                                        2015 IL 117170



                                           IN THE
                                  SUPREME COURT
                                               OF
                            THE STATE OF ILLINOIS



                                      (Docket No. 117170)

     KEVIN McELWAIN, Appellee, v. THE OFFICE OF THE ILLINOIS SECRETARY
                             OF STATE, Appellant.



                               Opinion filed September 24, 2015.



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

         Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and
      Theis concurred in the judgment and opinion.



                                           OPINION

¶1         This is a direct appeal from a circuit court order finding section 11-501.6 of the
      Illinois Vehicle Code (625 ILCS 5/11-501.6 (West 2012)) unconstitutional as
      applied to this plaintiff. This section provides that a driver who is arrested for a
      traffic violation related to a fatality or other serious personal injury automatically
      consents to having his or her blood, breath or urine tested for the presence of
      alcohol or drugs. Refusal to submit to the testing results in an automatic suspension
      of the person’s driver’s license. Here, the circuit court of Cook County found the
      statute unconstitutional as applied because the police requested the test almost 48
      hours after the accident. For the reasons that follow, we affirm.
¶2       On May 20, 2012, plaintiff, Kevin McElwain, was involved in a traffic
     accident. At the time, plaintiff was stopped at an intersection in the left turn lane of
     northbound Kirk Road in Geneva. Plaintiff began to make a U-turn, when a
     motorcycle traveling southbound on Kirk Road came through the intersection and
     collided with the side of plaintiff’s vehicle. Both the driver and passenger of the
     motorcycle received substantial injuries, and the passenger died as a result of the
     injuries she sustained. On the date of the accident, plaintiff was neither issued any
     tickets nor asked to take any chemical tests.

¶3       During their investigation of the accident, the police discovered in plaintiff’s
     vehicle rolling papers and a small plastic bag containing a residue that appeared to
     be cannabis. However, two police officers who were present at the scene of the
     accident did not think that plaintiff appeared to be under the influence of cannabis.

¶4       Two days later, on May 22, plaintiff was asked to present himself at the Geneva
     police station. He was questioned numerous times about his use of marijuana.
     Plaintiff admitted that he had smoked marijuana two weeks prior to the accident.
     The police issued plaintiff a ticket for failing to yield when turning left and also
     requested that he take a chemical test. The police read the appropriate statutory
     warnings to plaintiff (see 625 ILCS 5/11-501.6(c) (West 2012)), and plaintiff
     refused to take the test. The Secretary of State then suspended plaintiff’s driver’s
     license for three years.

¶5       Plaintiff petitioned the Secretary to rescind the suspension on the basis that the
     police had waited too long to request the chemical test. Following a hearing, an
     Administrative Law Judge (ALJ) upheld the suspension. The ALJ reasoned as
     follows:

        “[T]he sum and substance of the Petitioner’s argument seems to be that the
        officers violated his Due Process rights by waiting too long to conduct their
        investigation into his liability for the collision and his use of marijuana prior to
        the accident. This presupposes that the officers must demonstrate probable
        cause to issue the ticket and probable cause of intoxication prior to the collision.
        However, the statute does not require either to be shown by the state prior to
        issuance of the Sworn Report. All that is required is that a Uniform Traffic
        Ticket be issued to the Petitioner, the Petitioner be read the appropriate traffic
        accident warnings to motorist and the Petitioner refuse to take a chemical test.
        In this case, all three requirements of the statute were clearly met.”

                                              -2-
     The Secretary subsequently adopted the ALJ’s findings of fact and conclusions of
     law and entered a final administrative order denying plaintiff’s request for
     rescission of the suspension.

¶6       Plaintiff filed an action for administrative review. In his complaint, plaintiff
     contended that his due process and fourth amendment rights were violated when
     the police sought chemical testing two days after the accident. Plaintiff argued that
     section 11-501.6 was applied to him in an unconstitutional manner.

