People v. Mumaugh, 2018 IL App (3d) 140961 (January). Episode 453  (Duration 16:35)

Defendant was driving under the speed limit when he hit a girl wearing all black in the middle of night when she was standing in the middle of the roadway.

This is an Illinois DUI case.

Defendant

Mumaugh was 43 years old at the time of trial. He lived in Marseilles, and had been a professional truck driver for 27 years. On June 21, 2012, at approximately 10:30 p.m., Mumaugh left work in Ottawa and began driving his GMC Blazer east on I-80 toward Marseilles.

He exited the Interstate at the Marseilles exit and proceeded south on Highway 15 toward the Marseilles city limits.

It was a very dark night with no moonlight.

The Highway

Highway 15 is a paved, two-lane road. At the time of the accident, the posted speed limit was 55 m.p.h. At the location of the accident, there were no lights illuminating the highway. The area is rural, and the highway is surrounded by open fields and bordered by gravel shoulders.

The Girls

At the same time Mumaugh was driving home that night, 12-year-old Jennifer Dennis (Jennifer) and her friend, 13-year-old Courtney Brown (Courtney), were walking on the east side of Highway 15, at the edge of the northbound lane.

Jennifer and Courtney had sneaked out of Courtney’s house to go the Dollar Store for soda. Finding the store closed, they continued north on Highway 15 in Marseilles toward a gas station, which was also closed.

The girls then walked south along Highway 15 on their way back to Courtney’s house.

Phone Calls

At 10:34 p.m., Maggie Thomas, a 911 dispatcher, received a call from Milan Najdanovich.

Najdanovich told Thomas,

“I’m on my way into town, and you got two little girls, they’ve got to be 12 or 14 years old, walking on Marseilles blacktop walking in between Hicks Gas and the Shell station. They’ve got no reflectors on, no nttin’ Honey, they’re goin’ to get hit. They’re wearing dark clothes. I’m really afraid somebody’s gonna hit ’em or soemmething”

Within 58 seconds of Najdanovich’s 911 call, a squad car was dispatched to the scene.

The Accident

As Courtney and Jennifer walked, Courtney’s flip flop broke, and she bent down to fix it.

Mumaugh was driving south on highway 15 at 50 miles per hour when he saw the white legs of a young girl (Courtney), in the northbound lane. Courtney was about 75 feet away. Within a split second, another young girl, Jennifer, appeared out of nowhere in the southbound lane, immediately in front of Mumaugh’s vehicle.

Jennifer was wearing black clothes and had her back to Mumaugh.

Mumaugh immediately swerved his vehicle to the right to avoid striking Jennifer, but Jennifer was right in front of his vehicle. The left side of his vehicle struck Jennifer. Courtney heard a crash as she was bending over. Mumaugh’s vehicle veered off into a ditch on the west side of the highway.

Jennifer sustained serious injuries as a result of the accident, including an injury to her brain. She was in a coma for several months and suffered permanent disabilities.

Defendant Administer’s Aid

Mumaugh immediately exited his vehicle to give aid to Jennifer. Mumaugh had been an emergency medical technician (EMT) for approximately 10 years in the 1990s. He encountered Courtney, who said to him,

“I kept telling her to get out of the road. I kept telling her she shouldn’t walk on the road.”

Mumaugh and Courtney found Jennifer lying face down on the east side of the highway. Her breathing was very labored.

Authorities Arrive

In re Jarrell C., 2017 IL App (1st) 170932 (December). Episode 447 (Duration 14:47)

Holding your crotch is not indicative of carrying a gun; Illinois fails to apply the exclusionary rule after police discover a warrant notwithstanding Utah v. Strieff.

