People v. Lentini

• Decision Date: 10 May 1982
• Docket Number: No. 81-446,81-446
• Citation: People v. Lentini, 435 N.E.2d 1280, 106 Ill.App.3d 695, 62 Ill.Dec. 308 (Ill. App. 1982)
• Parties: , 62 Ill.Dec. 308 PEOPLE of the State of Illinois, Plaintiff-Appellant, v. David LENTINI, Defendant-Appellee.
• Court: Appellate Court of Illinois

Page 1280

435 N.E.2d 1280

106 Ill.App.3d 695, 62 Ill.Dec. 308

PEOPLE of the State of Illinois, Plaintiff-Appellant, v. David LENTINI, Defendant-Appellee.

No. 81-446.

Appellate Court of Illinois, Second District.

May 10, 1982.

Rehearing Denied June 22, 1982.

J. Michael Fitzsimmons, State's Atty., Barbara A. Preiner, Asst. State's Atty., Wheaton, for plaintiff-appellant.

Ralph J. Gust, Jr., Lombard, for defendant-appellee.

REINHARD, Justice:

The State has taken this interlocutory appeal pursuant to Supreme Court Rule 604(a) (Ill.Rev.Stat.1979, ch. 110A, par. 604(a)) from an order of the trial court suppressing the results of blood alcohol tests performed on two blood samples taken from the defendant, David Lentini.

Defendant was charged by indictment filed on February 26, 1981, with the offense of reckless homicide (Ill.Rev.Stat.1979, ch. 38, par. 9-3(a)) as a result of an automobile collision which occurred in Wheaton, Illinois. On June 5, 1981, defendant filed an amended motion to suppress the results of the blood alcohol analyses. At the hearing on defendant's motion, it was stipulated that two blood samples were taken from the defendant at the Central DuPage Hospital, one at approximately 10:45 p. m. on December 19, 1980, and the other at approximately 12:40 a. m. on December 20, 1980, and that they were taken without benefit of a search warrant. The State assumed the burden of going forward with their evidence based on this stipulation.

Frances Culler, a registered nurse in the emergency room at the Central DuPage Hospital, was the first witness called at the hearing. She was on duty on the evening of December 19, 1980, and examined the defendant at that time. Culler testified as follows concerning the obtaining of the first blood sample:

"THE WITNESS: Officer Fabrie asked Mr. Lentini if we could obtain a blood specimen at that time for use and he had his uniform on at the time, and he said, I need it for-I don't remember the exact words that he said, but he specifically, I need this specimen for me."

To this request, defendant responded, "Take anything you want." At 12:25 a. m., defendant was again approached by Officer Fabrie for the purpose of obtaining another blood sample since the officer misunderstood that the first blood sample was for medical purposes only. The officer again said that he needed the blood specimen for himself. Again, defendant responded, "just take anything you want." Officer Fabrie was in uniform and the defendant was quite friendly with him having stated that he thought he recognized him.

On cross-examination, Culler testified that defendant was brought into the emergency room on a stretcher and was wearing a cervical collar. Defendant had minor abrasions on his forehead. He kept falling off to sleep, but he was easily arousable with ammonia or body stimuli. Defendant's pupils were dilated at the time of his admission to the hospital, and he had slurred speech. Culler testified that drowsiness and slurred speech can be symptomatic of a brain concussion. Culler did not hear Officer Fabrie tell the defendant that he had a right to refuse the blood sample or that the sample could be used as evidence against him in court proceedings.

On redirect examination, Culler stated that defendant's head abrasion was superficial and there was "(n)o active bleeding, no bleeding from the ears or nose, no gross bruises, no hematomas, and no obvious deformities of the skull." In Culler's professional opinion, the defendant was "suffering from acute alcohol intoxication" rather than a concussion. She further stated that defendant appeared to be alert and responsive on both occasions when he responded to the officer's questions regarding a blood sample.

Officer Al Fabrie of the Wheaton Police Department next testified that in response to his request for a sample of blood, defendant stated, "sure, you can take all you want." No physical force or threats were used in obtaining the blood samples, and defendant was alert and responsive to Officer Fabrie's request. Later, Fabrie again asked defendant for a blood sample "for my use" that he could "take back to the department," and defendant responded, "you can have whatever you want." Fabrie testified again that no physical force or threats were used in connection with the obtaining of the second blood sample.

