Sixth Division November 7, 2008 No. 1-07-3262 THE PEOPL

E OF THE

STATE OFIL

LI NOI S, Plaintiff -Appella nt,

v. KEVIN CAREY, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) ) Appeal f

rom the Circu it Court of Cook Cou

nty

TJ 130 622

Honorable Steven Go ebel, Judge Presi ding. JUSTICE McBRI DE delive

red the o pinion of t

he court : On May 5, 2006, def

endant, Kevin Carey , was arrested and charg ed with driving under the influe nce of a lcohol (DUI)(625 I

LCS 5/1 1-501(a

)(2) (We st 2006))and ag grava ted assa ult (720 IL CS 5/12-2(a)(1) (West 2006)). Prior to trial, defendant filed a motion in limine to bar admis sion of the resul ts of a breath test gi ven to measu re his bloo d-alco hol co ntent . Foll owing a hearing, the trial court gra nted defendant’s motion and the State now appeals that suppression order. For that reasons that follow, we re verse and remand. The following evidence was prese nted at the hearing on defendant’s motion. Sergeant Steven Cannizzo of the Chicago police department’ s internal affairs division testified that on the morning of May 6, 2006, he was notified that defendant had been place d under arrest for agg

ravated assault and a possible DUI and was assigned to investigate the incident . Serge ant Cannizzo arrive d at the po lice stat

ion at approximately

7:30 a.m. a

nd was told by t he arre sting of

ficers t hat defe ndant wa s being p

rocesse d as a “r

efusal” to submit to a

breath test. The sergeant thereaf ter began his investigation.1-07-3262

2

Serge ant Cannizzo

spoke to the arre sting of

ficers a nd the victim, 52-y

ear-ol d Willie Flood, to determine the eve

nts which l ed to def

endant’ s arres t. Base d upon thos e conve rsations, Sergeant Cannizzo learned that the victim was in his vehicle at a stoplight when he saw defendant in a vehicle and “words wer e spoken” by de fendant. The victim continued driving toward an expressway

and then stopped at another stoplight, where “more w ords were exchang ed.” As t

he victim e

ntered t he expres sway , defend

ant beg an to “ta

il” him at a

high ra te of speed and, at some point, defendant pulled next to the victim’s vehicle and pointed a g un at him. The victim then called 911 and emergency personnel attempted to direct him to a nearby police station. Efforts to direct the victim to the nearby police station failed when he made a wrong turn. The victim subsequently drove in the direction of a different police station and observed a “squadrol” parked on the stre et. He pulled his vehicle to the side of the road and fled to the nearby of

ficers as defendant followed him while armed with a weapon. The officers, who were not aware that defenda nt was a police officer, ordered him to drop his wea pon. Defendant did not respond or look in the officers’ direction, but instead continued to point his weapon at the victim. Du

ring thi s time, the

victim con

tinued to r

un towar d the off icers wh ile y elling, “he has a gun, he has a gun.” Eventua lly, one of the offic ers either pushed or tackled defenda nt and knock ed the weapon out o f his h and. A t that poin t, it was rev ealed t hat de fendan t was a Chica go police officer. Sergeant Cannizzo, who transcribed the 31-minute phone conversa tion between the victim and emergency

personnel, described the victim during this call as “in fea r of his life,” “delirious,” “screaming,” and “ yelling for

help.” According to Serge ant Cannizzo, defendant1-07-3262

3

made certain derogatory

remarks regarding

the victim’s race as an explanation for why he chased the victim

. After learning of the events which le d to defendant’s arrest, Sergea nt Cannizzo read defenda nt his “Adm

inistrativ e Procee ding Rig hts and No tification of Char ges.” and orde red him to submit to a

breath t est. The a

dministra tive rig hts advise d defend

ant: “1. Any admission or stateme

nt made by

you in the cou

rse of this hearing, interrogation or examination may be used as the basis for your suspension or a s the basis for charges seeking your removal or discha rge or suspension in excess

of 30 day

s. 2. You have the right to counsel of y our choosing to be present with you to advise y ou at this hearing, interrogation or examination and you may consult with him as you desire. 3. You hav e a rig

ht to be g iven a re asonable time to obta

in

couns el of your own ch oosi ng. 4. You have no right to remain silent. You have an obligation to truthfully answer questions put to you. Your are advised that your stateme nts or responses constitute an official police r eport. 5. If y ou refuse to answer questions put to y ou, you will be ordere d by

a superi or offic er to answer the q uestions. 6. If y ou persist in your ref

usal after the order has been1-07-3262

4 given to you , yo u are ad vised tha t such re fusal constitutes a violation of the Rules and Regulations of the Chicago Police Department and will serve as a basi s for whic

h yo ur discha rge wi ll be soug ht. 7. You are further advised that by law any a

dmission or state ment m ade by you duri ng the c ourse of thi s heari ng, interrogation or examination and the fruits thereof cannot be used against y ou in a subsequent criminal proceeding.” According to Sergeant Cannizzo, he ordere d defendant to submit to the test because there was evidence that defendant had been dr inking, including that he smelled of alcohol, that he had bloodshot eyes, and that he “ leaned in and out of being cooperative a nd defiant.” Sergeant Cannizzo also testified that he did not tell defendant he would be fired if he refused to take the breath test. Serge ant Cannizzo explained that if an officer refuses a direct order, an additional charged is made against that officer that could form the basis for disciplinary action r anging from a re primand to

