Opposition Brief — Fink v. Ryan

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No. 96-13 9 2 ‘ 7 f D>

MAY SO 1997

IN THE |

Supreme Court of the Gnited-States__.__

OCTOBER TERM, 1996 ie

CHRISTOPHER J. FINK,

Petitioner,

GEORGE RYAN,

Secretary of State, State of Illinois,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Illinois

RESPONDENT?’S BRIEF IN OPPOSITION

JAMES E. RYAN

Attorney General of [llinois

BARBARA A. PREINER

Solicitor General of Illinois

RITA M. NOVAK

Counsel of Record

DANIEL N. MALATO

Assistant Attorneys General

100 West Randolph Street

12th Floor

Chicago, Illinois 60601

(312) 814-2113

Attorneys for Respondent

Printed by Authority of the State of Illinois (P.O. 36799—55—5-30-97)

_— os co Ee

QUESTION PRESENTED

Does the State violate a driver’s Fourth Amendment

rights by requiring chemical testing after the driver is

involved in a serious motor vehicle accident and issued

a traffic ticket where the State has a special need beyond

the normal need of law enforcement for requiring the

search, the driver has a diminished expectation of

privacy, and the State’s interest would be jeopardized by

requiring individualized suspicion of chemical impair-

ment.

TABLE OF CONTENTS

PAGE

GUIS EERIEN PUREED nok eee ct adeuncwns i

TAmade CP ALTTEEEE 2 owe ec ewnnsaes iv

Re are eee rr ene 1

STATEMENT OF THE CASE ................. 1

The Challenged Provision of

The Iimmois Velicle Code .. . . 2.5 een eee 1

The Background Facts and the

Decision of the Illinois Supreme Court ....... 2

REASONS FOR DENYING THE WRIT .......... 5

THE ILLINOIS SUPREME COURT COR-

RECTLY DETERMINED THAT SECTION 11-

501.6 DID NOT VIOLATE PETITIONER’S

FOURTH AMENDMENT RIGHTS AND ITS

DECISION IS PERFECTLY CONSISTENT

WITH THIS COURT'S OPINIONS ........... 5

A. The Fourth Amendment Is Not Violated

Where There Are Special Needs Beyond

the Normal Need for Law Enforcement

and Requiring Probable Cause or Individ-

ualize Suspicion Is Impracticable ........ 7

1. Section 11-501.6 Addresses a Compel-

ling Government Interest in the Pub-

lic Safety of Its Citizens That Is Be-

yond the Normal Need for Law En-

DE ss sos 5s kw ss eee ee 9

ill

2. The Driver Subject to Section 11-

501.6 Has a Diminished Expectation

“BESET Re AS aon 11

3. The Chemical Tests Do Not Signifi-

cantly Intrude on the Driver’s Pri-

CS aN lg ha eG ek io dew & eo ks eo 15

4. The State’s Interest in Promoting

Public Safety Would Be Seriously

Jeopardized by Requiring Probable

Cause or Individualized Suspicion of

Driving Under the Influence of Alco-

at Bar OER atic aie ere mae ae A Ee 15

B. The Use of the Chemical Test Results in

Criminal Proceedings Does Not Violate

the Fourth Amendment Because That

Use Is Incidental to the State’s Purpose

to Protect the Public Safety ........... 17

SE Sis eae er ae 4s our Sas, 20

TABLE OF AUTHORITIES

CASES: PAGE

Bell v. Wolfish, 441 U.S. 520 (1979) ............. 5

Chandler v. Miller, __ U.S. ___, 117

a AMES 5h cet hoa eek ead 5, 8

Delaware v. Prouse, 440 U.S. 648 (1979) ......... 7

Griffin v. Wisconsin, 483 U.S. 868 (1987) .... 5, 8, 18

Michigan Department of State Police

OG, Siete, Ge Ue. SEI) noi hve ves 8,9

National Treasury Employees Union

v. Von Raab, 489 U.S. 656 (1989) .......... 5, 8

New Jersey v. T.L.O., 469 U.S. 325 (1985) ........ 5

New York v. Burger, 482 U.S. 691 (1987) ........ 18

O’Connor v. Ortega, 480 U.S. 709 (1987) ......... 5

People v. Bartley, 109 Ill. 2d 273, 486

N.E.2d 880 (1985), cert. denied,

18 CS: Fae a oe eke ea ee eee 10

Perez v. Campbell, 402 U.S. 637 (1971) .......... 9

Schmerber v. California, 384 U.S. 757 (1966) ... 9, 15

Skinner v. Railway Labor Executives’ Ass’n,

Se Vie ee ee Fe ik cee ee eek passim

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968) ... 13

United States v. Martinez-Fuerte,

GOS UE. GOR Cee 5 6 ie ok We ee ess 8,11, 12

United States v. Sharpe, 470 U.S. 675 (1985) ..... 14

Vernonia School District v. Acton,

515 U.S. __, 115 S.Ct. 2386 (1995) ... 5, 7, 8, 12

STATUTES:

