NO. 5-99-0122

IN THE

APPELLATECOURT OF ILLINOIS

FIFTHDISTRICT

JUSTICE WELCH delivered the opinion of the court:

Sometime during the early morning hours of June 18, 1994, Lawrence T. Ripplinger(defendant), while driving on Interstate 64, veered off the interstate, into the median, androlled the pickup truck he was driving. Michael Sand, a passenger in defendant's vehicle,was ejected and died at the scene. Defendant was charged with reckless homicide. At thetrial, evidence demonstrated that defendant was intoxicated at the time of the accident.

On December 4, 1998, following a jury trial in St. Clair County, defendant was foundguilty of reckless homicide. The trial court entered a judgment on the verdict and sentenceddefendant to four years in the Illinois Department of Corrections or, pending qualification,impact incarceration for 120 to 180 days. Defendant now appeals his conviction and raisesthe following four issues for our review: (1) whether the trial court erred in admitting intoevidence blood and urine samples seized by the Illinois State Police and whether the trialcourt erred in admitting the results of tests performed on these samples, (2) whether the trialcourt erred in allowing two Illinois State Police officers to testify as to a conversation theyhad with defendant while defendant was recovering in the hospital a few days after theaccident, (3) whether the trial court erred in prohibiting defendant from presenting evidenceor argument as to the proximate cause of the victim's death, and (4) whether the trial courterred in admitting into evidence defendant's hospital medical records and testimony derivedfrom these records that defendant's blood alcohol content exceeded 0.10. For the followingreasons, we affirm.

Most of the facts in this case are undisputed. On June 17, 1994, around 10:30 p.m.,defendant and Sand, along with two female friends, began drinking at a bar in O'Fallon,Illinois. At the trial, the females testified that defendant was drinking beer while at the bar. Around 2 a.m., defendant and the others left the bar and went to the home of one of thefemales. At the home, one of the females passed out and the other went to bed. Defendantand Sand then left the home and went to a club in Sauget, Illinois.

Around 4 a.m., while driving on the interstate, defendant lost control of his pickuptruck. The pickup truck left the interstate, crossed the median, and rolled. Sand was ejectedfrom the truck and died at the scene. Defendant was rendered unconscious.

Sometime between 4 a.m. and 4:45 a.m., Illinois State Police Officer Mark Spranklewas called to the scene. When he arrived, several ambulance personnel were attending todefendant. Sprankle approached defendant's pickup truck, where defendant wasunconscious. Sprankle testified that he got within a few inches of defendant's face anddetected a "fairly strong odor of alcoholic beverage" on his breath. Defendant waseventually transported by helicopter to Barnes Hospital in St. Louis, Missouri.

After completing his examination of the accident scene, Sprankle traveled to BarnesHospital in Missouri to continue the accident investigation. He arrived at the hospitalsometime around 6 a.m. Defendant was unconscious and in the emergency room whenSprankle arrived. While at the hospital, Sprankle issued defendant two citations andrequested one of the attending nurses to draw blood from defendant. Jennifer Bredell, aregistered nurse, drew two blood samples and a urine sample from defendant at 6:17 a.m.and gave them to Sprankle. This blood was subsequently sent to the Illinois State Police Labfor analysis. At the trial, Cathy Anderson, a forensic scientist with the Illinois State Police,testified that the results of the analysis revealed that at the time the blood was taken,allowing for some biological variability, defendant's blood alcohol content under whole-blood testing was a "conservative" 0.118.

On June 21, 1994, three days after the accident, defendant was still in the hospital inthe intensive care unit. Illinois State Police Officers Donald Leach and Terry Klutts traveledto Missouri to ask defendant a few questions about the accident. Leach and Klutts spokewith defendant for three to five minutes. At the trial, Leach and Klutts testified that one ofthe questions they asked defendant was how much he had to drink the evening before theaccident and that defendant replied, "[T]oo much."

Although additional evidence was presented during the trial, we shall present anddiscuss that evidence when discussing the issue on appeal to which it is relevant. In anyevent, after hearing all the evidence in this case, the jury returned a verdict of guilty, and thetrial court entered a judgment on the verdict. We now turn to the issues raised by defendanton this appeal.

