Fink v. Ryan

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action by the Court.

Docket No. 79404--Agenda 17--May 1996.
CHRISTOPHER J. FINK, Appellee, v. GEORGE RYAN, Secretary of
State, Appellant.
Opinion filed October 18, 1996.

JUSTICE MILLER delivered the opinion of the court:
This appeal results from a final order entered in the circuit
court of Lake County finding a portion of the Illinois Vehicle Code
(625 ILCS 5/11--501.6 (West 1994)) unconstitutional under the
fourth amendment of the United States Constitution.
The portion of the Vehicle Code found unconstitutional
provided that if a traffic accident occurred in which death or
personal injury resulted and a driver involved in the accident had
been issued a Uniform Traffic Ticket for a nonequipment offense,
the driver would be subject to chemical testing to determine
whether the person was impaired by drugs or alcohol. See 625 ILCS
5/11--501.6(a) (West 1994). Following the circuit court's ruling,
the Secretary of State appealed directly to this court pursuant to
Supreme Court Rule 302(a). 134 Ill. 2d R. 302(a). We reverse and
remand.

I. BACKGROUND
The circuit court found section 11--501.6 of the Illinois
Vehicle Code unconstitutional. The statute provides:
"Any person who drives or is in actual control of a
motor vehicle upon the public highways of this State and
who has been involved in a personal injury or fatal motor
vehicle accident, shall be deemed to have given consent
to a breath test *** or to a chemical test or tests of
blood, breath, or urine for the purpose of determining
the alcohol or other drug content of such person's blood
if arrested as evidenced by the issuance of a Uniform
Traffic Ticket for any violation of the Illinois Vehicle
Code or a similar provision of a local ordinance, with
the exception of equipment violations contained in
Chapter 12 of this Code, or similar provisions of local
ordinances." 625 ILCS 5/11--501.6(a) (West 1994).
The statute further provides that a "personal injury shall
include any type A injury." 625 ILCS 5/11--501.6(g) (West 1994).
According to the statute, type A injuries "shall include severely
bleeding wounds, distorted extremities, and injuries that require
the injured party to be carried from the scene." 625 ILCS 5/11--
501.6(g) (West 1994).
The circuit court's rationale in finding the statute
unconstitutional was that the statute was "no different,
substantively" than a predecessor statute (Ill. Rev. Stat. 1991,
ch. 95«, par. 11--501.6) found unconstitutional by this court in
King v. Ryan, 153 Ill. 2d 449 (1992). Because of the circuit
court's reliance on King, a review of King is necessary.
This court in King held that the predecessor statute (Ill.
Rev. Stat. 1991, ch. 95«, par. 11--501.6) violated the fourth
amendment of the United States Constitution and article I, section
6, of the Illinois Constitution of 1970. The court found that the
"special needs" exception to the fourth amendment did not apply to
the predecessor statute. King, 153 Ill. 2d at 462. The court
therefore believed the predecessor statute's provision for chemical
testing of a driver absent a warrant or probable cause
determination was unconstitutional.
As expressed by the Supreme Court, the "special needs"
exception to the fourth amendment states: "we have permitted
exceptions [to the fourth amendment] when `special needs, beyond
the normal need for law enforcement, make the warrant and probable-
cause requirement impracticable.' " Griffin v. Wisconsin, 483 U.S. 868, 873-74, 97 L. Ed. 2d 709, 717, 107 S. Ct. 3164, 3168 (1987),
quoting New Jersey v. T.L.O., 469 U.S. 325, 351, 83 L. Ed. 2d 720,
741, 105 S. Ct. 733, 748 (1985) (Blackmun, J., concurring in
judgment). The Supreme Court has found the warrant and probable
cause requirement impracticable in a variety of circumstances. Some
of these circumstances include: searches of government employees'
desks and offices (O'Connor v. Ortega, 480 U.S. 709, 94 L. Ed. 2d 714, 107 S. Ct. 1492 (1987)); searches of certain types of student
property by school officials (T.L.O., 469 U.S. 325, 83 L. Ed. 2d 720, 105 S. Ct. 733); roadblock searches identifying drunk drivers
(Michigan Department of State Police v. Sitz, 496 U.S. 444, 110 L. Ed. 2d 412, 110 S. Ct. 2481 (1990)); roadblock searches identifying
illegal immigrants (United States v. Martinez-Fuerte, 428 U.S. 543,
49 L. Ed. 2d 1116, 96 S. Ct. 3074 (1976)); chemical testing of
railroad employees (Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989)); and
administrative searches of regulated businesses (New York v.