¶7       The circuit court agreed with plaintiff and held section 11-501.6
     unconstitutional as applied. The court relied primarily on Fink v. Ryan, 174 Ill. 2d
     302 (1996), in which this court upheld section 11-501.6 against a facial
     constitutional challenge. The circuit court in Fink held that section 11-501.6
     authorized searches that violated the fourth amendment and that the statute could
     not be justified by the “special needs” exception to the fourth amendment. 1 This
     court reversed and held that the statute authorized searches that fell within the
     “special needs” exception to the fourth amendment. Central to this court’s analysis
     was its belief that drivers have a diminished expectation of privacy shortly after
     their involvement in serious traffic accidents. Id. at 310-11.

¶8       Here, the circuit court noted that the very circumstances that led the King court
     to uphold the statute were absent in plaintiff’s case. In this case, the police sought
     the testing two days after the accident, when plaintiff no longer had a diminished
     expectation of privacy. The circuit court also found that the police were attempting
     to use the statute as an “unjustified detour around a proper search.” The court
     explained that the special needs exception to the fourth amendment underlies the
     validity of a section 11-501.6 search. Here, however, the police had ample time to
     obtain a warrant. The drug paraphernalia was found in plaintiff’s car on May 20,
     but the plaintiff was not called into the police station until May 22. The court found
     that two days was ample time for the police to obtain a warrant. Finally, the court
     noted that section 11-401(b-1) (625 ILCS 5/11-401(b-1) (West 2012)), which
     allows chemical testing of a driver who is arrested after fleeing the scene of an
     accident, requires that the testing be done within 12 hours of the accident. The court

         1
          Under the “special needs” exception to the fourth amendment, neither a warrant nor probable
     cause are required when “ ‘special needs, beyond the normal need for law enforcement, make the
     warrant and probable-cause requirement impracticable.’ ” Griffin v. Wisconsin, 483 U.S. 868, 873
     (1987) (quoting New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring in the
     judgment)).

                                                  -3-
       found the special needs exception underlies both section 11-401(b-1) and section
       11-501.6, and that it would be illogical to hold that a person who flees the scene is
       subject to chemical testing for only 12 hours, but that a person who stays at the
       scene and cooperates with the police is subject to testing for an indefinite amount of
       time. Thus, the court held that section 11-501.6 was unconstitutional as applied to
       plaintiff.

¶9         We allowed the Secretary’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff.
       July 1, 2013).



¶ 10                                          ANALYSIS

¶ 11       Decisions of the Secretary of State suspending, revoking, cancelling, or
       disqualifying any license or permit are subject to the Administrative Review Law.
       See 625 ILCS 5/11-501.8(h) (West 2014). In an administrative review case, the
       agency’s factual findings are deemed prima facie true and correct, and they will not
       be disturbed on review unless they are against the manifest weight of the evidence.
       Gumma v. White, 216 Ill. 2d 23, 36 (2005). Pure questions of law, however, are
       reviewed de novo. Provena Covenant Medical Center v. Department of Revenue,
       236 Ill. 2d 368, 387 (2010). This case involves a pure question of law requiring
       de novo review for two reasons. First, it raises a question of statutory construction,
       and issues of statutory construction are reviewed de novo. People ex rel. Madigan
       v. J.T. Einoder, Inc., 2015 IL 117193, ¶ 27. Second, this case arises from a circuit
       court order declaring a statute unconstitutional as applied, and our review of a
       statute’s constitutionality is de novo. People v. Richardson, 2015 IL 118255, ¶ 8.