The first issue we shall address is whether the trial court erred when it denieddefendant's motion to suppress blood and urine samples seized by Officer Sprankle of theIllinois State Police and the results of tests performed on these samples. As we have juststated, Sprankle traveled to Missouri shortly after the accident and obtained two bloodsamples from defendant while defendant was unconscious in the emergency room. Thesamples and test results regarding these samples were admitted into evidence.

Prior to the trial, defendant filed a motion to suppress the blood and urine samplesand the test results derived from these samples. Defendant argued before the trial court thatthis evidence should be suppressed because Sprankle had no authority to "demand" bloodfrom an unconscious defendant at a hospital in Missouri. Defendant argued that suchauthority is not granted under Illinois law and that Sprankle's actions infringe on Missouri'ssovereignty. The trial court denied defendant's motion to suppress and found that Spranklehad authority to obtain the blood samples pursuant to sections 11-501(a), 11-501.2(a), 11-501.4(b), and 11-501.6(b) of the Illinois Vehicle Code (625 ILCS 5/11-501(a), 11-501.2(a),11-501.4(b), 11-501.6(b) (West 1996)). The trial court rejected defendant's argument thatallowing Sprankle to demand and seize the blood and urine samples infringed uponMissouri's sovereignty. Defendant now argues that the trial court erred in denying hismotion to suppress this evidence.

When reviewing a trial court's ruling on a motion to suppress, we generally do notdisturb its ruling unless its ruling is manifestly erroneous. People v. Ciesler, 304 Ill. App.3d 465, 470 (1999). However, where there is no dispute as to the witnesses' credibility, wewill conduct a de novo review of the legal questions raised by the appeal. Ciesler, 304 Ill.App. 3d at 470. In the instant case, there is no dispute as to the witnesses' credibility or asto the facts that underlie defendant's motion to suppress. Therefore, we shall conduct ourreview de novo.

On appeal, defendant argues that the trial court's decision is in error because none ofthe statutory sections relied upon by the trial court grant an Illinois police officer authorityto cross state lines and seize blood from an unconscious defendant. Defendant argues thatbecause the Illinois legislature has not specifically granted Sprankle the authority to demandblood from an unconscious defendant outside the borders of the State of Illinois, the bloodsamples and test results should have been suppressed. We disagree with defendant'sarguments.

The basis for the trial court's decision that Officer Sprankle had authority to travel toMissouri and seize the blood from the unconscious defendant is found in section 11-501.1of the Illinois Vehicle Code (625 ILCS 5/11-501.1 (1998)). Section 11-501.1(a) providesin relevant part:

"(a) Any person who drives or is in actual physical control of a motor vehicle uponthe public highways of this State shall be deemed to have given consent *** to achemical test or tests of blood, breath, or urine for the purpose of determining thecontent of alcohol *** in the person's blood if arrested, as evidenced by the issuanceof a Uniform Traffic Ticket, for any offense as defined in Section 11-501 or a similarprovision of a local ordinance. The test or tests shall be administered at the directionof the arresting officer. *** For purposes of this Section, an Illinois law enforcementofficer of this State who is investigating the person for any offense defined in Section11-501 may travel into an adjoining state, where the person has been transported formedical care, to complete an investigation and to request that the person submit tothe test or tests set forth in this Section." (Emphasis added.) 625 ILCS 5/11-501.1(a)(West 1998).

The provision in this statute that grants an Illinois law enforcement officer authorityto travel into an adjoining state to complete an investigation and to request that the personsubmit to the tests set forth in this section has recently been found constitutional in Peoplev. Every, 184 Ill. 2d 281 (1998). A review of our supreme court's decision in Every ishelpful to our analysis of the issue at hand.

In Every, the defendant was involved in a one-car accident. A deputy officer arrivedat the scene and detected a strong odor of alcohol on the defendant's breath and observedthat his eyes were glassy and that his balance was unsteady. The deputy proceeded to givethe defendant a field sobriety test, which the defendant failed. A field breathalyzer testrevealed that the defendant had a blood alcohol concentration of 0.174. The defendant wasthen transported by ambulance to a hospital in Iowa.

