## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Farris , 2012 IL App (3d) 100199

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appellant, v. J ACQUEL I

NE F ARRI S, Defe ndant-Appe llee.

District & N o. Third District Docke t Nos. 3-10-0199, 3-10- 0220 cons.

Filed April 10, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) An o rd er suppressing the results of a blood alcohol test based on bl o o d drawn by forc e from defe ndant by hospital personne l pursuant to a police office r’s instructions was aff irmed, since the office r lacke d the statutory authority to use forc e in takinga sample f rom defe ndant.

Dec ision Under
Review Appea l from the Circuit Court of Kankakee County
, Nos. 09-DT- 135A, 09-DT- 135; the Hon. Kenne th A. L eshen and the Hon. Susan Tung ate, J udg es, pre siding.

J udg ment Affir med.Counsel on

Appea l J ohn J

. Boyd, State’s Attorn ey , o f Kankakee (Ter ry A. Mertel and Thomas D. Ara d o (ar gued), both of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

L eonard Sacks (argued), of Sacks, Gu b b i n s & Reg as, of Kankakee, for appellee

.

Panel J USTI CE HOL DRI DGE delivere d the judgme nt of the court, with opinion.
J ustice O’B rien c oncurr ed in the judgment and opinion.
J ustice Wright c oncurr ed in par t and dissented in par

t, with opinion.

OP INION

¶ 1 This matter is on consolidated appea ls filed by the State. In case number 3-10-0199, the State appea ls from the g ranting of the defe ndant’s petition to resc ind a statutory summary suspension. In case number 3-10- 0220, the State appe als from an order of t he cir cuit court
g ranting the defe ndant’s motion to suppress evidenc e from a blood alcohol test using blood forc ibly drawn from the defe ndant by hospital personne l at the instruction of a police office r. The State filed a

cer tificate of impairment and a

timely notice of a

ppeal.

¶ 2 FACTS ¶ 3 On May 12, 2009, the defe ndant was arr ested for driving under the influence of alcohol (DUI ). 625 I L CS 5/11-501(a) (2) (West 2008). The DUI ticket was dockete d as No. 09-DT135. Following notification of defe ndant’s ar re s t , t h e I llinois Secre tary of State issued a notice to th e d ef

en d an t indicating that she would rec eive a 12-month statutory summary suspens i o n o f her driver’ s license. The defe ndant filed a petition to resc ind the statutory summary suspension alleg ing that: (1) she was not proper ly place d under an arr est for DUI ; (2) the arre sting officer did not have rea sonable grounds to believe that she wa s driving or in actua l phy sical control of a motor vehicle while under the influence of alcohol; and (3) she

was not proper ly warn ed by the arr esting office r as provided in section 11-501.1 of the Veh i cl e Code. 625 I L CS 5/11-501.1 (West 2008). The petition to resc ind the statutory summary suspension was dockete d as No. 09-DT- 135A. The defe ndant had previously filed

a motion in limine to suppress evidenc e of t he results of blood testing done without her
consent in the DUI proce eding

. By agree ment of the parties, a single evidentiar y hearing was held on the m otion to suppress ev i d ence and the petition to resc ind the s tatutory summary suspension, with the court’s r uling on the a dmissibi lity of the blood test re sults to apply to

-2-both proce eding s.

¶ 4 Offic er Kevin Orms of the Br adley
, I llinois
, police depar tment testified that, on May 12, 2009, at approximately 10:30 p.m., he was called to the scene of an acc ident at the corne r of Schuyler Avenue and Br ookmont Boule vard. Upon his arrival at the scene , he encounte red the defe ndant sitti ng in her vehicle. The defe ndant told him that s h e h ad h it her lip on the dashboar d and that her head was hurting

. Orms testified that he immediately noted the odor of an al co h o l ic bever ag e coming from the defe ndant’s breath. Orms called an ambulance
, which transporte d the defe ndant to Riverside Hospital in Kankakee, I llinois

. Orms followed the ambulance in his squad car

. Orms acc ompanied th e d ef endant into the emer g ency treatment are a. Acc ording to Orms’s testimony
, t h e defe ndant was verba lly abusive and bellige rent toward him and toward the emer g ency depar tment staff attending the defe ndant. Orms testified that the de fenda nt repe atedly

stated “take me to fuc king ja il.” ¶ 5 Orms testified that the defe ndant continued to swea r and act bellige rent while he rea d the statutory “Warning to Motorists” to the defen d an t