Burger, 482 U.S. 691, 96 L. Ed. 2d 601, 107 S. Ct. 2636 (1987)).
The court in King noted that under the "special needs"
exception, a search or seizure may be reasonable absent
individualized suspicion in two types of cases: (1) when the
intrusion upon the person to be searched is minor; or (2) when the
person to be searched has a diminished expectation of privacy.
King, 153 Ill. 2d at 458-59. The court concluded that the person to
be tested under the predecessor statute in King fell into neither
of these two categories.
In addition, the King court believed that under the Illinois
Constitution's right of privacy (Ill. Const. 1970, art. I, 6) a
driver could not be subject to chemical testing when the driver had
not been charged with an offense based upon probable cause. King,
153 Ill. 2d at 464-65. Accordingly, the court found that the
statute violated the Illinois Constitution as well.

II. THE PRESENT CASE
On the evening of December 18, 1994, Christopher J. Fink drove
his car into a telephone pole. Fink's friend, Jeffrey Almeit, was
a passenger in the car. Fink and Almeit exited the car and found
their way to a nearby house. Paramedics and the police were called.
When the police arrived, paramedics were immobilizing Fink and
Almeit with cervical collars and back boards. The two were
transported to a local hospital. Before proceeding to the hospital,
police officers investigated the accident scene.
At the hospital, Fink was issued a traffic ticket for failure
to reduce speed to avoid an accident. See 625 ILCS 5/11--601(a)
(West 1994). An officer requested that Fink submit to a blood-
alcohol content test and Fink was warned of the consequences if he
refused--the suspension of his driver's license. See 625 ILCS 5/11-
-501.6(c), (d) (West 1994). Fink consented to a blood test and a
nurse drew a blood sample. The sample revealed a blood-alcohol
concentration of 0.14. Later that night, Fink was released from the
hospital.
The State attempted to proceed against Fink in two ways.
First, the State sent Fink notice that his driver's license was to
be suspended for three months pursuant to sections 11--501.6 and 6-
-208.1 (625 ILCS 5/11--501.6, 6--208.1 (West 1994)). Second, Fink
was charged with driving under the influence of alcohol (DUI). See
625 ILCS 5/11--501(a)(1) (West 1994). The DUI citation was premised
upon the 0.14 blood-alcohol content test result obtained under
section 11--501.6 (625 ILCS 5/11--501.6 (West 1994)).
Fink filed a civil complaint for declaratory judgment asking
the circuit court to declare section 11--501.6 (625 ILCS 5/11--
501.6 (West 1994)) unconstitutional on its face as a violation of
the fourth amendment of the United States Constitution and article
I, section 6, of the Illinois Constitution. In the federal
constitutional claim, Fink argued that the statute allowed an
unreasonable search of a driver without probable cause to believe
that the driver was chemically impaired. In the state
constitutional claim, Fink argued that chemical testing violated a
driver's right to be free from unreasonable searches and that
chemical testing invaded a driver's right of privacy.
The circuit court agreed with Fink, stating in its final
order: "That because the chemical tests results can still be used
in a criminal proceeding, the current version of Section 11--501.6
is no different, substantively, than the 1991 version of the
Statute which was struck down as unconstitutional in the case of
King v. Ryan ***." In addition, the circuit court stated "the 1994
version of 625 ILCS 5/11--501.6 is hereby declared unconstitutional
in that it sanctions unreasonable searches and seizures in
violation of the Fourth Amendment of the United States
Constitution."
