

              “I believed then and I believe now that there is a line past which reckless
          homicide becomes conduct as to which the person committing those acts knows
          that such acts create a strong probability of death or great bodily harm to
          individuals or to other unspecified persons. I will admit, and I believe I admitted
          then, I don’t know where that line is.”

       But this is precisely the problem. The jury may well have drawn the line in a
       different place. Juries in other cases have found that similar conduct to what
       happened here supported a verdict of first degree murder; others have found similar
       conduct supportive of a reckless homicide conviction. We will never know what
       this jury would have done if instructed on reckless homicide, as the court took that
       decision away from the jury.

¶ 82       In arguing in support of the trial court’s decision that this could only be a case
       of murder, the State (as did the trial court) focuses on the severity of the victims’
       injuries. Citing People v. Ward, 101 Ill. 2d 443 (1984), and People v. Fenderson,
       157 Ill. App. 3d 537 (1987), the State contends that severe injuries can justify the
       denial of an involuntary manslaughter instruction because such injuries can negate
       any inference that the defendant’s conduct was merely reckless. But these cases are
       easily distinguishable, as they involved physical beatings rather than traffic
       accidents. In Ward, this court found the denial of an involuntary manslaughter



                                               - 34 -
       instruction appropriate where the defendant beat a four-year-old boy to death.
       Ward, 101 Ill. 2d at 453. This court focused on the size disparity between the
       defendant and the victim, as well as the “sickening severity” of the boy’s injuries.
       Id. at 452. In Fenderson, the defendant killed a woman who was working for him
       as a prostitute. Fenderson, 157 Ill. App. 3d at 541. The evidence showed that the
       victim had been burned over 20 to 25% of her body while still alive. Id. at 542. The
       victim died from several blows to the head, and she also suffered hemorrhaging in
       her chest and legs and had two broken ribs. Id. The court held that the denial of an
       involuntary manslaughter instruction was appropriate where the severity of the
       injuries negated any inference that the defendant’s conduct was merely reckless. Id.
       at 548.

¶ 83       This same reasoning obviously does not apply in cases in which a defendant
       hits a pedestrian with a car. A defendant who drives a car in a reckless manner is
       just as likely to inflict catastrophic injuries on a pedestrian as one who is driving
       with a knowing mental state. Indeed, several of the reckless homicide cases cited
       above involved intoxicated drivers who drove at excessive rates of speed. Clearly
       such behavior would result in severe injuries to pedestrians hit by these vehicles. It
       is simply not possible to determine a driver’s mental state from the severity of
       injuries he inflicts on a pedestrian.

¶ 84       The State also relies on McDonald, wherein this court listed the following
       factors as probative in deciding whether an involuntary manslaughter instruction is
       warranted:

          “(1) the disparity of size and strength between the defendant and the victim,
          (2) the duration of the altercation and the severity of the victim’s injuries,
          (3) whether the defendant used a weapon, (4) whether the defendant inflicted
          multiple wounds, and (5) whether the victim was defenseless.” McDonald,
          2016 IL 118882, ¶ 52.

       But the State cites no authority applying these factors to the decision whether to
       instruct the jury on reckless homicide. And it is not surprising that no such authority
       exists, as these factors make no sense in that context. When a driver is charged with
       knowing murder arising out of a traffic accident, applying these factors would in
       no way be helpful in determining whether a reckless homicide instruction is




                                               - 35 -
       warranted. We fail to see how these factors support the trial court’s decision to deny
       the instruction.

¶ 85      For all of the above reasons, we agree with the appellate court that the trial court
       abused its discretion in refusing to instruct the jury on reckless homicide.
       Accordingly, defendant is entitled to a new trial on the first degree murder charge.


¶ 86                                   III. Failure to Report

¶ 87       The State next argues that the appellate court erred in reducing defendant’s
       “failure to report” conviction from the Class 1 felony version of the offense to the
       Class 4 version. The appellate court determined that the State could not prove the
       Class 1 version without impermissibly relying on defendant’s postarrest silence.
       The State raises two arguments. First, the State contends that defendant forfeited
       the self-incrimination argument by raising it for the first time in his reply brief in
       the appellate court. In his opening brief, defendant had challenged his conviction
       solely on sufficiency of the evidence grounds. Second, the State contends that the
       evidence was sufficient to convict defendant of the Class 1 version of the offense
       and no fifth amendment concerns were implicated by drawing inferences from
       defendant’s voluntary statements.