. I n acc ordanc e with the war ning, Orms
soug ht c onsent from the de fenda nt f or a blood dr aw. The defe ndant ref used consent. Orms then contacted his commanding office r, who instructed him t o t ak e a b lood sample. Orms then instructed a nurse to take a sample of the defe ndant’s blood. Orms and another office r stood by while a doctor, a nurse, and another emerg ency depar tment staff member held the defe ndant down and forc ibly drew blood. One person was on either side of the defe ndant,

eac h holding a wrist and shoulder, while another person held her leg s as the nurse drew blood from one of the defe ndant’s arms inside of the elbow. The entire proce ss took approximately four minutes. ¶ 6 Orms issued a “L aw Enforc ement Sworn Rep o rt ” wh i ch i ndicated that the def endant voluntarily submitt ed to chemica l testing which disclosed an alcohol conce ntration of 0.285. ¶ 7 The defen d an t t es t i fi ed t h at , on May 12, 2009, she was involved in an automobile

acc ident in which her car hit another car

. She testified that she never lost consciousness and had only minor injuries, including a cut to her lip from hitting the dashboard. She stated that,

as soon as she arr ived at the hospital, demands wer e made that she consent to a blood draw

. She ref used, stating that she did not believe a blood test was nece ssary

. She was then forc ibly held down and blood was extracted from her rig ht arm. On cross-e x amination, the defe ndant admitted to consuming a

pproxi mately

three alcoholic be vera g es in the t hree hours prior to the acc ident. She also admitted to phy sically resisting the blood draw
, including squirming her a rms back a

nd forth and kic king he r leg s. ¶ 8 Fo l l o wi n g th e hearing, the trial court issued a written order g ranting the def endant’s motion in limine barr ing the State from using th e blood test results in the proce eding
reg arding the s tatutory summary suspension. Shortly there afte r, the State filed a m otion to amend the sworn repor

t, seeking to remove the chec k mark from the b o x o n t h e re port indicating that the defe ndant had submitt ed to chemica l testing, and, in s t ea d
, to chec k the box indicating “bec ause you ref used to submit to or failed to complete testing, your driver’ s l i ce n s e and/or privileg es will be suspended for a minimum of 12 months.” Following
argument of counsel on the motion, the circ uit court grante d the motion to amend the sworn repor t. A pproxi mately a wee k later, howeve r, the court reve rsed its prior ruling and denied

-3-the State’s motion to amend the office r’s swor n repor t. The docke t entry

stated as follows: “The Court has ag ain revie wed the case s provided by counsel and notes that eac h of the case s is fac t specific

. In the i n stant case , the proposed amendment completely chang es the predic ate for the suspension as well as t h e duration of the suspension. Consequently

the cour t hereby reve rses itself a

nd denies the State’ s motion.” ¶ 9 T h e d efe ndant was allowed to amend her petition to resc ind the statu t o ry s u m m ar y suspension to alleg e, as a basis for resc ission, an alleg ation that “the police phy sically forc ed

me to g ive blood and that result was barr ed by the court and there fo re I was not proper ly tested and did not test over .08.” The trial court g rante d the amende d petition to resc ind the statutory summary suspension. The State filed a timely notice of a

ppeal. ¶ 10 There afte r, the trial co u rt i s s u ed a writ ten order in the DUI proce eding s g rantingthe defe ndant’s motion to suppress evidenc e, holding that law enfor ceme nt officia ls may not use forc e to obtain a blood sample. In rea ching its conclusion, the trial court relied upon People

v. Jones
, 214 I ll. 2d 187, 199-200 (2005). The State filed a timely cer tificate of impairment and notice of

appea l.

¶ 11 ANALYSI S ¶ 12 1. Suppression of B lood Test Results ¶ 13 The State mai n t ai n s t h at t h e t ri al court err ed in granting the defe ndant’s motion to
suppress the blood test results based upon a conclusion that law enfor ceme nt is not permitted
to use forc e to extract a b l o o d s am p le. The trial court held that a law enfor ceme nt office r lacks t h e st atutory authority to forc ibly extract blood in instances where the defendant has ref used consent. Questions of statutory interpre tation are revie wed de novo

. Jones
, 214 I ll. 2d at 193. ¶ 14 S ec t i o n 1 1-501.2(c )(2) of the Vehicle Code allows chemica l testing without consent wh er e a p o l ice officer has probable cause t o believe that a vehicle driven by an indi vidual under the influence has cause d the d ea t h o r persona l injury of another

. 625 I L CS 5/11- 501.2(c) (2) (West 2008) (“[I ]f a law enfor ceme nt office r has probable cause to believe that

a motor vehicle driven by or in actua l phy sical co n trol of a person under the influence of alcohol, other drug or drug s, or intox icating co m p o un d or compounds *** has cause d the death or persona l injury to another
, that p erson shall submit, upon the reque st of a law enfor ceme nt office r, to a chemica l test or tests of his or her blood, breath or urine ***.”). The
statute is silent, howeve r, on whether testing without consent is authorized in situations not involving dea