terminat ion. The s ergea

nt also expla

ined that an offic er has a right to an appeal even if he is terminated a nd that he was unaware of any rule which stated that any offic er who refused a direct order would be unequivocally te rminated. Under questioning by

the trial court, Sergeant Cannizzo explained that he was present at the polic e station f

or purpos es of an a

dministra tive inve stigation and that he order ed defe ndant to submit to the

breath t est as pa rt of that investig ation. The

serge ant also te stified th at, to the best of his know

ledge, the crimi

nal inves tigation

terminat ed when d

efenda nt initially

refuse d to1-07-3262

5

submit to the breath test. During the hear ing on de fendant ’s motion, t he parti es stipula

ted that there wa s probabl e cause to arrest d efenda nt for aggrava

ted assa ult and DU

I and that no ph

ysi cal for ce was u sed to obtain defendant’s breath analy sis. The trial court began its ruling by finding that defendant was arreste d based upon probable cause for DUI

and aggravated a ssault and that, pursuant to that arrest, defendant was asked bu t refuse d to submit to

a breat h test. The

court the n stated that the que stion bec ame whether the breath test was a searc h incident to an arrest and what effect the a dministrative procee ding ha

d upon the

admissibil ity o f the test

results. T

he court noted tha t, accor ding to Sergeant Cannizzo’s testimony, the cr iminal investigation ended when defendant initially refused to submit to t

he test a nd defen dant was later ad vised of h is administ

rative r ights an d ordere d to submit to the test pursuant to an administrative investigation. The court further noted that the “Notification of Charges and Alleg ations” against defendant indicated that he submitted to an “administ rative breatha

lyze r.” The court the n stated that conse

nt in conte

xt of the fou

rth amendme nt was an issue in the

case, th at after being a dvised of his adminis trative r

ights, defendant did not feel he “[had] any choice” but to submit to the breath test, and that defendant would not have submitted to the test unless he was ordered to and promised that it would not be used ag ainst him in

a crimina

l procee ding. The court t hus conc luded tha

t it went a gainst “fundamental fairness” and the “constitution” to allow the test re sults into evidence after defendant was told that those results could not be used against him in a criminal proc eeding. Accordingly , the court found that the breath test constituted an invalid search and se izure and1-07-3262

6

grante d defend

ant’s moti on to bar a

dmission of

the test r esults. The State filed a certificate of substantial impairment and timely appealed. The State contends that the trial court erred by suppressing the results of defendant’s breath test. The State asserts that the trial court erroneously considered whether defendant consente d to the te st when, in fact, c onsent is n

ot a prer equisite t o the admi ssibility

of the te st results. The State further maintains that defendant’s test results are admissible because the police had prob able ca

use to ar rest def endant a nd beca use defe ndant’s breath sa

mple was properly obtained as a sea rch inci dent to his

lawful a rrest. Defendant responds that his breath-test results were properly suppre ssed because: (1) the results w ere obta

ined purs uant to a a

dministra tive, ra ther tha n crimina l, investigation; (2)

he did not voluntarily consent to the test; (3) he submitted to the test only under threat of termination; and (4) t he State i s preclu

ded from using the test resu lts under the doctr ine of jud icial est oppel. When reviewing a trial court’s ruling on a motion to suppress, we apply the two-pa rt standard of review adopted by the United States Supreme Court in Ornelas v. United States , 517 U.S. 690, 699, 134 L. Ed. 2d 911, 920, 116 S. Ct. 1657, 1663 (1996). People v. Luedemann , 222 Ill. 2d 530, 542 (2006). Under this standard, the tria l court’s factual findings are re viewed for clear error and will be upheld on review unless such findings are against the manife st weight of the evidence. Luedemann , 222 Ill. 2d at 542. However, we review de novo the ultimate question of whether the evidence should be suppressed. Luedemann , 222 Ill. 2d at 542. In thi s case, t

he trial c ourt rule d that def endant w ould not ha

ve submitte d to the br

eath test had he not been ordered to do so pursuant to an administrative investiga tion and told that1-07-3262

7

not hi ng h e sa id dur in g th at i nve st iga ti on c oul d be use d ag ain st hi m i n a c rim in al p roc eed in g. In other words, the t

rial cou rt essen tially ruled tha t defend ant did not

knowing ly a

nd volunta

rily consent to the breath test for purposes of those test results being use d against him at his trial for DUI and aggravated assault. L ikewise, in urging affirmance of the trial court’s ruling, defendant argues that the test results were prope rly suppressed be cause he did not voluntarily c onsent to the test. How ever, a

review o f the re levant c ase law e stablishe s that in I llinois, consent is no t a prerequisite to the admissibility of brea th-test results in a DUI prosecution. It is well established that only fourth amendment constraints and specific statutory provisions govern the admissibility of blood-a lcohol tests in a DUI prosecution. People v. Yant , 210 I ll. App. 3d

961, 964 ( 1991); People v. Poncar , 32 3 Ill . Ap p. 3 d 70 2, 7 06 ( 200 1). In Schmerb er v. Calif

ornia , 384 U.S. 757, 768-72, 16 L. Ed. 2d 908, 918-20, 86 S. Ct. 1826, 1834- 36 (1966), the United States Supreme Court held that taking a blood sample without the defendant’s consent or a search warrant was a “reasonable” search under the fourth amendment where there was probable ca use to believe the defendant was intoxicated and the delay caused by obtaining a search warra

nt might have resulted in the destruction of evidence, g iven that the level of alcohol in the blo od natura lly d issipates shortly after d rinking stops. The