¶ 88      Section 11-401(a) of the Vehicle Code provides:

              “(a) The driver of any vehicle involved in a motor vehicle accident resulting
          in personal injury to or death of any person shall immediately stop such vehicle
          at the scene of such accident, or as close thereto as possible and shall then
          forthwith return to, and in every event shall remain at the scene of the accident
          until the requirements of Section 11-403 have been fulfilled. Every such stop
          shall be made without obstructing traffic more than is necessary.” 625 ILCS
          5/11-401(a) (West 2008).

       If a driver fails to comply with subsection (a), the requirements of subsection (b)
       kick in. This subsection provides:

              “(b) Any person who has failed to stop or to comply with the requirements
          of paragraph (a) shall, as soon as possible but in no case later than one-half hour
          after such motor vehicle accident, or, if hospitalized and incapacitated from




                                               - 36 -
          reporting at any time during such period, as soon as possible but in no case later
          than one-half hour after being discharged from the hospital, report the place of
          the accident, the date, the approximate time, the driver’s name and address, the
          registration number of the vehicle driven, and the names of all other occupants
          of such vehicle, at a police station or sheriff’s office near the place where such
          accident occurred. No report made as required under this paragraph shall be
          used, directly or indirectly, as a basis for the prosecution of any violation of
          paragraph (a).” Id. § 11-401(b).

       A violation of subsection (a) is a Class 4 felony. Id. § 11-401(c). A violation of
       subsection (b) is a Class 2 felony if the accident did not involve the death of any
       person and a Class 1 felony if it did. Id. § 11-401(d). Establishing a violation of
       subsection (b) necessarily requires the State to prove a negative: the State must
       prove that the defendant did not report the offense within half an hour.

¶ 89       In his opening brief in the appellate court, defendant challenged his conviction
       solely on sufficiency of the evidence grounds. Defendant captioned his argument
       as follows: “Eubanks’[s] Class [1] conviction for failure to report a motor vehicle
       accident involving death must be reversed where the State failed to prove the
       enhancing element that Eubanks failed to report the accident at a police station
       within a half hour.” Defendant then argued that the State had not introduced any
       evidence of what, if anything, defendant said during the half hour following his
       arrest. Further, defendant contended, the State had not introduced any evidence
       from which the trier of fact could have inferred that defendant had failed to report
       the accident within half an hour. Because of this alleged failure of proof, defendant
       argued that his conviction should be reduced to the Class 4 version of the offense.

¶ 90       When the appellate court issued its opinion, however, it described defendant’s
       argument as follows: “Eubanks next contends that his conviction for failure to
       report the accident within half an hour must be reversed because he was arrested
       around 10 minutes after the accident and any evidence of his postarrest silence
       cannot be used against him.” 2017 IL App (1st) 142837, ¶ 43. The appellate court
       agreed with this argument and held that defendant’s guilt could not be established
       because he was arrested within half an hour of the accident and any evidence of his
       postarrest silence could not be used against him. Id. ¶¶ 46, 49. As the State points
       out—although the appellate court did not use this language—the court’s decision




                                              - 37 -
       essentially amounts to a holding that the statute is unconstitutional as applied to any
       driver who is arrested within 30 minutes of the accident.

¶ 91       So how did we get from argument A—that the State failed to prove defendant
       guilty in this particular case—to holding B—that the State cannot establish the guilt
       of any driver arrested within half an hour of the accident without improperly relying
       on evidence of the defendant’s postarrest silence? This argument was first raised in
       defendant’s reply brief in the appellate court. When defendant filed his reply brief,
       he changed the caption of this argument by replacing the phrase “the State failed to
       prove the enhancing element that Eubanks failed to report the accident’’ with “the
       State could not prove the enhancing element that Eubanks failed to report the
       accident.” (Emphases added.) Defendant now argued that the State could not prove
       the enhancing element of failing to report the accident at a police station in any case
       in which the arrestee is in custody and facing charges, given an arrestee’s right
       against self-incrimination. Defendant contended that he could not have complied
       with section 11-401 without incriminating himself and that, because Illinois law
       bars the State from introducing evidence of a defendant’s postarrest silence, the
       State could not prove that he failed to report the accident without infringing his
       privilege against self-incrimination.

¶ 92       In its appellee’s brief below, the State relied on People v. Moreno, 2015 IL App
       (2d) 130581, in support of its argument that the State had established defendant’s
       guilt beyond a reasonable doubt. Moreno held that the court could infer from a
       defendant’s subsequent denials of any involvement in the automobile accident that
       he had not reported the accident within the first half hour after the collision. Id.
       ¶¶ 24-25. In defendant’s reply brief he argued that the court should decline to follow
       Moreno because it impermissibly draws an adverse inference from a defendant’s
       failure to incriminate himself on charges for which he is in custody.

