The Illinois Supreme Court handed down one opinion on Thursday, December 5. In People v. Eubanks, the court held 625 ILCS 5/11-501.2(c)(2) unconstitutional as applied to the defendant. Section 501.2(c)(2) permits the warrantless collection and testing of an individual’s blood, breath, or urine for alcohol or drugs if the police have probable cause to believe that the individual was driving under the influence and was involved in a motor vehicle accident causing death or personal injury to another.
By Kerry J. Bryson, Office of the State Appellate Defender
In a decision which included both a special concurrence, and a partial concurrence and partial dissent, today the Illinois Supreme Court held 625 ILCS 5/11-501.2(c)(2) unconstitutional as applied to defendant Ralph Eubanks. Section 501.2(c)(2) permits the warrantless collection and testing of an individual’s blood, breath, or urine for alcohol or drugs if the police have probable cause to believe that the individual was driving under the influence and was involved in a motor vehicle accident causing death or personal injury to another.
The court reviewed the history of warrantless blood draw DUI cases in the United States Supreme Court, dating back to Schmerber v. California, 384 U.S. 757 (1966). In Schmerber, warrantless blood testing was upheld where it was necessitated by exigent circumstances (the natural dissipation of alcohol in the blood and the absence of time to obtain a warrant because the police were involved in other duties, including investigating the DUI accident and transporting the defendant to the hospital). Subsequently, in McNeely v. Missouri, 569 U.S. 141 (2013), the court clarified that the dissipation of alcohol, alone, does not constitute an exigency per se, but rather the totality of the circumstances must be examined. Then, in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), the court reiterated that the exigent circumstances exception to the warrant requirement always requires a case-by-case analysis. And, finally, in Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019), which was decided after oral argument was held in Eubanks’ case, the court concluded that exigent circumstances almost always allow a warrantless blood draw on an unconscious motorist suspected of DUI. In Mitchell, the court remanded in order to give the defendant the opportunity to show that the chemical testing was solely for law enforcement purposes and that the police could not have reasonably concluded that seeking a warrant would interfere with other pressing needs or duties, which would defeat a claim of exigency.
The Illinois Supreme Court concluded that the general rule is that exigent circumstances will almost always be found where drugs or alcohol are naturally dissipating in an individual’s system and some other factor creates a pressing health, safety, or law enforcement need that would take priority over a warrant application. Thus, in the case of a motor vehicle accident with injury or death, where there is probable cause to believe the driver was under the influence, warrantless blood or urine testing is almost always constitutional.
The court held that Section 501.2(c)(2), which allows a warrantless search only where there is probable cause to believe the individual is under the influence and there was a motor vehicle accident causing personal injury or death, is simply a “codified exigency” which will almost always be constitutional. Because it can be constitutionally applied in most instances, the statute is not facially unconstitutional.
As applied to Ralph Eubanks, however, Section 501.2(c)(2) was unconstitutional. Eubanks was arrested at 9:05 p.m., just shortly after being involved in a hit-and-run accident involving two pedestrians, one of whom died at the scene. Eubanks was transported to the police department where he was questioned around 10:30 p.m., at which time an officer observed an odor of alcohol on him. At midnight, Eubanks refused a breath test. Then, at approximately 3:00 a.m., he was transported to the hospital for a chemical testing. His blood was forcibly drawn at 4:10 a.m., and he was compelled to give a urine sample at 5:20 a.m. While his blood was negative for alcohol or drugs, his urine revealed the presence of multiple drug metabolites.
Looking at the factors the U.S. Supreme Court cited when remanding in Mitchell, the court first noted that there was no dispute that Eubanks was taken to the hospital solely for law enforcement purposes—the collection and testing of his blood and urine. And, given the passage of more than seven hours from arrest to blood draw, and nearly eight-and-a-half hours from arrest to urine collection, the Supreme Court declined to find any reasonable belief by law enforcement that seeking a warrant would have interfered with other pressing duties. Under the totality of the circumstances here, then, the blood and urine test results should have been suppressed.
In a special concurrence, Justice Burke agreed that Section 501.2(c)(2) was unconstitutional as applied. Justice Burke opined that the statute creates a rebuttable presumption that a prompt warrantless search is constitutionally valid when conducted pursuant to the statute. It does not, however, create a per se exigency.
Justice Theis dissented, in part, on the basis that she would have found the statute facially unconstitutional. Specifically, she concluded that Section 501.2(c)(2) authorizes officers to disregard the warrant requirement of the fourth amendment in order to obtain chemical testing of a DUI suspect based on the severity of an injury to a third party. Justice Theis noted that neither Mitchell nor Schmerber stand for the proposition that a codified exigency exists based upon injury to anyone other than the suspected DUI driver.
In addition to the issue of 501.2(c)(2)’s constitutionality, the Supreme Court unanimously concluded that the trial court erred in denying Eubanks’ request for a lesser-included offense instruction. Eubanks was charged with first-degree murder in the pedestrian’s death on the theory that he knew his actions created a strong probability of death or great bodily harm. He requested, but was denied, a reckless homicide instruction, and the jury convicted of first-degree murder. Noting that only some evidence of the lesser mental state was required to warrant the reckless homicide instruction, the Supreme Court found an abuse of discretion by the trial court. A jury could infer recklessness from the fact that the accident occurred on a quiet street in a quiet neighborhood in the evening, rather than on a busy street in the middle of the day. The court noted that on facts similar to those here, juries in some cases have convicted of first-degree murder and in others have convicted of reckless homicide, indicating that this is a question best left to a jury instructed on both offenses.
Finally, the court unanimously rejected the argument that state failed to prove Eubanks guilty beyond a reasonable doubt of failure to report an accident within 30 minutes where he was arrested within 10 minutes of the accident. In upholding conviction, the court noted that Eubanks fled the scene, suggesting he had no intention of reporting the accident. Also, in his video-recorded statement, Eubanks said he did not “do anything,” and denied that he was involved in the accident. And, an officer testified that while investigating he learned from other officers that defendant had not reported anything. While that last bit of evidence may have been hearsay, defendant neither objected to it nor argued it was improperly admitted. Taking the evidence in the light most favorable to the prosecution, defendant was proved guilty beyond a reasonable doubt of failure to report an accident involving personal injury or death.