¶ 12       Before explaining why we agree with the circuit court that section 11-501.6 was
       applied to plaintiff in an unconstitutional manner, we briefly address plaintiff’s
       contention that this court can simply read a time limit into the statute. This court has
       explained that it will not reach a constitutional question where the case can be
       resolved on other grounds. People v. White, 2011 IL 109689, ¶ 144. Noting this
       court’s duty to “construe a statute so as to affirm the statute’s constitutionality and
       validity, if reasonably possible” (People v. Shephard, 152 Ill. 2d 489, 499 (1992)),
       plaintiff argues that this court should read a time limit into the statute. Here,
       however, we do not believe that it is “reasonably possible” to do so. This court has
       explained that the primary rule of statutory construction is to ascertain and give
       effect to the legislature’s intent, and that the best indicator of legislative intent is the
                                                  -4-
       statutory language. People v. O’Connell, 227 Ill. 2d 31, 36 (2007). Moreover, we
       may not depart from plain statutory language by reading into the statute exceptions,
       limitations, or conditions not expressed by the legislature. People v. Lewis, 223 Ill.
       2d 393, 402 (2006).

¶ 13       There is no question that the plain language of the statute contains no language
       limiting the time in which the chemical testing must be performed. Moreover, we
       have clear, unequivocal evidence that the legislature did not intend for there to be a
       time limit in section 11-501.6. First, when the legislature intends for there to be
       such a limitation, it says so expressly. As the trial court noted, section 11-401(b-1)
       of the Vehicle Code, which mandates chemical testing for those who flee the scene
       of an accident involving serious bodily injury or death, expressly provides for a
       time limit:

              “(b-1) Any person arrested for violating this Section is subject to chemical
          testing of his or her blood, breath, or urine for the presence of alcohol, other
          drug or drugs, intoxicating compound or compounds, or any combination
          thereof, as provided in Section 11-501.1, if the testing occurs within 12 hours of
          the time of the occurrence of the accident that led to his or her arrest.”
          (Emphasis added.) 625 ILCS 5/11-401(b-1) (West 2012).

       Thus, when the legislature intends for the chemical testing to be performed in a
       specific time period, it provides the time limit expressly. Second, the General
       Assembly has twice recently considered legislation that would have added a
       one-hour time limit to section 11-501.6, but the proposed legislation failed each
       time. See 98th Ill. Gen. Assem., House Bill 2895, 2013 Sess.; 97th Ill. Gen. Assem.,
       House Bill 3876, 2011 Sess. It seems beyond dispute that the legislature does not
       intend for there to be a time limit in section 11-501.6. Therefore, we may not
       reasonably construe the statute as containing a time limit.

¶ 14       We next consider whether the trial court correctly found that the statute was
       applied to plaintiff in an unconstitutional manner. Statutes are presumed
       constitutional and the party challenging a statute’s validity bears the burden of
       demonstrating a clear constitutional violation. In re Derrico G., 2014 IL 114463,
       ¶ 54. We will uphold the constitutionality of a statute whenever reasonably
       possible. People v. Mosley, 2015 IL 115872, ¶ 40.

¶ 15       In order to explain why we agree with the trial court’s determination, we must
       briefly review this court’s previous decisions considering the constitutionality of
                                               -5-
       section 11-501.6. In King v. Ryan, 153 Ill. 2d 449 (1992), this court held that a
       previous version of section 11-501.6 was facially unconstitutional. At the time, the
       statute provided, in relevant part:

               “(a) Any person who drives or is in actual control of a motor vehicle upon
           the public highways of this State shall be deemed to have given consent to a
           breath test using a portable device as approved by the Department of Public
           Health or to a chemical test or tests of blood, breath, or urine for the purpose of
           determining the alcohol or other drug content of such person’s blood if there is
           probable cause to believe that such person was the driver at fault, in whole or in
           part, for a motor vehicle accident which resulted in the death or personal injury
           of any person.” Ill. Rev. Stat. 1989, ch. 95½, ¶ 11-501.6(a).

¶ 16       The statute defined personal injury as “any injury that requires immediate
       professional attention in either a doctor’s office or a medical facility.” Ill. Rev. Stat.
       1989, ch. 95½, ¶ 11-501.6(g). Moreover, the statute expressly provided that the
       results of a chemical test performed pursuant to this section could be used as
       evidence in civil and criminal proceedings. Ill. Rev. Stat. 1989, ch. 95½,
       ¶ 11-501.6(e).