¶ 93       The appellate court addressed the issue defendant raised in his reply brief rather
       than the issue he raised in his opening brief. The dissent pointed out that defendant
       had merely raised a sufficiency of the evidence argument and criticized the majority
       for making a self-incrimination argument for him. See 2017 IL App (1st) 142837,
       ¶¶ 109-10 (Pucinski, J, dissenting). The dissent’s criticism is not entirely accurate.
       Defendant did raise a self-incrimination issue, but he did so for the first time in his
       reply brief.




                                               - 38 -
¶ 94       Nevertheless, we do not need to resolve the State’s forfeiture argument, as
       defendant concedes in this court that his argument remains one of failure of proof.
       Defendant does not ask this court to make the broad ruling that the appellate court
       made. Although defendant argues that an as-applied constitutional challenge may
       be appropriate in some future case, defendant contends that he forfeited any such
       challenge by failing to raise it in the trial court. See People v. Harris, 2018 IL
       121932, ¶¶ 39-41. Thus, according to defendant, his “argument remains that the
       State did not sustain its evidentiary burden where there was little, if any, evidence
       about what Eubanks did or did not say during the first half hour after the offense
       occurred.”

¶ 95       Accordingly, we will address the argument that defendant raised in his opening
       brief in the appellate court and that defendant insists remains his argument in this
       court: that the State failed to prove him guilty beyond a reasonable doubt of the
       Class 1 version of failure to report. Defendant contends that the State failed to
       present sufficient evidence that he failed to report the accident at a police station
       within half an hour of the accident. When reviewing a challenge to the sufficiency
       of the evidence, our function is not to retry the defendant. People v. Smith, 185 Ill.
       2d 532, 541 (1999). Rather, this court considers whether, viewing the evidence in
       the light most favorable to the State, “ ‘any rational trier of fact could have found
       the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in
       original.) People v. Collins, 106 Ill. 2d 237, 261 (1985) (quoting Jackson v.
       Virginia, 443 U.S. 307, 319 (1979)). A trier of fact is not required to disregard
       inferences that flow normally from the evidence before it, nor must the trier of fact
       search out all possible explanations consistent with innocence and raise those
       explanations to a level of reasonable doubt. People v. Campbell, 146 Ill. 2d 363,
       380 (1992). Further, a reviewing court must allow all reasonable inferences from
       the record in favor of the prosecution. People v. Davison, 233 Ill. 2d 30, 43 (2009).

¶ 96       Here, the evidence was easily sufficient to establish defendant’s guilt beyond a
       reasonable doubt. First, it was clear from the evidence that defendant had no
       intention of reporting the accident. After hitting Maria and Jeremiah, defendant
       failed to stop the car, telling Tanner, “It’s too late.” When Tanner finally got
       defendant to stop the car, Tanner tried to convince defendant to return to the scene
       of the accident with him. Defendant refused and sped away instead. Second, Officer
       Dan Postelnick of the Chicago Police Department testified that he works for the




                                               - 39 -
major accident unit. On the night of the accident, he arrived at work at 10:30 p.m.
He was assigned to work on the Worthon accident, and his first assignment was to
go to the area where the arrestee was being held. He arrived there at 11:20 p.m.
Postelnick learned that the arrestee was named Ralph Eubanks and that he had been
placed in a room with electronic recording equipment. Part of Postelnick’s
investigation was to find out if defendant had reported any aspects of the accident.
Postelnick spoke to other officers and learned that defendant had not reported
anything. Defendant now refers to Postelnick’s testimony as “vague hearsay
testimony,” but defendant did not object to Postelnick’s testimony on hearsay or
any other grounds and even now does not argue that it was improperly admitted.
Third, a videotape of defendant’s statement showed the following exchange at
10:30 p.m.:

       “DEFENDANT: You could’ve let me go. That would have been nice.

       OFFICER: Can’t do that.

       DEFENDANT: I didn’t do anything. I’m still trying to figure out what I’m
   being charged with.”