See Utah v. Strieff

Episode 185 – Thomas Guts the Exclusionary Rule – Utah v. Strieff

Utah v. Strieff

In Strieff, a law enforcement officer conducting surveillance on a suspected drug house noticed the defendant exit the house and walk away. The officer followed and eventually confronted the defendant in a nearby parking lot. Then the officer asked for and received the defendant’s identification card and conveyed the information to the police dispatcher. A warrant check revealed the defendant had an outstanding warrant, and he was placed under arrest. During a search incident to arrest, the officer discovered drugs and drug paraphernalia on the defendant’s person. The Court found that the discovery of an outstanding arrest warrant was “a critical intervening circumstance” that “broke the causal chain between an unconstitutional stop and the discovery of incriminating evidence.” See Utah v. Strieff, 579 U.S. ___, ___, 136 S. Ct. 2056, 2061 (2016).

This Case

While driving in an unmarked car, Officer Ustaszewski was showing the commander and the captain areas of concern in a high-crime area so they could determine where to best deploy resources. He observed respondent standing on Kenneth Avenue in front of a building that is a known Latin Eagles hangout, holding his waistband or the material of his shorts between the waist and the crotch area like he was “holding something” with his right hand.

Ustaszewski testified that, in his opinion as an intelligence officer familiar with different areas where street gangs hang out, when people hold their waistbands, they are concealing objects, most likely guns. Officer Ustaszewski observed respondent for a few minutes and saw him looking in the direction of the officers and then walking inside the currency exchange.

The commander and the captain followed respondent inside the currency exchange.

The Encounter

Defendant was waiting in line to purchase a bus card.

Less than a minute and a half later, a police officer (the commander) entered the currency exchange. Respondent indicated that the police officer motioned with his finger for respondent to “come here.” Respondent replied “Who me?” The officer said “Yes, you.”

Respondent stated that the officer had his hand on his gun.

Respondent walked over to the officer at that point. Two other officers entered the currency exchange. One of officers told him to lift up his shirt. Respondent replied,

“What’s the problem, sir? I didn’t do anything.”

The officer told respondent to lift up his shirt “before we go over there and do it for you.”

Respondent lifted up his shirt while turning around.

Next, the officers told him to put his hands on the railing so they could search him. One officer unholstered his gun. Another officer searched and recovered a gun from respondent’s left side.

Respondent was then taken outside to a police car.

The police recovered some drugs from his person.

Other Police Testimony

The officer asked respondent to lift up the front of his T-shirt, but respondent only lifted up the back of the shirt slightly and turned around. Ustaszewski could not see the front of respondent. Respondent then turned around and pulled out his shirt, and the officer saw that the shirt “buckled up on the front.” Ustaszewski stated that at that point, he knew that respondent had a gun.

People v. Heritsch, 2017 IL App (2d) 151157 (December). Episode 446 (Duration 7:36)

Everything could be tracked and timed with the video, if there is more than one officer at the scene then state has the best chance of winning a motion to suppress evidence.

Charges

Following a stipulated bench trial in the circuit court of Boone County, defendant, Ken Heritsch, was convicted of possession of more than 10 grams but not more than 30 grams of a substance containing cannabis (720 ILCS 550/4(c)). Because defendant had a prior conviction of possession of cannabis, the offense was a Class 4 felony.

Defendant was sentenced to a three-year term of probation and 90 days in the Boone County jail.

Gist

Defendant’s conviction was based on the discovery of cannabis in his vehicle following a traffic stop and a dog sniff. The time stamp on the video recording establishes a timeline of events.

Time Line of Events

(7:05:34 p.m.) Zapf testified that he observed the Mercury cross the fog line, after which he pulled the vehicle over.

(7:07:29 p.m.) Zapf approached the driver’s side of the Mercury (7:06:11 p.m.). Zapf asked defendant for his driver’s license and proof of insurance. Zapf then started to walk back to his squad car.

(7:08:12 p.m. to 7:08:20 p.m.) Before reaching the squad car, Zapf spoke briefly with Bogdonas about his observations of defendant’s condition. At the end of the conversation, Zapf asked Bogdonas to try to get defendant’s consent for a search of the Mercury. Zapf then returned to his squad car and ascertained that defendant’s driver’s license was valid and that he had no outstanding warrants. Zapf decided to issue a warning to defendant for crossing the fog line.