625 ILCS 5/1-100 et seq. (1994) ............... 14

ORD SEs Ee CI ok os Sab ee 12

CRD SL Ase OA EO0e (CAO oh bo ee Ss i eee 12

625 ILCS 5/11-501.6(a) (1994) ........ i, 12, 13, 15

G20 10 Si i-GOs Mle) (1986) 2. we ese ds 2

G25 ILS &/11-601.6(d) (1996) 2... cee 2

625 ILCS &/11-601.Gle) (1904) 2... eee ee ee 2

625 ILCS 5/11-501.6(g) (1994) ................. 1

625 ILCS 5/11-501.2(bX3) (1994) ............... 3

JURISDICTION

The Supreme Court of Illinois entered its judgment on

October 18, 1996. (App. A-1). Petitioner timely filed a

petition for rehearing, which the court denied on Decem-

ber 2, 1996. (App. A-20). The Petition was filed in this

Court on March 3, 1997. This Court has jurisdiction

under 28 U.S.C. § 1257(a).

STATEMENT OF THE CASE

The Challenged Provision of

the Illinois Vehicle Code

Section 11-501.6 of the Illinois Vehicle Code provides

the State of Illinois with an effective tool to remove

drunk drivers from Illinois roadways. Under this statute,

a police officer can require a chemical test of a driver’s

blood, urine or breath after the driver has been involved

in a motor vehicle accident causing serious personal

injury or fatality and has been issued a traffic ticket. 625

ILCS 5/11-501.6(a) (1994). The accident must result in

personal injury including severely bleeding wounds,

disterted extremities or injuries that require the injured

person to be carried from the accident scene. 625 ILCS

5/11-501.6(g) (1994). The traffic ticket must be issued for

any non-equipment violation of the Illinois Vehicle Code

or similar provision of a local ordinance. 625 ILCS 5/11-

501.6(a) (1994). There is nothing in the statute requiring

individualized suspicion that the driver was chemically

impaired at the time of the accident before conducting

the test. Where these requirements are met, the driver

is deemed to have given consent to the chemical testing.

Id.

Before requesting the chemical test, the police officer

must warn the driver that refusal to submit to the test,

or submission to the test resulting in a blood-alcohol con-

centration of 0.10 or more, may result in the suspension

of the driver’s driving privileges. 625 ILCS 5/11-501.6(c)

(1994). If the driver refuses testing or the test discloses

a blood-alcohol concentration of 0.10 or more, the police

officer must submit a sworn report to the Illinois Secre-

tary of State (Secretary) certifying the refusal or the re-

sults of the test. 625 ILCS 5/11-501.6(d) (1994). After re-

ceiving the sworn report, the Secretary shall enter the

appropriate suspension of the driver’s license and serve

the driver with the notice of suspension. Jd. The driver

may request an administrative hearing to contest the

suspension and seek administrative review of the Sec-

retary’ decision if the suspension is not altered. 625

ILCS 5/11-501.6(e) (1994). There is no provision in this

statute regarding whether the test results can be used in

criminal proceedings.

The Background Facts and the Decision

of the Illinois Supreme Court

On December 18, 1994, Petitioner, Christopher J. Fink,

drove his car into a telephone pole. Petitioner and his

passenger found their way to a nearby house and the

police and paramedics were called. When the police

officers arrived, paramedics were immobilizing Petitioner

and his passenger with cervical collars and backboards.

The two were transported to a local hospital for medical

treatment. Before proceeding to the hospital, the police

officers investigated the accident scene.

At the hospital, Petitioner was issued a traffic ticket

for failure to reduce speed to avoid an accident. One of

the officers requested that Petitioner submit to the

blood-alcohol test and warned Petitioner that his driver’s

license would be suspended if he refused to submit to the

test. Petitioner consented to the test and a blood sample

was taken by hospital personnel. The test revealed that

Petitioner had a blood-alcohol concentration of 0.14.