Finally, defendant’s denial of being involved in the accident continued right
through the trial. Defendant testified at trial that he was not in the car when the
accident occurred. Thus, the jury could have reasonably inferred from defendant’s
consistent denials that he was involved in the accident that he had not reported the
accident at a police station within 30 minutes. See Moreno, 2015 IL App (2d)
130581, ¶ 25 (“given that [the defendant] was still denying his involvement during
the taped interview, the trier of fact could have reasonably inferred that he did not
previously report it”); People v. Gutierrez, 105 Ill. App. 3d 1059, 1064 (1982) (“the
defendant on each occasion denied his involvement in the transaction which left the
reasonable inference that he had not reported”); People v. Johnson, 79 Ill. App. 2d
226, 230-31 (1967) (the defendant’s testimony that he was unaware of the accident
and statement to the police that he did not recall hitting anyone was sufficient
evidence that he had not reported the accident). Defendant refers to the inference
that defendant did not report as mere speculation and argues that it is possible that
defendant reported the accident and then forgot or that he reported the accident and
then recanted. The standard of review, however, requires that we draw all
reasonable inferences in favor of the State. Davison, 233 Ill. 2d at 43. There was



                                       - 40 -
       clearly sufficient evidence for a rational trier of fact to conclude beyond a
       reasonable doubt that defendant did not report the accident within half an hour.

¶ 97        As to defendant’s claim that drawing the above inference burdens his privilege
       against self-incrimination, we offer two observations. First, the reasonable
       inference we describe above is not an inference from defendant’s silence. Rather,
       it is a reasonable inference from defendant’s voluntary statements. Second, the
       appellate court relied on three cases in stating that a defendant’s postarrest silence
       is not admissible for any purposes in the State’s case-in-chief: People v. Nesbit, 398
       Ill. App. 3d 200, 212 (2010); Simmons, 293 Ill. App. 3d at 811; and People v.
       Strong, 215 Ill. App. 3d 484, 488 (1991). In Nesbit, the defendant argued that he
       was entitled to a new trial because the prosecution elicited testimony about his
       postarrest silence. Nesbit, 398 Ill. App. 3d at 211. In Simmons, the defendant argued
       that he was entitled to a new trial because the prosecutor elicited testimony about
       his postarrest silence and then commented on it in closing argument. Simmons, 293
       Ill. App. 3d at 810-11. In Strong, the appellate court addressed the issue of
       postarrest silence after it had already granted the defendant a retrial on another
       basis. The court stated that, because it did not know how the testimony would play
       out on retrial, it could not say whether defendant’s silence would be admissible for
       impeachment purposes but held that the defendant’s silence would not be
       admissible for any purpose in the defendant’s case-in-chief. Strong, 215 Ill. App.
       3d at 487-88. In this case, by contrast, defendant does not argue that he should
       receive a new trial on failure to report. He has not identified any evidence that was
       erroneously admitted in the prosecution’s case-in-chief. Nor has defendant asserted
       that, in closing argument, the prosecutor commented on defendant’s silence.
       Rather, his argument is simply one of failure of proof. Here, for the reasons set
       forth above, the State met its burden of proof.

¶ 98       We emphasize that we are not addressing the issue the way that the appellate
       court did, nor are we determining the propriety of any of the evidence that the State
       introduced. Rather, we are simply resolving the precise issue that the defendant
       raised in his opening brief in the appellate court, which defendant maintains is still
       the only issue he’s raising: that the State failed to establish beyond a reasonable
       doubt his guilt of the Class 1 version of the offense. Because we find that the State
       met its burden, we reverse the appellate court’s judgment reducing defendant’s
       conviction to the Class 4 version of the offense and reinstate defendant’s Class 1




                                               - 41 -
        conviction.


¶ 99                                       CONCLUSION

¶ 100       We reverse the appellate court’s judgment that section 11-501.2(c)(2) is facially
        unconstitutional and hold instead that it is unconstitutional as applied to defendant’s
        case. We affirm the appellate court’s judgment reversing the trial court’s denial of
        defendant’s motion to suppress the blood and urine test results. Because the State
        cannot prove the aggravated DUI charge without that evidence, we affirm the
        appellate court’s judgment reversing that conviction outright. We affirm the
        appellate court’s judgment reversing defendant’s first degree murder conviction
        and remanding for a new trial. At that trial, the State may not introduce evidence of
        defendant’s blood and urine test results. Finally, we reverse the appellate court’s
        judgment reducing defendant’s failure to report conviction to the Class 4 version of
        the offense, and we reinstate defendant’s Class 1 conviction of failure to report.


¶ 101      Appellate court judgment affirmed in part and reversed in part.

¶ 102      Circuit court judgment affirmed in part and reversed in part.

¶ 103      Cause remanded.