At the hospital, the deputy issued the defendant a citation for violating section 11-501(a)(2) of the Illinois Vehicle Code (625 ILCS 5/11-501(a)(2) (West 1996)). He then readthe defendant the warning statement required by statute and obtained the defendant's consentto have a blood sample taken. The blood sample was eventually tested, and the resultsrevealed a blood alcohol concentration of 0.177.

Prior to the trial, the defendant moved to suppress the evidence taken from him at thehospital in Iowa. Every, 184 Ill. 2d at 283. The defendant challenged the constitutionalityof section 11-501.1(a), arguing that this provision of the statute granting the deputy authorityto obtain blood samples from the defendant while they were in Iowa was unconstitutional. Every, 184 Ill. 2d at 283. The trial court agreed and found the provision unconstitutional. Every, 184 Ill. 2d at 283-84.

On direct appeal, our supreme court reversed the trial court. In reaching its decision,our supreme court rejected the defendant's arguments that the provision violated thedefendant's due process rights or intruded on state sovereignty. Every, 184 Ill. 2d at 286. Our supreme court noted, "The officer's actions in this case do not involve an exercise of hisofficial powers in another state[] but rather depend on the defendant's implied consent to theevidence-gathering procedure set out in the Illinois Vehicle Code." Every, 184 Ill. 2d at 286. Our supreme court explained that the defendant's consent to a blood test could be found insection 11-501.1, which provides that any person who drives or is in actual physical controlof a motor vehicle upon the public highways of Illinois "shall be deemed to have givenconsent" to the chemical testing of their blood, breath, and urine for the purpose ofdetermining the content of alcohol in the driver's blood. Every, 184 Ill. 2d at 286-87. Oursupreme court continued that the purpose of the challenged measure was to permit lawenforcement officers to obtain blood samples from drivers who, for medical reasons, havebeen taken to an adjoining state and that the provision "reflects a balance struck between theinjured driver's interest in obtaining prompt medical treatment and the State's interest insecuring reliable evidence before it vanishes." Every, 184 Ill. 2d at 287. The courtconcluded, "The defendant should not be released from the statutory consequences of hisactions merely because he was taken to an adjoining state for treatment of his injuries." Every, 184 Ill. 2d at 287.

In the instant case, defendant concedes that an Illinois State Police officer may travelto an adjoining state to request blood from a conscious defendant at a hospital in theadjoining state. Defendant also concedes that an Illinois State Police officer may demandblood from an unconscious defendant if the defendant is at a hospital in Illinois. However,defendant argues that this section does not grant an Illinois State Police officer authority todemand blood from an unconscious defendant at a hospital in an adjoining state. We believethat defendant's reading of section 11-501.1 of the Illinois Vehicle Code is too narrow.

Absent from defendant's brief and arguments on appeal, and absent from the trialcourt's list of sections on which it based its ruling, is reference to section 11-501.1(b) of theIllinois Vehicle Code (625 ILCS 5/11-501.1(b) (West 1998)). Section 5/11-501.1(b)provides:

"(b) Any person who is dead, unconscious, or who is otherwise in a conditionrendering the person incapable of refusal, shall be deemed not to have withdrawn theconsent provided by paragraph (a) of this Section and the test or tests may beadministered, subject to the provisions of Section 11-501.2." 625 ILCS 5/11-501.1(b) (West 1998).

Pursuant to this section, even though a defendant may be unconscious, unconsciousness willnot to be construed as a withdrawal of consent to the taking of blood samples for testingpurposes.

As this court has previously held, the purpose of section 11-501 is to assist in adetermination of whether motor vehicle drivers suspected of intoxication are under theinfluence of alcohol and to make the state streets and highways safer for citizens by makingthe prosecution of intoxicated drivers easier. People v. Huisinga, 242 Ill. App. 3d 418, 422(1993). This court has noted that the implied consent statute should be liberally construedto accomplish the purpose of protecting the citizens of this state upon the highways. Peoplev. Porretta, 127 Ill. App. 3d 572, 576 (1984).