¶ 17       The plaintiff in that case collided with another car, and the driver of that car and
       the two passengers in the plaintiff’s car were injured. King, 153 Ill. 2d at 451.When
       the police arrived, they detected a strong odor of alcohol on the plaintiff’s breath.
       The police determined that there was probable cause to believe that the plaintiff
       was at least partly at fault for the accident, so they asked him to accompany them to
       the police station. At the station, the plaintiff passed a field sobriety test. However,
       he refused to submit to a breath test. Id. at 452. The Secretary of State then
       suspended the plaintiff’s driver’s license. Id.; see Ill. Rev. Stat. 1989, ch. 95½,
       ¶ 6-206(a)(31).

¶ 18       The plaintiff petitioned for a rescission of the suspension. Following an
       administrative hearing, the hearing officer recommended denying the request for
       rescission. The Secretary adopted the hearing officer’s findings of fact and entered
       an order denying rescission. King, 153 Ill. 2d at 453. On administrative review, the
       circuit court declared the statute unconstitutional on its face because it authorized
       unreasonable searches and seizures. The court further enjoined the Secretary from
       enforcing the statute’s summary suspension provisions against any driver in the
       state. Id. On direct review, this court affirmed the circuit court’s order.

                                                 -6-
¶ 19        This court explained that whether a search is reasonable under the fourth
       amendment “depends on the facts and circumstances giving rise to the search as
       well as the nature of the search itself” (id. at 457) and that this determination is
       made by “ ‘balancing [the search’s] intrusion on the individual’s Fourth
       Amendment interests against its promotion of legitimate governmental interests’ ”
       (id. (quoting Delaware v. Prouse, 440 U.S. 648, 654 (1979)). In a criminal
       investigation, that balance will typically require a warrant based upon probable
       cause. Id. However, neither a warrant nor probable cause is required in those
       limited circumstances where “ ‘ “special needs, beyond the normal need for law
       enforcement, make the warrant and probable-cause requirement impracticable.” ’ ”
       Id. (quoting Griffin, 483 U.S. at 873, quoting T.L.O., 469 U.S. at 351 (Blackmun, J.,
       concurring in the judgment)). The court further explained that, at a minimum, some
       quantum of individualized suspicion is generally required. However, in limited
       circumstances, “ ‘where the privacy interests implicated by the search are minimal,
       and where an important governmental interest furthered by the intrusion would be
       placed in jeopardy by a requirement of individualized suspicion, a search may be
       reasonable despite the absence of such suspicion.’ ” Id. at 458 (quoting Skinner v.
       Railway Labor Executives’ Ass’n, 489 U.S. 602, 624 (1989)).

¶ 20       This court rejected the Secretary’s argument that section 11-501.6 fell within
       the special needs exception to the fourth amendment. This court explained that in
       those cases where a search or seizure had been deemed reasonable without some
       level of individualized suspicion, either the intrusion was minor or the searched
       person had a diminished expectation of privacy. Id. This court held that the
       subjective intrusion of a section 11-501.6 search is significant. Id. at 463.
       Moreover, this court held that a driver does not have a diminished expectation of
       privacy simply by virtue of his status as a driver. Id. at 460. On this basis, this court
       distinguished Skinner, 489 U.S. 602, in which the United States Supreme Court
       upheld the constitutionality of a Federal Railroad Administration regulation that
       required railroad employees to submit to chemical testing of their blood, breath,
       and urine when they have been involved in a major train accident. In upholding that
       regulation, the Supreme Court noted that railroad employees have a diminished
       expectation of privacy based on their “participation in an industry that is regulated
       pervasively to ensure safety.” Id. at 627. King also distinguished Skinner on the
       basis that there was no dispute that the regulation at issue in Skinner was
       implemented solely to prevent railroad accidents and not to aid in the criminal
       prosecution of employees. King, 153 Ill. 2d at 459. By contrast, section 11-501.6

                                                 -7-
       had as one of its stated purposes the collection of evidence for use in criminal
       proceedings. Id. at 460.