(Under Illinois law, a blood-alcohol concentration of 0.10

or higher gives rise to the presumption that the person

is under the influence of alcohol. 625 ILCS 5/11-

501.2(b)(3) (1994)). Petitioner was released from the hos-

pital later that night.

Based on the police officer’s report, the Secretary sus-

pended Petitioner’s driver’s license for three months.

Petitioner was also served with a criminal citation charg-

ing him with driving under the influence of alcohol. This

citation was also based on the blood test taken at the

hospital, but was not initiated by the Secretary.

Petitioner filed a motion in limine in the criminal case

to suppress the evidence of intoxication obtained from

the blood test. In this motion, Petitioner argued that

section 11-501.6 violated the Fourth Amendment of the

United States Constitution. The trial court granted Peti-

tioner’s motion and the criminal charge was subsequent-

ly dismissed.

Petitioner filed a civil complaint for declaratory judg-

ment against the Secretary claiming that section 11-

501.6 was unconstitutional on its face in violation of the

Fourth Amendment of the United States Constitution.

Specifically, Petitioner alleged that the statute violated

the Fourth Amendment because it allowed an unreason-

able search of a driver for evidence of intoxication with-

out probable cause that the driver was chemically im-

paired. The trial court declared section 11-501.6 uncon-

stitutional in violation of the Fourth Amendment.

On direct appeal, the Illinois Supreme Court reversed

the trial court’s judgment, finding that the statute fell

within the “special needs” exception to the Fourth

Amendment. (App. A-11). The court found that the pur-

pose of the statute is “to reduce the dangers posed by

chemically impaired drivers by providing for the suspen-

sion of their licenses and by deterring others from en-

gaging in similar misconduct.” (App. A-6-7). The court

recognized that the State of Illinois has a special need

beyond the normal need of law enforcement to determine

whether drivers are chemically impaired and to suspend

those drivers’ licenses. The court found that the statute

contained sufficient limitations to protect the drivers’

Fourth Amendment rights by requiring testing that is

minimally intrusive and conducted only after a driver’s

expectation of privacy is sufficiently diminished. (App.

A-11). Petitioner’s petition for rehearing was denied.

(App. A-20).

REASONS FOR DENYING THE WRIT

THE ILLINOIS SUPREME COURT CORRECTLY DE-

TERMINED THAT SECTION 11-501.6 DID NOT VIO-

LATE PETITIONER’S FOURTH AMENDMENT RIGHTS

AND ITS DECISION IS PERFECTLY CONSISTENT

WITH THIS COURT’S OPINIONS.

The Illinois Supreme Court’s decision finding that sec-

tion 11-501.6 did not violate the Fourth Amendment to

the United States Constitution is correct and consistent

with this Court’s opinions in similar cases. The supreme

court found that the search authorized by Illinois law

was reasonable under the Fourth Amendment because it

was based on special needs beyond the normal need for

law enforcement. The special needs exception has been

applied by this Court in numerous cases. See e.g.,

Chandler v. Miller, ___ U.S. ___, 117 S.Ct. 1295 (1997);

Vernonia School District v. Acton, 515 U.S. __, 115 S.Ct.

2386 (1995); National Treasury Employees Union v. Von

Raab, 489 U.S. 656 (1989); Skinner v. Railway Labor

Executives’ Ass’n, 489 U.S. 602 (1989); Griffin v. Wiscon-

sin, 483 U.S. 868 (1987); O’Connor v. Ortega, 480 U.S.

709 (1987); New Jersey v. T.L.O., 469 U.S. 325 (1985);

Bell v. Wolfish, 441 U.S. 520 (1979).

While all of these cases involved the application of the

exception, the case at bar is most analogous to the

Skinner decision. That case upheld the constitutionality

of Federal Railway Administration regulations requiring

railroad employees to submit to blood, urine or breath

tests after train accidents or certain rule violations.

Skinner, 489 U.S. at 607-13. In that case, the tests were ;

triggered by the fact that the accident or rule violation

occurred and not by probable cause or individualized

suspicion that the empicyees were impaired by alcohol or

drugs. Id. at 609-10. The government had a special need,

beyond the normal! need for law enforcement, to regulate

“the conduct of railroad employees to ensure safety.” Jd.

at 620. This special need, along with the facts that the

individual subject to the search had a diminished ex-

pectation of privacy, the search was minimally intrusive,

and the governmental interest would be jeopardized by

requiring probable cause or individualized suspicion, was

sufficient to satisfy the Fourth Amendment require-

ments. Jd. at 621-34.