When reviewing a legislative enactment, this court must construe the statute in sucha way as to promote its essential purposes and must not read it so rigidly as to defeat thelegislature's intent. People v. Owens, 240 Ill. App. 3d 168, 171 (1992). "The court maylook not only to the language of the statute but also to the reason and necessity for the law,the evils the legislature sought to remedy, and the objects and purposes the legislature soughtto accomplish." See People v. Tellez, 295 Ill. App. 3d 639, 643 (1998). Our role is toexamine the entire statute for guidance as to the legislative intent and, upon ascertaining thelegislature's intent, give it effect. See In re County Collector of McHenry County, 181 Ill.App. 3d 345, 348 (1989).

We believe that when defendant got behind the wheel of his vehicle and begandriving on the Illinois state highways and put at risk the safety of the citizens in this state,not only did he consent to the evidence-gathering procedures of section 11-501.1(a) (seeEvery, 184 Ill. 2d at 286), but he also subjected himself to section 11-501.1(b). In otherwords, defendant impliedly consented to the taking and testing of his blood if he wassubsequently rendered unconscious and fortuitously transported to a hospital in an adjoiningstate. We reject defendant's argument that merely because he was unconscious andtransferred to a hospital in a neighboring state, he should be allowed to escape the statutoryconsequences of his actions and hinder the Illinois prosecution for his actions. People v.Preston, 205 Ill. App. 3d 35, 42 (1990). Defendant's requested result runs contrary to thepurpose of the implied consent statute.

Accordingly, we believe that section 11-501.1(a) and section 11-501.1(b) providedSprankle with the authority to travel to Missouri and take blood samples from defendant,who was unconscious at the hospital in Missouri. Sprankle went to the hospital andrequested blood samples from defendant according to the evidence-gathering procedures laidout in our Illinois Vehicle Code, to which defendant subjected himself when he got behindthe wheel of his pickup truck shortly before the accident. Although he was unconscious,defendant had not withdrawn his consent to the taking of his blood upon Sprankle's request. Accordingly, we find no error in the trial court's decision denying defendant's motion tosuppress.

The second issue we shall address is whether the trial court erred in denyingdefendant's motion to suppress the statements he made to Illinois State Police officers whilehe was confined to a hospital bed in the intensive care unit at Barnes Hospital in Missouri. The facts as they pertain to this issue are as follows.

Three days after the accident, Officers Leach and Klutts visited defendant at thehospital in Missouri. At the time, defendant was in the intensive care unit of the hospital butwas conscious and sitting up in his bed. Monitors were attached to defendant, defendant hadstaples along his scalp, IVs were in defendant, and defendant had a drainage hose in hishead. There is no dispute that due to defendant's medical care and condition, defendant wasnot physically free to simply get up and walk out of the room.

At the motion-to-suppress hearing, Leach testified that upon entering the hospitalroom, he showed defendant his credentials and told him that he and Klutts were policedetectives and that they wanted to talk to defendant about the accident. Leach testified thatdefendant indicated he was willing to talk and that at no time did defendant ask for anattorney. Leach testified that he did not read defendant his Miranda rights (Miranda v.Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)), but at no time did he telldefendant he was under arrest. Leach stated that throughout the conversation he did notraise his voice, make threats, or tell defendant he was not "free" to leave.

During their conversation, Leach asked defendant if he remembered anything aboutthe accident. Defendant replied that he did not. Leach then asked defendant if heremembered what he had been doing the night before the accident, and defendant respondedthat he was out drinking. Leach then asked defendant if he remembered how much he hadto drink, and defendant responded, "[T]oo much." At the hearing, Klutts corroboratedLeach's testimony and stated that the conversation with defendant lasted about five minutes"at the most." Defendant testified that he had no recollection of this conversation with theofficers and that he did not remember talking to them at his room in the hospital.

Following the hearing, defendant argued that his statements to the officers should besuppressed for two reasons: first, because the officers conducted a custodial interrogationof defendant without reading defendant his Miranda rights and, second, because the officerselicited statements from defendant in the absence of counsel after defendant had beencharged with a crime and his sixth amendment right to counsel had attached. The trial courtrejected defendant's arguments, finding that it was not a custodial interrogation and that thesixth amendment right to counsel did not attach at the time of this interrogation. We shallfirst address defendant's argument that the trial court erred in finding that this was not acustodial interrogation.