Because of the circuit court's ruling, Fink's driver's license
was not suspended and the 0.14 blood-alcohol content test result
became inadmissible in the DUI prosecution. Without this evidence,
the State moved to dismiss the DUI prosecution. The circuit court
allowed the State's motion. The Secretary of State appealed
directly to this court (134 Ill. 2d R. 302(a)) for review of the
circuit court's holding that section 11--501.6 is unconstitutional.

III. DISCUSSION
Because a statute is presumed to be constitutional (People v.
Miller, 171 Ill. 2d 330, 333 (1996)), Fink "has the burden of
clearly establishing [the statute's] constitutional infirmity."
People v. Hickman, 163 Ill. 2d 250, 257 (1994). Given this court's
ruling in King, we may assume the legislature enacted the changes
found in section 11--501.6 to address the constitutional concerns
expressed in that case. "Where statutes are enacted after judicial
opinions are published, it must be presumed that the legislature
acted with knowledge of the prevailing case law." Hickman, 163 Ill. 2d at 262.
The purpose of the amended statute, though not explicitly
stated, may be found in its language and structure: to reduce the
dangers posed by chemically impaired drivers by providing for the
suspension of their licenses and by deterring others from engaging
in similar misconduct. As King observed, "the State has a
compelling interest in protecting its citizens from the hazards
caused by intoxicated drivers." King, 153 Ill. 2d at 461. To the
extent that a statute removes chemically impaired drivers from the
road "without relying on criminal sanctions, it serves the State's
interests beyond the need for normal law enforcement." King, 153 Ill. 2d at 461.
Illinois has a special need to suspend the licenses of
chemically impaired drivers and to deter others from driving while
chemically impaired. See King, 153 Ill. 2d at 461. This specialized
need goes beyond the need for normal law enforcement. Thus, a
search may be reasonable absent individualized suspicion if a
chemical test is nonintrusive or a driver's expectation of privacy
has been reduced. See King, 153 Ill. 2d at 458-59.

A. Constitutionality Under the Fourth Amendment of the
United States Constitution
Presented with the problems caused by chemically impaired
drivers in the state, the legislature enacted the statute later
declared unconstitutional in King. In response to this court's
holding in King, the legislature amended the statute by: (1)
deleting the requirement that chemical testing be premised upon a
driver's fault in causing an accident; (2) deleting the provision
that chemical test results could be used in civil and criminal
proceedings; (3) adding a requirement that chemical testing be
premised upon the issuance of a Uniform Traffic Ticket for a non-
equipment traffic offense; and (4) defining with more particularity
the types of "personal injury" that trigger the chemical testing
provision. Compare Ill. Rev. Stat. 1991, ch. 95«, par. 11--501.6,
with 625 ILCS 5/11--501.6 (West 1994).
The legislature did not alter two components in the statute.
First, the legislature retained the implied-consent provision of
the predecessor statute. Second, the legislature did not require an
individualized suspicion of chemical impairment before subjecting
a driver to chemical testing. Compare Ill. Rev. Stat. 1991, ch.
95«, par. 11--501.6, with 625 ILCS 5/11--501.6 (West 1994).
We believe that the changes made by the legislature in
response to King reduce the intrusiveness of chemical testing and
allow for testing only in those situations in which a driver's
expectation of privacy is diminished. Like the railroad industry in
Skinner, 489 U.S. 602, 103 L. Ed. 2d 639, 109 S. Ct. 1402, and the
junkyard business in Burger, 482 U.S. 691, 96 L. Ed. 2d 601, 107 S. Ct. 2636, the highways of Illinois are highly regulated. The
Vehicle Code comprises 404 pages in the Illinois Compiled Statutes
(West 1994) covering a broad range of subjects from ambulances (625
ILCS 5/1--102.01 (West 1994)) to school zones (625 ILCS 5/11--605
(West 1994)).