The Illinois Supreme Court closely followed Skinner

when upholding section 11-501.6. The Illinois statute is

based on the special need to ensure the public safety by

removing drunk drivers from the roadways, deterring

other drunk drivers, and providing important informa-

tion concerning the cause of serious motor vehicle acci-

dents. The drivers of motor vehicles have a significantly

reduced expectation of privacy because they have been

involved in a serious accident and are required by law to

remain at the scene of the accident, have been issued a

traffic ticket for a non-equipment violation of the Illinois

Vehicle Code, and participate in a highly regulated ac-

tivity. (App. A-6-12). The character of the intrusion on

the driver’s privacy rights is limited by the commonplace

nature of the required tests. (/Jd.) Also, imposing a re-

quirement of probable cause or individualized suspicion

would jeopardize the State’s compelling interest in public

safety because a driver can be impaired without showing

signs of intoxication or any signs of intoxication might

not be observable where the driver is receiving medical

attention.

A. The Fourth Amendment Is Not Violated Where

There Are Special Needs Beyond the Normal Need

for Law Enforcement and Requiring Probable Cause

or Individualized Suspicion Is Impracticable.

The Fourth Amendment to the United States Constitu-

tion guarantees “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unrea-

sonable searches and seizures... .” U.S. CONST. amend.

IV. The Fourteenth Amendment extends this constitu-

tional guarantee to searches and seizures by State offi-

cials. Vernonia, 115 S.Ct. at 2390. Nonetheless, the

Fourth Amendment proscribes only searches and sei-

zures that are unreasonable. Skinner, 489 U.S. at 619.

The reasonableness of a particular search depends on the

context in which the search takes place and is deter-

mined by balancing the intrusiveness of the search on

the individual’s privacy interests against the promotion

of legitimate governmental interests. Delaware v. Prouse,

440 U.S. 648 (1979).

Where a search is undertaken by law enforcement offi-

cials to discover evidence of criminal activities, the bal-

ance of interests will generally require a judicial warrant

issued after a showing of probable cause. Skinner, 489

U.S. at 619. The purpose of the warrant requirement is

to assure citizens that the search or seizure is not a

random or arbitrary governmental act. Jd. at 621-622. A

warrant is not required for all government searches,

however. Where a warrant is not required, “probable

cause is not invariably required either.” Vernonia, 115

S.Ct. at 2390-91. “A search unsupported by probable

cause can be constitutional, we have said, ‘when special

needs beyond the normal need for law enforcement,

make the warrant and probable-cause requirement im-

practicable.’” Jd. at 2391 (quoting Griffin, 483 U.S. at

873). Further, under the special needs exception, a

search or seizure comports with the Fourth Amendment

even when there is no individualized suspicion of wrong-

doing. Vernonia, 115 S.Ct. at 2391 (upholding random

drug testing of high school athletes); Michigan Depart-

ment of State Police v. Sitz, 496 U.S. 444 (1990) (uphold-

ing road block checkpoints to find drunk drivers); Von

Raab, 489 U.S. at 679 (upholding drug testing of federal

customs officers); Skinner, 489 U.S. at 634; (allowing

drug testing of railroad employees after a serious acci-

dent or rule violation); United States v. Martinez-Fuerte,

428 U.S. 543 (1976) (allowing automobile checkpoints to

search for illegal immigrants).

When special needs are proffered to justify a search,

courts must engage in a context-specific analysis examin-

ing the private and public interests advanced by the

parties. Chandler, 117 S.Ct. at 1301. The search may be

reasonable without a showing of probable cause or indi-

vidualized suspicion where “the privacy interests impli-

cated by the search are minimal, and where an impor-

tant governmental interest furthered by the intrusion

would be placed in jeopardy by a requirement of individ-

ualized suspicion ... .” Skinner, 489 U.S. at 624. Accord-

ingly, after it has been established that there is a special

need for the search beyond the normal need for law

enforcement, a balancing test must be applied consider-

ing: 1) the nature of the privacy interests, 2) the charac-

ter of the intrusion, and 3) the nature and immediacy of

the governmental concern. Vernonia, 115 S.Ct. at 2391-

96.