"A custodial interrogation occurs when police question a person after he has beentaken into custody or deprived of his freedom of movement in any significant way." Peoplev. Rivera, 304 Ill. App. 3d 124, 128 (1999). Statements obtained from a person as a resultof a custodial interrogation should be suppressed if that person did not receive his Mirandawarnings. Rivera, 304 Ill. App. 3d at 128. As an accused has the privilege against self-incrimination during a custodial interrogation, prior to the interrogation he or she should beforewarned of his or her rights. People v. V.S., 244 Ill. App. 3d 478, 482 (1993).

In the instant case, there is no dispute that defendant was not read his Miranda rights;therefore, the sole issue focuses on the determination of whether defendant was in custody. Custody occurs when a defendant is placed under formal arrest or when a defendant'sfreedom of movement is restrained to the degree normally associated with a formal arrest. People v. Goyer, 265 Ill. App. 3d 160, 164 (1994). In determining whether an interrogationwas custodial, the court must look at several factors: (1) the location, mood, and length ofthe interview, (2) the number of police officers present, (3) the presence or absence of thedefendant's family or friends, (4) any indicia of formal arrest, such as physical restraint, theshow of weapons or force, booking, or finger printings, and (5) the manner by which thedefendant arrived at the place of the interview. Goyer, 265 Ill. App. 3d at 166. The courtmust examine all these factors surrounding the questioning and then objectively evaluatewhether a reasonable, innocent person would believe he or she was expressly or impliedlybound to remain in the presence of the officials. V.S., 244 Ill. App. 3d at 484. Again, onlystatements made in a custodial atmosphere need to be suppressed. V.S., 244 Ill. App. 3d at483. We will not disturb the trial court's ruling as to whether a custodial interrogationoccurred unless it is against the manifest weight of the evidence. Rivera, 304 Ill. App. 3dat 128.

Upon examining the record, we do not believe that the trial court's decision is againstthe manifest weight of the evidence. First, there is nothing as to the location, mood, andlength of the interview that suggests defendant was in custody. The police officers came todefendant, who was in the intensive care unit of the hospital. They did not raise their voiceduring the interview, make threats, badger defendant, levy accusations against defendant,or suggest that defendant was not free to end the interview at any time. In addition, thelength of the interview was no more than five minutes. There were only two police officersin the room, they did not order that defendant be physically restrained, there were no indiciaof a formal arrest, and there was no showing of weapons or force. Although there is nodispute that defendant was not able to physically get up and walk away, his inability to doso was in no way caused by the police officers. Merely because the questioning of defendantoccurred at a hospital does not in itself amount to a custodial interrogation. See People v.Bates, 169 Ill. App. 3d 218, 222 (1988). We believe that the trial court's finding that areasonable person innocent of any crime under the same circumstances would not believehe was in custody is not against the manifest weight of the evidence. Accordingly, we findno error in the trial court's decision denying defendant's motion to suppress his statementson the ground that this was a custodial interrogation and defendant did not receive his properMiranda warnings.

We now turn to defendant's argument that the statements should have beensuppressed because they were obtained in violation of defendant's sixth amendment right tocounsel. Defendant argues that the interrogation at the hospital occurred after the State hadinitiated an adversarial judicial proceeding against him and, therefore, he was entitled tohave counsel present during the interrogation. The State argues that the "adverse positionsof the government and defendant" had yet to solidify and, therefore, defendant's sixthamendment right had not yet attached.

