Defense Must Prove Blood Draw Was Carried out by State Actors

ILLINOIS STATE BAR ASSOCIATION MAY 2021 VOL 30 NO. 4 Traffic Laws & Courts

The newsletter of the Illinois State Bar Association’s Section on Traffic Laws & Courts

Defense Must Prove Blood Defense Must Prove Blood Draw Was Carried Out by State Actors Draw Was Carried Out by 1 Breathalyzer Challenge State Actors Toppled by Lack of Credibility 1 BY DAVID B. FRANKS

Recent U.S. Department of a time when Defendant had four prior Facts Justice Funded Study Raises After causing a motor vehicle accident, violations of driving under the influence of Constitutional Issues & the state filed a bill of indictment charging alcohol. Count II charged Defendant with Prosecution Challenges in Defendant with three counts of alcohol- aggravated driving under the influence Cannabis-Related DUI Cases related driving offenses. People v. Mueller, with an alcohol concentration of 0.08 7 2021 IL App (2d) 190868. Count I of or more (11-501(a) (1), (d) (2) (D)) at a time when Defendant had four prior the indictment charged Defendant with Does State Commit a aggravated driving under the influence violations of driving under the influence of Discovery Violation When of alcohol (11-501(a) (2), (d) (2) (D), alcohol. Count III charged Defendant with Evidence Does Not Exist? (d) (1) (G)), alleging that Defendant aggravated driving under the influence of 8 drove under the influence of alcohol at Continued on next page Breathalyzer Challenge Toppled by Lack of Credibility

BY ADAM MILLER

In People v. Sokolowski, 2021 IL App along the interstate. When the trooper (4th) 190074-U the court upheld the denial arrived on scene the defendant was outside of a motion in limine asking to bar a his vehicle in a grassy area with two cans of preliminary breath test (PBT) result as well beer next to him. The defendant claimed as a guilty verdict following a stipulated to have missed his exit due to the rainy bench trial. In Sokolowski the defendant was and foggy weather and left the roadway charged with DUI following a single vehicle due to a squall of rain. The trooper made accident after he struck the cable barriers Continued on page 5 Traffic Laws & Courts ▼ MAY 2021 / VOL 30 / NO. 4

Defense Must Prove Blood Draw Was Carried Out by State Actors CONTINUED FROM PAGE 1 Traffic Laws & Courts alcohol (11-501(a)(2), (d)(1)(G)), alleging draw. The state argued, however, that the This is the newsletter of the ISBA’s Section on Traffic Laws & Courts. that Defendant drove under the influence of only available remedy for this error was Section newsletters are free to section alcohol at a time when her driving privileges to rescind Defendant’s statutory summary members and published at least four were revoked for a violation of section 11- suspension, and not to suppress the results times per year. Section membership dues are $30 per year. 501 of the Illinois Vehicle Code, or a similar of her blood test. The state further argued To join a section, visit www.isba.org/ out-of-state offense. that the question of consent was misplaced sections or call 217-525-1760. Defendant filed a motion to quash her because “the appellate court held that OFFICE arrest and suppress evidence, seeking to consent is no longer a requirement for the ILLINOIS BAR CENTER suppress the results of three separate blood admission of the results of chemical tests 424 S. SECOND STREET SPRINGFIELD, IL 62701 alcohol tests from blood draws that all into evidence.” In response to Defendant’s PHONES: 217-525-1760 OR 800-252-8908 had been taken at the hospital following arguments concerning the legality of the WWW.ISBA.ORG the accident. Regarding the first blood jail blood draw (third blood draw at the EDITORS draw (the medical blood draw), Defendant hospital), the state reported that it would Sarah E. Toney argued that her Fourth Amendment rights not seek to admit that final blood draw in to PUBLICATIONS MANAGER were violated when paramedics, who evidence. Sara Anderson  [email protected] were acting as state agents, took her to the The trial court held a hearing on hospital against her will, where her blood Defendant’s motion to suppress. Five TRAFFIC LAWS & COURTS SECTION COUNCIL was drawn “for no medical reason but witnesses testified. An emergency room Thomas M. Moran, Chair instead to assist police.” nurse testified, in part, that Defendant Ted P. Hammel, Vice-Chair Regarding the second blood draw (the told her that she had been drinking, she Ted Harvatin, Secretary Hon. Jeremy J. Richey, Ex-Officio administrative blood draw), Defendant observed a skin tear to the Defendant’s Juliet E. Boyd argued that her Fourth Amendment rights right forearm, and that Defendant was Larry A. Davis Nancy G. Easum were violated when her blood was drawn belligerent and had slurred speech. Defense David B. Franks “without authority and without consent.” counsel questioned the emergency room Jeffrey R. Hall Although Defendant acknowledged that she nurse about the other driver involved in the Alan E. Jones Anisa L. Jordan gave a police officer her “purported consent” accident, who also received treatment at Hon. Edward M. Maloney after being read the “Traffic Crash Warning the hospital. When the state questioned the Stacey A. McCullough Hon. Thomas F. McGuire to Motorist” (the faulty warning) pursuant relevance of this evidence, defense counsel Adam M. Miller to 625 ILCS 5/11-501.6, she argued that indicated that the other driver’s injuries Donald J. Ramsell this consent was invalid because it was were directly relevant to the statutory Jacob W. Scholz Tricia L. Smith predicated on false information. warning that the arresting officer read to Thomas Speedie, Jr. Regarding the third blood draw that was Defendant before obtaining her purported James M. Stern Paul R. Vella taken at the hospital (the jail blood draw), consent for the administrative blood draw. Sara M. Mayo Vig Defendant argued that there was no medical Specifically, defense counsel indicated that Tracy L. Weaver purpose justifying the blood draw, the blood the section 11-501.6 warning “only applies Sarah E. Toney, Board Liaison/Newsletter Editor draw was not grounded in statute, and in accidents when somebody other than Blake Howard, Staff Liaison Defendant had not consented to the draw, the defendant has a category A injury” and Randy Randall Cox, CLE Committee Liaison which was obtained without a warrant. that, if the other driver did not have such Brick Van Der Snick, CLE Coordinator The state responded to Defendant’s an injury, section 11-501.6 “should not motion, arguing that “neither the State, have been dealt with” and was “improperly nor any of its agents, played any part” in a mechanism” by which the state obtained DISCLAIMER: This newsletter is for subscribers’ personal use obtaining the medical blood draw and that consent for the administrative blood draw. only; redistribution is prohibited. Copyright Illinois State Bar Association. Statements or expressions of opinion appearing the draw was “made in the regular course The state acknowledged that the arresting herein are those of the authors and not necessarily those of the Association or Editors, and likewise the publication of any of providing medical treatment.” The state officer read the incorrect statutory warning advertisement is not to be construed as an endorsement of the product or service offered unless it is specifically stated in the ad argued that based on the paramedics’ to defendant. The emergency room nurse that there is such approval or endorsement. observations, Defendant was “not suitable testified that the other driver experienced Articles are prepared as an educational service to members to refuse care.” The state conceded that the pain in his chest and shin following the of ISBA. They should not be relied upon as a substitute for individual legal research. arresting officer read the wrong warning accident. She also testified that the other The articles in this newsletter are not intended to be used and to Defendant before obtaining her consent driver had “bruising and a hematoma” on may not be relied on for penalty avoidance. to complete the administrative blood his shin, and that the airbags in his vehicle