In the present case, it is undisputed that a compelled

intrusion into the body for blood, urine or breath samples

to be analyzed for alcohol or drug content is a search

within the meaning of the Fourth Amendment. Skinner,

489 U.S. at 616-17; Schmerber v. California, 384 U.S.

757 (1966). The Illinois Supreme Court correctly bal-

anced the driver’s privacy interests and the State’s pub-

lic safety interests and found that section 11-501.6 did

not violate the Fourth Amendment.

1. Section 11-501.6 Addresses a Compelling Govern-

ment Interest in the Public Safety of Its Citizens

That Is Beyond the Normal Need for Law Enforce-

ment. :

Section 11-501.6 satisfies the requirements of the

Fourth Amendment because it furthers the government’s

interest in promoting public safety, a special need

beyond normal law enforcement. The State has a compel-

ling interest in eradicating the problem of drunk driving.

Sitz, 496 U.S. at 451-52. Drunk drivers kill and injure

thousands of people each year. This Court has recognized

that “drunk drivers cause an annual death toll of over

25,000 and in the same time span cause nearly one mil-

lion personal injuries and more than five billion dollars

in property damages.” Jd. at 451 (quoting 4 W. LaFave,

Search and Seizure: A Treatise on the Fourth Amend-

ment, § 10.8(d), at 71 (2d ed. 1987)). The cumulative

number of deaths attributed to drunk drivers far “ex-

ceeds the death toll of all our wars.” Perez v. Campbell,

402 U.S. 637, 657 (1971) (Blackmun, J., concurring).

Given these statistics, “[n]o one can seriously dispute the

magnitude of the drunken driving problem or the states’

interest in eradicating it.” Sitz, 496 U.S. at 451.

Similarly, the Illinois Supreme Court has long recog-

nized the significant destruction caused by drunk drivers

in Illinois and stated that “there can be no question that

drivers under the influence of alcohol pose a substantial

threat to the citizenry of Illinois.” People v. Bartley, 109

Ill. 2d 273, 285, 486 N.E.2d 880, 885 (1985), cert. denied,

475 U.S. 1068 (1986). An astonishing 58 percent of all

highway fatalities involved drunk drivers, and these

fatalities are particularly disturbing because they involve

the loss of innocent lives. Bartley, 109 Ill. 2d at 285-286,

486 N.E.2d at 885.

In an effort to reduce the destruction caused by drunk

drivers, Illinois enacted section 11-501.6. This statute

promotes the State’s compelling interest in public safety

in three ways by: 1) removing drunk drivers from the

highways, 2) deterring others from driving while intoxi-

cated, and 3) providing valuable information concerning

the cause of serious accidents. This statute allows the

Secretary to suspend an individual’s driver’s license if

the driver’s blood alcohol concentration is 0.10 or more or

the driver refuses to submit to testing. 625 ILCS 5/11-

501.6 (1994). The suspension of an individual’s driver’s

license after he has driven while under the influence of

alcohol removes drunk drivers from the roads and pro-

motes public safety. Just like the railroad employees sub-

ject to similar testing in Skinner, drivers of motor vehi-

cles engage in an activity that is “fraught with such risks

of injury to others that even a momentary lapse of atten-

tion can have disastrous consequences.” Skinner, 489

U.S. at 628.

This statute also promotes public safety by providing

an effective deterrent to those who may otherwise drive

under the influence of alcohol. The threat of sanctions

serves to prevent violators from driving drunk based on

the threat that they will likely be discovered. Jd. at 629-

30. The deterrent effect is “significantly increased” where

the violator cannot predict the occurrence of the trigger-

ing event. Jd. at 630. Indeed, it is more likely that a

driver will forgo using an intoxicating amount of alcohol

prior to driving a car when he knows that if he is in-

volved in a serious accident, and is issued a traffic ticket,

he will be tested. Id.; see also Martinez-Fuerte, 428 U.S.

at 557 (recognizing the importance of immigration check-

points as a deterrent to illegal activity). This deterrent

effect further aids the State in promoting public safety.

Section 11-501.6 additionally promotes public safety by

providing valuable information concerning the cause of

serious motor vehicle accidents. This information can be

used to establish additional safety measures to further

promote public safety. See Skinner, 489 U.S. at 630.

Positive test results would indicate that the driver’s drug

and alcohol use was “a possible cause of an accident, and

may help to establish whether a particular accident,

otherwise not drug related, was made worse by the in-

ability of impaired [drivers] to respond properly.” Jd.

Even negative test results would furnish information re-

garding the cause of the accident by ruling out drug or

alcohol impairment as a factor and allowing authorities

to focus on other factors. Jd. Accordingly, like the regula-

tions in Skinner, section 11-501.6 addresses special

needs beyond the normal need for law enforcement.