¶ 104      CHIEF JUSTICE BURKE, specially concurring:

¶ 105        I agree with the majority in affirming the appellate court’s finding that the trial
        court abused its discretion when it denied defendant’s request for a reckless
        homicide instruction. Accordingly, I agree that defendant’s first degree murder
        conviction must be reversed and the matter remanded for a new trial on the charge
        of murder. I also agree with the majority that the appellate court erred when it
        reduced defendant’s conviction for failure to report a motor vehicle accident from
        a Class 1 felony, pursuant to section 11-401(b) of the Illinois Vehicle Code, to a
        Class 4 felony, pursuant to section 11-401(a) of the Vehicle Code. See 625 ILCS
        5/11-401(a), (b) (West 2008). Like the majority, I believe the evidence presented
        at trial was sufficient to support defendant’s Class 1 conviction for failure to report
        and, therefore, that conviction is properly reinstated. I write separately to explain




                                                 - 42 -
        my understanding of Mitchell v. Wisconsin, 588 U.S. ___, 139 S. Ct. 2525 (2019),
        and its application to this case on the question of whether section 11-501.2(c)(2) of
        the Vehicle Code (625 ILCS 5/11-501.2(c)(2) (West 2008)) is facially
        unconstitutional.

¶ 106       In Mitchell, the question before the United States Supreme Court was the
        constitutionality of Wisconsin’s “implied consent” laws. Wisconsin’s laws, like the
        implied consent laws in all 50 states, are based on the notion that, as a condition of
        the privilege of using public roads, a driver is presumed to have consented to blood
        alcohol content (BAC) testing when there is sufficient reason to believe that the
        driver is violating the state’s drunk driving laws. Mitchell, 588 U.S. at ___, 139 S.
        Ct. at 2531. Because a driver impliedly consents to testing, there is no need to obtain
        a warrant, which would typically be required for a lawful search. Generally, implied
        consent laws further provide that a driver may refuse testing, i.e., may withdraw
        consent, but by doing so, the driver will suffer the revocation of his or her license.
        Id. at ___, 139 S. Ct. at 2531-32. In this way, implied consent laws “incentivize
        prompt BAC testing.” Id. at ___, 139 S. Ct. at 2536.

¶ 107       Wisconsin’s implied consent laws include a provision that directs police
        officers on how to proceed in the situation where the suspected drunk driver is
        unconscious. The law provides that, when the driver is unconscious, the police may
        obtain a warrantless blood draw because an unconscious driver is presumed not to
        have withdrawn the statutorily implied consent. Id. at ___, 139 S. Ct. at 2532.

¶ 108       The defendant in Mitchell was suspected of driving while intoxicated and was
        arrested. While being transported to the police station for evidentiary breath testing,
        the defendant fell into an unconscious stupor. As a result, the police took him to the
        hospital, where his blood was drawn without first obtaining a warrant. Id. at ___,
        139 S. Ct. at 2532. A plurality of the Supreme Court, when deciding the
        constitutionality of the blood draw, did not answer the broader question of the
        constitutionality of implied consent laws but, rather, answered the narrower
        question of “ ‘[w]hether a statute authorizing a blood draw from an unconscious
        motorist provides an exception to the Fourth Amendment warrant requirement.’ ”
        Id. at ___ n.5, 139 S. Ct. at 2546 n.5.

¶ 109       The Mitchell plurality first reaffirmed that a warrantless BAC test may not be
        legally obtained when the only exigency is dissipation of alcohol in the blood.



                                                - 43 -
        Rather, the plurality held, “exigency exists when (1) BAC evidence is dissipating
        and (2) some other factor creates pressing health, safety, or law enforcement needs
        that would take priority over a warrant application.” Id. at ___, 139 S. Ct. at 2537;
        see Schmerber v. California, 384 U.S. 757, 770 (1996); Missouri v. McNeely, 569
        U.S. 141, 150-51 (2013). The plurality then held that both conditions were met in
        that case, where the defendant was suspected of drunk driving and he became
        unconscious before he could submit to a breath test at the police station. Thus, the
        plurality concluded that in situations where the “police have probable cause to
        believe a person has committed a drunk-driving offense and the driver’s
        unconsciousness or stupor requires him to be taken to the hospital or similar facility
        before police have a reasonable opportunity to administer a standard evidentiary
        breath test, they may almost always order a warrantless blood test to measure the
        driver’s BAC without offending the Fourth Amendment.” (Emphasis added.)
        Mitchell, 588 U.S. at ___, 139 S. Ct. at 2539. The plurality noted that the possibility
        exists that, in an unusual case, the police could not have reasonably judged that a
        warrant application would interfere with other pressing needs or duties. Thus, the
        plurality remanded the matter to permit the defendant to attempt to make a showing
        that his was such a case. Id. at ___, 139 S. Ct. at 2539.