2 deployed as a result of the accident. that Defendant’s behaviors could have also case of a Fourth Amendment violation. Another emergency room nurse testified. reflected a possible head injury. He testified Specifically, the trial court found that The other emergency room nurse testified, that no police officer or member of the fire Defendant failed to show any evidence in part, that Defendant was belligerent, department requested that he take Defendant supporting a finding that the ambulance had slurred speech, and challenged to the hospital. personnel or the hospital medical staff were staff when asked questions. He testified A paramedic testified that she responded agents of the state or acting as an arm of the that Defendant’s gait was unsteady, and to the scene and spoke with the occupants state. The trial court rejected Defendant’s Defendant initially attempted to refuse of the other car involved in the accident. The arguments concerning the lack of consent transport to the hospital. He testified that paramedic did not notice any injuries that leading up to the medical blood draw, the administrative blood draw was “obtained required the occupants to be transported to because Defendant’s arguments relied on at the request of the Illinois State police,” the hospital by ambulance. Both occupants case law that pertained to tort cases involving and he personally participated in that blood refused care by transport. medical batteries, and not criminal cases draw. He confirmed that the blood draw An emergency room physician later involving the admissibility of evidence. The “was done per the police request.” On cross- testified that he observed only one injury trial court noted that the EMT’s testimony examination, he testified that his job was to on Defendant’s body, the skin tear on her had established that Defendant was assess the patient for medical needs, and not arm. He testified that Defendant’s speech unsuitable to decline treatment. to assist the police in legal proceedings. To was slightly slurred, yet clear, and according The trial court also found that Defendant the best of his recollection, other than the to the ambulance crew, Defendant initially failed to make a prima facie case of a Fourth administrative blood draw, no police officer refused transport to the hospital. The Amendment violation with regard to the told him what to do. emergency room physician opined that administrative blood draw. The trial court An EMT testified, in part, that when Defendant’s slurred speech could have been recognized that the arresting officer did read he first approached Defendant at the scene indicative of a head injury. He testified that an incorrect warning to Defendant prior of the accident, Defendant was unsteady, Defendant had informed him that she had to obtaining her consent, but nonetheless and was not bleeding. He did not observe been drinking before the accident, and found that “defendant has not provided any life-threatening injuries. Defendant that slurred speech was consistent with any authority to sustain her argument that did not ask to go to the hospital or refuse alcohol consumption. The emergency room an improper warning negates a motorist’s treatment. Based on Defendant’s behavior physician testified that he ordered a redraw consent resulting in the barring of evidence.” and mannerisms, the EMT determined of Defendant’s blood (third blood draw) to The trial court further noted that “no that she was not suitable to refuse care. The reassess her alcohol level so that the hospital evidence presented by defendant suggested EMT testified that Defendant “was confused could safely discharge Defendant, who that she did not provide her consent to about the day of the week, and was confused would still be intoxicated. He testified that Officer Zapf or that her consent was invalid about what month it was.” Defendant did not the medical purpose of the blood draw was for purposes of admission of evidence.” answer the EMT’s questions appropriately. to determine, in the case of blunt trauma, The case proceeded to a stipulated bench The EMT found no signs of a head injury. whether or not a patient has suffered internal trial before a different judge. Prior to the He remembered only the skin tear on injuries. bench trial, the parties specified that, over Defendant’s arm. When the EMT attempted On cross-examination, the emergency Defendant’s objections, the trial court would to ask Defendant more questions about her room physician testified that he ordered rely on the decision on Defendant’s motion medical history, Defendant became abrasive Defendant’s medical blood draw. He testified to suppress. The trial court would admit the and used an expletive when speaking with that no police officer told him to order a medical and administrative blood draws him. He testified that Defendant became blood draw. His decision to order blood tests results into evidence. After reviewing the very uncooperative when he was about to “went to the care of defendant.” parties’ stipulations, adopting the trial court’s transport her to the hospital. The state moved for a directed finding, previous findings, and noting that the results On cross-examination, Defense counsel arguing that Defendant failed to make a of the medical blood draw showed an alcohol asked more questions about the EMT’s prima facie case that her Fourth Amendment concentration of .374, the trial court found interactions with Defendant. He testified rights were violated by the blood draws. Defendant guilty of all three charges. that he detected “a heavy scent of alcohol” After hearing the parties’ arguments, the trial The trial court denied Defendant’s when speaking with Defendant. Defendant court advised the parties that it would take motion for a new trial, and the matter eventually agreed to enter the ambulance. the matter under advisement. proceeded to sentencing. At sentencing, Defendant asked for assistance when getting The trial court granted the state’s the trial court merged all three counts and into the ambulance and when walking motion for a directed finding. The trial sentenced Defendant to eight years in the into the hospital, because “she could barely court provided a written decision. When Illinois Department of Corrections. After stand up on her own.” Defendant admitted addressing the admissibility of the medical the trial court denied Defendant’s motion to to the EMT that she had been drinking blood draw, the trial court found that reconsider her sentence, Defendant timely alcohol earlier that day. The EMT conceded Defendant failed to make a prima facie appealed.