(7:09:53 p.m.) Meanwhile, Bogdonas had defendant step out of his vehicle, and she searched his person. Defendant did not consent, however, to a search of his vehicle. Bogdonas approached Zapf and told Zapf that defendant was being an “asshole”. Zapf had been writing a warning to defendant, but after speaking with Bogdonas, Zapf decided to issue defendant a citation for improper lane usage.

(7:10:59 p.m.) At that point, Zapf had written only defendant’s name on the warning. Zapf told Gardner that he had decided to issue a citation to defendant because Bogdonas said that defendant was a “jerk”.

(7:11:02 p.m.) Gardner then told Zapf to summon Officer Grubar, who worked with a drug detection dog, to the scene.

(7:11:07 p.m) Zapf made a radio call to Grubar at.

(7:11:33 p.m to 7:11:55 p.m) Grubar responded and told Zapf that she was unavailable. Zapf ended the call at.

(7:12:29 p.m. through 7:12:47 p.m.) Shortly thereafter, Zapf received a radio communication from Boone County deputy sheriff Kevin Smyth, who indicated that he would bring his drug detection dog, Bosco, to the scene. When Smyth arrived, he had Bosco conducted a free air sniff of the Mercury.

Citation Written While Sniff Was Done

Zapf then searched the vehicle, found cannabis, and placed defendant under arrest. Zapf testified that, while waiting for Smyth to arrive, he was in his vehicle and was working on defendant’s citation. Bosco completed the free air sniff while Zapf was still working on the citation. When Zapf finished writing the citation, he stepped out of his vehicle.

Smyth was questioning defendant.

Zapf testified that he walked to defendant, who was standing in front of Zapf’s vehicle. Smyth was walking back to his own vehicle. We note that the video recording shows that, when Zapf exited his squad car, he walked directly to defendant’s vehicle.

Drug Dog Did Not Delay

Smyth testified that identifying drugs by odor was among the things Bosco was trained to do. When Smyth arrived at the scene,

In re D.L., 2017 IL App (1st) 171764 (December). Episode 445 (Duration 9:29)

Kid is seen walking away from the location of a “shots fired”, he starts to run, when they catch him he has a gun.

Gist

Respondent was charged with various gun charges in juvenile court. He filed a motion to quash defendant’s arrest and suppress evidence, alleging that he was subjected to an unreasonable search and seizure.

Shots Fired

Officer Scaduto testified that on the evening of March 28, 2017, he was working with three partners—Officers Borne, Riley, and Boubach—in an unmarked squad car. The officers were in plainclothes, wore “CPD badges” and had “police” on the back of their vests.

Around 8:20 p.m., the officers received a dispatch concerning multiple calls of shots fired on “the 117th block of Loomis.” The dispatch gave no information about the identity of the suspects or callers, other than “more than one person called in th[e] incident.”

Quick Response

Officer Scaduto and his partners, who were about “one minute away on Halsted Street,” responded to the dispatch and began to drive toward the 117th block of South Loomis Street. One minute later, while travelling westbound on 116th Street, the officers saw respondent and another male walking eastbound on the sidewalk about “two houses away from Loomis.”

Officer Scaduto did not know respondent, or see any bulges in his clothing. Officer Scaduto observed that respondent and the other male were “walking quickly” away from the area of the shots fired call. There were no other people on the street at the time, and Officer Scaduto observed respondent for approximately five seconds.

Approach The Kid

Officer Scaduto stated that, “[d]ue to the fact that it was a shots fired call in that area and [respondent] was walking quickly away from that shots fired call, we attempted to conduct a street stop *** [to] have a conversation about the shot[s] fired call and if they heard anything.”

