People v. Gregg

526 N.E.2d 537, 171 Ill. App. 3d 1076, 122 Ill. Dec. 278, 1988 Ill. App. LEXIS 928
CourtAppellate Court of Illinois
DecidedJune 30, 1988
Docket2-87-0679
StatusPublished
Cited by5 cases

This text of 526 N.E.2d 537 (People v. Gregg) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Gregg, 526 N.E.2d 537, 171 Ill. App. 3d 1076, 122 Ill. Dec. 278, 1988 Ill. App. LEXIS 928 (Ill. Ct. App. 1988).

Opinion

JUSTICE INGLIS

delivered the opinion of the court:

Pursuant to Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)), the State appeals from a trial court order which suppressed evidence pertaining to the chemical analysis of blood taken from the defendant, Randy Gregg. On appeal, the State contends that the trial court incorrectly interpreted section 11 — 501.2 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95%, par. 11 — 501.2) and section 510.110 of the Illinois Administrative Code (77 Ill. Adm. Code 510.110 (1985)) in granting defendant’s motion to suppress. We reverse.

On November 6, 1986, defendant was arrested for driving under the influence of alcohol in violation of section 11 — 501 of the Illinois Vehicle Code (111. Rev. Stat., 1986 Supp., ch. 95%, par. 11 — 501). Defendant was stopped as he was leaving his car, which had gone off the road and into a ditch. Although a different set of officers initially responded to the scene, Deputy Liston of the Winnebago County sheriff’s department took charge of the investigation.

Liston observed that defendant had difficulty producing his driver’s license, maintaining his balance and finding his footing. Liston also detected a moderate odor of alcohol on defendant’s breath. Although Liston suggested that defendant go to the hospital to receive treatment for a cut on his head, defendant refused and asked to be taken home. Defendant then told Liston that he had been out drinking and was on his way home. Eventually, defendant agreed to be treated for his injuries and was transported to St. Anthony’s Hospital in Rockford, Illinois. After finishing his work at the scene, Liston went to the hospital and placed defendant under arrest. After being read the implied consent warning, defendant acknowledged that he understood the warning and consented to giving a blood sample.

Sherry Falls, who was a medical technologist with a degree in medical technology and also a trained phlebotomist, took defendant’s blood sample. A phlebotomist is one who is trained to draw blood. Falls testified that she was called by an emergency room nurse and told to draw blood from a patient. After speaking with Liston, Falls proceeded to draw a blood sample from defendant. Falls further testified that her supervisor in the emergency room was Dr. Tuschen.

On cross-examination, defense counsel elicited the following testimony from Falls:

“Q. [Defense counsel] And did a police officer tell you that he wanted you to draw blood?
A. Uh-huh.
Q. And you said that a nurse called you; is that right?
A. Yes. Right.
Q. She called you on the telephone?
A. Yes.
Q. Did she tell you who to see?
A. No. She just said, ‘Come to the emergency room to draw some blood.’
Q. When you went to the emergency room did you see a police officer?
A. Yes.
Q. And did you ever talk to the nurse again in regard to that?
A. I can’t recall if I ever did.
Q. You do this basically on your own, do you not?
A. No. We are directed by the officer more or less.
Q. By the police officer?
A. Yes.
Q. So basically speaking then at that time when you came out you were acting under his direction?
A. Well, I guess so.
Q. Okay. You didn’t further talk to the doctor or to a nurse or anything like that, did you?
A. I may have.
Q. But you don’t recall?
A. I don’t recall.”

On redirect, Falls stated that other doctors and nurses were present in the emergency room when she drew defendant’s blood sample. Falls then stated that Dr. Tuschen was the doctor responsible for supervising emergency room procedures.

In closing argument, defendant asserted that Falls was acting under the direction of Deputy Liston, not a licensed physician. Therefore, defendant concluded, Falls failed to comply with the Department of Public Health (Department) regulations which require that a phlebotomist act under the direction of a licensed physician. Defendant requested that his blood test be found inadmissible as evidence of his intoxication.

The State asserted that Falls was acting under the direction of a licensed physician. In the State’s view, even though Falls did not consult with a licensed physician, she constructively acted under the direction of a licensed physician, and a licensed physician was present in the emergency room. The State further asserted that the Department’s regulations should not be interpreted as requiring that a licensed physician be present when a phlebotomist draws a blood sample.

In granting defendant’s motion to suppress, the trial court stated:

“The question is whether it’s [a] general direction or a specific direction. And I find that in order to give the adequate interpretation promulgated by these rules that these rules are promulgated to insure that a sample be properly taken that they mean that it be under the specific direction of a physician. I realize that hospital procedures sometimes require that things be done through agents; for example, directions from a physician to a R.N. would require that the R.N. direct others to do things. But I will require and hold that the Rule does require that there be a specific direction with respect to a specific patient when a phelobotomist [sic] — when a phlebotomist is authorized. I don’t interpret the statute to mean under the general direction as to the general duties of a phlebotomist. Therefore, there being no proof that there was a specific direction to draw blood from a physician there is no finding of the direction required by the statute or by the Rule.”

In relevant part, section 11 — 501.2 of the Illinois Vehicle Code states:

“When a person shall submit to a blood test at the request of a law enforcement officer under the provisions of Section 11— 501.1, only a physician authorized to practice medicine, a registered nurse or other qualified person approved by the Department of Public Health may withdraw blood for the purpose of determining the alcohol, drug, or alcohol and drug content therein. This limitation shall not apply to the taking of breath or urine specimens.” Ill. Rev. Stat. 1985, ch. 951/2, par. 11— 501.2(aX2).

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Cite This Page — Counsel Stack

Bluebook (online)
526 N.E.2d 537, 171 Ill. App. 3d 1076, 122 Ill. Dec. 278, 1988 Ill. App. LEXIS 928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-gregg-illappct-1988.