3 Traffic Laws & Courts ▼ MAY 2021 / VOL 30 / NO. 4

Analysis the Fourth Amendment. Id The appellate court rejected Defendant’s On appeal, Defendant argued that the The appellate court noted that the argument. The appellate court noted several trial court erred in denying her motion to Fourth Amendment’s “proscription against meaningful distinctions between the Skinner suppress and admitting the test results from unreasonable searches and seizures does regulations and section 625 ILCS 5/11-501.4- both the medical and administrative blood not apply to searches or seizures conducted 1. draws. Defendant argued that the trial court by private individuals.” Citing People v. In contrast to the Skinner regulations, incorrectly found that she had not made a Heflin,376 N.E.2d 1367, 71 Ill.2d 525, 17 Ill. the appellate court noted that section 11- prima facie case of a Fourth Amendment Dec. 786 (1978). A search conducted by a 501.4-1 neither mandates nor authorizes violation resulting from either blood draw. private actor may nonetheless implicate the any type of alcohol or blood tests. Rather, The state argued that Defendant failed to Fourth Amendment “when the individual section 11-501.4-1 addresses the disclosure make prima facie case to show that the conducting the search can be regarded as and admissibility of chemical tests that government violated her Fourth Amendment acting as an agent or instrument of the state were already independently performed by protections, because both blood draws were “in light of all of the circumstances of the hospitals. Citing People v. Jung, 733 N.E.2d conducted by private actors. The state argued c a s e .” Id. 1256, 192 Ill.2d 1, 248 Ill.Dec. 258 (2000), that Defendant “failed to establish a prima The appellate court found that Defendant the appellate court reasoned that because facie case that her Fourth Amendment rights failed to establish that the hospital staff section 11-501.4-1 contains no language were violated where the [administrative] or the ambulance personnel acted as state removing any legal barriers that hospitals blood draw was not only completed by agents when obtaining the medical blood may face prior to testing patients for drugs private actors, but also, that she gave her draw. According to the appellate court, the or alcohol, the Statute differed from the consent for her blood to be drawn.” The state record established a contrary conclusion. The Skinner regulations because it did not show also argued that even if the test results were appellate court noted that no portion of the a “strong preference for testing.” Instead, erroneously admitted, any inclusion of the record indicated that any police officers were the appellate court reasoned, Illinois case test resulted in harmless error. present at the hospital when the medical law plainly confirms that the purpose of The appellate court found that the trial blood draw was conducted. The emergency section 11-501.4-1 and its subparts is not court properly denied Defendant’s motion room physician testified that the medical to encourage chemical testing, but rather with respect to the medical blood draw blood draw was procured solely for medical to “permit the direct disclosure of blood- because Defendant failed to show that purposes and without police encouragement. alcohol test results by medical personnel to the blood draw was carried out by state The emergency room nurse confirmed law enforcement agencies” without having to actors. Because the medical blood draw was this portion of the record by testifying resort to “judicially authorized methods of properly admitted, even if the administrative that the police were only involved with the court discovery.” Citing People v. Ernst, 725 blood draw was improperly admitted, the administrative blood draw. The appellate N.E.2d 59. 311 Ill. App. 3d 672, 244 Ill.Dec. appellate court ruled that the trial court’s court ruled that, for these reasons, Defendant 264 (2nd Dist. 2000) mistake resulted in harmless error. failed to make a prima facie case that the In rejecting Defendant’s argument, The appellate court found that since blood draw violated her Fourth Amendment the appellate court concluded that the Defendant failed to show that the medical protections. Skinner regulations completely differed blood draw was performed by state actors, Defendant argued that when private from section 11-501.4-1 in language, scope, Defendant failed to make a prima facie medical professionals divulge chemical test and purpose, and that the only similarity case that the draw violated her Fourth results to police, according to section 625 between the provisions is that both the Amendment protections. According to the ILCS 5/11-501.4-1, they become state agents Skinner regulations and section 11-501.4- appellate court, to make a prima facie case for Fourth Amendment purposes. Relying 1 have passed constitutional muster. The for suppression of a blood draw, Defendant on Skinner v. Railway Labor Executives appellate court ruled that because the was required to prove two things: “first, that Association, 490 U.S. 602 (1989), Defendant Skinner regulations and section 11-501.4-1 a search occurred in the form of a blood argued that the language of 625 ILCS are almost completely distinct, Skinner was draw and, second, that the draw violated 5/11-501.4-1 carries Fourth Amendment inapplicable to the matter at bar. the fourth amendment.” (Citing People v. implications. Defendant argued that The appellate court concluded that the Brooks, 2017 IL 1321413) The appellate court section 11-501.4-1 was analogous to the medical blood draw was conducted at a acknowledged that a blood draw constitutes various regulations in Skinner. Therefore, private hospital following a car accident, and a search under the Fourth Amendment. Defendant argued, the appellate court should the blood test was performed by medical Therefore, the appellate court reasoned, to follow the Skinner court’s guidance and staff, for medical reasons, and not at the make a prima facie case with regard to the find that section 11-501.4-1 places private direction of law enforcement. section 11- medical blood draw, Defendant was required hospitals within the purview of the Fourth 501.4-1 allowed the hospital to disclose the to establish only that the blood draw violated Amendment. results of the test to police. Applying the