Illinois Supreme Court subsequently endorsed the holding in Schmerber

in People v. Todd , 59 Ill. 2d 534 (1975). In Todd , the cour

t conside red whether section 11-50 1 of the I llinois Ve hicle Code

(Vehicl e Code) (Ill. Rev. Stat. 1975, ch. 951⁄2, par. 11-501(c )(3)) prohibited the evidentiary use of a blood sample obtained without the defendant’s consent. Todd , 59 Ill. 2d at 536. At the time Todd was decided, section 11-501 of the Vehicle Code provided:1-07-3262

8 "Eviden ce base d upon a chemical a naly sis of bloo d, urine, breath or other bodily substance shall not be admitted unless such substance was procured and such ana lysis made with the consent of the person as provided by this Chapter, whose bodily substance was so analyzed.”

Ill. Rev. Stat. 1975, ch. 951⁄2, par. 11-501(c)( 3). Based u pon the la nguag e of the s tatute, the court f ound that s ection 11 -501 req uired consent to chemical testing in order for test results to be admissible. Todd , 59 Ill. 2d at 544. The court noted, however, that the statute afforded protec tion to DUI defendants g

reater than that required by Schmerber

and recognized that, absent a statutory provision to the contrary, police may constituti onally

seize bodi ly s

ubstance s from a d

efenda nt without h

is consen t when pr obable cause is present and the evidence may quickly dissipate: "Since Schmerb er v. Calif ornia (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826, it is clear that a compulsory blood test does not violate

any constituti onal rig

hts of an i ndividual merely because he objected to such tests. Further, the absence of a formal arrest may

not taint a limited search, given probable cause a nd evidence that may

dissipate. (See Cupp v. Murphy (1973), 412 U.S. 291, 3 6 L. E d. 2d 900, 9 3 S. Ct. 2000. ) A numbe r of cas es, dealing specifically

with the question of blood tests and the removal of blood from a person without consent, have upheld the constitutional right to do so even where the person was1-07-3262

9 unconscious and, in some cases, without a formal arrest so long a s probable cause is present. [Citations.] Thus, absent a more limiting statutory provision, the taking of a blood sa mple does n ot require t he consent of the donor." Todd , 59 Ill. 2d at 544-45. Althoug h cases s uch as Schmerber

and Todd

dealt with the taking of a blood sample, the reasoning employ

ed in those cases also applies to the taking of a brea th sample. See People v. Mulack, 40 I ll. 2d 429, 4 31-32 (19 68); Village of Algonquin

v. Ford , 145 Ill. App. 3d 19, 21 (1986). The consent requirement found in section 11-501 was eliminated by Public Act 82-311 (Pub. Act 82-311, Jan

uary 1, 1982). See I ll. Rev. Sta t. 1981, ch. 951⁄2, pa

r. 11-501 ; 625 ILCS Ann. 5/11-501, Historical & Statutory Notes, at 324-25 (Smith-Hurd 2002). Subsequently, Illinois courts have repeate dly held that consent is not a fac tor to be considered by

the court when determining whether blood-alcohol test results are a dmissible into evidence and that involuntary tests of bodily substances do not violate any constitutional rights where the search is supported by probable

cause, t he evide nce is of an evanescent nature, a

nd the pro cedure s employ ed to obtain the substance are reasonable. See, e.g. , Village of Algonquin , 145 Ill. App. 3d at 21; People v . Brown , 175 I ll. App. 3d

725, 726- 27 (1988) ; Yant , 210 I ll. App. 3d at 963-65 ; People v. Byrd , 215 Ill. App. 3d 468, 471 (1991); People v. Ayres , 228 Ill. App. 3d 277, 279 (1992). Finally, section 11-501.2( c)(2) of the Vehicle Code, which went into eff ect in 1995, provides :1-07-3262

10 “Notwith standing

any ability to refus e under t

his Code to submit to the se tests or

any ability to revoke the implie d consen

t to these te sts, if a la

w enfor cement o fficer

has proba

ble caus e to believe that a motor vehicle driven by *** a person under the influenc e of alc ohol *** ha s caused the deat h or pers onal injur

y to another, that person shall submit, upon the request of a law enforcement officer, to a che mical test or tests of his or her blood, breath or urine for purposes of determining the alcohol content thereof or the presence of a ny other drug

or combination of both.” 625 IL CS 5/11-501.2(c)(2) (West 2006). In People v. Jones , 214 Ill. 2d 187, 199-202 (2005), our supreme c ourt held that section 11- 501.2(c)(2) did not create a rig ht to refuse chemical testing and that it permitted nonconsensual chemical testing even in instances that do not involve death or personal injury. I n reaching that conclusi on, the co

urt noted that its hol ding did n

ot sugg est that a

DUI arreste e’s lack of a rig

ht to refuse chemica l testing under se ction 11- 501.2(c )(2) pe rmitted “ law enforcemen

t office rs to use physical forc e in obtaining blood, urine, [or] breath samples.” Jones , 214 Ill. 2d at 201. In light of the above, it is clea r that defendant’s consent to the breath test, knowing or otherwis e, is not a

factor to be cons idered i

n determ ining wh ether th e test re sults are admissible at trial. Rather, irrespective of whether de fendant was compelled to submit to the test during an administrative investigation, the proper fourth amendment inquiry is whether the police had probable cause to arrest defenda nt and charge him with DUI , whether the delay caused by1-07-3262

