FILED 2014 IL App (4th) 130346 November 4, 2014 Carla Bender NO. 4-13-0346 th 4 District Appellate Court, IL IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Macon County CHRISTOPHER M. GAEDE, ) No. 12DT81 Defendant-Appellant. ) ) Honorable ) Timothy J. Steadman, ) Judge Presiding. ___________________________________________________________________________
JUSTICE POPE delivered the judgment of the court, with opinion. Justices Knecht and Turner concurred in the judgment and opinion.
OPINION
¶ 1 In January 2013, a jury found defendant, Christopher M. Gaede, guilty of driving
under the influence (625 ILCS 5/11-501(a)(2) (West 2012)). In March 2013, the trial court
sentenced defendant to 24 months' court supervision. Defendant appeals, arguing he is entitled
to a new trial because the implied-consent statute (625 ILCS 5/11-501.1(a) (West 2012)) is
facially unconstitutional and also unconstitutionally punishes individuals who assert their fourth-
amendment (U.S. Const., amend. IV) right to refuse to consent to chemical analysis. We affirm.
¶ 2 I. BACKGROUND
¶ 3 On February 19, 2012, defendant was arrested for driving under the influence
(625 ILCS 5/11-501(a)(2) (West 2012)), operating an uninsured vehicle (625 ILCS 5/3-707
(West 2012)), failing to report an accident to police authority (625 ILCS 5/11-407 (West 2012)), and failing to give information after striking an unattended vehicle (625 ILCS 5/11-404 (West
2012)). Defendant refused to submit to a chemical breath test requested by the arresting officer.
¶ 4 A jury trial was held in January 2013. Randy Clem, a Decatur police officer,
testified he received a dispatch at approximately 8 p.m. for a hit-and-run crash involving a blue,
chopper-style motorcycle. He stopped defendant, who was driving a motorcycle matching the
description. Defendant denied being in an accident and had a nonchalant, cavalier attitude.
Officer Clem smelled the odor of alcohol on defendant's breath. Defendant also had bloodshot,
glassy eyes.
¶ 5 Officer Kyle Daniels of the Decatur police department testified he was working
on the evening in question and was dispatched to the parking lot behind Maustell's Pizza Inn and
the Flashback Lounge because of a reported hit-and-run. A truck in the parking lot had damage
to the front driver's side fender. Officer Daniels took the truck's owner to the location where
defendant had been stopped, and the owner identified defendant as the person who had driven
away from the accident in the parking lot.
¶ 6 Decatur police officer Chris Snyder testified he was dispatched to the accident
scene but instead went to the location where Clem had stopped defendant. Snyder testified
defendant's breath smelled of alcohol, his eyes were glassy and bloodshot, and his speech was
slurred. Defendant stated he had consumed a couple of beers.
¶ 7 Officer Snyder noticed several scrapes on the right side of defendant's motorcycle
and the motorcycle was missing its right turn signal lens cover. The scrapes appeared to be
fresh. When asked about the lens cover, defendant said it had been missing for a long time.
-2- Snyder radioed officers at the accident scene to see if the lens cover was there. Defendant said
police would not find the lens cover at the scene of the accident.
¶ 8 Based on defendant's odor of alcohol, bloodshot and glassy eyes, and slurred
speech, Snyder requested defendant perform field sobriety tests. During the horizontal gaze
nystagmus (HGN) test, defendant did not keep his head still as directed. As a result, Snyder had
to restart the test at least twice. The HGN test indicated defendant was under the influence of
alcohol. Defendant's performance on the walk-and-turn test also indicated defendant might be
under the influence of alcohol. Defendant also performed poorly on the one-legged-stand test.
Based on the totality of the circumstances, Snyder arrested defendant for driving under the
influence of alcohol. During the search incident to arrest, Snyder found the missing amber lens
cover in defendant's sweatshirt pocket. The lens cover had damage consistent with having
broken off the motorcycle. It also had paint transfers that matched the color of the paint on the
truck that had been scraped in the parking lot. Defendant was adamant he did not put the lens
cover in his pocket.