4 reasoning in People v. Wuckert, 44 N.E.3d into evidence. The medical blood draw result order to rule out any head injuries, these 1227, 2015 Il App (2d) 150058, the appellate alone conclusively proved that Defendant symptoms were also evidence of defendant’s court determined that section 11-501.4-1 drove with an alcohol concentration of 0.08 intoxication. Multiple witnesses reported did not convert any medical staff into state or greater. smelling alcohol when interacting with agents. Because Defendant failed to prove The appellate court noted that other Defendant. The appellate court ruled that that the medical blood draw was procured by evidence also supported Defendant’s all of this evidence, in conjunction with state action, she failed to make a prima facie convictions: Defendant admitted to three the properly admitted medical blood draw case that the blood draw violated her Fourth witnesses that she had been drinking prior test result, proved Defendant’s guilt of all Amendment protections. to the accident; four witnesses testified that three counts beyond a reasonable doubt. The appellate court also concluded that if Defendant was belligerent and exhibited The appellate court ruled that even if the the trial court erred in denying Defendant’s slurred speech; two witnesses noted that administrative blood draw test results were motion to suppress the results of her Defendant was having difficulty walking, or admitted in error, such a mistake resulted administrative blood draw, such admission that she could barely stand; and one witness only in harmless error. was harmless error. The appellate court testified that, while speaking with Defendant, reasoned that, even if the administrative Defendant was unable to recall either the Ruling blood draw result was improperly admitted, day or month. There was testimony that The appellate court affirmed the ruling of n the results from that blood draw were while Defendant’s difficulty walking, slurred the circuit court. cumulative to the result from the medical speech, and erratic behavior prompted blood draw, which was properly admitted hospital personnel to treat Defendant in

Breathalyzer Challenge Toppled by Lack of Credibility

CONTINUED FROM PAGE 1 the standard observations of bloodshot, Additionally, the defendant called Dr. appealed arguing the evidence was glassy eyes, and a moderate odor of alcohol Ronald Henson as an expert witness in insufficient at trial due to medical issues coming from defendant’s breath. After a blood-alcohol testing. Dr. Henson testified impacting the ability to do SFSTs and the poor performance on the standardized that the PBT used in this case, the RBT- unreliability of the PBT. field sobriety tests, defendant was offered a IV, was incapable of detecting mouth In reviewing the record, the appellate preliminary breath test, which he refused. alcohol and that the trooper erred in his court relied heavily on the credibility Subsequently, the trooper placed the administration of the PBT by not checking determinations of the trial court, notably that defendant in his squad, read him the defendant’s mouth prior to and following of the defendant. Defendant had testified Warning to Motorist, and conducted a the 20-minute observation period. He was to having bloody gauze in his mouth and 20-minute observation period. Following then provided a hypothetical that mirrored periodic rinsing with Listerine prior to the the observation period defendant was defendant’s version of the events in this case. accident. However, he is overheard on the asked again to perform a PBT and this time Dr. Henson opined that a PBT administered squad video acknowledging that he doesn’t he complied. The trooper never checked on a subject with gauze packed into a know where the gauze went following the defendant’s mouth prior to administering the bleeding tooth socket and periodically rinsed accident and speaking with ease despite PBT which registered a result of 0.087. with Listerine would not yield a reliable advising that the gauze required him to At a pretrial hearing the defendant result. Noting the absorbent material of the bite down quite hard to keep them in testified that he had a dental appointment gauze in the hypothetical, Henson indicated place. Additionally, the defendant denied earlier in the day during which he had that the only proper way to obtain a reliable consuming alcohol entirely and testified the two crowns put in and a molar surgically result in the hypothetical would be remove only exposure to alcohol that day was using extracted. As a result, defendant had gauze the gauze and conduct at least a 20-minute Heineken to rinse his mouth prior to his packed into the bloody socket where is tooth observation period prior to administering dental appointment. However, on the squad was removed. Further, defendant testified to the test. video he admits to consuming one or two both rinsing his mouth once with Heineken At the conclusion of the evidence the beers at his brother-in-law’s house after the prior to his dental appointment and to trial court denied the motion in limine. tooth extraction. periodically rinsing his mouth with Listerine Later, the court found the defendant guilty In addition to the lack of credibility found and repacking gauze following his procedure. at a stipulated bench trial. The defendant in defendant, the court noted that defendant