Although a driver does not "lose all reasonable expectation of
privacy simply because the automobile and its use are subject to
government regulation" (Delaware v. Prouse, 440 U.S. 648, 662, 59 L. Ed. 2d 660, 673, 99 S. Ct. 1391, 1400 (1979)), the regulation of
automobiles in Illinois reduces a driver's expectation of privacy.
While driving on the road, one reasonably expects less privacy than
one expects within the confines of a residence. As the Supreme
Court has noted in the context of border checkpoints, "one's
expectation of privacy in an automobile and of freedom in its
operation are significantly different from the traditional
expectation of privacy and freedom in one's residence." Martinez-
Fuerte, 428 U.S. at 561, 49 L. Ed. 2d at 1130, 96 S. Ct. at 3084-
85.
Further, under the predecessor statute, personal injury
included any injury requiring "immediate professional attention in
either a doctor's office or a medical facility." Ill. Rev. Stat.
1991, ch. 95«, par. 11--501.6(g). Under the amended statute, the
legislature narrowed the spectrum of drivers subject to chemical
testing. Under section 11--501.6(g), personal injuries "shall
include any type A injury *** [which] *** shall include severely
bleeding wounds, distorted extremities, and injuries that require
the injured party to be carried from the scene." 625 ILCS 5/11--
501.6(g) (West 1994). We believe that the legislature in amending
the statute intended to limit the personal injury requirement of
section 11--501.6 to type A injuries. We further believe that type
A injuries are limited to those listed in section 11--501.6(g) (625
ILCS 5/11--501.6(g) (West 1994)).
Accidents involving a fatality still trigger the chemical
testing provision. However, personal injury requiring only a visit
to a doctor's office or a medical facility no longer can be the
basis for testing. Thus, the legislature's more particularized
definition of type A injuries subjects a driver to chemical testing
in only the more serious accidents. No reasonable driver expects to
leave the scene of a serious accident moments after its occurrence.
With law enforcement personnel investigating the accident and other
personnel attending to the participants' physical conditions, a
driver expects less privacy.
In addition, any driver subject to chemical testing under the
amended statute has a statutory duty to remain at the scene of the
accident, render aid to injured parties, and exchange basic
information with those involved. See 625 ILCS 5/11--401, 11--403
(West 1994). Given the amount of time required to attend to law
enforcement and emergency medical needs, the addition of a chemical
test is minimally intrusive. Thus, by the very nature of the
circumstances in which drivers find themselves, the legislature has
imposed testing only when a driver's expectation of privacy has
been diminished and a test is minimally intrusive.
Finally, the amended statute premises chemical testing on an
"arrest[ ] as evidenced by the issuance of a Uniform Traffic
Ticket" for a nonequipment violation of the Vehicle Code. 625 ILCS
5/11--501.6(a) (West 1994). Drivers issued Uniform Traffic Tickets
are released only after posting bail in the form of a current
Illinois driver's license, a bond certificate, or cash. 155 Ill. 2d
R. 526. In Terry v. Ohio, the Supreme Court noted that "[a]n arrest
*** is inevitably accompanied by future interference with the
individual's freedom of movement, whether or not trial or
conviction ultimately follows." Terry v. Ohio, 392 U.S. 1, 26, 20 L. Ed. 2d 889, 909, 88 S. Ct. 1868, 1882 (1968). Because the
movement of an arrested driver is already subject to restrictions,
the administering of a chemical test poses a minimal additional
intrusion.
In sum, we believe that under the amended statute (625 ILCS
5/11--501.6 (West 1994)), a driver will be subject to chemical
testing only in situations in which the intrusiveness of the search
has been reduced and a driver's expectation of privacy has been
diminished. The intrusion upon an arrested driver is minimal or
nonexistent depending upon the length of time required by law
enforcement personnel to process the accident scene and emergency
medical personnel to attend to the injured parties. Additionally,
a driver's expectation of privacy is diminished because a driver is
operating a vehicle in a highly regulated environment.