2. The Driver Subject to Section 11-501.6 Has a

Diminished Expectation of Privacy.

The intrusion on an individual’s privacy interests im-

posed by Section 11-501.6 is limited because the driver

has a diminished expectation of privacy. An individual’s

expectation of privacy depends on the context of the

search and the individual’s legal relationship with the

State. Vernonia, 115 S.Ct. at 2391. It is now well-settled

that “one’s expectation of privacy in an automobile and

of freedom in its operation are significantly different

from the traditional expectation of privacy and freedom

in one’s residence.” Martinez-Fuerte, 428 U.S. at 561.

Here, a driver’s expectation of privacy is significantly

diminished for several specific reasons: he has been in-

volved in a serious accident and is required to remain at

the scene of the accident, he has been arrested as evi-

denced by the issuance of a traffic ticket, and he has

participated in a highly regulated activity.

The driver of a motor vehicle who has been involved in

a serious accident in Illinois must remain at the scene of

the accident. Section 11-501.6 encompasses only those

accidents involving serious personal injury or death. 625

ILCS 5/11-501.6(a) (1994). Thus, the statute itself con-

templates situations in which the driver’s freedom of

movement is curtailed by the very physical conditions

attendant to such accidents. The Illinois Vehicle Code,

independent of section 11-501.6, however, puts a driver

on notice that, based on the serious nature of an acci-

dent, his freedom of movement will be restricted and he

can expect to be detained for an undetermined period of

time. Where an accident involving death or personal

injury occurs, by statute the driver must remain at the

scene and exchange necessary information, render rea-

sonable aid and report the accident to the nearest police

authority. 625 ILCS 5/11-401, 11-403 (1994). As the su-

preme court found, “[no] reasonable driver expects to

leave the scene of a serious accident moments after its

occurrence.” (App. A-9).

Besides the nature of the accident, the driver’s expecta-

tion of privacy is further diminished by the requirement

that a ticket issue. For section 11-501.6 to apply the

driver must be “arrested as evidenced by the issuance of

a Uniform Traffic Ticket for any violation of the Illinois

Vehicle Code with the exception of equipment violations.”

625 ILCS 5/11-501.6(a) (1994). This arrest is based on

the driver’s actions leading to the accident. As in the

instant case, Petitioner was issued a ticket for failure to

reduce speed to avoid an accident. The police officer had

probable cause to believe that Petitioner failed to proper-

ly reduce the speed of his vehicle, not probable cause

that Petitioner was driving under the influence of alco-

hol, and a traffic ticket was issued. A driver who is

issued a traffic ticket expects to be detained and under-

stands that he is not free to leave until the police officer

completes necessary procedures. An arrest “is inevitably

accompanied by future interference with the individual’s

freedom of movement, whether or not trial or conviction

ultimately follows.” Terry v. Ohio, 392 U.S. 1, 26, 88

S.Ct. 1868 (1968). Accordingly, the driver’s legal relation-

ship with the State at the time of the search diminishes

his expectation of privacy.

Given the driver’s diminished expectation of privacy,

the additional time it takes to procure blood, urine or

breath samples for testing does not significantly infringe

on the driver’s privacy interests. In fact, as in this case,

the driver might have been injured in the accident and

taken to a hospital where the samples can be obtained

with essentially no additional loss of time to the driver.

Even if the driver is not at the hospital, the time neces-

sary to procure such samples is minimal. See Skinner,

489 U.S. at 625-27.

Petitioner argues that the time it takes to obtain sam-

ples heightens the intrusiveness of the tests. (Petition at

11). He estimated that the procedure takes at least 20

minutes. (/d.). Given the context of the search and the

time that the driver will be required to remain at the

scene of the accident or otherwise have his freedom of

movement restricted, this period of time is insufficient to

demonstrate a significant intrusion into the driver’s pri-

vacy. See United States v. Sharpe, 470 U.S. 675, 687-88

(1985) (finding that a 20-minute investigatory stop was

not unreasonable under the Fourth Amendment).