5 Traffic Laws & Courts ▼ MAY 2021 / VOL 30 / NO. 4

failed to show that blood or another foreign 1064 (4th Dist. 2004). As such a PBT result matter in the mouth would hinder the would be admissible at a motion in limine, reliability of the PBT. Dr. Henson did testify but not at a trial. Here, if no printer was used that an alcohol-based mouth wash could call as is required under the administrative code, into question the reliability; however, the the device used to obtain the result of 0.087 squad video revealed that defendant made would revert back to a PBT and admissibility no mention to the trooper of using Listerine, would be greatly shifted at both the motion nor was he seen using it to rinse out his in limine and the trial. mouth for over an hour he was recorded. In The opinion further muddies the fact, there is no mention that Listerine was waters in paragraph 47 when assessing the ever found on the scene despite defendant’s sufficiency of evidence at trial and noting testimony that he had used it while running that the defendant refused to submit to the errands earlier in the day. Ultimately, the pre-arrest PBT which may be considered as appellate court affirmed the trial court’s circumstantial evidence of a consciousness denial of the motion in limine as well as the of guilt. However, the court misapplies guilty verdict. People v. Johnson, 218 Ill. 2d 125 (2005) in Curiously, this opinion raises a number its consideration as Johnson deals with an of questions. First, the opinion speaks of evidentiary breath test, not a pre-arrest PBT. a PBT and breath test interchangeably. Unlike an evidentiary breath test that is However, under Section 1286.240 of the admissible at trial, a PBT is not admissible Illinois Administrative Code the RBT-IV at trial as previously mentioned. Similarly, a is not listed as an approved PBT. Similarly, refusal to submit to a PBT is not admissible under 1286.210 the RBT-IV is only at trial. People v. Brooks, 334 Ill. App. 3d 722 approved for evidentiary purposes if used (5th Dist. 2002). Consequently, the refusal of in conjunction with a printer. There is no the pre-arrest PBT and any “consciousness of mention in the opinion that a printer was guilt” would be irrelevant and inadmissible used and likewise no printer was addressed in assessing the circumstantial evidence at in testimony. The confusion in the opinion trial. is likely explained by noting that the Another noteworthy conclusion by both RBT-IV is just a Alcosensor IV analytical the trial court and the appellate court was system placed into a docking port, which that the defendant failed to establish that “converts” the Alcosensor IV PBT, approved blood in his mouth at the time of the PBT under 1286.240, into an evidentiary breath would somehow cast doubt on the accuracy machine by providing memory and printing or validity of the result. Oddly enough, the capabilities. However, this does not change opinion cites the very case, People v. Ernsting, how the actual machine operates or analyzes 2018 IL App (5th) 160330, that establishes a breath sample leading some to argue that that blood in the mouth can be considered whether it’s approved under 1286.210 or not, a foreign substance that can invalidate the the machine is still a PBT masquerading as results of a breath sample. Interestingly, the an evidentiary breath machine. same expert witness, Dr. Henson, testified A clear distinction between PBTs and in both cases. It is unclear from the opinion evidentiary breath tests are necessary for the depth and specificity of testimony on purposes of analyzing admissibility at both this topic from Dr. Henson. However, based evidentiary hearings and trials. For example, on the trial court’s heavy reliance on the PBTs are generally admissible for purposes of defendant’s lack of credibility, it concluded determining probable cause under 11-501.5, the presence of gauze or active bleeding in but not admissible during the State’s case in defendant’s mouth at the time of the PBT chief at a trial. People v. Davis, 296 Ill. App. was unclear. As a result, the appellate court 3d 923 (3d Dist. 1998); People v. Rose, 268 upheld the trial court’s reliance on the PBT.n Ill. App. 3d 174 (4th Dist. 1994). Further, a PBT result is not admissible in rebuttal as impeachment of defendant’s testimony under 11-501.5(a). People v. Bass, 351 Ill. App. 3d

6 Recent U.S. Department of Justice Funded Study Raises Constitutional Issues & Prosecution Challenges in Cannabis- Related DUI Cases BY LARRY A. DAVIS