Thus, we conclude the legislature has enacted a statute that
falls within the "special needs" exception to the fourth amendment.
The State of Illinois has a special need beyond the normal needs of
law enforcement to determine whether drivers are chemically
impaired and to suspend those drivers' licenses. Under the
limitations contained in the amended statute, drivers are subject
to chemical testing only when testing will be minimally intrusive
and only after a driver's expectations of privacy have been further
diminished by the factors set forth in the statute.
Fink argues, however, that the "special needs" exception to
the warrant and probable cause requirement is inapplicable because
the chemical test results may be used in a criminal proceeding. For
several reasons, Fink's claim fails.
In support of his argument, Fink points to comments by the
King court that the predecessor statute fell outside the "special
needs" exception because "one of the stated purposes of the search
is to gather evidence for criminal prosecution." King, 153 Ill. 2d
at 462. However, as noted elsewhere in King (153 Ill. 2d at 459-
60), the Supreme Court has not yet determined whether evidence
obtained under the "special needs" exception may be routinely used
in criminal proceedings. See Skinner, 489 U.S. at 621 n.5, 103 L. Ed. 2d at 662 n.5, 109 S. Ct. at 1415 n.5. King recognized that
"the Supreme Court has upheld searches under this special exception
even though evidence obtained during the search was also used in a
criminal trial." King, 153 Ill. 2d at 462. In those instances in
which searches were upheld, "the evidence was found incidentally
during a search which was constitutionally valid under the special
needs exception." King, 153 Ill. 2d at 462. If the admission of
chemical test results in a criminal proceeding is incidental to a
statute's purpose, application of the "special needs" exception is
not precluded.
Following King, the legislature chose to delete those
provisions contained in the former statute that allowed the use of
chemical test results in criminal proceedings. Compare Ill. Rev.
Stat. 1991, ch. 95«, pars. 11--501.6(e), (f), with 625 ILCS 5/11--
501.6(e), (f) (West 1994). As we have already noted, the purpose of
the statute is to reduce the destruction caused by drunken drivers
on Illinois highways. This goal can be accomplished through civil
suspension proceedings of those who fail the test, as well as
through the provisions suspending the licenses of persons who
refuse to submit to chemical testing. By deleting any reference in
the amended statute to the use of test results in criminal
proceedings, the legislature has made clear that criminal
prosecution is only incidental to the primary purpose of the
statute. Because the use of test results in other proceedings is
incidental to the amended statute's purpose, the "special needs"
exception to the warrant and probable cause requirement remains
applicable. King, 153 Ill. 2d at 462.

B. Constitutionality Under Article I, Section 6, of the
Illinois Constitution
In the proceedings below, Fink also argued that the amended
statute violated article I, section 6, of the Illinois
Constitution. The trial judge did not resolve this issue and
instead based his decision solely on the fourth amendment. Fink
renews his state constitutional argument here in support of the
circuit court's judgment in his favor.
Article I, section 6, of the Illinois Constitution provides:
"The people shall have the right to be secure in
their persons, houses, papers and other possessions
against unreasonable searches, seizures, invasions of
privacy or interceptions of communications by
eavesdropping devices or other means." Ill. Const. 1970,
art. I, 6.
This court has construed the search and seizure language found
in section 6 in a manner that is consistent with the Supreme
Court's fourth amendment jurisprudence. People v. Mitchell, 165 Ill. 2d 211, 219 (1995); People v. Tisler, 103 Ill. 2d 226, 245
(1984). Because the amended statute falls within the "special
needs" exception to the fourth amendment, we believe that it also
comports with the search and seizure provision of article I,
section 6, of our state constitution.
The additional recognition in section 6 of a zone of personal
privacy does not alter our analysis. As we have already determined,
a driver has a reduced expectation of privacy in those
circumstances in which the amended statute is applicable, for the
driver has been involved in a serious accident while operating a
vehicle in a highly regulated environment and, moreover, is under
arrest, as evidenced by the receipt of a traffic ticket.
