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People v. DuBose5/13/2004
On October 8, 2002, a Du Page County grand jury returned an indictment charging defendant, David DuBose, with five counts of aggravated driving under the influence of alcohol, drugs, or both (DUI) (625 ILCS 5/11- 501(d)(1)(C) (West 2000)). Defendant successfully moved to bar the State from introducing evidence of the results of testing performed on a blood sample drawn from defendant following his arrest. Defendant argued that the State was judicially estopped from using the evidence because defendant's driving privileges had previously been suspended on the basis that he refused to submit to testing. The State filed a certificate of impairment and appealed from the order granting defendant's motion. We reverse and remand.
On April 2, 2004, this court rendered an opinion reversing the *994 order of the circuit court and remanding the cause for further proceedings. Thereafter, defendant filed a petition for rehearing, arguing that our decision was based in part on the erroneous finding that defendant received medical treatment for injuries he sustained in the accident that resulted in his arrest for DUI. We now deny defendant's petition for rehearing, but withdraw our opinion of April 2, 2004, and issue this opinion in its stead.
Evidence presented at the hearing on defendant's motion establishes that on June 23, 2000, a vehicle that defendant was operating was involved in a multiple-vehicle accident. The accident caused serious personal injuries to another individual. Defendant was arrested at the accident site for DUI. The arresting officer also issued a traffic citation to defendant for failure to reduce speed to avoid an accident. Defendant was then transported to a local hospital. At the hospital, the arresting officer requested that defendant submit to chemical testing of his blood to determine the level of alcohol or other drugs. The officer also administered the warning prescribed by section 11-501.6(c) of the Illinois Vehicle Code (Code) (625 ILCS 5/11- 501.6(c) (West 2000)), advising **823 ***257 defendant, inter alia, that refusal to submit to the requested testing would result in the suspension of his driving privileges. Defendant refused to submit to testing. The arresting officer then consulted with his supervisor about having defendant's blood drawn without defendant's consent pursuant to section 11-501.6(b) of the Code (625 ILCS 5/11-501.6(b) (West 2000)), which provides, in pertinent part, that "if a driver of a vehicle is receiving medical treatment as a result of a motor vehicle accident, any physician licensed to practice medicine, registered nurse or phlebotomist acting under the direction of a licensed physician shall withdraw blood for testing purposes * * * upon the specific request of a law enforcement officer." The arresting officer's supervisor arrived at the hospital and informed defendant that his blood could be drawn without his consent. The arresting officer testified that "[a]t that point [defendant] stated that's fine, if you want to do it. I want it to be known on the record I refused." During cross-examination, the officer testified as follows:
"After my supervisor arrived on the scene, my supervisor informed [defendant] of the situation and what the outcome could be. He stated that he, again he would refuse all testing however he would give his blood and urine. He wanted it to be noted on the report that he refused."
Defendant's blood was drawn by a phlebotomist, without any resistance from defendant. The arresting officer submitted to the Secretary of State a sworn report indicating that defendant refused to *995 submit to testing, and the Secretary of State suspended defendant's driving privileges for three years beginning in August 2000.
During the hearing on defendant's motion, his atto
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