¶ 110       In reaching its conclusion, the plurality, in effect, held that Wisconsin’s implied
        consent statute served as a codified exigency that creates a rebuttable presumption
        that a warrantless blood draw is constitutional if the suspected drunk driver is
        unconscious and cannot submit to an evidentiary breath test.

¶ 111      Similarly, in the case before this court, section 11-501.2(c)(2) of our Vehicle
        Code serves as a codified exigency creating a rebuttable presumption that the
        warrantless BAC testing permitted by the statute is a constitutional search. Section
        11-501.2(c)(2), at the time in question, provided in pertinent part:

           “Notwithstanding any ability to refuse under this Code to submit to these tests
           or any ability to revoke the implied consent to these tests, if a law enforcement
           officer has probable cause to believe that a motor vehicle driven by or in actual
           physical control of a person under the influence of alcohol, other drug or drugs,
           or intoxicating compound or compounds, or any combination thereof has
           caused the death or personal injury to another, that person shall submit, upon
           the request of a law enforcement officer, to a chemical test or tests of his or her




                                                - 44 -
           blood, breath or urine for the purpose of determining the alcohol content thereof
           or the presence of any other drug or combination of both.” 625 ILCS 5/11-
           501.2(c)(2) (West 2008).

¶ 112       I agree with the majority that Mitchell compels the conclusion that section 11-
        501.2(c)(2) is not facially unconstitutional. As the plurality held in Mitchell,
        exigency exists when (1) BAC evidence is dissipating and (2) some other factor
        creates pressing health, safety, or law enforcement needs that would take priority
        over a warrant application. Here, too, both conditions are met. Section 11-
        501.2(c)(2) permits warrantless BAC testing when (1) a police officer reasonably
        believes that a person is driving while intoxicated and (2) that person has caused a
        motor vehicle accident resulting in death or serious injury. An intoxicated person’s
        blood alcohol dissipates over time, making prompt testing a major factor in finding
        exigency. A motor vehicle accident causing death or personal injury is the “other
        factor” that creates a pressing law enforcement need that reasonably would take
        priority over a warrant application. Thus section 11-501.2(c)(2), like the statute in
        Mitchell, sets forth a “codified exigency” that almost always will authorize
        warrantless BAC testing without offending the fourth amendment.

¶ 113       However, as noted in Mitchell, there may be situations where the police could
        not reasonably have judged that a warrant application would interfere with other
        pressing needs or duties. Thus, section 11-501.2(c)(2) does not create a per se
        exigency. Rather, it creates a rebuttable presumption that a prompt warrantless
        search conducted pursuant to the statute is constitutionally valid. In my view,
        interpreting section 11-501.2(c)(2) as creating a rebuttable presumption that a
        warrantless search is constitutionally valid, as the Supreme Court similarly did in
        Mitchell, is what saves this statute from being facially unconstitutional.

¶ 114       Of course, in the present case, the facts clearly demonstrate that the presumption
        that the warrantless search conducted pursuant to section 11-501.2(c)(2) is
        constitutional cannot stand. After the police arrested defendant and took him to the
        police station, the officers did not promptly seek BAC testing. Instead, they waited
        several hours before taking defendant to the hospital, where he was compelled to
        submit to blood and urine testing. Under these circumstances the police officers
        could not have reasonably judged that a warrant application would interfere with
        other pressing needs or duties. Accordingly, the presumption that the BAC testing




                                                - 45 -
        performed in this case was a constitutionally valid search is rebutted. Therefore, I
        agree with the majority that defendant’s conviction for aggravated DUI must be
        reversed outright.


¶ 115      JUSTICE THEIS, concurring in part and dissenting in part:

¶ 116       I agree with the majority’s conclusion that defendant was entitled to a reckless
        homicide instruction and with its reinstatement of his Class 1 felony conviction for
        failure to report the accident. However, I would find that section 11-501.2(c)(2) of
        the Illinois Vehicle Code (625 ILCS 5/11-501.2(c)(2) (West 2008)) is facially
        unconstitutional because it authorizes officers to disregard the fourth amendment’s
        warrant requirement for chemical testing of a suspected drunk driver based on the
        severity of injury to a third party. Neither Mitchell v. Wisconsin, 588 U.S. ___, 139
        S. Ct. 2525 (2019), nor Schmerber v. California, 384 U.S. 757 (1966), stands for
        the proposition that suspected intoxication, plus death or a serious injury to
        someone other than the driver, presents a “codified exigency” that justifies acting
        without a warrant.