Contrary to Fink's argument, this court's earlier decision in
King does not control the resolution of this question. The King
court believed that the prior statute violated the privacy
provision of the Illinois Constitution because drivers could be
tested even though they had not been arrested and even though there
was no probable cause to believe they had committed an offense.
King, 153 Ill. 2d at 464-65. Under the amended statute, however, no
driver is chemically tested unless the person has been arrested,
based on the existence of probable cause, for a nonequipment
violation of the Vehicle Code. We thus believe that a driver's zone
of privacy is not unconstitutionally invaded when a driver is
chemically tested pursuant to section 11--501.6, and we therefore
conclude the amended statute does not violate article I, section 6,
of the Illinois Constitution.

IV. CONCLUSION
For the foregoing reasons, we uphold the constitutionality of
section 11--501.6 (625 ILCS 5/11--501.6 (West 1994)). The statute
passes constitutional scrutiny under both the fourth amendment of
the United States Constitution and article I, section 6, of the
Illinois Constitution of 1970. Therefore, we reverse the circuit
court's judgment. This cause is remanded to the circuit court of
Lake County for further proceedings.

Reversed and remanded.

CHIEF JUSTICE BILANDIC, dissenting:
I am not persuaded by the majority's attempt to distinguish
the instant statute from the 1991 version of the same statute that
this court declared unconstitutional in King v. Ryan, 153 Ill. 2d 449 (1992). As the trial court determined, the current statute is
"no different, substantively," from the 1991 statute. If King
correctly declared the 1991 statute unconstitutional, then we
should likewise hold that the current statute is unconstitutional.
If, on the other hand, the court now wishes to reconsider and
reject the majority opinion in King, it should do so expressly.
Instead, the majority makes a disingenuous and unpersuasive
attempt to reconcile its decision with King. The majority claims
that the current statute is different in several respects from its
predecessor, and that these differences support a conclusion that
the current statute is constitutional. The purported distinctions,
however, are illusory and do not justify or permit a conclusion
different from that reached in King.
The current statute, like its predecessor, essentially
provides that drivers give implied consent to the chemical testing
of their breath, blood or urine to determine its blood-alcohol or
drug content whenever a police officer determines that the driver
has been in an accident that resulted in death or personal injury
and that the driver committed a traffic violation. Neither statute
required any individualized suspicion that the driver was under the
influence of alcohol or drugs. The only differences between the two
statutes are that (1) the current statute defines "personal injury"
slightly differently than the 1991 statute; (2) under the current
statute, the police officer must give the driver involved in the
accident a traffic ticket, while the former statute required the
officer to determine that the affected driver was "at fault" in
causing the accident; and (3) the current statute, unlike the 1991
version, does not expressly state that the test results may be used
in criminal proceedings, but permits the use of test results in
such proceedings.
In King this court declared the 1991 statute unconstitutional,
in part, because it violated the fourth amendment of the United
States Constitution. The court found that the provision that
authorized chemical testing of a driver without a warrant or
probable cause was unconstitutional. The King court concluded that
the "special needs" exception to the fourth amendment's warrant
requirement did not apply to the statute. King, 153 Ill. 2d at 462.
Despite the obvious similarity between the current statute and
the 1991 version found unconstitutional in King, the majority
nevertheless finds that the current statute does not violate the
fourth amendment. In reaching this conclusion, the majority
opinion, like the King opinion, considers the "special needs" test.
Unlike King, however, the majority finds that the current statute
satisfies all of the requirements of that test.
The majority first notes that the regulation of highways and
automobiles reduces a driver's expectation of privacy. The majority
acknowledges that the King opinion found that such regulation is
insufficient to excuse the warrant requirement. The majority
"distinguishes" King, however, on the basis of a supposedly
"narrower" definition of "personal injury" in the current statute.