¶ 21       The court acknowledged that the State of Illinois has a compelling interest in
       protecting its citizens from the hazards posed by intoxicated drivers, and that the
       summary suspension provisions of the Vehicle Code helped deter people from
       driving drunk. The court explained that, “[t]o the extent that section 11-501.6
       accomplishes these goals without relying on criminal sanctions, it serves the State’s
       interests beyond the need for normal law enforcement.” Id. at 461. However, the
       court then held that, because section 11-501.6 is also designed to gather evidence
       for use in criminal proceedings, it did not fall within the special needs exception.
       This court further explained that, although the United States Supreme Court had on
       occasion upheld searches under the special needs exception even where the
       evidence was used in a criminal trial, the evidence in those cases was found
       incidentally during a search that was constitutionally valid under the special needs
       exception. See Griffin, 483 U.S. 868; New York v. Burger, 482 U.S. 691 (1987);
       T.L.O., 469 U.S. 325. By contrast, one of the stated purposes of section 11-501.6
       was to gather evidence for criminal prosecutions, and thus it did not “fall within the
       category of special governmental needs outside the normal need for law
       enforcement.” King, 153 Ill. 2d at 462. Accordingly, this court upheld the trial
       court’s determination that section 11-501.6 was facially unconstitutional under the
       fourth amendment. The suspension of the plaintiff’s driver’s license based upon his
       refusal to consent to the search was thus invalid, as the statute that authorized the
       search was unconstitutional. Id. at 465.

¶ 22       The legislature subsequently made several amendments to section 11-501.6,
       and this court again considered the facial constitutionality of the statute in Fink v.
       Ryan, 174 Ill. 2d 302 (1996). In Fink, the plaintiff drove into a telephone pole, and
       he and his passenger were both injured. They were transported from the scene of
       the accident to the hospital. At the hospital, the police issued the plaintiff a traffic
       ticket, asked him to consent to a blood test, and warned that his driver’s license
       would be suspended if he refused. Plaintiff consented, and his blood-alcohol
       content was determined to be 0.14. Id. at 306. The plaintiff was charged with
       driving under the influence, and the State sent the plaintiff notice that his driver’s
       license would be suspended for three months. The plaintiff filed a declaratory
       judgment action, asking the circuit court to declare section 11-501.6 facially
       unconstitutional under the fourth amendment. The circuit court granted the
       declaratory judgment, finding that the amended statute was not substantively
                                               -8-
       different from the one that this court invalidated in King. Id. at 307. The Secretary
       of State appealed directly to this court.

¶ 23       On direct review, this court reversed and held that the statute was
       constitutional. This court determined that the legislature had made sufficient
       changes to the statute since King. This court summarized the changes to the statute
       as follows:

          “In response to this court’s holding in King, the legislature amended the statute
          by: (1) deleting the requirement that chemical testing be premised upon a
          driver’s fault in causing an accident; (2) deleting the provision that chemical
          test results could be used in civil and criminal proceedings; (3) adding a
          requirement that chemical testing be premised upon the issuance of a Uniform
          Traffic Ticket for a non-equipment traffic offense; and (4) defining with more
          particularity the types of ‘personal injury’ that trigger the chemical testing
          provision.” Id. at 309.

       This court determined that these changes were sufficient to reduce the intrusiveness
       of section 11-501.6 chemical tests and to ensure that the testing would only be done
       in situations in which drivers had a reduced expectation of privacy.

