Consensual Blood Draw Has To Be Clear And Unequivocal Especially If You Have Not Been Ticketed

People v. Hayes, 2018 IL App (5th) 140223 (February). Episode 461 (Duration 17:53)

Defendant runs over and kills a 7 year old boy, however, the resulting blood draw is out because defendant was never under arrest.

Hits & Kills A Little Boy

Defendant was driving home from the store with two of his children.

One of the children attempted to hand the defendant a piece of candy to unwrap for him. The defendant looked back to talk to the child. As he did, his vehicle struck seven-year-old David Kirby.

According to witnesses, the boy rode his bicycle between two parked cars onto the roadway and into the path of the defendant’s van. Defendant could have done anything to avoid the accident.

The accident took place near city hall in Sumner, Illinois. The defendant ran into city hall asking for help. Brent Parrott, a volunteer firefighter who was there that day, administered CPR to David. Several police officers responded to the accident, including Lawrence County Deputy Danny Ash, Illinois State Police Trooper Brooks Thomann, and Bridgeport Police Chief Scott Murray.

No Signs of Intoxication
No Tickets Issued

Trooper Thomann testified that he had both training and experience in recognizing the signs of intoxication or influence of drugs in motorists. He did not notice anything about the defendant’s demeanor or appearance that would lead him to believe that the defendant was intoxicated or under the influence. He did not detect the odor of alcohol or drugs, and he noted that the defendant did not slur his speech.

Asked what his conclusion was as to the cause of the accident, Trooper Thomann replied,

“as far as I could see, the child had just ridden out into the street. And when he came around that vehicle, shot out in the middle of the street, and then Mr. Hayes struck him.”

Trooper Thomann testified that he did not issue any traffic citation to the defendant, explaining,

“There was no violation, as far as Mr. Hayes.”

To The Hospital

Deputy Ash asked Chief Murray to transport the defendant to Lawrence County Memorial Hospital to provide blood and urine samples for drug screening.

Chief Murray did so.

He testified that he did not know whether Deputy Ash had placed the defendant under arrest prior to this time. He testified that he did not personally place the defendant under arrest at any time, and he did not issue the defendant any traffic citations. Chief Murray drove the defendant to the hospital. He further testified that during the 10-minute ride to the hospital, the defendant was not handcuffed. At the hospital, Chief Murray accompanied the defendant to the restroom while he provided a urine sample and remained with him while his blood was drawn.

Eventually Charged

Chief Murray testified that he waited with the defendant until Deputy Ash arrived to transport him from the hospital. Chief Murray handed Deputy Ash the DUI kit completed by hospital staff and then left.

He assumed that Deputy Ash transported the defendant back to the police station, but he left the hospital before they did. The test indicated the presence of drugs, and the defendant was charged with aggravated driving under the influence (DUI) (625 ILCS 5/11-501(d)(1)(F) (West 2010)).

Deputy Ash arrived after the samples were taken and drove the defendant back to the police station.

Implied Consent

Deputy Ash was then asked about his decision to have the defendant transported to the hospital for drug testing. Defense counsel asked him on what basis he made that decision. Deputy Ash responded, “He was involved in a personal injury accident. He was the driver of a vehicle involved in a personal injury accident.” Deputy Ash then testified that “consent is implied whenever you receive a driver’s license to obey all the rules in the [Illinois Vehicle Code].”

Blood & Urine Results

The results of initial tests performed by the hospital’s lab were faxed to Deputy Ash later that afternoon. The blood tests revealed the presence of amphetamine. The urine sample collected on that date, however, indicated the presence of methamphetamine, amphetamine, THC, and naproxen.

After receiving these results, Deputy Ash placed the defendant under arrest for DUI. Deputy Ash also issued two traffic citations to the defendant for failing to exercise due care (id. § 11-1003.1) and failing to reduce speed to avoid an accident (id. § 11-601(a)). The next day defendant was charged with aggravated DUI (id. § 11-501(d)(1)(F)).

Second Blood & Urine Tests

Deputy Ash asked the defendant to submit to a second drug testing again a few days later.

This testing of both the blood and urine samples tested negative for the presence of any drugs.

Deputy Ash testified about the timing of the defendant’s arrest for DUI and the issuance of the two traffic citations. He noted that he believed the statute governing implied consent to drug testing required only the issuance of a traffic citation, rather than an arrest.

He conceded that the defendant was not under arrest at the time he was transported to the hospital for testing, testifying that he arrested the defendant on the charge only after receiving the initial test results from the hospital’s lab.

Defense counsel asked Deputy Ash whether he had issued traffic citations to the defendant prior to directing him to be taken to the hospital for drug testing. In response, Deputy Ash stated that the defendant had not been handed a citation prior to this point. He acknowledged that he did not give the citations to the defendant until two days after the initial tests, but he testified that the citations were written earlier.