Finally, the driver’s expectation of privacy is further

reduced because driving a motor vehicle is a highly regu-

lated activity. See Skinner, 489 U.S. at 627 (railroad

employees had diminished expectations of privacy based

on their participation in an industry that is pervasively

regulated to ensure safety). The Illinois Vehicle Code

occupies 404 pages of the Illinois Compiled Statutes and

covers a broad range of subjects relating to the operation

of motor vehicles. 625 ILCS 5/1-100 et seq. (1994). A sig-

nificant portion of the Illinois Vehicle Code is intended

to ensure safety on the State’s roadways by establishing

rules for nearly every aspect of owning and operating a

motor vehicle and prescribing penalties for violations.

The State’s purpose to ensure safety depends, in large

part, on drivers’ ability to safely operate a motor vehicle.

The State cannot effectively protect the public safety un-

less it can also prevent impaired drivers from using the

roadways. Skinner, 489 U.S. at 627 (recognizing the re-

lationship between the goal to ensure safety and the

health and fitness of railroad employees). Thus, a

driver's expectation of privacy is diminished by the

nature of the accident, the issuance of a traffic ticket and

the participation in this highly regulated activity.

3. The Chemical Tests Do Not Significantly Intrude

on the Driver’s Privacy.

The taking of bodily fluid samples alone does not

significantly intrude on a driver’s privacy interests.

Section 11-501.6 authorizes blood, urine and breath tests

to determine the alcohol or drug content in the driver’s

system. 625 ILCS 5/11-501.6(a) (1994). As this Court has

found, none of these tests significantly invades a person’s

privacy interests. See, e.g., Skinner, 489 U.S. at 625-27.

“(The intrusion occasioned by a blood test is not signifi-

cant, since such ‘tests are a commonplace in these days

of periodic physical examinations and experience with

them teaches that the quantity of blood extracted is

minimal, and that for most people the procedure involves

virtually no risk, trauma, or pain.’” Jd. at 625 (quoting

Schmerber, 383 U.S. at 771). Urine tests are not invasive

of the body and are similar to procedures encountered in

a regular physical examination. Skinner, 489 U.S. at

626-27. Breath tests are the least intrusive and present

only minimal intrusions on privacy. Jd. at 625-26. There-

fore, the chemical tests authorized by section 11-501.6 do

not significantly intrude on the driver’s privacy interests.

4. The State’s Interest in Promoting Public Safety

Would Be Seriously Jeopardized by Requiring

Probable Cause or Individualized Suspicion of

Driving under the Influence of Alcohol.

Requiring probable cause or individualized suspicion

that a driver is under the influence of alcohol before

chemical testing under section 11-501.6 would jeopardize

the State’s interest in promoting public safety. A driver

can be under the influence of alcohol and pose a substan-

tial threat to public safety without showing identifiable

signs of intoxication. Skinner, 489 U.S. at 628 (impaired

railroad employees will seldom display any outward

signs of intoxication detectable even by a physician). Be-

cause a driver can be legally intoxicated without exhibit-

ing signs of intoxication, the government has a legiti-

mate and compelling reason to perform a chemical test

without the showing of probable cause of individualized

suspicion of intoxication. The facts that the driver was

involved in a serious accident and was issued a traffic

ticket for violating the law are sufficient to permit such

testing. See Id. at 628-29 (allowing testing of railroad

employees without individualized suspicion based on an

accident or violation of certain regulations).

Additionally, because alcohol and other drugs are elim-

inated from the bloodstream at a constant rate, any de-

layed attempt to gather evidence of intoxication from the

driver “would likely result in the loss or deterioration of

the evidence furnished by the tests.” Jd. at 631. This is

especially true where, as here, the scene of the accident

is chaotic and the law enforcement officer would be un-

able to ascertain whether the driver has observable signs

of impairment. “Obtaining evidence that might give rise

to the suspicion that a particular [individual] is im-

paired, a difficult endeavor in the best of circumstances,

is most impractical in the aftermath of a serious acci-

dent.” Id.

In the present case, as is typical, the law enforcement

officers arrived at the scene of the accident while para-

medics were attending to the driver. In fact, at that time,

Petitioner was being immobilized with a cervical collar

and backboard. The police officers were unable to talk to

him or administer field sobriety tests. It would have been

difficult, if not impossible, for the officers to determine

whether Petitioner was under the influence of alcohol

without interfering with Petitioner’s medical treatment.

Therefore, it would be “unrealistic and inimical” to the

State’s goal of ensuring safety in highway transportation

to require a showing of probable cause or individualized

suspicion under these circumstances. See Id.