¶ 9 Defendant was taken to the Macon County jail and again performed poorly on the
walk-and-turn test and the one-legged-stand test. Officer Snyder testified defendant still showed
signs he was under the influence of alcohol. Officer Snyder read defendant the warning-to-
motorist form, which defendant appeared to understand. Defendant refused to take the chemical
breath test.
¶ 10 At the end of the State's case, the trial court granted defendant's motion for a
directed verdict with regard to the charge of operating an uninsured vehicle.
-3- ¶ 11 Defendant called witnesses and testified on his own behalf he had two beers at the
Wild Dog and nothing at Flashback's. As defendant is not challenging the sufficiency of the
evidence to convict, we need not go into the specifics of this testimony.
¶ 12 At the end of defendant's case, the State moved to dismiss the charge alleging
defendant failed to report the accident to the police, which the trial court granted. After
deliberating, the jury found defendant guilty of driving under the influence of alcohol and not
guilty of failing to give information after striking an unattended vehicle.
¶ 13 In March 2013, the trial court sentenced defendant to court supervision for 24
months.
¶ 14 This appeal followed.
¶ 15 II. ANALYSIS
¶ 16 Defendant argues the implied-consent statute is facially unconstitutional.
According to defendant, under the statute, any person who drives on public roads is "deemed to
have given consent" to chemical analysis of the "blood, breath, or urine for the purpose of
determining the content of [intoxicating substances]." 625 ILCS 5/11-501.1(a) (West 2012). He
also argues any consent is implicitly extracted by law and therefore is not freely and voluntarily
given. Accordingly, defendant contends a search warrant is necessary to comport with fourth-
amendment protections against unreasonable searches and seizures.
¶ 17 Defendant also argues the statute unconstitutionally punishes individuals who
assert their fourth-amendment right to withdraw their implied consent to chemical analysis. The
punishment occurs when the trial court allows evidence of a defendant's refusal of chemical
testing as evidence on the ultimate issue of driving under the influence. According to defendant,
-4- drivers are also punished civilly when they exercise their fourth-amendment right to refuse a
consent search by loss of driving privileges for at least one year. Defendant contends he is
entitled to a new trial because his conviction resulted from a constitutionally infirm statute.
¶ 18 At issue are several sections of the Illinois Vehicle Code. Section 11-501.1(a) of
the Vehicle Code states, in relevant part:
"Any person who drives or is in actual physical control of a motor
vehicle upon the public highways of this State shall be deemed to
have given consent, subject to the provisions of Section 11-501.2,
to a chemical test or tests of blood, breath, or urine for the purpose
of determining the content of alcohol, other drug or drugs, or
intoxicating compound or compounds or any combination thereof
in the person's blood if arrested, as evidenced by the issuance of a
Uniform Traffic Ticket, for any offense as defined in Section 11-
501 or a similar provision of a local ordinance, or if arrested for
violating Section 11-401. If a law enforcement officer has
probable cause to believe the person was under the influence of
alcohol, other drug or drugs, intoxicating compound or
compounds, or any combination thereof, the law enforcement
officer shall request a chemical test or tests which shall be
administered at the direction of the arresting officer. The law
enforcement agency employing the officer shall designate which of
the aforesaid tests shall be administered. A urine test may be
-5- administered even after a blood or breath test or both has been
administered." (Emphasis added.) 625 ILCS 5/11-501.1(a) (West
2012).
Section 11-501.1(c) provides "[a] person requested to submit to a test as provided above shall be
warned by the law enforcement officer requesting the test that a refusal to submit to the test will
result in the statutory summary suspension of the person's privilege to operate a motor vehicle, as
provided in Section 6-208.1 of this Code." 625 ILCS 5/11-501.1(c) (West 2012). Section 6-
208.1(a)(1) of the Vehicle Code (625 ILCS 5/6-208.1(a)(1) (West 2012)) provides for a
summary suspension of a person's driving privileges if he withdraws his implied consent after an
officer's request. Section 11-501.2(c) of the Vehicle Code (625 ILCS 5/11-501.2(c) (West
2012)) allows an individual's refusal to take a breath test at the officer's request to be admitted as
evidence against the individual.