The officers approached, and Officer Scaduto “told respondent to stop so we could have a conversation about the shots fired call.” When asked whether this was “a request or *** an order,” Officer Scaduto clarified that “it was an order.” The male who was walking with respondent “complied” and headed toward the police car. Respondent, however, “did not comply with Officer Scaduto’s order and began running” northbound down an alley.

They Catch Him

Officer Scaduto pursued respondent on foot, did not lose sight of him, and detained respondent less than one minute later. Once he apprehended respondent, Officer Scaduto handcuffed respondent, “detained him[,] and placed him in custody.” Officer Scaduto conducted a pat-down because he had “reason to believe that [respondent] ran *** because he was concealing a firearm.”

Officer Scaduto denied that respondent was arrested at this point, stating that it was “part of the field interview.”

The Pat Down

During the pat-down, Officer Scaduto recovered a .380-caliber semiautomatic handgun from inside the pocket of respondent’s jacket. The handgun was “stove piped,” meaning it had a malfunction that “only happens after you actually shoot the firearm.” After he recovered the weapon, Officer Scaduto placed respondent under arrest.

Officer Scaduto explained that he performed a pat-down “[b]ased on the totality of the circumstances, the shots fired call, the minor respondent walking away from the area of the shots fired call ***, and that he and another individual were the only ones on the street at the time of the shots fired call in that area.” He further asserted that he had “reason to believe that he was concealing a firearm” based on the “shots fired call” and “that he fled from me and didn’t obey *** my verbal c...

People v. Ross, 2017 IL App (4th) 170121 (December). Episode 444 (Duration 9:50)

Police put the wrong address on the search warrant. Now what happens?

This is an Illinois search and seizure opinion.

Charges

The State charged defendants, James A. Ross and Ryan A. Schriefer, with unlawful possession with intent to deliver cannabis while within 1000 feet of a school (720 ILCS 550/5.2, 5(e) (West 2014)) and the unauthorized production or possession of cannabis sativa plants (720 ILCS 550/8(d) (West 2014)).

Gist

Law enforcement officers searched a structure on property located at the northeastern corner of Greely and Chestnut Streets in Monticello, Illinois, pursuant to a search warrant issued earlier the same day.

Both defendants filed motions seeking to suppress evidence they argued was improperly obtained as the result of a defective search warrant. The trial court granted defendants’ motions.

Issue

On appeal, the State argues the trial court erred in granting defendants’ motions to suppress based on “a discrepancy in the address” contained in the search warrant.

It contends that despite the error as to the target residence’s street address, the search warrant’s description of that residence was otherwise sufficient to allow law enforcement officers to know where to conduct the search.

Facts

The record reflects the property at issue was a single lot with two buildings—a tan, two-story house and a blue, barn-shaped building that, at some point, had been used as a residence.

The search at issue was of the tan house, which had a front door that faced Chestnut Street and the numbers 1002 displayed on the front of the home. The barn was associated with a street address of 817 North Greely Street in Monticello and was located north of the tan house.

The Search Warrant

The search warrant set forth the street address of the property to be searched as 817 North Greely Street and further described it as follows:

“A single family, tan, two[-]story dwelling located on the east side of North Greely Street with the number 817 displayed on the front, a detached barn to the north of the residence[.]”

During the search, law enforcement officers discovered cannabis and cannabis production materials.

Wrong House

Turns out the structure searched—the tan house—was a residence located at 1002 East Chestnut Street, but the search warrant referenced only a residence at the location of 817 North Greely Street in Monticello, Illinois.

The residence at issue was located northeast of the intersection, and police agreed it was a tan building.

Reports from the neighbors were that the tan residence was the problem. Police could also smell burnt cannabis coming from the home. They did not “actually go check the numbers” that were affixed to the front of the target residence.

How Did It Happen?

The officer who drafted the search warrant did not go to the location.

He was told to do it because he was good with search warrants. Russell testified he researched the address and stated his “research indicated that the residence was underneath one address, 817 N. Greely.” Russell testified he drafted a search warrant based on the officers’ observations of the location. He did not personally visit the address in question prior to preparing the complaint for a search warrant.