11

obtaining a search warra

nt would have risked the loss of evidence, and whether the procedure employed to obtain the brea th sample was reasonable. In this case, defenda

nt was already

in custody when he submitted to the brea th test and, at the hearing on defendant’s motion in limine , the parties stipulated that the arrest was supported by probable

cause. M oreover, alcohol in the bloo dstream b egins to natural ly d

issipate shortly after drinking stops and therefore the delay in obtaining

a search warrant would have r isked the loss of evidence. Schmerber , 384 U.S. at 770-71, 16 L. Ed. 2d at 919-20, 86 S. Ct. at 1835-36. Finally, a bre ath test is a minimal intrusion and a reasonable means to measure a suspect’ s bloodalcohol c ontent (

Byrd , 215 Ill. App. 3d at 471), and the parties stipulated that no phy sical force was used to obtain defendant’s breath sample. Acc ordingly, unde r the line of authority discusse d above, the results

of defe ndant’s breath te st should no t have be en suppre ssed and a re admiss ible at trial. Defendant nevertheless claims that because the breath test was performed pursuant to an administrative investigation, the results of that test cannot be used at a subsequent cr iminal proceeding. Defendant re lies upon People v. Madison , 121 I ll. 2d 195 ( 1988), in s upport of this claim. However, we find defendant’s r eliance on Madison unpersuasive. In Madison , two Secretary of State police officers conducted a war rantless inspection of the defendant’s salvage y ard in response to complaints concerning the condition of the pr emises. During that inspection, the police seized numerous vehicle cer tificates of title without the defendant’s permission. Madison , 121 Ill. 2d at 199. The officers c onducted the search pursuant to section 5-403 of the Vehicle Code, which permitted authorized repre sentatives of the Secretary1-07-3262

12

of State to perform warrantless inspections of the rec ords and premises of salvage y ards for the purpose of determining the accura cy and c ompleteness of the records required to be kept by salvage y ards. Madison , 121 Ill. 2d at 199-200. On appeal, the supre me court was asked whether, when police officers have discovered evidence of a crime dur ing the course of a lawful administrative inspection conducted pursuant to section 5-403 of the Vehicle Code, the of ficers were required to obtain a warra nt before seizing the evidence. Madison , 121 Ill. 2d at 201. The court interpreted a specific subsection of section 5-403 and held that, pursuant to that section, the police we re requ ired to ob tain a wa

rrant be fore se izing any

evidenc e discove

red duri ng their inspection. Madison , 121 Ill. 2d at 201. The court further stated, however, that eve n if the statute did not require a warrant, the evidence seized by

police in that case would still have been excludable. Madison , 121 Ill. 2d at 209. The court noted that “[o]ne of the fundamental principles of administrative searc hes is that the government may

not use an administrative inspection scheme as a pretext to search for evidence of criminal [activity].” Madison , 121 Ill. 2d at 209. The court further noted that, in the case be fore it, t

he sear ch was no t initiated

for the p urpose of inspectin g the re cords but

instead in response to complaints about the condition of the salvage y ard and that the “clear implication [was] that the police were conducting the inspection as a prete xt for placating defendant’s neighbors or in order to find criminal violations.” Madison , 121 Ill. 2d at 210. Contrary to defe

ndant’s argument, the holding in Madison does not establish that any evidence obtained during an administrative investig ation cannot be used in a subsequent criminal proceeding. Rather, the case was decided on purely

statutory gr

ounds and applies only to an1-07-3262

13

administr ative insp ection pu

rsuant to section 5 -403 of the Vehic le Code. I n this cas e, unlike

in Madison , the polic e had alr eady arreste d defend

ant base d upon pro

bable ca use at the time defendant submitted to the breath test. Due to the presence of probable cause and the evanesce nt nature o f alcoho l in the bloo d stream, the polic e were not requi red to obt ain a wa rrant pr ior to administering the breath test. See Schmerber , 384 U.S. a t 768-72, 1 6 L. E d. 2d at 91 8-20, 86 S. Ct. at 1834-36. More importantly, the portion of the c ourt’s analysis in Madison that defendant relies upon was fo cuse d on de

terr ing a n administ

rati ve in spec tion s chem e from bein g use d as a

pretext to searc h for evi dence o f crimina l activity . The cou

rt noted that, under

those cir cumstanc es, “if ‘the primary obje ctive of the search is to gather evide nce of criminal activity ’ a search warrant based on probable cause must be obtained.” Madison , 121 Ill . 2d at 210, q uoti ng Michigan v. Clifford , 464 U.S. 2 87, 294, 78 L. Ed . 2d 477, 48 4, 104 S. Ct. 6 41, 647 (1 984). I n this resp ect, we note that the concern over pretextual searc hes expressed in Madison was also a factor that was considered by

the court in Yant , 210 Ill. App. 3d at 963, where the re sults of a physicianordered blood test for treatment and diagnostic pur poses were held admissible, even though the defenda nt was re strained

at the time

the test w as adminis tered a nd had pr eviously refuse d to provide a blood sample for treatment purposes. I n reaching that conclusion, the court noted that there was “no indication in the record that either the e mergency restraints or the physic ian’s blood test order here was a subterfug e procured by the police or any