Since July 29, 2016, Illinois, like many psychoactive metabolites cannabidiol and found to constitute an improper exercise of other states, has provided for a per se level cannabinol. the State’s police power and therefore a due of THC, the active substance in cannabis, Cognitive and psychomotor tests were process violation. Similarly, the legislature’s as a basis for presuming impairment.1 This administered before and after dosing express finding that SFSTs are a determinant amendment to the DUI law was part of a including SFSTs designed to detect alcohol of cannabis impairment despite the lack of negotiation which eliminated trace levels of impairment including the one leg stand, evidence supporting such a determination cannabis metabolites, including those that walk and turn and HGN as well as the may also constitute a due process violation. are non-psychoactive or non-impairing, as non-standardized modified Romberg Short of a direct challenge to the a basis for a DUI charge. In Illinois the per test. Participants were also assessed using constitutionality of such laws, these findings se THC level is 5 nanograms or more per cognitive tests such as paced serial addition, allow the defense to challenge such evidence milliliter of whole blood or 10 nanograms digit symbol substitution test and a divided in motion-practice or at trial in a cannabis- per milliliter of any other bodily substance.2 attention test. Additionally, participants related DUI prosecution. Furthermore, Additionally, with the passage of the were administered the four tasks used in do not forget that statutory summary Medical Cannabis Act3, the legislature the DRUID (Driving Under the Influence of suspensions pursuant to Section 11-501.9 statutorily recognized standardized field Drugs) iOS phone app including: reaction which imposes a suspension for refusing sobriety tests (SFSTs), which include time/decision making, reaction time, motor or ‘failing’ SFSTs in cannabis-related DUIs the walk and turn, one-leg stand and tracking and balance. would also be open to challenge.10 nystagmus tests as determinative of cannabis While negative cognitive and Expect to see ongoing research that impairment.4 However, as discussed in my psychomotor effects were seen at all dosing challenges the assumptions upon which article in the Illinois Bar Journal in July 2020 levels (except for the lowest vaped dose of these laws are based. Remember that they “Too High Too Drive?”, there was little to 5mg of THC) 0-2 hours after vaping and 1-5 exist in the first place due to the difficulties no evidence that THC levels or SFSTs were hours after oral administration, the SFSTs inherent in demonstrating impairment reliable indicators of cannabis impairment.5 as well as the modified Romberg were not in cannabis DUI cases unlike alcohol- Recently, in a study funded by the U.S. sensitive to cannabis intoxication for any based DUIs where there is wide scientific Department of Justice,6 researchers state participant and were ineffective in detecting consensus establishing .08 as a per se level of that “Our work indicates that THC is not marijuana intoxication. Furthermore, the test alcohol impairment as well as the validity of a reliable marker of cannabis impairment.” levels for THC, cannabidiol and cannabinol SFSTs establishing such impairment.n Furthermore, the study finds that the field did not correlate with either the cognitive or sobriety tests “were not sensitive to cannabis psychomotor impairment measures. In fact, 1. Pub. Act 99-697 (Effective July 29, 2016). intoxication.”7 the researchers also noted that many of the 2. 625 ILCS 5/11-501.2 (b-5). 3. Pub. Act 98-0122 (effective Jan.1, 2014); Pub. Act In designing the study, the researchers subjects had impaired levels of functioning 101-363 (effective August 9, 2019). conducted 6 double-blind dosing sessions even at low levels of THC.8 4. 625 ILCS 5/11-501.2 (a-5). 5. Larry A. Davis, Too High Too Drive?, Illinois Bar using oral administration of 0,10 and 25 mg These conclusions bolster an argument Journal (July 2020) Vol.108, No.7. of THC (contained in cannabis brownies) made in the Bar Journal that such laws 6. Although funded by the U.S. Department of Justice and cited on its website, the reader should be cautioned and vaporized inhaled administration of 0, that rest on the assertion that impairment that the study does not necessarily reflect the official 10, and 20 mg of THC. Each dosing session occurs at a certain THC level or that SFSTs policy of the Department of Justice. See https://nij.ojp. gov/topics/articles/field-sobriety-tests-and-thc-levels- involved the same participants and were are evidence of cannabis impairment lack unreliable-indicators-marijuana-intoxication. conducted at least one week apart. Samples a scientific underpinning.9 In turn, this 7. Megan Grabenauer, Differences in Cannabis Impair- ment and its Measurement Due to Route of Administra- of blood, saliva and urine were collected provides a basis to challenge such laws on tion, RTI International, Document Number 255884 before dosing and then almost every hour constitutional due process grounds. The (March 2020), pages 10 and 4. for eight hours thereafter. Participants lack of a basis to presume impairment in 8. Id. at page 10. 9. Illinois Bar Journal, supra note 4 at pages 28 and 31. were tested for THC as well as the non- the case of a legislated per se level may be 10 Id. at page 31.

7 Traffic Laws & Courts ▼ MAY 2021 / VOL 30 / NO. 4 Does State Commit a Discovery Violation When Evidence Does Not Exist?