¶ 24        First, the court noted that, like the railroad industry in Skinner, the Illinois
       highways are heavily regulated. Thus, while drivers clearly do not lose all
       expectation of privacy when driving, it is somewhat less than what they enjoy in
       their homes. Id. at 310. More importantly, however, this court believed that by
       changing the types of personal injuries that would trigger chemical testing, the
       legislature had ensured that testing would be done only where drivers clearly had a
       diminished expectation of privacy. Id. at 310-11. The version of section 11-501.6 at
       issue in King provided that a driver consented to a chemical test anytime he or she
       was at fault in a traffic accident that resulted in personal injuries that require
       “immediate professional attention in either a doctor’s office or a medical facility.”
       Ill. Rev. Stat. 1989, ch. 95½, ¶ 11-501.6(g). The legislature changed that to allow
       chemical testing when there was a “type A injury,” which included “severely
       bleeding wounds, distorted extremities, and injuries that require the injured party to
       be carried from the scene.” 625 ILCS 5/11-501.6(g) (West 1994).

¶ 25      This court explained that, by limiting testing only to those situations when there
       were more serious injuries, the legislature had ensured that the testing would be
       done only where the driver had a reduced expectation of privacy:
                                               -9-
              “Accidents involving a fatality still trigger the chemical testing provision.
          However, personal injury requiring only a visit to a doctor’s office or a medical
          facility no longer can be the basis for testing. Thus, the legislature’s more
          particularized definition of type A injuries subjects a driver to chemical testing
          in only the more serious accidents. No reasonable driver expects to leave the
          scene of a serious accident moments after its occurrence. With law enforcement
          personnel investigating the accident and other personnel attending to the
          participants’ physical conditions, a driver expects less privacy.” (Emphasis
          added.) Fink, 174 Ill. 2d at 310-11.

       The court further explained that an arrest, as evidenced by a uniform traffic ticket,
       is required before there can be chemical testing and that “the movement of an
       arrested driver is already subject to restrictions.” Id. at 311-12. Addressing the
       intrusiveness of the testing, this court explained that:

          “[A]ny driver subject to chemical testing under the amended statute has a
          statutory duty to remain at the scene of the accident, render aid to injured
          parties, and exchange basic information with those involved. See 625 ILCS
          5/11–401, 11–403 (West 1994). Given the amount of time required to attend to
          law enforcement and emergency medical needs, the addition of a chemical test
          is minimally intrusive. Thus, by the very nature of the circumstances in which
          drivers find themselves, the legislature has imposed testing only when a
          driver’s expectation of privacy has been diminished and a test is minimally
          intrusive.” (Emphases added.) Id. at 311.

       Therefore, “[t]he intrusion upon an arrested driver is minimal or nonexistent
       depending upon the length of time required by law enforcement personnel to
       process the accident scene and emergency medical personnel to attend to the
       injured parties.” (Emphasis added.) Id. at 312.

¶ 26        The court thus concluded that the amended version of section 11-501.6 fell
       within the “special needs” exception to the fourth amendment: “The State of
       Illinois has a special need beyond the normal needs of law enforcement to
       determine whether drivers are chemically impaired and to suspend those drivers’
       licenses.” Id. And the court determined that the legislature, in the amended statute,
       had now ensured that chemical testing would be done only in situations in which
       the testing was minimally intrusive and the driver’s expectation of privacy was
       lowered. Id.

                                              - 10 -
¶ 27        Considering the above authority, it becomes abundantly clear why the statute
       was applied to plaintiff in an unconstitutional manner. Central to this court’s
       holding in Fink was this court’s assumption that the testing would be done shortly
       after the accident. And this assumption was key to this court holding that the statute
       passed constitutional muster. Both when discussing the intrusiveness of the search
       and a driver’s diminished expectation of privacy, the court discussed the relevance
       of the driver being at the accident scene. The court explained that the test was less
       intrusive than it might otherwise be because of the plaintiff’s statutory duty to
       remain at the scene of the accident. Moreover, the court clearly explained that a
       person subject to the test has a diminished expectation of privacy not only because
       of his status as a driver, but because of his presence at the scene of a serious
       accident that is being investigated by the police. These factors were simply not
       present in the case before us, where the police sought a chemical test two days after
       the accident. The intrusiveness of the search was no longer lessened for the reasons
       set forth in Fink, nor did plaintiff any longer have the diminished expectation that a
       driver has in the aftermath of a serious traffic accident. The Fink analysis simply
       does not make sense when applied to a request for a chemical test two days after the
       accident. Further, the “special need” referenced in Fink was the need to suspend the
       driver’s licenses of those who drive while chemically impaired. But a chemical test
       requested two days after the accident, rather than shortly after the accident, is
       obviously much less probative of the question whether the person was driving
       while impaired, and carries the risk of serious prejudice by possibly indicating
       impairment at a time other than at the time of the accident. Fink compels a holding
       that the statute is unconstitutional as applied to plaintiff.