Asked to explain why he took the unusual step of ordering a second drug test, Deputy Ash explained that someone from the state’s attorney’s office informed him that the initial test might not be valid because the defendant was not given the warning to motorists and because he was not given any traffic citations prior to the tests.

He testified that the second test was intended to remedy this flaw.

Trial Court Says There Was Probable Cause

The court found that the tests were supported by probable cause.

It reasoned that Deputy Ash’s knowledge that the defendant had a history of drug charges and a prior DUI coupled with the defendant’s admitted lack of attention to the road gave Deputy Ash probable cause to believe the defendant may have been under the influence of drugs.

In explaining its ruling, the court noted that Deputy Ash might reasonably have decided that he did not believe the defendant’s version of events and that Deputy Ash might reasonably have concluded that the presence of drugs may have been a contributing factor to the defendant’s inattentiveness.

54 Months Prison!

The matter proceeded to a stipulated bench trial, at which the court found the defendant guilty.

The defendant subsequently filed a motion for a new trial, which the court denied. The court sentenced the defendant to 54 months in prison.

Issue

The question before us is whether the results of the drug tests should have been excluded because they were obtained in violation of the fourth amendment to the United States Constitution.

The Law

The compulsory testing of a defendant’s blood or other bodily fluids is a search within the meaning of the fourth amendment.

To be reasonable under the fourth amendment, a search must ordinarily be conducted pursuant to a warrant supported by probable cause. There are, however, “a few specifically established and well-delineated exceptions” to the requirement of a warrant. Katz v. United States, 389 U.S. 347, 357 (1967).

Consent Is An Exception

Under one exception, a warrantless search is reasonable—and therefore permissible— if there is voluntary consent to the search. People v. Anthony, 198 Ill. 2d 194, 202 (2001); Kratovil, 351 Ill. App. 3d at 1030. Consent to a search is the waiver of a constitutional right. Kratovil, 351 Ill. App. 3d at 1030. The validity of a warrantless search based on consent thus “depends on the voluntariness of the consent.” Anthony, 198 Ill. 2d at 202.

Whether consent is voluntary is a question of fact that must be determined by evaluating the totality of the circumstances. The State has the burden of proving that the defendant’s consent to the search “was truly voluntary.” Id.

No Probable Cause Here

We also agree that the July 25 test was not supported by probable cause.

Here, the court’s finding of probable cause was based on the court’s belief that it would be reasonable for Deputy Ash to disbelieve the version of events given by the defendant, but Deputy Ash never testified that this was the case.

In addition, the court found that it would be reasonable for Deputy Ash to conclude that the presence of drugs might have contributed to inattention on the part of the defendant. However, this reasoning is bootstrapping, and Deputy Ash never testified that he in fact reached that conclusion. We note that because Deputy Ash did not have probable cause to test the defendant for drugs, we need not consider whether exigent circumstances were present under McNeely.

We conclude that the court erred in finding the tests to be justified on the basis of the exigent circumstances-plus-probable-cause exception.

No Consent Either

We turn our attention to the question of consent.

We first consider whether the testing was supported by the defendant’s actual consent.

Must Be Clearly Given

Acquiescence to apparent authority is not the same thing as consent. Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968); Anthony, 198 Ill. 2d at 202. Consent to a search “must be received, not extracted.” Anthony, 198 Ill. 2d at 202 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973)). A defendant can consent to a search without making an express verbal statement of consent; he can instead convey his consent to officers through nonverbal conduct.

As the Illinois Supreme Court observed in Anthony, dueling inferences can easily arise from a single ambiguous gesture. As we explained earlier, consent to a search is the waiver of a constitutional right. Kratovil, 351 Ill. App. 3d at 1030. As such, a “defendant’s intention to surrender this valuable constitutional right should be unmistakably clear.” Anthony, 198 Ill. 2d at 203.

Must Be Voluntary

Moreover, even unmistakably clear consent is not valid unless it is given voluntarily. People v. Green, 358 Ill. App. 3d 456, 462 (2005). Consent is voluntary when it is “given freely without duress or coercion.” Id. (citing People v. LaPoint, 353 Ill. App. 3d 328, 332 (2004)). In determining whether this standard is met, courts consider “whether, in light of all the circumstances surrounding the officer’s request for consent, a reasonable person in the defendant’s position would have felt free to leave” or to refuse to consent to the search. Id. at 463 (citing LaPoint, 353 Ill. App. 3d at 332).

No Consent

Here, the record contains no evidence at all concerning how the test was presented to the defendant or how the defendant responded. We do not know whether Deputy Ash asked the defendant to take the test or demanded that he do so. We do not know whether Deputy Ash told the defendant that he had no right to refuse the test. We do not know whether the defendant agreed to take the test, objected, or merely acquiesced.