BY ANISA JORDAN &VICTORIA BUCHHOLZ

Case Overview end that the camera had not been activated.3 remove the SIM card from the squad camera People v. Althoff, 2020 IL App (2d) 180993 In addition, Scott testified that prior to the as he was not authorized to do so himself.16 discusses whether a discovery violation beginning of his shift he checked both his Subsequently, Officer Scott left work for the occurs when the state fails to produce camera and microphone.4 Scott testified night.17 evidence requested by the defendant that that his pre-shift inspection of his camera Officer Scott testified that he returned to normally would exist in the context of a included checking that the camera and the work on November 2nd, 2016.18 Scott testified DUI investigation but, for whatever reason microphone lights were blinking, which he that he again checked VuVault for the DUI does not exist. The defendant in this case believed meant they were working.5 arrest and investigation of the defendant requested 1) squad car video of his DUI After conducting a stop on defendant’s and observed that the video still was not arrest and stop, and 2) the booking room vehicle and observing what he believed to be uploaded to the system.19 At this point, Scott video. However, the state did not produce signs of intoxication, Officer Scott testified testified that he contacted Commander these items. While the officer believed he that he repositioned his squad car to record Cook, who also looked for the missing video had made the recording of his investigation defendant’s performance on the standardized to no avail.20 field sobriety tests.6 He verified that both and arrest of the defendant, he discovered Detective Joseph Meeks’ Testimony that the video had not been recorded. The the camera and microphone were activated Detective Meeks testified that he defendant argued that the prosecution by observing that both the lights on the 7 retrieved the SIM card from Scott’s squad shouldn’t be allowed to admit testimony camera and microphone were blinking. car.21 He testified that while anyone could with respect to anything on the video as a Scott testified that the blinking lights were access the SIM card, the only authorized sanction for a discovery violation by the consistent with everything being in working order and that he did not observe anything parties permitted to do so were himself and state. The prosecution countered that since 22 8 Commander Cook. Upon pulling Scott’s the evidence never existed, no discovery to the contrary. SIM card, Detective Meeks noted that he violation occurred. Ultimately, the trial Officer Scott testified that upon the did not observe anything that indicated court agreed with the state and did not grant defendant’s completion of the standardized tampering had occurred with the squad car.23 defendant’s request to bar the testimony of field sobriety tests, he placed the defendant Meeks testified that he put the SIM card the officer. The defendant was found guilty under arrest and transported him back to the 9 into his computer to manually upload the after a jury trial and subsequently filed an police station. Upon arriving at the station, video to VuVault.24 When the upload was appeal. (For brevity, the authors have decided Officer Scott testified that both the camera completed, Meeks testified that not only to discuss only the missing squad car video and microphone shut off automatically was the defendant’s DUI arrest investigation of the DUI arrest in this article. It should be and he placed the microphone in its cradle 10 missing from the SIM card, but additionally, noted, however, that the court applied the to charge. Scott testified that when the he observed the last recording on the card same reasoning with respect to the portion camera and microphone shut off, any video dated back to October 16th, 2016.25 Detective of the booking video that was missing in this or audio captured automatically syncs to the 11 Meeks testified that after making this case.) department’s main system called VuVault. Officer Scott testified that while observation he formatted and activated the Proceedings & Testimony in Trial completing his report documenting the DUI card and placed it back in the squad-car Court investigation and stop, he checked VuVault to camera, and tested it to make sure it was 26 12 working properly. Officer Greyson Scott’s Testimony see if his video had uploaded to the system. Not seeing the video in the system Officer Detective Meeks was asked to testify In October of 2016, Officer Greyson Scott, Scott testified that he continued to fill out his about the process in which the video employed with Sycamore Police Department, 27 report and a few minutes later, he checked is transferred to the VuVault system. observed the defendant commit some traffic a second time.13 Again, there was no sign of Detective Meeks informed the jury that violations.1 Scott testified that he turned on the video.14 At this point, in accordance with when the cars pulls into the station, a his strobing lights to conduct a traffic stop department policy, Officer Scott testified that wireless antenna on the squad car connects and, to his knowledge, this automatically 28 he contacted Detective Joseph Meeks about to the server. Meeks further testified that activated his in- squad video camera.2 Scott the issue.15 Scott asked Detective Meeks to once the server processes the video from the testified that there was no indication on his car it is available via the VuVault system.29