On cross-examination, Fabrie stated that the windshield of defendant's car was cracked above the steering wheel. With regard to the obtaining of the second blood sample, Fabrie asked defendant if he could have a sample "for my use to take to the police department." Fabrie, however, did not tell defendant that the sample could be used as evidence against him in a court of law nor that he had a right to refuse to give the sample. Fabrie also did not inform the defendant that the other person involved in the collision, Mrs. Gill, had died. Fabrie stated that defendant was never placed under arrest.

After the State had presented its evidence, the defendant moved for a directed finding without presenting any testimony. After oral arguments, the court ruled that defendant had not given his consent to the taking of the blood samples as required by section 11-501(c)(3) of the Illinois Motor Vehicle Code. (Ill.Rev.Stat.1979, ch. 951/2, par. 11-501(c)(3).) The court reasoned that the "consent" required by statute must be "intelligent" and "knowing." The court ruled that the evidence presented by the State did not demonstrate that defendant gave this type of consent since he was not informed "as to what the sample of blood would be used for." The court stated that at the very least the officer was required to tell the defendant that the "sample of your blood shall be tested to determine its alcoholic content and the determination of that alcoholic content may be important in whether or not you are charged with a crime and can be used against you in a trial of the case." The court also found there was no coercion used on the defendant.

At this point, the State orally represented that the court's ruling would substantially impair the ability of the prosecution to proceed with the case. Subsequently, after the record had been filed in this court, the State moved this court to supplement the record on appeal with a written certification of intent to appeal alleging that its ability to prosecute had been substantially impaired by the trial court's order. The defendant then filed an objection to the State's motion to supplement the record on appeal and moved to dismiss the appeal. The State filed a response to defendant's motion, and we ordered that these motions be taken with the case.

Initially, therefore, we must decide whether this appeal should be dismissed for the State's failure to file the certificate of intent to appeal in the trial court. The State's right of appellate review is limited to rulings which substantially impair prosecution of the case. (People v. Flatt (1980), 82 Ill.2d 250, 45 Ill.Dec. 158, 412 N.E.2d 509.) Our supreme court has recently held that in order to take an interlocutory appeal from a pretrial order suppressing evidence, the State must certify that the trial court's ruling substantially impairs the ability to prosecute. (People v. Young (1980), 82 Ill.2d 234, 45 Ill.Dec. 150, 412 N.E.2d 501.) Since the trial court's ruling was based on its interpretation of the statutorily required "consent," this case falls squarely under the holding in Young requiring certification when the trial court's order suppressing evidence is based on other than constitutional grounds. See also People v. Norris (1981), 101 Ill.App.3d 664, 667, 57 Ill.Dec. 307, 428 N.E.2d 987, leave to appeal denied (requiring certification also when the order suppressing evidence is based on the determination that evidence was obtained by illegal search and seizure).

Although it has been held that the filing of the certificate in the trial court subsequent to the filing of the notice of appeal (People v. Norris (1981), 101 Ill.App.3d 664, 668, 57 Ill.Dec. 307, 428 N.E.2d 987) and the filing of the certificate in the appellate court (People v. Keath (1981), 101 Ill.App.3d 652, 656, 57 Ill.Dec. 312, 428 N.E.2d 992) do not affect the appellate court's jurisdiction, we need not reach the latter issue under the facts of the present case. We find that the State's specific oral representation to the trial court that its case had been substantially impaired constitutes substantial compliance with rule announced in Young. After the court had articulated its ruling at the suppression hearing, the assistant State's Attorney stated:

"Your Honor, the position of the People pursuant to People versus Young and People versus Flatt is that Your Honor's ruling would substantially impair the ability of the prosecution to proceed with this case. * * *

That without this evidence, our ability to prove the extent of his intoxication as an element of recklessness which is clearly manifest by the discovery in this case at this point, and if we were to proceed to the point where we answered the Bill of Particulars, would be one of the elements of recklessness that we would be relying upon, is substantially deteriorated by the Court's ruling.

Therefore, we would certify that we have been substantially impaired in our ability to proceed with this case and we will be filing a notice of appeal pursuant to People versus Young and Flatt * * *."

While we believe the better practice and the one contemplated by Young to be the filing of a written certificate with the trial court, in light of the lack of a showing of prejudice to defendant, we believe that the oral representation was substantial compliance with the rule under these circumstances. Even if we were to find that this was not substantial compliance with the rule, we would hold that the error under the circumstances here was harmless. (Cf. People v. Hopson (1981), 101 Ill.App.3d 564, 574-75, 57 Ill.Dec. 130, 428...