The State asks us to presume based on this record that the defendant deliberately got into Chief Murray’s vehicle because he willingly agreed to submit to a test he felt free to refuse. We cannot find the waiver of an important constitutional right based on these circumstances.

Moreover, even assuming the defendant did anything to unambiguously convey consent, the surrounding circumstances indicate that any such consent was not voluntary. He was transported to the hospital for the test by a uniformed police officer. The officer remained with him at all times, even when he went to the restroom to provide a urine sample. Deputy Ash had the defendant’s vehicle towed from the scene of the accident to be stored until Deputy Ash completed his investigation.

We do not believe that a reasonable person confronted with these circumstances would feel free to leave the hospital or refuse to take the test.

Holding

Considering the totality of these circumstances, we find that the State failed to meet its burden of demonstrating that the defendant voluntarily consented to the tests. 

Doesn't Implied Consent Authorize This Testing?

Section 11- 501.6(a) of the Illinois Vehicle Code provides that any motorist “shall be deemed to have given consent” to drug testing if the motorist is

“arrested as evidenced by the issuance of a Uniform Traffic Ticket for any violation of the Illinois Vehicle Code *** with the exception of equipment violations.”

625 ILCS 5/11-501.6(a) (West 2010).

The statute, by its express terms, applies only if the defendant has been arrested for a violation of the Illinois Vehicle Code when asked to submit to testing. We agree with the defendant that this condition was not met in this case.

There is no dispute in this case that Deputy Ash did not issue any traffic citations to the defendant until two days after he directed the defendant to submit to the test.

Sure, the defendant was seized within the meaning of the fourth amendment when he submitted to the tests, but he was not under arrest for a violation of the Illinois Vehicle Code as required by the implied consent provision.

States' Argument

The state argued that if the defendant was arrested that was sufficient for implied consent to kick it.

In support of its position, the State cites People v. Gamblin, 251 Ill. App. 3d 769 (1993), People v. Brantley, 248 Ill. App. 3d 580 (1993), and People v. Wozniak, 199 Ill. App. 3d 1088 (1990).

Moreover, as we emphasized earlier, the court also held that the admission of test results in a criminal case is subject to fourth amendment constraints. We read these cases to say that if a test is otherwise proper under the fourth amendment, its results are admissible regardless of whether the requirements for application of the implied consent provision are satisfied. In a criminal proceeding the fourth amendment governs beyond implied consent law.

Ludicrous Results

Accepting the State’s arguments in this case would mean that almost any driver involved in an accident involving a fatality or serious injury would be deemed to have consented to drug screening. If an officer restricts the driver’s freedom in any meaningful way, the driver would be deemed to have consented to the test through the implied consent provision—even if his movement is only so restricted because of the officer’s decision to administer the test, as happened in this case.

If the officer does not restrict the driver’s freedom to the extent necessary to constitute a seizure or arrest within the meaning of the fourth amendment, the driver will, in many cases, be deemed to have voluntarily consented.

Given the particularly intrusive nature of the blood testing at issue in this case, such a result would be untenable.

Second Holding

We therefore hold that before a motorist may be found to have impliedly consented to this intrusive search, thereby waiving an important constitutional right, he must be under arrest for a violation of the Illinois Vehicle Code.

We note that our holding does not limit the admissibility of test results in cases where the defendant has actually given voluntary consent or in cases where some other recognized exception to the requirement of a warrant applies.

We merely hold that the State cannot rely on the implied consent provision unless the defendant has been arrested for a nonequipment violation of the Illinois Vehicle Code.

The fact that the defendant’s movement is restricted to the degree necessary to be seized within the meaning of the fourth amendment coupled with a decision to issue tickets one to two days after the fact, as occurred in this case, is not sufficient to meet this standard.

To find that standard met in this case would allow the State to do an end-run around the requirements of the fourth amendment. We conclude that the drug test at issue in this case did not fall within any recognized exception to the requirement of a warrant. As such, it was an unreasonable search within the meaning of the fourth amendment, and the results should have been excluded.

Reversed Outright

Because there is insufficient evidence to convict the defendant without evidence of the test results, we will reverse his conviction outright.

See Also

Episode 439 - People v. Sykes, 2017 IL App (1st) 150023 (December). (no police action when police hold a lady down in the hospital)

Episode 423 – People v. Brooks, 2017 IL 121413 (November), (our supreme court recently held that mere police participation, absent the private actors acting as an agent or instrumentality of the State, is not state action)

Episode 319 How Can Police Enforce A Blood Warrant | A Discussion With Anthony Cameron 

Episode 438 – People v. Eubanks, 2017 IL App (1st) 142837 (December) (really bad defendant held down in the hospital)

Episode 186 – Birchfield v. North Dakota, 136 S. Ct. 2160, 2174 (2016)