Russell testified, later, he looked up records associated with 1002 East Chestnut Street. He stated he went to the clerk’s office “to determine why it showed 817 on the computer, and they explained it was two different properties consolidated into one.”

Russell also learned that separate Monticello city water and ...

People v. Sykes, 2017 IL App (1st) 150023 (December). Episode 439 (Duration 9:13)

Cops help hold her down while they force catheterize her, was this an illegal seizure after they captured and tested her urine?

Gist

Ladina Sykes and her two children were leaving a beach in Evanston when their car struck a wall in the parking lot. At the hospital they hold her down to take her urine. She was found guilty and placed on supervision after cannabis was detected in her urine.

Sykes was deemed mentally unable to provide consent, so when she refused to provide a doctor-ordered urine sample, a nurse catheterized her while several people, including two Evanston police officers, held her down because she was being physically uncooperative.

Facts

Paramedics took Sykes to Evanston Hospital. 

The paramedics took Sykes to Evanston Hospital, where a triage nurse assessed her condition. She was stable and had no complaints but was deemed to have an altered mental state because even though she was alert and oriented as to person and place, she did not know the date or time of day.

Officer Pratt told hospital staff he suspected Sykes was under the influence of something. Pratt was standing outside Sykes’s room when he heard her tell the nurse she had one alcoholic drink that evening. He went in her room and asked her if she had been drinking. She told Pratt she had not been drinking or taking any drugs.

Pratt arrested her for driving under the influence, based on the odor of alcohol, slurred speech, bloodshot eyes, and overall demeanor.

Pratt asked Sykes to provide blood and urine samples, and she declined. He did not ask hospital staff to obtain samples for him.

The Hold Down

Dr. Patel examined Sykes and ordered a CT scan and blood and urine tests to determine why Sykes was in an altered mental state and to decide on a proper course of treatment. The urine test, in particular, would determine if she had drugs in her system. Colleen Costello, the supervising nurse, asked Sykes for a urine sample. Sykes refused. Costello then decided to catheterize her. Costello said patients can refuse treatment unless, like Sykes, they have an altered mental state. When Costello began the catheter procedure, Sykes was combative, swinging her arms, kicking her legs, and moving her hips to resist catheterization. She also tried to get out of the bed. Costello called for assistance, and about nine people responded, including Evanston police officers Pratt and Magnas, who had been standing outside the room.

Pratt and Magnas stood at the head of the bed and held Sykes down by her shoulders. Once Sykes was restrained, Costello extracted the urine with a catheter.

The blood and urine tests were sent to the hospital lab. Sykes’s blood test showed she was well within the legal limit for alcohol, and her urine test was presumptively positive for cannabis and PCP.

After Sykes’s CT scan showed no evidence of injury and her mental state improved, Evanston Hospital discharged her into police custody.

Issue

Sykes contends her conviction should be vacated because the police violated her fourth amendment rights by holding her down while a nurse forcibly catheterized her. 

 Sykes argued the Evanston police officers’ participation in the forcible extraction of her blood and urine to test for drugs or alcohol, without a warrant, was an illegal search and the results of the search should be suppressed.

Sykes first contends the police violated her fourth amendment rights by actively participating in her forced catheterization. While Sykes concedes the police did not order the catheterization, she asserts they participated in an unconstitutional search by helping to hold her down while a nurse catheter...

People v. Eubanks, 2017 IL App (1st) 142837 (December). Episode 438 (Duration 12:56)

On December 21, 2009 defendant ran over a mom and child killing the mom when he refused to give blood or urine they held him done so they could draw it.

Gist

In this case, Eubanks was arrested in connection with a hit-and-run accident that killed Maria and injured Jeremiah. The police had probable cause to arrest Eubanks for driving under the influence. At the police station, Eubanks refused to take a breathalyzer test or to submit to blood and urine tests.

