The People Of The State Of Ill. v. Henry

• Decision Date: 19 January 2010
• Docket Number: No. 3-09-0081.,3-09-0081.
• Citation: 338 Ill.Dec. 600,398 Ill.App.3d 1019,924 N.E.2d 1126
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellant,v.Delores J. HENRY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

398 Ill.App.3d 1019

924 N.E.2d 1126

338 Ill.Dec. 600

The PEOPLE of the State of Illinois, Plaintiff-Appellant,v.Delores J. HENRY, Defendant-Appellee.

No. 3-09-0081.

Appellate Court of Illinois,

Third District.

Jan. 19, 2010.

Terry A. Mertel, Deputy Director, Jessica R. Bargmann (argued), State's Attorneys Appellate Prosecutors, Brian Towne, State's Attorney, for the People.

Eric L. Miskell, Ryan Hamer (argued), Ottawa, for Delores J. Henry.

Justice LYTTON delivered the opinion of the court:

While driving her automobile, defendant, Delores Henry, struck a pedestrian. Police arrested defendant for various traffic violations and transported her to a hospital to have her blood and urine tested. Based on the results of her urine test, defendant was charged with aggravated driving under the influence of alcohol (625 ILCS 5/11-501(d) (West 2006)). Defendant filed a motion to suppress the results of her urine test. The trial court granted the motion. We reverse and remand.

On April 11, 2008, defendant was involved in a motor vehicle accident wherein she struck and injured a worker in a construction zone. Shortly after the collision, Illinois State Police Trooper Jeffrey Nichols arrested defendant and issued her citations for driving while license suspended (625 ILCS 5/6-303 (West 2006)), failing to yield to a flagger in a construction zone (625 ILCS 5/11-908 (West 2006)), and reckless conduct (720 ILCS 5/12-5(a-5) (West 2006)). Nichols transported defendant to a hospital to have her blood and urine tested.

Maria Gunia, a phlebotomist, drew defendant's blood and collected defendant's urine. Nichols waited outside the restroom while Gunia collected defendant's urine sample. Gunia and defendant were the only individuals in the restroom when the collection took place. Defendant's blood and urine were sent to the Illinois State Police Forensic Science Laboratory for analysis. As a result of the urine toxicology testing, a grand jury indicted defendant for aggravated driving under the influence of alcohol (625 ILCS 5/11-501(d) (West 2006)).

Defendant filed a motion to suppress the results of her urine test, claiming that its collection did not comply with the requirements of section 11-501.2 of the Illinois Vehicle Code (Code) (625 ILCS 5/11-501.2 (West 2006)) or section 1286.330(b) of Title 20 of the Illinois Administrative Code (20 Ill. Adm.Code § 1286.330(b), amended at 31 Ill. Reg. 7305, eff. May 1, 2007). At the hearing on defendant's motion to suppress, the parties stipulated that Gunia was a licensed phlebotomist, not a registered nurse, law enforcement officer or employee of the State Police. No physician ordered Gunia to take defendant's blood or urine. Gunia was supervised by a lab technician when she collected defendant's blood and urine.

The trial court granted defendant's motion to suppress, finding that Gunia's collection of defendant's urine did not comply with section 1286.330(b) of Title 20 of the Administrative Code (20 Ill. Adm.Code § 1286.330(b), amended at 31 Ill. Reg. 7305, eff. May 1, 2007).

I

The State argues that the trial court erred in granting defendant's motion to suppress because section 1286.330(b) of Title 20 of the Illinois Administrative Code (1) is not authorized by statute, (2) is otherwise invalid, and (3) does not apply in this case.

Section 1286.330 states as follows:

“The following procedures shall be used to obtain a urine sample from a subject to determine the presence of alcohol, other drugs or intoxicating compounds:

* * *

(b) A urine sample may be collected by the arresting officer, another law enforcement officer, an agency employee, or a hospital nurse who can authenticate the sample. The officer, agency employee, or nurse shall be of the same sex as the subject undergoing testing.” 20 Ill. Adm.Code § 1286.330(b), amended at 31 Ill. Reg. 7305, eff. May 1, 2007.

A. Statutory Authority for Regulation

An administrative agency has authority to regulate and execute the provisions of a statute and carry out the powers conferred on it. Eastman Kodak Co. v. Fair Employment Practices Comm'n, 86 Ill.2d 60, 70, 55 Ill.Dec. 552, 426 N.E.2d 877, 882 (1981). The Department of State Police (Department) has the authority “[t]o promulgate rules and regulations necessary for the administration and enforcement of its powers and duties, whenever granted and imposed.” 20 ILCS 2605/2605-15 (West 2006).

Defendant argues that various sections of the Vehicle Code, including particularly sections 11-501.6(a) and 11-501.2(a), authorize the Department to enact section 1286.330(b).

