People v. Bradley, 83-2522

• Court: United States Appellate Court of Illinois
• Writing for the Court: DOWNING; HARTMAN, P.J., and PERLIN
• Citation: 472 N.E.2d 480,84 Ill.Dec. 520,129 Ill.App.3d 177
• Parties: , 84 Ill.Dec. 520 PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Kathleen A. BRADLEY, Defendant-Appellee.
• Docket Number: No. 83-2522,83-2522
• Decision Date: 27 November 1984

Page 480

472 N.E.2d 480 129 Ill.App.3d 177, 84 Ill.Dec. 520 PEOPLE of the State of Illinois, Plaintiff-Appellant,
v.
Kathleen A. BRADLEY, Defendant-Appellee. No. 83-2522. Appellate Court of Illinois,
First District, Second Division. Nov. 27, 1984.

[129 Ill.App.3d 178]

Page 482

[84 Ill.Dec. 522] Richard M. Daley, State's Atty. of Cook County, Michael E. Shabat, Jane E. Liechty and Bernard J. Murray, Chicago, for plaintiff-appellant.

Anthony J. Onesto, Onesto, Giglio, Meltreger & Associates, Chicago, for defendant-appellee.

DOWNING, Justice:

During a bench trial, the trial court ruled inadmissible certain testimonial evidence proffered by the State concerning the results of a chemical analysis performed on a sample of defendant Kathleen A. Bradley's blood. On appeal, the State contests the propriety of this midtrial ruling pursuant to Supreme Court Rule 604(a)(1). 87 Ill.2d P. 604(a)(1).

Following the November 23, 1982 collision of two automobiles at the intersection of Devon Avenue and California Avenue in Chicago, defendant, the driver of one of the vehicles, was taken to Swedish Covenant Hospital for treatment. A chemical analysis of the alcohol content in her blood at that time was performed for medical reasons on a DuPont Automatic Chemistry Analyzer by Thomas Glans, a laboratory supervisor employed at the hospital. Subsequent thereto, defendant was charged with two counts of reckless homicide (Ill.Rev.Stat.1981, ch. 38, par. 9-3(a)) and one count of driving under the influence of an intoxicating liquor (Ill.Rev.Stat.1981, ch. 95 1/2, par. 11-501(a)).

During the ensuing bench trial, the State called Glans to the witness stand as an expert in the field of "drawing blood and testing of blood for alcoholic content." Essentially, the State sought introduction of the results of the chemical analysis performed on the sample of defendant's blood taken soon after the accident. Defense counsel objected to the admission of this

Page 483

[84 Ill.Dec. 523] testimonial evidence, however, maintaining that Glans lacked the necessary permit issued by the Illinois Department of Public Health ("Department"). (Ill.Rev.Stat.1981, ch. 95 1/2, par. 11-501.2(a)(1).) Further objection was made as to the accuracy of the machine which analyzed defendant's blood sample. The trial judge held that unless it could be shown that Glans did, in fact, possess the requisite permit, his testimony would be inadmissible.

At some point following Glans' withdrawal as a prosecution witness, the State requested that the court reconsider its ruling pertaining to the competency of Glans to testify as to the test results. The trial judge again held, however, that Glans was incompetent to testify because there had been no showing that he held the necessary Department[129 Ill.App.3d 179] permit. After submitting an offer of proof, the State filed a notice and certificate of appeal contending that the aforementioned ruling substantially impaired its ability to prosecute the case. The State then rested over objection after the court denied its request to terminate the proceedings pending appeal. A directed finding of acquittal was thereupon entered on defendant's motion. The State now appeals pursuant to Supreme Court Rule 604(a)(1), contending that the midtrial exclusion of Glans' testimony was erroneous.

I.

Initially, the State argues that it may appeal from a midtrial order preventing the admission of evidence as long as certification is made to the trial court that the State's ability to proceed with the case has been substantially impaired by such an order. As a general proposition, this argument is incorrect, for the threshold inquiry is always whether the trial judge's interlocutory ruling had the substantive effect of "suppressing evidence," as that term is used in Supreme Court Rule 604(a)(1).

Rule 604(a)(1) provides, in pertinent part, that: "In criminal cases the State may appeal only from an order or judgment the substantive effect of which results in * * * suppressing evidence." (87 Ill.2d R. 604(a)(1).) Pursuant to this rule, our supreme court has held that "[s]ince the right of a defendant to file motions to suppress after the trial has commenced is limited by the provisions of section 114-12(c) [of the Code of Criminal Procedure of 1963 ("Code") (Ill.Rev.Stat.1977, ch. 38, par. 114-12(c)) ], the State's right to appeal from suppression orders during trial is limited to orders entered allowing these motions." (People v. Flatt (1980), 82 Ill.2d 250, 264, 45 Ill.Dec. 158, 412 N.E.2d 509.) In the event a determination is made by a court of review that the suppression motion was not within the ambit of section 114-12(c) of the Code and that the trial judge wrongfully considered it during trial, the State may then only contest the authority of the lower tribunal to enter the suppression order, rather than the merits of the court's ruling. Flatt, 87 Ill.2d at 264, 45 Ill.Dec. 158, 412 N.E.2d 509.

Briefly, we note that the court below did not enter the interlocutory order in question pursuant to section 114-12(c) of the Code, which concerns only motions "to suppress evidence illegally seized." During the State's offer of proof, emphasis was placed on the fact that defendant's blood sample was taken with her husband's written consent and pursuant to a doctor's order. In addition, as defendant indicates in her brief, "there is no allegation that the blood sample [129...