8 After the video has been uploaded to lead the court to believe the missing audio recording equipment. The trial court VuVault, Meeks testified that the recording part of the video contained anything but entered a discovery sanction that barred is removed from the camera.30 potentially useful information.41 Moreover, the state from entering any testimony or the court noted that the defendant had video of the field sobriety tests in their The Trial Court’s Ruling made clear in the lower court that he didn’t argument.51 The state then appealed as they At the conclusion of Detective Meeks’ believe the state had acted in bad faith.42 believed the trial court erred in sanctioning testimony, the defendant moved for Accordingly, the court ruled that the them due to lack of audio because the audio 31 directed finding which was denied. The defendant could not establish a discovery never existed. The court explained that in trial court also denied defendant’s motion violation under a due process analysis.43 overturning the trial court’s ruling it had to bar Officer Scott’s testimony because of found that the audio was never recorded Prong II: Illinois Supreme Court Rule the missing video of his DUI arrest and and therefore, reversed and remanded the 32 415(g)(i) investigation. The trial court noted in its trial court’s decision.52 ruling that there was no evidence that video At the outset, the court noted that In People v. Moises, 2015 IL App (3rd) 33 of defendant’s arrest ever existed. under Illinois Supreme Court Rule 415(g) 140577, ¶ 4, the state gave the defendant a The defendant was found guilty of DUI (i), neither the material exculpatory value video that did not show his performance on and the trial court denied defendant’s of the evidence or a showing of bad faith the field sobriety tests because the officer motion to reconsider. The defendant argued is required for a discovery violation under had the defendant do the tests off camera. 44 that the trial court erred in admitting any this rule. The court noted that the moving The court noted that while the trial court testimony by Officer Scott that would have party must only show that the state’s failure ruled the state had committed a discovery been captured on Officer Scott’s in-squad to produce was in contradiction to an violation, it had disagreed because the 34 35 camera. The defendant appealed. applicable discovery rule or an order issued evidence never existed in the first place.53 pursuant to an applicable discovery rule.45 Appeals Court Analysis However, the court reasoned, the Application of Strobel and Moises to The court framed the issue on appeal, prosecution does not commit a discovery the Case at Bar in relevant part, as whether the defendant violation under this rule if the evidence The court reasoned that in Althoff, like should have been afforded any relief for sought never existed to begin with.46 To Strobel where the officer forgot to turn the the state’s failure to produce video of the illustrate the court’s reasoning, the court audio equipment on, or in Moises where the 36 stop. The court stated that at the outset went on to discuss three cases. The authors actions of the defendant were not in view, it needed to determine if the prosecution’s will discuss each in turn. the evidence never existed for the state failure to provide defendant with the video Failure to Produce Evidence That to produce.54 The court pointed out that 37 was a discovery violation. After making Existed vs. Evidence That Never Existed Officer Scott’s testimony in the trial court clear that the video in defendant’s case In People v. Aronson, 408 Ill. App. 3d only noted that he observed a blinking light was discoverable, the court stated that 946, 948 (2011) the state could not give on the camera and microphone that he “[T]he mere fact that the evidence was the defendant the video from her traffic assumed meant that the equipment was in discoverable does not mean that the stop because the video recording was working order.55 The court ruled that this State’s failure to produce it amounted to ‘not viewable.’47 A technical problem in fact was not sufficient, without more, to 38 a discovery violation.” The court went on downloading the video from the camera establish that the camera and microphone to say that a discovery violation can occur had rendered the video unable to be were properly functioning on the day of as a due process violation or under Illinois produced for viewing.48 There was no the defendant’s arrest.56 In addition, the Supreme Court Rule 415(g)(i)(eff. Oct. 1, explanation as to why this issue had court noted that no video was uploaded to 39 1971). The court addressed each prong as occurred from the officers involved and the VuVault and that Detective Meeks found follows. court noted that it was troubled by the fact no video of the defendant’s DUI arrest after Prong I: Due Process Violation that a video had in fact existed.49 The court he attempted to manually upload it to the 57 The court ruled that there was no noted that in affirming the lower court’s VuVault system. The court opined that discovery violation under the due process decision in People v. Aronson it noted that defendant’s case was distinguishable from analysis in the defendant’s case. The just because the technical issue prevented Aronson, where there was a showing in the court noted that when evidence is only the video from being viewed, the fact that it trial court that a recording was made and 58 potentially useful, and not materially couldn’t’ be produced was not the same as downloaded, but it was not viewable. saying the video did not exist.50 exculpatory, there must be a showing by the Appellate Court Holding st moving party that the prosecution acted In People v. Strobel, 2014 IL App (1 ) 130300 ¶¶ 1, 4, the state was able to The court affirmed the trial court’s in bad faith when it failed to produce the determination that no discovery violation 40 produce a video of the defendant’s stop but evidence sought by the defendant. The occurred in defendant’s case.59 In making court noted that the trial court record did it did not contain any audio because the arresting officer had failed to turn on the its decision to affirm the trial court, the not contain any information that would court ruled that the trial court’s ruling

9 Traffic Laws & Courts ▼ MAY 2021 / VOL 30 / NO. 4 was not against the manifest weight of the 16. Id. 47. People v. Aronson, 408 Ill. App. 3d 946, 948 17. Id. (2011). evidence that the video recording of the 18. Id. at ¶ 11. 48. Id. at 950. stop never existed.60 The court ruled that 19/ Id. 49. Id. 20. Id. 50. Id. at 952. the prosecution could not produce what 21. Id. at ¶ 16. 51. Strobel, at ¶¶ 5, 12. never existed.61 Therefore, the court ruled, 22. Id. 52. Id. at ¶ 11. 23. Id. 53. Id. at ¶ 15. the defendant was not entitled to the relief 24. Id. at ¶ 17. 54. Althoff, at ¶ 30. he sought.62 n 25. Id. 55. Id. 26. Id. 56. Id. 27. Id. at ¶ 18. 57. Id. 28. Id. 58. Id. 29. Id. 59. Id. at ¶ 34. 30. Id. 60. Id. 31. Id. at ¶ 19. 61. Id. 1. People v. Althoff, 2020 IL App (2d) 180993, ¶ 7. 32. Id. at ¶ 20. 62. Id. 2. Id. 33. Id. 3. Id. 34. Id. at ¶ 21. 4. Id. at ¶ 6. 35. Id. 5. Id. 36. Id. at ¶ 23. 6. Id. at ¶ 8. 37. Id. 7. Id. 38. Id. at ¶ 24. 8. Id. 39. Id. at ¶ 25. 9. Id. at ¶ 9. 40. Id. 10. Id. 41. Id. 11. Id. 42. Id. 12. Id. at 10. 43. Id. 13. Id. 44. Id. at ¶ 26. 14. Id. 45. Id. 15. Id. 46. Id.

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