form of State action.” Yant , 210 Ill. App. 3d at 965; see also Poncar , 323 Ill . App. 3d at 7 07 (fo llow ing Yant and finding admissible the results of a blood test ordered by a physician over

the defendant’s objection and1-07-3262

14

while the defendant was handcuffed to a gurney where there was no evidence indica ting that “the blood test was the result of police subterfuge”). Our holding that defendant’s breath-test re sults are admissible at trial is not inconsistent with these principles or with the decision in Madison . As the decisions in Yant and Poncar suggest, regar

dless of the purpose for which a blood-alcohol test is administered, the admissibility of the test results at a DUI trial is determined by the f ourth amendment inquiry set forth in Schmerber

and discu ssed abov e. We find nothing i n the rec ord before us to ta ke this case outside of the parameters set forth in Schmerber . In this case, unlike in Madison , there i s simply nothing in the recor d to suggest that Sergeant Cannizzo’s administrative investigation was conducted as a pretext in order to obtain evidence to be used a gainst defendant at trial. The record indicates that Sergeant Cannizzo was conducting a legitimate administrative investigation when he ordered defendant to submit to the breath test, and w hile we find that the results of that test can be used a gainst d efenda nt at tria l, the sali ent point is

that the in

vestiga tion was not a subterf uge in o rder to s eize evid ence of criminal activity . Thus, we

conclude that the te st results need not be suppressed in this case on the ground that def endant submitted to the test during an administrative investigation. Equally unpersuasive

is defendant’s reliance upon Tate v. Po lice Boar d , 241 Ill. App. 3d 927 (1993), for the proposition that this court has recognized the distinction between evide nce obtained pursuant to an administrative investigation and evidence obtained pur suant to a criminal investigation. In Tate , 241 Ill. App. 3d at 931, the defendant, a police officer, was arrested a t the police sta tion follow

ing an a ltercat ion with a c ivilian an

d told that she would b e charg ed with1-07-3262

15

DUI. The office

rs then told the defendant that they were commencing an administrative investigation and, to that end, advised the defendant of her administrative rights and told her that she was no longer in custody and that the administrative procedure was not to gar ner evidence against her in a criminal prosecution. Tate , 241 Ill. App. 3d at 932. The defenda nt was ordered to provide a urine sample, to submit to a breath test, and told that she could not be forced to do either but that, under administrative law, she was required to comply

. Tate , 241 Ill. App. 3d at 932. The defendant refused to submit to the breath and the urina lysis. Following a subse quent administrative hearing before the police boa rd, the defendant was found guilty of violating several police department rules, including re fusing to follow a direct order, and was discha rged. Tate , 241 Ill. App. 3d at 929. On appeal, the defendant challeng ed the board’s finding that she violated a direct order, arguing that her Miranda rights protected her from having to submit to the tests. Tate , 241 I ll. App. 3d at 934. In rejecting that claim, the court stated that after reviewing the record it was satisfied that the defendant received the full constitutional protection af forded to her by

the Miranda rights and noted that the testimony a t the hearing established that “the criminal aspect of the investigation had ended and the administrative process ha d commenced” when the defendant refused to obey

the orders of her superiors. Tate , 241 Ill. App. 3d at 934. Defendant overstates the relevanc e of Tateto the fa cts of the present case. T he court in Taterecognized the distinction between the criminal and the administrative investig ations in that case for purposes of establishing that the def endant refused to comply with the officers’ orders during an administrative investigation and that her Miranda rights therefore did not protect her1-07-3262

16

against having to submit to the tests. Unlike the situation in this case, the defendant in Tatedid not submit to the tests and the State was not seeking to introduce the test results into evidence at a crimina l procee ding. Therefor

e, the co urt did not

have oc casion to

consider the issue raised in this case and nothing in the court’s decision can be c onstrued to stand for the proposition that evide nce ob taine d duri ng an ad mini strat ive in vesti gation canno t sub seque ntly be us ed dur ing a criminal proceeding. Defendant further claims that the breath-te st results should be suppressed because he was told by Serge ant Cannizzo that those results would not be used against him in a criminal proceeding. Therefore , because the State is now attempting to use the test results in a criminal proceeding, defendant ar

gues that he was “deceived” and “coerced” into submitting to the test. We find this argument unpersuasive. We initially note that the administrative rights defe ndant was advised of did not mention the breath-test results or indicate the manner in which those re sults could be used against him. Rather, d efenda nt was ad vised tha t any “admission or state

ment” he made and

the “fr uits thereof” would not be used against him in a criminal proc eeding. Therefore, we conclude that defendant was not misinformed that the test results could not be used aga inst him in a criminal procee ding. In a ny e vent, eve n if we we

re to ass ume that d

efenda nt was misinformed that the tes t results could not be used against him in a criminal proceeding , we would nevertheless find that the resu lts are a dmissible a

t defend ant’s tri al. I

n this reg ard, we

note that an arg ument simila

r to that raised by de fendant in this case was considered and reje cted in Brown and Byrd . In Brown ,1-07-3262

17

175 I ll. App. 3d

at 726, the

defenda nt was ar rested on private

propert y w hile asle ep in his ve

hicle and then b

rought t o the polic e station. At the poli ce station, the def endant a greed to take a breath test altho ugh he was told by

the arr esting o fficer

that the “Warning s to Motoris ts” did not apply to him and that he did not have to take the test because the offense oc curred on private property