1. Section 11-501.6(a)

Section 11-501.6(a) of the Vehicle Code requires a driver “who has been involved in a personal injury or fatal motor vehicle accident” and been issued a traffic ticket to submit to a blood, breath or urine “for the purpose of determining the content of alcohol, other drug or drugs, or intoxicating compound or compounds of such person's blood.” 625 ILCS 5/11-501.6(a) (West 2006). That section provides that “[t]he test or tests shall be administered at the direction of the arresting officer.” 625 ILCS 5/11-501.6(a) (West 2006). It does not authorize the Department to create regulations regarding the collection and analysis of blood, breath or urine and therefore does not apply to this case.

2. Section 11-501.2(a)

Section 11-501.2(a) of the Vehicle Code specifically authorizes part 1286 of Title 20 of the Illinois Administrative Code. See People v. Olsen, 388 Ill.App.3d 704, 714-15, 328 Ill.Dec. 118, 903 N.E.2d 778, 786-87 (2009). Section 11-501.2(a) of the Vehicle Code states in relevant part:

“(a) Upon the trial of any civil or criminal action or proceeding arising out of an arrest for an offense as defined in Section 11-501 or a similar local ordinance or proceedings pursuant to Section 2-118.1, evidence of the concentration of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof in a person's blood or breath at the time alleged, as determined by analysis of the person's blood, urine, breath or other bodily substance, shall be admissible. Where such test is made the following provisions shall apply:

1. Chemical analyses of the person's blood, urine, breath or other bodily substance to be considered valid under the provisions of this Section shall have been performed according to standards promulgated by the Department of State Police by a licensed physician, registered nurse, trained phlebotomist acting under the direction of a licensed physician, certified paramedic, or other individual possessing a valid permit issued by that Department for this purpose. The Director of State Police is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, to issue permits which shall be subject to termination or revocation at the discretion of that Department and to certify the accuracy of breath testing equipment. The Department of State Police shall prescribe regulations as necessary to implement this Section.” 625 ILCS 5/11-501.2(a)(1) (West 2006).

The plain language of section 11-501.2(a)(1) gives the Department authority to create regulations for testing breath, blood and urine for alcohol and other drugs. See Olsen, 388 Ill.App.3d at 714-15, 328 Ill.Dec. 118, 903 N.E.2d at 786-87. Section 11-501.2(a)(2) identifies who may collect blood from a DUI suspect; however, that section does not apply to the collection of urine. 625 ILCS 5/11-501.2(a)(2) (West 2006). Thus, we must look to the regulations.

B. Validity of Regulation

We must now determine whether the authority to regulate the analysis of bodily substances includes the authority to regulate the collection of them as well. In other words, is section 1286.330(b) invalid because the statute does not expressly authorize regulations concerning the collection of bodily substances?

Administrative regulations are presumed to be valid and have the force and effect of law. Eastman Kodak Co., 86 Ill.2d at 71, 55 Ill.Dec. 552, 426 N.E.2d at 882. However, “[a]dministrative regulations are valid ‘ “only to the extent that they follow the statute.” ’ ” People v. Bair, 379 Ill.App.3d 51, 59, 318 Ill.Dec. 629, 884 N.E.2d 184, 192 (2008), quoting People ex rel. Madigan v. Petco Petroleum Corp., 363 Ill.App.3d 613, 629, 299 Ill.Dec. 333, 841 N.E.2d 1065, 1077 (2006), quoting Illinois RSA No. 3, Inc. v. Department of Central Management Services, 348 Ill.App.3d 72, 77, 284 Ill.Dec. 15, 809 N.E.2d 137, 140 (2004).

If a regulation does not follow the statute that authorized its creation, it is invalid. Bair, 379 Ill.App.3d at 59, 318 Ill.Dec. 629, 884 N.E.2d at 192. To determine whether a regulation follows the statute, a court must ascertain and give effect to the legislature's intent. Bair, 379 Ill.App.3d at 59, 318 Ill.Dec. 629, 884 N.E.2d at 193.

In section 11-501.2 of the Vehicle Code, “[t]he legislature delegated authority to the Department of State Police to promulgate ‘standards' for blood and other tests, for the purpose of ensuring the validity of the test results.” Bair, 379 Ill.App.3d at 59, 318 Ill.Dec. 629, 884 N.E.2d at 192. Department regulations concerning the collection of bodily substances for alcohol testing are necessary to ensure accurate and reliable test results. See People v. Van Bellehem, 389 Ill.App.3d 1129, 1135, 330 Ill.Dec. 109, 907 N.E.2d 922, 927 (2009); People v. Wilhelm, 346 Ill.App.3d 206, 209, 281 Ill.Dec. 411, 803 N.E.2d 1032, 1035 (2004); People v. Bonutti, 338 Ill.App.3d 333, 341, 273 Ill.Dec. 22, 788 N.E.2d 331, 337 (2003). Faulty collection of a bodily substance can result in an inaccurate test result. See People v. Miller, 219 Ill.App.3d 246, 249-51, 164 Ill.Dec. 456, 583 N.E.2d 10, 12-14 (1991) (defendant chewing and swallowing tobacco prior to breath test affected test result).

The Department promulgated part 1286 of Title 20 of the Illinois Administrative Code to establish procedures for the proper...