The sixth amendment to the United States Constitution provides, in relevant part, "Inall criminal prosecutions, the accused shall enjoy the right to *** have the Assistance ofCounsel for his defence." U.S. Const., amend. VI. A person's sixth amendment right tocounsel attaches after adversary judicial criminal proceedings have been initiated againsthim by way of a formal charge, preliminary hearing, indictment, information, or arraignment. People v. Hunt, 240 Ill. App. 3d 496, 502 (1992). Defendant's right to counsel attaches atthis point to ensure "that the accused has counsel at critical preindictment proceedings wherehe is confronted by the procedural system, an expert adversary[,] or both[] and where theresults of the confrontation might determine his fate and make the trial itself a mereformality." Hunt, 240 Ill. App. 3d at 502. The supreme court has held that this sixthamendment right to counsel attaches when the government has committed itself to prosecuteand " 'the adverse positions of government and defendant have solidified.' " People v.Garrett, 179 Ill. 2d 239, 247 (1997) (quoting Kirby v. Illinois, 406 U.S. 682, 689, 32 L. Ed.2d 411, 418, 92 S. Ct. 1877, 1882 (1972) (plurality opinion)). It is at this point that "adefendant finds himself faced with the prosecutorial forces of organized society[] andimmersed in the intricacies of substantive and procedural criminal law." United States v.Gouveia, 467 U.S. 180, 189, 81 L. Ed. 2d 146, 155, 104 S. Ct. 2292, 2298 (1984) (quotingKirby, 406 U.S. at 689, 32 L. Ed. 2d at 418, 92 S. Ct. at 1882).

The issue in this case is whether the adverse positions of the government anddefendant had solidified, thereby attaching defendant's sixth amendment right to counsel atthe time Officers Leach and Klutts interviewed defendant in the hospital. Accordingly, itis the duty of the court to closely examine the degree to which the State's prosecutorialforces have focused upon the accused. People v. Hayes, 139 Ill. 2d 89, 125 (1990). Basedupon our supreme court's decision in Garrett, we find no error in the decision of the trialcourt that defendant's sixth amendment right to counsel had not attached at the time of theinterview.

In Garrett, a shooting occurred on September 1, 1990. Based upon the statementsof identification witnesses, a detective filed a complaint in the circuit court on September10, 1990, requesting an arrest warrant charging the defendant with murder. An arrestwarrant was issued, and on March 14, 1991, the defendant was arrested. Garrett, 179 Ill.2d at 242. On March 15, 1991, the defendant appeared at a bond reduction hearing, and anassistant public defender filed an appearance on the defendant's behalf. Garrett, 179 Ill. 2dat 242. The defendant then appeared in court on March 18, 1991, where the State indicatedthat it was not ready to proceed. The trial judge granted the State a continuance while thedefendant remained in custody. A preliminary hearing was set for April 11, 1991.

On April 9, 1991, two days prior to the scheduled hearing, a detective arranged alineup in which the defendant was a participant. At the lineup, the defendant was identifiedas one of the persons responsible for the shooting on September 1, 1990. The defendantfiled a motion to suppress the lineup identification, claiming that he was not represented bycounsel at the lineup, thereby violating his sixth amendment right. Garrett, 179 Ill. 2d at242. The trial court denied the defendant's motion to suppress.

On review, our supreme court held, "[A]dversarial judicial proceedings had not begunat the time of the lineup[,] and[] therefore, defendant had no sixth amendment right tocounsel." Garrett, 179 Ill. 2d at 251. Our supreme court noted: "[A]t the time of the lineupthere had been no formal charge, preliminary hearing, indictment, information, orarraignment. Further, during the filing of the complaint, the two hearings, defendant'sdetention, and the lineup, there was neither significant prosecutorial involvement nor acommitment by the State to prosecute." Garrett, 179 Ill. 2d at 251. Our supreme courtfound the State's role at the two hearings insufficient for the defendant's sixth amendmentright to counsel to attach.

In the instant case, defendant had been served with a uniform traffic ticket on June18, 1994, for driving under the influence of alcohol. This ticket was issued by Spranklewithout any evidence of prosecutorial involvement. Defendant had not yet been chargedwith reckless homicide. There is no evidence in this case of any prosecutorial involvementprior to the time of the interview. Certainly, the prosecutorial involvement in Garrett wasfar more substantial than any prosecutorial involvement in the instant case. Accordingly,we believe that the trial court's finding that adversarial judicial proceedings had not yetbegun at the time of the interview is not against the manifest weight of the evidence. Inconclusion, we find no error in the trial court's decision to deny defendant's motion tosuppress his statements made at the interview.

[Nonpublishable material removed under Supreme Court Rule 23 (166 Ill. 2d R. 23).]

Wherefore, we affirm the judgment of the circuit court of St. Clair County.

Affirmed.

KUEHN and RARICK, JJ., concur.