¶ 19 According to defendant, "[t]his scheme is fundamentally unfair and facially
unconstitutional under the United States and Illinois Constitutions." Defendant argues:
"Because people have a constitutional right to refuse
consent to chemical analysis and demand compliance with the
warrant requirement in [driving under the influence (DUI)]
investigations, it reasonably follows that people cannot be
punished for asserting that right. In short, State action that makes
the assertion of a constitutional right costly constitutes a
punishment for exercising the right—a punishment that is thereby
itself a violation of that very constitutional right."
-6- We disagree with defendant as his argument is based on a false premise.
¶ 20 We first note statutes are presumed constitutional. People v. Devenny, 199 Ill. 2d
398, 400, 769 N.E.2d 942, 943 (2002). An individual challenging the constitutionality of a
statute bears the burden of demonstrating it is unconstitutional. Id. Our supreme court has
stated:
"A facial challenge to the constitutionality of a statute is the most
difficult challenge to mount. [Citations.] A statute is facially
unconstitutional only if there are no circumstances in which the
statute could be validly applied. [Citations.] The fact that the
statute could be found unconstitutional under some set of
circumstances does not establish the facial invalidity of the statute.
[Citation.] Thus, a facial challenge must fail if any situation exists
where the statute could be validly applied." People v. Davis, 2014
IL 115595, ¶ 25, 6 N.E.3d 709.
Further, courts have a duty to construe a statute in a reasonable manner that upholds the validity
of the statute. Devenny, 199 Ill. 2d at 400, 769 N.E.2d at 943. We apply a de novo standard of
review when analyzing the constitutionality of a statute. Id.
¶ 21 We note the United States Supreme Court has stated a breath test like the one
here is a search within the meaning of the fourth amendment. Skinner v. Ry. Labor Executives'
Ass'n, 489 U.S. 602, 616-17 (1989). However, the fact a breath test constitutes a search does not
mean a warrantless breath test is always unconstitutional. As the Supreme Court has stated:
-7- "[T]he Fourth Amendment does not proscribe all searches and
seizures, but only those that are unreasonable. [Citations.] What is
reasonable, of course, 'depends on all of the circumstances
surrounding the search or seizure and the nature of the search or
seizure itself. [Citation.] Thus, the permissibility of a particular
practice 'is judged by balancing its intrusion on the individual's
Fourth Amendment interests against its promotion of legitimate
governmental interests.' [Citations.]
***
We have recognized *** that the government's interest in
dispensing with the warrant requirement is at its strongest when, as
here, 'the burden of obtaining a warrant is likely to frustrate the
governmental purpose behind the search.' [Citations.] ***
[A]lcohol and other drugs are eliminated from the bloodstream at a
constant rate, [citation], and blood and breath samples taken to
measure whether these substances were in the bloodstream when a
triggering event occurred must be obtained as soon as possible.
[Citation.] Although the metabolites of some drugs remain in the
urine for longer periods of time and may enable the ***
estimat[ion] whether the [person] was impaired by those drugs at
the time of a covered accident, incident, or rule violation,
-8- [citation], the delay necessary to procure a warrant nevertheless
may result in the destruction of valuable evidence." Id. at 619-23.
¶ 22 Defendant contends Illinois's implied-consent law is unconstitutional pursuant to
the Supreme Court's decision last year in Missouri v. McNeely, __ U.S. ___, 133 S. Ct. 1552
(2013). In McNeely, the issue before the Supreme Court was "whether the natural
metabolization of alcohol in the bloodstream presents a per se exigency that justifies an
exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all
drunk-driving cases." (Emphasis added.) Id. at ___, 133 S. Ct. at 1556.
¶ 23 With regard to nonconsensual blood tests, the Court found a per se exigency did
not exist, holding each case had to be judged by its own particular facts. Id. at ___, 133 S. Ct. at
1561. However, McNeely does not support defendant's position in this case. In Schmerber v.
California, 384 U.S. 757, 770-72 (1966), the Supreme Court held a warrantless, nonconsensual
blood test can be performed in certain situations depending on the totality of the circumstances in
a particular case. The Court in McNeely noted:
"[T]he natural dissipation of alcohol in the blood may support a
finding of exigency in a specific case, as it did in Schmerber[;]
[however,] it does not do so categorically. Whether a warrantless
blood test of a drunk-driving suspect is reasonable must be
determined case by case based on the totality of the
circumstances." McNeely, __ U.S. at ___, 133 S. Ct. at 1563.