Facts

Shortly before 9 p.m. on December 21, 2009, in the Rogers Park neighborhood of Chicago, Felix Worthon was walking home with his wife Maria and their son Jeremiah near the intersection of Greenview and Greenleaf Avenues. Maria and Jeremiah stopped to talk to Maurice Glover, a man from their church.

Felix crossed the street ahead of them. As he was crossing, he heard a sound behind him; he turned around and was nearly hit by a car. The car struck Maria and Jeremiah and kept going without stopping. The force of the impact knocked Maria’s body a block away. Maria died immediately, and Jeremiah suffered permanent injuries.

Defendant Arrested & Restrained

A passenger in the car came back to the scene to tell police Defendant was the hit and run driver. He was quickly arrested.

At 2:53 a.m., an officer took Eubanks to the hospital, telling him that he was required by law to submit to blood and urine tests.

Eubanks was physically restrained by hospital security and a blood sample was taken at 4 a.m. The nurse then asked for urine, but Eubanks refused to urinate. The nurse threatened to catheterize him. As she approached him with a catheter, he urinated, and a sample was collected at 5:20 a.m.

The samples were sent to the crime lab for analysis. Eubanks’s blood produced negative results for alcohol or any illegal substance, but his urine tested positive for cannabis, ecstasy, and cocaine metabolite.

The body converts drugs to metabolites over time as part of the metabolic process.

He Doesn’t Get The Reckless Instruction

Eubanks requested that the jury be instructed on reckless homicide as a lesser included offense of first degree murder. The court denied his request, stating that if the State’s evidence was believed, Eubanks’s actions “could only create a strong probability of death or great bodily harm to some individual.” The jury found Eubanks guilty of first degree murder, failure to report a motor vehicle accident involving death or injury, and aggravated driving under the influence.

Eubanks was sentenced to 40 years’ imprisonment.

Was It Error To Deny Reckless Instruction?

Eubanks first argues that he was entitled to a jury instruction on reckless homicide since there was some evidence that he acted recklessly in causing Maria’s death.

He’s not saying the evidence is insufficient to convict him of first degree murder, nor could he reasonably do so. There are plenty of high speed cases where courts have said first degree murder was proved because death or serious injury was a certainty.

Rather, Eubanks argues that there was sufficient evidence of his recklessness that the jury should have been instructed on both reckless homicide and first degree murder.

Standard On Lesser Included

A defendant is entitled to an instruction on a lesser-included offense if there is some evidence in the record that, if believed by the jury, would reduce the crime charged to a lesser offense. People v. McDonald, 2016 IL 118882, ¶ 25. That is, the evidence must permit a rational jury to acquit the defendant of the greater offense but still find him guilty of the lesser offense.

Murder v. Reckless Homicide

People v. Lomeli, 2017 IL App (3d) 150815 (December). Episode 434 (Duration 9:18)

Defendant gets stopped for having a rosary hanging from his rearview mirror.

Gist

Defendant gets pulled over for having a rosary dangling from his front mirror.

Facts

Officer actually said he saw something hanging that might have been obstructing the driver’s view. The officer did not recall what the object was.

He initiated a traffic stop based off the object suspended in the rearview mirror. Defendants gets arrested for DWLS.

It was a rosary.

Ordinary Rosary

The defendant said the rosary was a circle of beads with a single strand necklace at the bottom. He stated that the rosary hung down about halfway between the rearview mirror and the dashboard and was “[a] few centimeters” wide.

The Traffic Code

Section 12-503(c) of the Illinois Vehicle Code (Code) states, in pertinent part,

“No person shall drive a motor vehicle with any objects placed or suspended between the driver and the front windshield *** which materially obstructs the driver’s view.”

