{ "id": 3123849, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. FRANK E. COOK, Defendant-Appellee; THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. STEVEN EKSTROM, Defendant-Appellee", "name_abbreviation": "People v. Cook", "decision_date": "1981-03-17", "docket_number": "Nos. 80-86, 80-122 cons.", "first_page": "73", "last_page": "77", "citations": [ { "type": "official", "cite": "94 Ill. App. 3d 73" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "412 U.S. 218", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172008 ], "weight": 3, "pin_cites": [ { "page": "248-49" }, { "page": "875" }, { "page": "2059" } ], "opinion_index": 0, "case_paths": [ "/us/412/0218-01" ] }, { "cite": "59 Ill. 2d 534", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2959147 ], "weight": 2, "pin_cites": [ { "page": "543" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/59/0534-01" ] }, { "cite": "27 Ill. App. 3d 710", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2864308 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/27/0710-01" ] }, { "cite": "384 U.S. 757", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12047531 ], "weight": 6, "year": 1975, "opinion_index": 0, "case_paths": [ "/us/384/0757-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "38 Ill. App. 3d 489", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2806060 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/38/0489-01" ] }, { "cite": "16 Ill. App. 3d 748", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2518729 ], "pin_cites": [ { "page": "749" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/16/0748-01" ] }, { "cite": "27 Ill. App. 3d 246", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2865222 ], "year": 1974, "pin_cites": [ { "page": "248" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/27/0246-01" ] } ], "analysis": { "cardinality": 508, "char_count": 10046, "ocr_confidence": 0.886, "pagerank": { "raw": 1.217758872146131e-07, "percentile": 0.5975083875546412 }, "sha256": "6016f6a3415bc3d7cbc4a204a409da68d417ab4f05735110ccbe3183b46bbd99", "simhash": "1:29ab862d43268035", "word_count": 1711 }, "last_updated": "2023-07-14T16:56:05.907180+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. FRANK E. COOK, Defendant-Appellee.\u2014THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. STEVEN EKSTROM, Defendant-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE VAN DEUSEN\ndelivered the opinion of the court:\nSteven Ekstrom, No. 80-86\nIn the case of People v. Steven Ekstrom, No. 80-86, defendant has filed a motion to dismiss the State\u2019s appeal. In his motion, the defendant contends that this court lacks jurisdiction due to the State\u2019s failure to file a timely notice of appeal. The State has filed objections to the defendant\u2019s motion to dismiss and, in the alternative, has filed a motion for leave to file a late notice of appeal.\nThe State seeks to appeal from a trial court order granting the defendant\u2019s motion to suppress the results of a blood alcohol test. The order was purportedly entered on January 30, 1980. In a letter, dated January 30, 1980, and addressed to defense counsel with a copy to the State\u2019s attorney, the trial court did announce its decision to grant the motion to suppress. In this letter the trial court directed counsel to draft an order for his signature. This letter cannot, by any stretch of the imagination, be deemed an order of the trial court. There was no order granting defendant\u2019s motion to suppress entered on January 30, 1980. This court has no jurisdiction to consider an appeal from a nonexistent judgment order. People v. Boston (1975), 27 Ill. App. 3d 246, 248; People v. Deaton (1974), 16 Ill. App. 3d 748, 749.\nThe order granting the motion to suppress was entered by the trial court on March 11,1980. The State did not seek an appeal from the order of March 11 until July 30, 1980. On that dat\u00e9 the State filed, before this court, a motion for leave to file a late notice of appeal. In this motion the State does not deny that it was aware of the entry of the March 11 order, nor does the State articulate any reason or explanation for its failure to file a timely notice of appeal. The motion to file a late notice of appeal is, therefore, denied, and the appeal is dismissed.\nFrank E. Cook, No. 80-122\nDefendant, Frank E. Cook, was charged by indictment with the offenses of reckless homicide (Ill. Rev. Stat. 1977, ch. 38, par. 9\u20143), driving a motor vehicle while under the influence of intoxicating liquor (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 11\u2014501), leaving the scene of. an accident involving death (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 11\u2014401(a)), and driving with a suspended license (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 6\u2014303). The trial court granted the defendant\u2019s motion to suppress the blood alcohol test results. The State appeals pursuant to Supreme Court Rule 604 (Ill. Rev. Stat. 1979, ch. 110A, par. 604).\nAppellee has failed to file a brief with this court; therefore, we accept appellant\u2019s statement of facts as accurate. People v. Bohannon (1976), 38 Ill. App. 3d 489.\nAt approximately 7 p.m. on September 15, 1979, a pedestrian was fatally injured in a hit and run accident. As a result of that accident the defendant, Frank E. Cook, was charged by indictment in this case. Later that evening, when apprehended by the police, the defendant signed a \u201cDrug and Alcohol (Ethanol) Release Form.\u201d Shortly thereafter, a lab technician from the Rochelle Community Hospital extracted a vial of blood from the defendant for the purpose of ascertaining the presence of alcohol or drugs. The test indicated that defendant\u2019s blood alcohol level was 0.199 percent. No trace of barbiturates, stimulants or tranquilizers was found in the sample.\nOn January 29,1980, the defendant filed a motion to suppress the test results. The grounds for the defendant\u2019s motion were: (1) that he was not advised of his rights regarding the blood test; and (2) that he was not afforded safeguards provided by sections 11\u2014501 and 11\u2014501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95M, pars. 11\u2014501 and 11\u2014501.1). In granting the motion to suppress, the trial court determined that, because the defendant was not advised of his Miranda rights and all of the possible penalties that he might face if the test results are positive, the defendant did not consent to the taking of the blood alcohol test.