¶ 28       For the first time in this court, the Secretary argues that, despite King and Fink,
       this court should be analyzing the constitutionality of the statute solely under an
       unconstitutional conditions analysis. We note that it was the Secretary who began
       arguing these cases under the “special needs” exception to the fourth amendment.
       See King, 153 Ill. 2d at 459. Moreover, the United States Supreme Court used the
       special needs analysis to assess the constitutionality of a railroad regulation
       requiring employees to consent to chemical testing when they are involved in major
       accidents. See Skinner, 489 U.S. at 620.

¶ 29       Regardless, however, even if we ignore Skinner, King, and Fink and analyze
       this case solely under the unconstitutional conditions test, we would still find the
       statute unconstitutional as applied to plaintiff. Under the doctrine of
       “unconstitutional conditions,” the “government may not require a person to give up
                                              - 11 -
       a constitutional right *** in exchange for a discretionary benefit conferred by the
       government where the benefit sought has little or no relationship” to the right.
       Dolan v. City of Tigard, 512 U.S. 374, 385 (1994). The Seventh Circuit has
       explained that the meaning of the doctrine is simply that “conditions can lawfully
       be imposed on the receipt of a benefit—conditions that may include the surrender
       of a constitutional right, such as the right to be free from unreasonable searches and
       seizures—provided the conditions are reasonable.” Burgess v. Lowery, 201 F.3d
       942, 947 (7th Cir. 2000). The Supreme Court has adopted a two-part test for
       evaluating unconstitutional conditions questions: first, is there an essential nexus
       between the condition burdening rights and a legitimate state interest; and second,
       is there a “rough proportionality” between the burden on the individual and the
       harm the government seeks to remedy through the condition. Dolan, 512 U.S. at
       386-91.

¶ 30       The Secretary contends that there is no question that the State can condition the
       receipt of a driver’s license on a driver’s agreement to consent to a chemical test if
       he or she is involved in a serious motor vehicle accident, as there is obviously an
       essential nexus between the State’s interest in protecting the public from
       intoxicated drivers and requiring consent to a chemical test following an arrest for a
       moving violation related to a serious accident. While it seems beyond dispute that
       this is the case, the problem is that the essential nexus no longer exists when the test
       is requested two days after the accident. In other words, while it is not difficult to
       see the essential nexus between the State’s interest in protecting the public from
       intoxicated drivers and requiring a driver’s consent to a chemical test when he is
       arrested for a moving violation shortly after his involvement in a serious accident,
       there is clearly not such a nexus between that legitimate state interest and a
       chemical test remote in time from the accident. Thus, even assuming the statute is
       facially valid under the unconstitutional conditions test, the statute was still applied
       to plaintiff in an unconstitutional manner.

¶ 31       In closing, we decline to draw a bright line as to how soon after the accident the
       testing must be requested. This is a task best left to the legislature, while it would be
       this court’s job to determine if the line drawn by the legislature is sufficient to pass
       constitutional muster.

¶ 32                                      CONCLUSION



                                                - 12 -
¶ 33       For all of the above reasons, we affirm the circuit court’s decision finding
       section 11-501.6 unconstitutional as applied to plaintiff.



¶ 34      Affirmed.




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