625 ILCS 5/12-503(c).

See also People v. Dunmire, 2019 IL App (4th) 190316 (December). Episode 717 (Duration 12:41) (The Tinted Window Statute Permits Up To 35% Light Transmittance On Side Windows)

Issue

On appeal, the defendant argues that the trial court erred in denying the defendant’s motion to suppress evidence because no reasonably objective officer could have believed the object hanging from the rear view mirror of the car the defendant was driving materially obstructed the driver’s view.

Some Case Law

“A police officer may conduct a brief, investigatory stop of a person where the officer can point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.” People v. Hackett, 2012 IL 111781, ¶ 20 (car stopped for multiple lane deviations was proper).

The officer’s belief that the intrusion is warranted must amount to more than a hunch, but need not rise to the level of suspicion required for probable cause. See People v. Close, 238 Ill. 2d 497, 505 (2010)). But a traffic stop may be justified on something less than probable cause.

A police officer can effect a lawful Terry stop without first considering whether the circumstances he or she observed would satisfy each element of a particular offense.

This Is Not Probable Cause

For probable cause and conviction, there must be something more. But an investigatory stop in this situation allows the officer to inquire further into the reason for the stop, either by inquiry of the driver or verification of the condition of the possible obstruction.

The elements of windshield obstruction include a reasonable belief that the defendant had violated each of the following elements of the offense:

(1) that the defendant was driving a vehicle with an object placed or suspended between him and the windshield,

(2) that the object obstructed the driver’s view, and

(3) such obstruction was material.

However, an officer may conduct an investigatory stop with reasonable, articulable suspicion, which is less than probable cause, and “without first determining whether the circumstances he observed would satisfy each element of a particular offense.” People v. Little, 2016 IL App (3d) 130683.

People v. Beck, 2017 IL App (4th) 160654 (November). Episode 424 (Duration 11:51)

Defendant crosses the centerline and collides head on with another car resulting in serious brain damage to the other driver, this 54 page opinion results.

Bad Accident

This was a head on collision that resulted in brain damage with long-term and lasting effects to the other driver. Defendant was found guilty of Aggravated DUI after a stipulated bench trial and put on 30 months probation with 180 days in jail but stayed.

Defendant’s car crossed into oncoming traffic.

A firefighter made first contact with defendant at the accident scene. Defendant reported to the firefighter that he “had maybe five beers” and Gubbins relayed that information to Carle’s emergency room. Defendant reported he had been drinking for the homecoming festivities at Eastern Illinois University since 10 a.m. on the day of the accident.

A photograph of the interior of defendant’s vehicle showed a single Bud Light beer can on the floorboard.

Taken To Hospital 

Defendant is taken to the hospital at 9:43 pm.

Hospital personnel informed the Sheriff’s office that defendant had a blood alcohol result of 0.211.

Deputy Clough stated he first saw defendant in a bed in his hospital room. Defendant’s parents were present and Clough believed a nurse was also in and out of the room. ” Clough next asked defendant if he was willing to submit to testing of his blood and urine. Defendant consented to the testing, and Clough asked a nurse to “do a DUI kit.”

Defendant is ticketed with DUI at 1:45 pm.

Conversation With Police

Because the emergency room was busy, blood was not collected from defendant until approximately 3:25 or 3:26 a.m. (7 hours after the crash) While waiting on the nurse to obtain specimens from defendant, Clough and defendant had a further discussion about defendant’s consumption of alcohol.

During that conversation, defendant reported that he had been drinking at a party prior to the accident.

Defendant admitted that he drank eight to nine beers at a party before the accident and crossed the centerline of the highway and struck Camp’s vehicle.

The officer did read the warning to motorist but did not give defendant the Miranda warnings.

Interesting 911 Recording

Recordings indicated the 9-1-1 center was contacted by law enforcement and asked to contact Carle’s emergency department with a request to draw defendant’s blood.

A dispatcher with the 9-1-1 center then contacted Carle and relayed the request to its emergency department, stating as follows:

“The deputies on scene are requesting that the male subject who’s being transported, you guys get a blood draw from him.”