. Brown , 175 Ill. App. 3d at 726. Defendant wa s charged with DUI and the trial court subsequently suppressed de fendant’s test results, noting that it was doing so “‘under the doc trine of fairness’” based upon the confusion cre ated by the stateme nts the arresting officer made to the defendant. Brown , 175 Ill. App. 3d at 726. On appeal, the defendant arg ued that the trial court’s ruling should be upheld because the officer’s statements confused him and therefor e rendered his consent involuntary

. Brown , 175 Ill. App. 3d at 726. The appellate c ourt noted that the issue presented was “whether def endant voluntarily consented to the bre athalyzer in that he knew or was told the results could be used against him before he consented.” Brown , 175 Ill. App. 3d at 729. The court held that voluntary or knowing consent was not a prerequisite to admissibility of the breath test results and therefore reversed the trial court’s order suppre ssing the defendant’s test results. Brown , 175 Ill. App. 3d at 726-27, 729. Similarly, in Byrd

, 215 I ll. App. 3d

at 469, the

defenda nt was ar rested a fter he backed his car into another vehicle and was observe d by police staggering and smelling strongly of alcohol. Defendant was read the standard motorist’s wa rnings and thereafter conse nted to a breath test. At a hea ring pr ior to tria l, the tria l court g ranted d efenda nt’s motion

to suppre ss the re sults of his breath t est on the ground s that def

endant w as misadvised as to the conse quence s of his re fusal to1-07-3262

18

take the test. Byrd

, 215 Ill. App. 3d at 470. On appeal, the re viewing court reversed the trial court’s suppression order, holding that “defenda nt’s consent, informed or otherwise, was not statutorily or constitutionally required for the arresting of ficer to administer a breath test.” Byrd , 215 Ill. App. 3d at 471-72. As these d

ecisions illustrate , question s such as w hether a defenda nt was told

that a breath-test result could be used against him before consenting to the test and whether a defe ndant was misadvised as to the consequences of refusing to take the test simply go towa rd the issue of whether the defe ndant knowingly

and volun

tarily consente d to the te st. We belie ve that th e same is true in t

his this ca se with re spect to d efenda nt’s clai m that he w as told the

test resu lts would not be used against him in a criminal proceeding . Even if the administrative rights that were rea d to defen dant coul d be cons trued to im ply that the breath- test resu

lts would no t be used a

gainst him, defe ndant’s s ubjectiv e unders tanding

of those r

ights an d the manner in whic

h the test r

esults could be used merely

raise the issue of whether defendant knowingly and voluntarily consented to the breath test. However, because de fendant was not required to consent to the test in order for the results to be admissible at trial, his subjective understanding that the test results could not be used a gainst h im in a cri

minal proc eeding

does not e stablish that defe ndant’s f ourth amendment rights were violated or require the test results to be suppressed as the product of an unreasonable search and seizure. Defendant further contends that the test results should be suppresse d because he provided the b reat h samp le only

under thr eat o f ter minat ion. D efen

dant clai ms tha t Sergeant

Canni zzo gave him a direct order to provide a breath sample and advised him pursuant to his administrative1-07-3262

1 The fifth amendment to the United States Constitution provides that no person “shall be compelle d in any

criminal case to b e a witne ss agai nst himself

.” U.S. Con st., amen

d. V. This provision applies to the states through the fourteenth amendment (U.S. Const., amend. XI V). Allen v. I llinois , 478 U.S. 364, 368, 92 L. Ed. 2d 296, 303, 106 S. Ct. 2988, 2991 (1986). 19 rights that h e woul d be fi red if he refu sed to subm it to the br eath t est. C itin g Garrity v. New Jersey , 385 U.S. 493, 17 L. Ed. 2d 562, 87 S. Ct. 616 (1967), defendant asserts that statements or results of examinations made by police off icers under threat of removal are not voluntary and cannot be used in sub sequent prosecut ions aga inst police

office rs. In Garrity , the United States Supreme Court held that the protections of the fifth and fourteenth amendments against coerc ed statements prohibit use in subsequent criminal proceedings of statements obtained from police of ficers under threat of removal from of fice. Garrity , 385 U.S. a

t 500, 17 L . Ed. 2d at

567, 87 S. Ct. at 620. De fendant asks this c ourt to ap

ply Garrity and the fifth amendment privilege ag ainst self-incrimination 1 to the present case in order to bar the State from using the test results at his trial for DUI and aggravated a ssault. However, it is well settled that the fifth amendment applies only to testimonial or communicative evidence and that it does not apply to physical evidence . As the United States Supreme C ourt has e

xplained, “ [t]he distinction which has emer ged *** is that the

[fifth amendment] privilege is a bar against compelling ‘communications’ or ‘testimony,’ but that compulsion which makes the suspect or accused the source of ‘real or phy sical evidence’ does not violate it.” Schmerber , 384 U.S. at 764, 16 L. Ed. 2d at 916, 86 S. Ct. at 1832; see also Holt v. United States , 218 U.S. 245, 252-53, 54 L. Ed. 1021, 1030, 31 S. Ct. 2, 6 (1910) (“The prohibition of compelling a man in a criminal court to be witness aga inst himself is a prohibition1-07-3262