In fact, the definition of "personal injury" under the current
statute is no narrower than under its predecessor. Both statutes
governed only those drivers involved in serious automobile
accidents. The majority here, unlike the King majority, simply
concludes that drivers involved in serious accidents have a
diminished expectation of privacy that justifies a warrantless
search. I continue to agree with the King court's conclusion that
such drivers do not necessarily have a diminished expectation of
privacy that justifies subjecting them to a warrantless search
without any requirement of individualized suspicion.
The majority here also finds that the search authorized under
the current statute is "minimally intrusive" and thus satisfies the
second prong of the "special needs" test. In reaching this
conclusion, the majority notes that the driver subjected to the
search is already required to remain at the scene of a serious
accident while medical assistance is rendered to injured persons.
The opinion also notes that the search is permitted only when the
driver is "arrested as evidenced by the issuance of a Uniform
Traffic Ticket."
The majority fails to adequately explain why these two factors
alter the King court's conclusion that the warrantless search at
issue is not minimally intrusive. King concluded that a warrantless
search to determine the blood-alcohol content of a person's breath,
blood or urine is intrusive and that the 1991 statute authorizing
such a search therefore did not satisfy the second prong of the
"special needs" test. King, 153 Ill. 2d at 462-63. At the time the
King court declared the 1991 statute unconstitutional, drivers were
also required to remain at the scene of a serious accident. See
Ill. Rev. Stat. 1991, ch. 95«, par. 11--403. The King court
nevertheless found that warrantless search at issue was an
"intrusive" search. King, 153 Ill. 2d at 462-63. Similarly, King
found the search intrusive even though the police officer
conducting the search was first required to conclude that the
driver was partially "at fault" in causing the accident. I fail to
see why a different conclusion is permissible here simply because
the officer must now issue a written traffic ticket. The current
statute is arguably even more intrusive than its predecessor, which
required a police officer to determine that there was some link
between the motorist's driving and the accident. Under the current
statute, no such causal link is required. If a motorist is charged
with any offense under the motor vehicle code (with the exception
of an equipment violation), then that person is susceptible to a
search regardless of whether the motorist is responsible for the
accident. The purported "distinctions" cited in the majority
opinion between the current statute and the statute declared
unconstitutional in King are not substantive differences, but
simply excuses used to justify a conclusion inconsistent with that
reached in King.
The majority finally concludes that the current statute serves
the State's needs, beyond the need for normal law enforcement. The
majority distinguishes the 1991 statute on the ground that the
current statute deletes the provision which expressly authorized
the use of test results in criminal proceedings. The King court
cited this provision as evidence that the search permitted under
the 1991 statute did not serve special needs, beyond the needs of
law enforcement, because "one of the stated purposes of the search
is to gather evidence for criminal prosecution." King, 153 Ill. 2d
at 462. The majority here finds that the legislature, by deleting
the provision expressly authorizing the use of search results in
criminal proceedings, has demonstrated that criminal prosecution is
incidental to the primary purpose of the statute. I disagree.
The King court determined that, to the extent that the 1991
statute relied upon criminal sanctions to accomplish the State's
goal of deterring drunk driving and removing drunk drivers from the
road, the statute did not serve the state's interests beyond the
need for law enforcement. The majority opinion acknowledges, as it
must, that search results will routinely be used in criminal
proceedings. Moreover, a review of the legislative history reveals
that the current statute, like its predecessor, was intended to
secure evidence for use in criminal proceedings against intoxicated
motorists. To suggest that the deletion of the provision expressly
authorizing the use of search results in criminal proceedings
renders the statute constitutional simply exalts form over
substance. If King correctly declared the 1991 statute
unconstitutional, none of the distinctions raised in the majority
opinion between the 1991 statute and the current statute justify a
contrary finding here. The majority's analysis is consistent only
with the dissenting opinions in King. Because I continue to adhere
to King, I respectfully dissent.

JUSTICES HARRISON and NICKELS join in this dissent.