An unidentified individual from Carle’s emergency department then responded,

“Yeah, we usually always do.”

But a nurse testified she was not ordered by any law enforcement agency to perform the blood draw. Rather, she did so at the direction of the emergency room doctor. At the time she drew defendant’s blood, there were not any police officers in defendant’s room, and she had not spoken to any police officers about defendant’s case. To her knowledge police were not requesting a blood draw.

She acknowledged that defendant’s medical records reflected that she drew defendant’s blood at 10:29 p.m.

Retrograde Extrapolation

The state presented a forensic toxicologist who described retrograde extrapolation as “a mathematical process” and “a method of estimating an individual’s BAC at an earlier point in time when it’s known at a later point in time.”

He testified retrograde extrapolation was an accepted method within the field of toxicology for determining an individual’s BAC and “was first described ...

People v. Brooks, 2017 IL 121413 (November). Episode 423 (Duration 13:50)

Defendant is taken to the hospital kicking and screaming literally against his will and his blood is drawn.

Motorcycle Accident

Police arrive to the scene of motorcycle accident.

No other cars were involved.

Witnesses told the police that defendant was riding the bike and he wiped out. Webb spoke to defendant and, while doing so, noticed defendant’s speech was slurred, his eyes were red, and he had an odor of alcohol emitting from his mouth when he spoke or yelled at the police.

According to Webb, defendant appeared agitated by the presence of law enforcement.

Webb believed defendant’s leg was broken because his foot was “almost upside down.”

No Hospital Please

When Webb asked defendant if he wanted to go to the hospital, defendant refused.

Webb was concerned about defendant’s safety, as he appeared to not be thinking rationally because he was screaming and swearing at the police. Emergency medical services (EMS) personnel who were present at the scene told Webb defendant needed to go to the hospital and requested Webb’s assistance in getting him there.

Although defendant continued to decline medical services, Webb ordered defendant out of the Jeep.

Defendant refused.

Was He Arrested?

Thereafter, Webb and another officer physically removed defendant from the Jeep, placed him on a gurney, and assisted EMS personnel in putting the gurney into the ambulance.

Webb reiterated that it was EMS personnel who wanted defendant to get medical treatment and that he did not direct anyone to treat defendant.

When asked. Webb testified that the ambulance stopped after traveling one or two blocks because defendant was trying to get out. EMS personnel again asked the police to help in transporting defendant. Webb stated that he was concerned at this time for the safety of EMS personnel, defendant, and himself.

Webb placed defendant on the gurney, handcuffed him, and rode in the ambulance the rest of the way to the hospital. Webb then assisted EMS personnel in taking defendant into the emergency room.

Warnings Read

At the hospital, Webb read the statutory “Warning to Motorists” to defendant and asked him to consent to blood or breath testing.

Defendant refused.

At that point, Webb issued defendant a citation for DUI.

No Police Blood

Webb stated he did not take a sample of defendant’s blood nor did he direct anyone at the hospital to do so. While Webb observed nurses working on defendant, he never spoke to them or any doctor. Webb stated he had no further contact with the hospital after he left and did not know whether defendant ever gave consent for a blood draw.

Defendant Treated

Defendant then testified. Defendant briefly stated that, at the hospital, he never consented to have his blood drawn.

Every time he was asked to have his blood drawn, he refused.

Medical staff set his leg, which was broken. Altogether, defendant stated he spent approximately 12 hours at the hospital.

Issue

The sole allegation raised in defendant’s motion to suppress is that his fourth amendment right to be free from an unreasonable search was violated by a blood draw conducted at the hospital.

No Prima Facia Case

To make a prima facie case for suppression, defendant had to establish two things:

first, that a search occurred in the form of a blood draw and,

second, that the draw violated the fourth amendment.

Defendant failed to establish either of these propositions.

Defendant presented no evidence that his blood was actually drawn at the hospital.

Although this was a matter within his personal knowledge,