20

of the use of physic al force or moral compulsion to extort communications from him, not an exclusion o f his body

as evide nce whe n it may be mater ial”); Oregon v. Elstad , 470 U.S. 298, 304-07, 8 4 L. E d. 2d 222, 2 29-31, 10 5 S. Ct. 1285, 1290-92 ( 1985) (noting tha t the fift h

am en dm en t “ pr oh ib it s u se by t he pr os ec ut io n i n i ts ca se in ch ie f o nl y of co mp el le d t es ti mo ny” and that it “is not concerned with nontestimonial evidence”). Based upon this distinction, the Court in Schmerberheld that the results of a statecompelle d blood-a

lcohol te st constitu

ted “re al or phy

sical evidence”

and ther efore d id not fall within the protection of the fifth amendment privilege. Schmerber , 384 U.S. at 761, 16 L. Ed. 2d at 914, 86 S. Ct. at 1830-31 (“We hold that the privilege protects an accuse d only from being compelled to testify ag ainst himself, or otherwise provide the State with evidence of a testimonial

or commun

icative n ature, a nd that the

withdrawal of bloo d and use of the analy sis in ques tion in this case did not involve compulsion to these ends”). In re aching this conclusion, the court liken ed the compu lsory adm inis trati on of a bloo d test to “co mpul sion to su bmit to fin gerpri ntin g, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make particular g esture.” Schmerber , 38 4 U. S. at 7 64, 16 L. Ed. 2d at 916, 86 S. Ct. at 1832; see also United Sta tes v. Hu bbell , 530 U.S. 27, 35, 147 L. Ed. 2d 24, 35, 120 S. Ct. 2037, 2042-43 (2000) (noting the “significant differe nce” between compelling a person to provide

testimony

or commun

icative e vidence and compe lling a p erson to e ngag e in incriminating conduct and recognizing tha t, therefore, “even though the a ct may provide incriminating evidence, a criminal suspect may be compelled to put on a shirt, to provide a blood sample or handwri ting exem plar, or to make a

record ing of hi s voice” ). Our ow n supreme

court,1-07-3262

21

in rejecting an argument that the State’ s attempt to admit the results of a breath test which the defendant claimed he was compelled to take in violation of his fifth amendme nt rights, adopted the holding in Schmerber in Mulack, 40 Ill. 2d at 431-33. Schmerber

and Mulac k thus establish that a compulsory blood or brea th test does not implicate the fifth amendment’s prohibition on the use of compelled testimony because the

re su lt s o f s uc h t es ts ar e n ot ev id en ce of a c om mu ni ca ti ve or te st im on ia l n at ur e. Ac co rd in gl y, even if defendant in this case was compelled to submit to the breath test, the produc t of that compulsion was neither defendant’s testimony nor evidence relating to some communicative ac t by defenda

nt and therefore does not fall within the protection of the fifth amendme nt. See Schmerber , 384 U.S. a

t 765, 16 L . Ed. 2d at

916-17, 8 6 S. Ct. at 18 33 (“Sinc e the bloo d test evidence, although an incriminating produc t of compulsion, was neither petitioner’s testimony nor evidence relating to some communicative ac t or writing by the

petitioner, it was not inadmissible on privilege grounds”). Thus, we find that the holding in Garrity , which is based upon an application of the fifth amendment privilege, is inapplicable to this ca se. Defend ant further arg

ues that, even if t

his court finds tha t Garrity applies only

to testi moni al evi dence, the res ults of his breath test m ust s till be sup press ed. Ci ting People v. Mule , 131 Misc. 2d 635, 501 N.Y.S.2d 2 83 (1986) , defend ant asse rts that c ourts hav e routine ly used a Garrity -ty

pe analy sis in case s dealing

with non-t

estimonia l evidenc e such as

blood test results. In Mule , the def

endants, railroa

d employ ees, we re orde red by a superi or to submit

to blood tests following a fatal train accident and ar gued that the test results should be suppressed1-07-3262

22

because their consent was coerc ed under threat of discipline and removal from the ra ilroad. Mule , 131 Misc. 2d at 636, 501 N.Y.S. 2d at 284. The cour t discusse d and app lied the la w as it had developed under Garrity , noting t hat altho ugh the case be fore it di d not aris e under t he fifth amend ment, “the l ogic un derlying Garrity and its progeny

is persuasive.” Mule , 131 Misc. 2d at 636-37, 501 N.Y.S.2d at 284. The court ultimately he ld that the defendants’ fear of termination was not sufficiently “ substantial” to require suppression of the blood test results. Mule , 131 Misc. 2d at 640, 501 N.Y.S.2d at 286. Mule is easily distinguishable. The c ourt in Mule appli ed the logic u nderl ying Garrity because at the time that the case was dec ided, New York law provided that the results of a blood test taken without an authorizing court order were inadmissible ag ainst a defendant in any subsequent criminal proceeding unless the defe ndant consented to taking the test. See Mule , 131 Misc. 2d at 636, 501 N.Y.S.2d at 284. In this case, defe ndant’s consent was not required in order for the breath test results to be admissible at his trial. Moreover, defenda nt has not cited to any cases in which a court has applied Garrity or the analy sis conta

ined ther ein in ord er to suppress the results of a blood-alcohol test where, as here, c onsent to the test was not required and the results of that test constituted “real or phy sical evidence.” See Schmerber , 384 U.S. at 764-65, 16 L. Ed. 2d at 916-17, 86 S. Ct. at 1832-33. Therefore , we decline to apply the logic underly

ing Garrity to the fa cts of this case in order to d

etermine whether defenda nt volunta

ry consente d to the breath test. Defendant finally

contends that the State is precluded from using his breath-test re sults at trial based on the doctrine of judicial estoppel. Defendant spec ifically claims that bec ause the1-07-3262