Petitioner’s argument that the government interest can

be achieved if individualized suspicion of intoxication is

required not only ignores the compelling government

interests identified in Skinner and the facts of this case,

but it is undermined by the continued carnage on our

highways. (Petition at 11-12). Although the existing

drunk driving laws have reduced the destruction caused

by drunk drivers, millions of people are still killed or

injured each year in alcohol related accidents. Section

11-501.6 gives the State an additional tool to combat

drunk driving. In the context of this case, the Illinois

Supreme Court properly found that section 11-501.6 does

not violate the Fourth Amerdment, and therefore, this

Court’s review is not warranted.

B. The Use of the Chemical Test Results in Criminal

Proceedings Does Not Violate the Fourth Amend-

ment Because That Use Is Incidental to the State’s

Purpose to Protect the Public Safety.

The fact that chemical test results obtained under

section 11-501.6 could be used in subsequent criminal

proceedings does not preclude the application of the

special needs exception. Evidence obtained through a

search conducted to achieve a special need can be used

in criminal proceedings absent a persuasive showing that

the authorizing statute was a “pretext” to enable law

enforcement authorities to gather evidence of criminal

violations. Skinner, 489 U.S. at 621 n.5; see also Griffin,

483 U.S. 868 (upholding the conviction of a probationer

based on evidence obtained from a warrantless search of

the probationer’s home by his probation officer); New

York v. Burger, 482 U.S. 691 (1987) (upholding the con-

viction of a junkyard owner based on evidence obtained

as a result of a warrantless administrative search by

police officers).

In Skinner, this Court reserved the issue of whether

the routine use in criminal prosecutions of evidence ob-

tained pursuant to an administrative scheme would give

rise to an inference of pretext or otherwise impugn the

administrative nature of the program. Skinner, 489 U.S.

at 621 n.5. The issue was reserved because the respon-

dents failed to seriously contend that the regulations

were designed as a pretext to enable law enforcement

authorities to gather evidence of criminal violations. /d.

Without a showing that the regulations were pretextual,

this Court evaluated the program in light of its obvious

administrative purpose and left for another day the issue

of whether the routine use in criminal prosecutions of

evidence obtained pursuant to this program created an

inference of pretext. Id.

In the present case, Petitioner has failed to present

any evidence that section 11-501.6 is a pretext for gath-

ering criminal evidence, and the Illinois Supreme Court

has recognized that use of the evidence in criminal pro-

ceedings can only be incidental to the special need sup-

porting the statute. Petitioner has failed to present any

evidence that chemical testing authorized by section 11-

501.6 is a pretext for gathering evidence for criminal

prosecutions or that the test results are routinely used

in criminal proceedings. In this case, Petitioner's test

results were sent to the Secretary and his driver’s license

was suspended. Additionally, based on the test results,

Petitioner was charged with driving under the influence

of alcohol. Under the trial court’s interpretation of sec-

tion 11-501.6, however, the test results were suppressed

and the criminal charge was dismissed. Petitioner did

not supply the Illinois courts or this Court with any

additional facts. Given the facts presented, Petitioner

has failed to make a threshold showing that the test

results are routinely used in criminal proceedings or any

other showing indicating that the statute is used as a

pretext for gathering criminal evidence.

This record is therefore inadequate to enable this

Court to decide whether the test results are routinely

used in criminal proceedings or whether the statute is

used as a pretext to gather evidence for criminal prose-

cutions. As in Skinner, this issue should be reserved for

a case where a sufficient record is available to make

these determinations. Skinner, 489 U.S. at 621 n.5.

Additionally, this Court should note that the Illinois

Supreme Court faithfully followed Skinner and recog-

nized the impact that allowing the routine use of the test

results would have on the constitutionality of the stat-

ute. The supreme court stated that “the legislature has

made clear that criminal prosecution is only incidental to

the primary purpose of the statute. Because the use of

test results in other proceedings is incidental to the

amended statute’s purpose, the ‘special needs’ exception

to the warrant requirement remains applicable.” (App. A-

12). Based upon the Illinois Supreme Court’s under-

standing of the relationship between the special needs

exception and the use of the test results in criminal pro-

ceedings, any improper use of these results in the future

will be addressed by the Illinois courts and then could be

presented for this Court to examine based on a fully de-

veloped record. The present case, in its current posture,

contains insufficient facts for this Court to decide the

issue left open in Skinner. Therefore, review by this

Court is both unnecessary and unjustified.

CONCLUSION

For all the foregoing reasons, this Court should deny

the Petition for Writ of Certiorari to the Illinois Supreme

Court.

Respectfully submitted,