¶ 117       In Schmerber, officers arrested the defendant at the hospital where he was being
        treated for injuries suffered as the driver in an accident. 384 U.S. at 758. The
        defendant’s blood was drawn without his consent, and the sample revealed his
        intoxication. Id. at 758-59. In resolving whether the officer was required to obtain
        a warrant, the United States Supreme Court observed that the “importance of
        informed, detached and deliberate determinations of the issue whether or not to
        invade another’s body in search of evidence of guilt” was “indisputable and great.”
        Id. at 770. Yet, it determined that the officer “might reasonably have believed that
        he was confronted with an emergency, in which the delay necessary to obtain a
        warrant *** threatened ‘the destruction of evidence.’ ” Id. (quoting Preston v.
        United States, 376 U.S. 364, 367 (1964)). Observing that the percentage of alcohol
        in a person’s blood begins to diminish soon after he stops drinking, the Court noted
        that officers had to take the accused to the hospital and to investigate the accident,
        which left “no time to seek out a magistrate and secure a warrant.” Id. at 770-71.
        Under those “special facts,” the Court concluded that the officer’s behavior was
        reasonable. Id. at 771.




                                                - 46 -
¶ 118       Nearly 50 years later, in Missouri v. McNeely, 569 U.S. 141, 145-46 (2013), an
        officer took the defendant to the hospital for blood testing after he twice refused to
        provide a breath sample. Based on a state implied consent statute, the officer
        ordered a lab technician to take a blood sample from the defendant. The Court
        recognized that “a compelled physical intrusion beneath [his] skin and into his veins
        to obtain a sample of his blood for use as evidence in a criminal investigation” was
        “an invasion of bodily integrity” that “implicate[d] an individual’s ‘most personal
        and deep-rooted expectations of privacy.’ ” Id. at 148 (quoting Winston v. Lee, 470
        U.S. 753, 760 (1985)). Hence, courts must look to the totality of circumstances to
        “determine whether a law enforcement officer faced an emergency that justified
        acting without a warrant.” Id. at 149.

¶ 119       The Court concluded that, “[i]n those drunk-driving investigations where police
        officers can reasonably obtain a warrant before a blood sample can be drawn
        without significantly undermining the efficacy of the search, the Fourth
        Amendment mandates that they do so.” (Emphasis added.) Id. at 152. Due to
        “advances in the 47 years since Schmerber was decided that allow for the more
        expeditious processing of warrant applications,” the Court held that the natural
        dissipation of alcohol in the blood did not categorically support a finding of
        exigency. Id. at 154, 156.

¶ 120       Recently, in Mitchell, 588 U.S. at ___, 139 S. Ct. at 2531, the Court
        “consider[ed] what police officers may do in a narrow but important category of
        cases: those in which the driver is unconscious and therefore cannot be given a
        breath test.” At issue was the constitutionality of a state implied consent law that
        provided, in relevant part, that an unconscious driver is presumed not to have
        withdrawn his consent to breath or blood tests. In such cases, where a breath test
        would be impossible and where “it is very likely that the driver would be taken to
        an emergency room and that his blood would [otherwise] be drawn for diagnostic
        purposes,” the Court ruled that a warrant generally is not needed. Id. at ___, 139 S.
        Ct. at 2531. The Court repeatedly limited its holding to cases involving unconscious
        drivers, ruling that, “[i]n those cases, the need for a blood test is compelling, and
        an officer’s duty to attend to more pressing needs may leave no time to seek a
        warrant.” Id. at ___, 139 S. Ct. at 2535. It explained that “exigency exists when
        (1) BAC evidence is dissipating and (2) some other factor creates pressing health,




                                                - 47 -
        safety, or law enforcement needs that would take priority over a warrant
        application.” Id. at ___, 139 S. Ct. at 2537.

¶ 121       The factors that created pressing needs in Mitchell were (1) the driver’s
        unconsciousness, which rendered a breath test impossible and made enforcement
        of the drunk-driving laws dependent upon the administration of a blood test, (2) the
        fact that “when a police officer encounters an unconscious driver, it is very likely
        that the driver would be taken to an emergency room and that his blood would be
        drawn for diagnostic purposes even if the police were not seeking BAC
        information,” and (3) that “officers most frequently come upon unconscious drivers
        when they report to the scene of an accident, and under those circumstances, the
        officers’ many responsibilities—such as attending to other injured drivers or
        passengers and preventing further accidents—may be incompatible with the
        procedures that would be required to obtain a warrant.” Id. at ___, 139 S. Ct. at
        2531.