23

State pro secuted

him at a sta

tutory summary suspension hearin

g base d on his initi al refu sal to submit to the

test, the S tate shou

ld be judic ially

estopped from now s eeking

to admit the

results of the test to which defendant ultimately submitted. We disagree. We initially

note that the trial court did not rule on the issue

of judicia

l estoppe l becaus e it suppressed the test results on the ground that the breath sample was ta ken without defendant’s consent. However, we will address the issue in light of our f inding that the test results should not have been suppressed. The doctrine of judicial estoppel provides that a party who assumes a particular position in a legal proceeding is estopped f rom assuming a contrary

position in a subsequent legal proceeding. People v

. Caballero , 206 Ill. 2d 65, 80 (2002). The following e lements are required for the doctrine to apply : (1) the party be ing estopped must have taken two positions; (2) the two positions must be inconsistent; (3) the positions must have been taken in separate judicial or quasi-ju dicial pr oceedin gs; (4)the part

y mu st have in

tended f or the tri er of fa

ct to acc ept the tr

uth of the facts alleged; and (5) the pa rty must have succe eded in asserting the first position and received some benefit from it. Caballero , 206 I ll. 2d at 80 . Applica tion of the

doctrine is within the discretion of the court. Caballero , 206 Ill. 2d at 80. The doct rine of ju dicial es toppel doe s not apply in this cas e. First , althoug h the State prosecu ted defe ndant for his initial r

efusal to submit to the

breath t est, def endant w as ultimat

ely successful in having the statutory summary suspension rescinde d. Therefore, the State did not succeed in the first proceeding or receive some benefit from it. Caballero , 206 Ill. 2d at 80; People v. Jones , 223 Ill. 2d 569, 598-99 (2006).1-07-3262

24

Second, the State has not taken inconsistent positions. In People v . DuBose , 348 Ill. App. 3d 992, 994 (2004), the defendant was arrested f or DUI and, upon being

transported to a local hospital, refused to submit to blood-alcohol testing. Defendant’s blood was subsequently taken over his objection pursuant to section 11-501.6(c) of the Vehicle Code, w hich provides that “‘if a driver of a vehicle is receiving me dical treatment as a result of a motor vehicle ac cident, any physician licensed to pra

ctice medicine *** shall withdraw blood for testing *** upon the specific request of a law enforc ement officer.’” DuBose , 348 Ill. App. 3d at 994-95, quoting 625 IL CS 5/11-501 .6(b) (We st 2000). T he defe ndant’s l icense was suspen ded base d on his re fusal to submit to te sting an

d the State

subseque ntly attempte d to use the

results of the blood t

est to prosecute defendant for aggravated DUI

. DuBose , 348 Ill. App. 3d at 994-95. On appeal, the defenda nt argu ed that th e State wa s taking inconsiste

nt positions

and ther efore was judicia

lly estopped from using the results of his blood test at trial. The court noted that the police we re statutorily authorized to have defe ndant’s blood drawn without his consent and, therefore, according to the court, the fact that blood testing was performed did not imply tha t defendant consente d to the te st and the assertion that def

endant r efused t o voluntar

ily s ubmit to tes ting did not imply that no testing was perf ormed. DuBose , 348 Ill. App. 3d at 996. Thus, the court found that the State had not taken inconsistent position and that judicial estoppel did not apply. DuBose , 348 Ill. App. 3d at 996; see also People v . Coffin , 305 Ill. App. 3d 595, 598 (1999) (holding that the Sta

te is not jud

icially estopped from using

results of a blood-a

lcohol te st performed on blood sample obtained in a hospital emerge ncy room to prosec

ute the defendant for DUI, even thoug

h the State previously used the de fendant’s refusal to submit to a blood-alcohol1-07-3262

25

test to obtain summary suspension of the defe ndant’s driver’s license; the positions taken by the State were not factually

inconsistent). In thi s case, t

he State s ought to have def endant’ s driver ’s licens e suspend ed pursua nt to section 11-501.1 of the Vehicle Code (625 I LCS 5/11-501.1 (West 2006)), based upon his initial refusal to submit to the breath test. That position, however, does not imply that no subsequent testing was performed. The State is now attempting to use the test results that were obtained after defendant ultimately submitted to the test to prosecute him for DUI and ag gravated assault. Because defendant’s conse nt is not required for those test results to be admissible at trial, the State’s attempt to use the results at trial does not imply that defe ndant consented to the test. Accordingly , we find that the State has not taken inconsistent positions and that the doctrine of judicial e stoppel do es not bar the State from using

the test r esults at d efenda nt’s tria l. Finally, we note

that the State has filed a motion to strike defendant’s brief based upon refer ences in the brie f’s conc lusion section to an u nrelate d DUI

prosecu tion that a

lleged ly occurred in 2002. The State’s motion to strike defendant’s brief, w hich was taken with the case, is hereby de

nied, although we will not consider any references to matters outside of the rec ord. See People v

. Brown , 249 Ill. App. 3d 986, 994 (1993) (appellate c ourt will not consider matters outside the record). For the reasons stated, the judgment of the c ircuit court of Cook County is reversed. Reversed and remanded. J. GORDON and CAHIL L, JJ., concur.