\nThe trial court erred in holding that in order to knowingly and intelligently consent to the test, the defendant must be informed of his Miranda rights. The procedural safeguards, now commonly called Miranda rights or warnings, are deemed necessary to protect the defendant\u2019s constitutional privilege against self-incrimination. They are a prerequisite for admissibility when the evidence obtained from defendant is of a testimonial nature. (See Miranda v. Arizona (1966), 384 U.S. 436,16 L. Ed. 2d 694, 86 S. Ct. 1602.) The withdrawal and analysis of blood does not provide the State with evidence of a testimonial or communicative nature. The defendant\u2019s privilege against self-incrimination is not involved and Miranda warnings are not required. Schmerber v. California (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826; People v. Haugh (1975), 27 Ill. App. 3d 710.\nA compulsory blood test does not violate any constitutional rights of an individual merely because he objects to such tests. (Schmerber v. California (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826.) As the Illinois Supreme Court pointed out in People v. Todd (1975), 59 Ill. 2d 534, 545: \u201cThus, absent a more limiting statutory provision, the taking of a blood sample does not require the consent of the donor.\u201d\nIllinois has adopted a more limiting statutory provision which requires the exclusion of blood alcohol test results, if the blood sample was obtained without the consent of the defendant. (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11 \u2014 501(c)(3).) The appropriate inquiry, therefore, is whether a voluntary consent was obtained from the defendant prior to his submission to a blood alcohol test. The issue of the voluntariness of the consent is a question of fact to be determined from all the circumstances, and while the subject\u2019s knowledge of a right to refuse is a factor to be taken into account, prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. Schneckloth v. Bustamonte (1973), 412 U.S. 218, 248-49,36 L. Ed. 2d 854,875, 93 S. Ct. 2041, 2059.\nIn this case, the defendant Cook did sign a written consent form. Moreover, in his motion to suppress, the defendant did not assert that his consent was involuntary. Rather, he contended that the State did not adhere to the provisions of sections 11 \u2014 501 and 11 \u2014 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95 1/2, pars. 11 \u2014 501 and 11.501.1), and for that reason the evidence must be suppressed.\nIn section 11\u2014501.1, the legislature provided that any person who drives a motor vehicle in this State thereby consents to take and complete a test of chemical analysis of his breath to determine the alcoholic content of his blood. This section sets forth, in detail, the nature of the advice which must be given to an arrested driver before proceeding with the breathalyzer test. The defendant argues that this advice must also be given before the taking of a blood sample.\nSection 11 \u2014 501(c)(3) specifically provides in part:\n\u201cEvidence based upon a chemical analysis of blood, urine, breath or other bodily substance shall not be admitted unless such substance was procured and such analysis made with the consent of the person as provided by this Chapter, whose bodily substance was so analyzed.\u201d (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11\u2014501(c)(3).)\nThe defendant argues that because chapter 95/2 contains no other provision concerning the method of giving the consent, the words \u201cas provided by this Chapter\u201d of section 11 \u2014 501(c)(3) inferentially adopt the requirements of section 11 \u2014 501.1. The defendant thus contends that the advice required to be given under section 11 \u2014 501.1 to a driver before the taking of a breathalyzer sample, must also be given to a driver before the taking of a blood sample under section 11 \u2014 501(c)(3). We cannot agree. The requirements of section 11 \u2014 501.1 clearly and explicitly apply only to the taking of a breath sample to determine the alcohol content of the blood. These conditions are a prerequisite only in cases involving a test or chemical analysis of the breath to which the person had impliedly consented by the operation of his motor vehicle. Absent a specific provision set forth in the statute with reference to the taking of blood samples, the words \u201cas provided by this Chapter\u201d contained in section 11 \u2014 501(c)(3) are surplusage. People v. Todd (1975), 59 Ill. 2d 534, 543.\nBecause we have determined that the trial court erred in imposing the requirement that Miranda warnings be given to the defendant prior to the taking of the consent, and because we have also determined that the provisions of section 11 \u2014 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 9512, par. 11 \u2014 501.1) do not apply to the taking of blood alcohol test under section 11 \u2014 501(c)(3) of the Code, and further, because the defendant did sign the \u201cDrug and Alcohol (Ethanol) Release Form,\u201d and because the defendant failed to present any evidence indicating that he did not knowingly and voluntarily consent to the taking of the test, we find that the trial court erred in granting the motion to suppress blood alcohol test in this case and that order is hereby reversed. The cause of People v. Cook is remanded to the trial court for further proceedings consistent with this opinion.\nAppeal dismissed in No. 80-86.\nReversed and remanded in No. 80-122.\nSEIDENFELD, P. J., and REINHARD, J., concur.", "type": "majority", "author": "Mr. JUSTICE VAN DEUSEN" } ], "attorneys": [ "Peter J. Woods, State\u2019s Attorney, of Oregon (Phyllis J. Perko and Cynthia Schneider, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People.", "John F. McNamara and Mary P. Gorman, both of O\u2019Brien, Healy, Wade, Abate, McNamara & Gorman, of Rockford, for appellees." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. FRANK E. COOK, Defendant-Appellee.\u2014THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. STEVEN EKSTROM, Defendant-Appellee.\nSecond District\nNos. 80-86, 80-122 cons.\nOpinion filed March 17, 1981.\nPeter J. Woods, State\u2019s Attorney, of Oregon (Phyllis J. Perko and Cynthia Schneider, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People.\nJohn F. McNamara and Mary P. Gorman, both of O\u2019Brien, Healy, Wade, Abate, McNamara & Gorman, of Rockford, for appellees." }, "file_name": "0073-01", "first_page_order": 95, "last_page_order": 99 }