¶ 24 Here, defendant withdrew his consent after his arrest. As a result, there was no
warrantless, nonconsensual search. Thus, defendant's fourth-amendment rights could not have
-9- been violated. As stated earlier, a statute is only facially unconstitutional if the statute can never
be constitutionally applied. Because the implied-consent statute allowed defendant to refuse the
police officer's request to take the warrantless chemical breath test, we cannot find the statute
facially unconstitutional.
¶ 25 Defendant next argues Illinois's implied-consent statutory scheme
unconstitutionally circumvented his constitutional rights by punishing him for exercising his
fourth-amendment right to refuse chemical analysis because his driver's license was suspended
and his refusal was introduced as evidence against him at his criminal trial (625 ILCS 5/11-
501.2(c) (West 2012)). As stated earlier, defendant's argument is built on a false premise.
Defendant erroneously believes he always has a constitutional right to refuse a breath test. This
is not true. In McNeely, the Supreme Court rejected a per se approach to warrantless blood
draws based on the exigency of dissipation of alcohol in the blood over time. McNeely, ___ U.S.
at ___, 133 S. Ct. at 1556. However, the Court noted natural dissipation of alcohol in the blood
may support a finding of exigency in a specific case based on the totality of the circumstances.
Id. at ___, 133 S. Ct. at 1563.
¶ 26 We also note the various opinions in McNeely make clear a majority of the
Supreme Court justices do not question the constitutionality of implied-consent statutes. In
Justice Sotomayor's opinion, which was joined by Justices Scalia, Ginsburg, and Kagan, she
stated:
"As an initial matter, States have a broad range of legal
tools to enforce their drunk-driving laws and to secure [blood
alcohol content (BAC)] evidence without undertaking warrantless
- 10 - nonconsensual blood draws. For example, all 50 States have
adopted implied consent laws that require motorists, as a condition
of operating a motor vehicle within the State, to consent to BAC
testing if they are arrested or otherwise detained on suspicion of a
drunk-driving offense. See NHTSA Review 173; supra, at 1556
(describing Missouri's implied consent law). Such laws impose
significant consequences when a motorist withdraws consent;
typically the motorist's driver's license is immediately suspended
or revoked, and most States allow the motorist's refusal to take a
BAC test to be used as evidence against him in a subsequent
criminal prosecution." McNeely, __ U.S. at ___, 133 S. Ct. at
1566.
Further, Chief Justice Roberts, joined by Justices Breyer and Alito, opined:
"The Court is correct when it says that every case must be
considered on its particular facts. But the pertinent facts in drunk
driving cases are often the same, and the police should know how
to act in recurring factual situations. Simply put, when a drunk
driving suspect fails field sobriety tests and refuses a breathalyzer,
whether a warrant is required for a blood draw should come down
to whether there is time to secure one." (Emphasis added.) Id. at
___, 133 S. Ct. at 1574 (Roberts, C.J., concurring in part and
dissenting in part, joined by Breyer and Alito, JJ.).
- 11 - In his dissent, Justice Thomas stated he would hold a "warrantless blood draw does not violate
the Fourth Amendment" after any DUI arrest made with probable cause. Id. at ___, 133 S. Ct. at
1574 (Thomas, J., dissenting).
¶ 27 Defendant has failed to establish his constitutional rights were violated. As a
result, we need not address his argument he is entitled "to a new trial because the constitutional
infirmity of Illinois'[s] implied consent statute contributed to his conviction."
¶ 28 III. CONCLUSION
¶ 29 For the reasons stated, we affirm defendant's conviction. As part of our judgment,
we award the State its $75 statutory assessment against defendant as costs of this appeal. 55
ILCS 5/4-2002 (West 2012).
¶ 30 Affirmed.
- 12 -