¶ 122       The majority extrapolates from Mitchell and Schmerber that warrantless testing
        under section 11-501.2(c)(2) “will almost always be constitutional” because the
        driver is suspected of being under the influence and a third party is gravely injured
        or killed. See supra ¶ 59. There is no basis for that conclusion when the injury is to
        a third party. The factors highlighted in Mitchell, including that a breath test would
        be impossible for an unconscious driver and that such a driver likely would have
        had his blood drawn for diagnostic purposes even if the police were not seeking
        BAC information, are conspicuously absent when the driver is not the injured party.
        And though in Mitchell the Court stated that “the ramifications of a car accident
        pushed Schmerber over the line into exigency” (588 U.S. at ___, 139 S. Ct. at 2538),
        those ramifications included the driver himself being injured and arrested at the
        hospital and the fact that it took longer to process warrant applications in 1966 than
        it does now. See Schmerber, 384 U.S. at 758; McNeely, 569 U.S. at 154.

¶ 123       The majority asserts that section 11-501.2(c)(2) codifies exigency in these
        circumstances. See supra ¶ 60. In McNeely, 569 U.S. at 153-54, however, the Court
        observed that, where one “officer can take steps to secure a warrant while the
        suspect is being transported to a medical facility by another officer,” there “would
        be no plausible justification for an exception to the warrant requirement.” If the
        availability of another officer to obtain a warrant demonstrates a lack of exigency




                                                - 48 -
        when the driver is injured, that same logic must be true when a third party is injured.
        Thus, the majority’s presumption that the death of, or significant injury to, a third
        party means that officers almost always will not have time to procure a warrant is
        incorrect.

¶ 124       Take this case, for example. Defendant struck the victims with his vehicle
        around 9 p.m. Officers apprehended him shortly thereafter. The ambulance and
        paramedics were called, and the officers appear to have spoken with at least four
        witnesses. See supra ¶¶ 12-14. Officers doubtlessly had a variety of tasks to
        perform in connection with what was presumably a complex crime scene, yet those
        other responsibilities apparently played no role in their decision to bypass the fourth
        amendment’s warrant requirement. Officers had ample time to seek a warrant, but
        nothing suggests that they even attempted to do so. As the majority notes, a full
        seven hours passed between the time of defendant’s arrest and the time of his blood
        sample. See supra ¶ 67. If officers had that much time in this case, where one victim
        was killed, another was severely injured, and various witnesses were present at the
        scene of the accident, I am puzzled by the majority’s conclusion that section 11-
        501.2(c)(2) will amount to exigent circumstances in most cases. See supra ¶ 69.

¶ 125        If officers legitimately do not have time to obtain a warrant because a third party
        is injured, then exigency, not section 11-501.2(c)(2), would permit the warrantless
        blood draw. As the Court explained in City of Los Angeles v. Patel, 576 U.S. ___,
        135 S. Ct. 2443 (2015), an “application” of the statute that does not implicate the
        statute cannot preserve its constitutionality. The Court specifically ruled that, “[i]f
        exigency or a warrant justifies an officer’s search, the subject of the search must
        permit it to proceed irrespective of whether it is authorized by statute.” Id. at ___,
        135 S. Ct. at 2451. In other words, if the officer has a search warrant, then the
        warrant is what makes the search legal, not the statute. Similarly, if there is
        exigency, that is what justifies the search, not the statute. Thus, as Patel instructs,
        neither exigency nor a warrant serves as a valid application of section 11-
        501.2(c)(2) to preserve its constitutionality, and the statute does not otherwise
        provide a scenario where we can presume that officers will not have time to secure
        a warrant.

¶ 126       In sum, the United States Supreme Court has described compelled blood tests
        as “an invasion of bodily integrity [that] implicates an individual’s ‘most personal




                                                 - 49 -
        and deep-rooted expectations of privacy.’ ” McNeely, 569 U.S. at 148 (quoting
        Winston, 470 U.S. at 760). Section 11-501.2(c)(2), which obviates the warrant
        requirement whenever a third party is seriously injured or killed, intrudes on these
        deep-rooted expectations of privacy in a manner that is at odds with the fourth
        amendment. Therefore, I respectfully dissent from the portion of the opinion
        finding section 11-501.2(c)(2) facially constitutional.


¶ 127      JUSTICE NEVILLE took no part in the consideration or decision of this case.




                                               - 50 -