th or persona l injury

to another. See Jones , 214 I ll. 2d at 194. ¶ 15 The issue of whether testing without c onsent in the absenc e of de ath or pe rsonal injury is p er m itted under the Vehicle Code was first addre ssed by our supreme court in Jones
, whi ch h el d that testing without consent in situations lacking death or persona l injury to another was permitted despite the statutory languag e t h at seeme d to limit testing to those situations. Jones , 214 I ll. 2d at 199-200. The Jones court held that testing without consent did not violate c o n s ti tu

ti o n a l protec tions ag ainst unrea sonable sear ch and seizure wher e there

was probable cause to believe the defe ndant was into x icated and the delay cause d by obtaining a sear ch war

rant might result in loss of evidenc e of intox ication, g iven the natura l

-4-dissipation of the alcohol in the defe ndant’s b l o o d

. Jo nes , 214 I ll. 2d at 200 (citing

Schme rber v. California , 384 U.S. 757, 768-72 (1966)). The Jones court a lso held that the statutory languag e of section 11-501.2(c)( 2), which expressly provided for testing w ithout
consent in situations involving death or persona l injury to another
, did not implicitl y outlaw such testing wher e death or persona l injury to another had not occur red. Finding the statute to be ambiguous, the court, rely ing in part on leg islative history
, noted that no statutory rig ht to refuse testing ex isted prior to enactment of sec tion 11-501.2(c) (2). The court stated that it was “unwilling to construe the languag e of section 1 1 -5 0 1

. 2 (c )(2) as cre ating a rig ht to ref use che mical testing .” Jones
, 214 I ll. 2d at 199-200. Whil e the Jones court c onclusively held t hat a defe ndant di d n o t have a consti tutional or st atutory rig ht to ref use a reque st for chemica l te sting, reg ardle ss of the lack of death or persona l injury to a nother, the c ourt did not state whethe r phy sical for ce c ould be used to collec t a sample for testing. ¶ 16 On the question of f orce , the Jones court issued a “cla rifica tion” as follows:
“F or purposes of clar ification, our holding in this case does not g ive law enfor ceme nt office rs unbridled authority to order and conduct chemica l tests. We do not sug g est that a DUI arr estee ’s lack of

a right to refuse chemica l testing unde r sec tion 11-501.2(c )(2) permits law enfor ceme nt o ff i cers to use phy sical forc e in obtaining blood, urine, and breath samples

. T h e V e h icle Code alre ady eliminates any advanta g e a DUI arr estee might hope to g ain from r efusingchemica l testing.” Jones , 214 I ll. 2d at 201. ¶ 17 In the instant matter, the trial court relied up o n t h i s d i s cussion in Jones to find that nothing in the Vehicle Code per m i t s l aw enfor ceme nt office rs to use phy sical forc e in obt aining blood, urine, or breath samples. On appea l, the defendant-a ppellee sugg ests that the circ uit court was corr ect in rea ding Jones to indicate our supreme court’s reje ction of the

use of forc e to collect samples wher e the defe ndant does not have a rig ht to ref use a reque st to submit a sample for testing. The State argues that the supreme court’s statement that law enfor ceme nt office rs did not have “unbridled authority” to order and conduct chemica l tests did not mean that an of

fice r could not use r easona ble forc e to obtain a sample. ¶ 18 The State maintains that the Vehicle Code implicitl y authorizes an arr esting office r to use “re asonable forc e” to obtain a sample if the defe ndant ref uses to cooper ate in the extraction of a sample of his or her bodily fluid. The State cites State v. Krause
, 484 N.W.2d 347 (Wis. Ct. App. 1992), wher e the Wis consin appellate court upheld a DUI conviction of a defe ndant who had been ho g-t i ed and held down by his fee t with a pillowcase place d over his head while a lab technicia

n drew blood. The court held that, as long as the extraction of fluids passed fede ral constitutional muster under Schme rber v. Calif or nia
, 384 U.S. 757 (1966), the law of Wis consin did not prohibit the forc ed collection methods employ ed by the arr esting office r. Krause
, 484 N.W.2d a t 348. The Krause court then noted that, under Schme rber
, a forc ible blood dr aw will not viol ate the f ourth amendme nt if the blood draw is re asonable
, i.e.
, (1) drawn incident to an arr est; (2) with a “cle ar indication,” rathe r than “mer e chanc e” that the desired evidenc e will be found in the blood sample; a nd (3) exigent circ umstances exis t. Krause
, 484 N.W.2d at 350 (citing Schme rber
, 384 U.S. at 769-71). The Krause court d et er m ined that all three criteria for rea sonablene ss wer e prese nt. The Krause court also deter mined that the degr ee of forc e necessar y to obtain the sample wa s subject to a fur ther constitutional test of rea sonablene ss which require d a balanc ing of the defe n d an t’s fourth

-5-amendment right to be fre e from “unre asonable ” sear ch and seizure with the leg itimate

g overnme ntal interest of law enfor ceme nt. Krause
, 484 N.W.2d at 351. Acc ording to the Krause court, an office r’s level of forc e used was “o bjectively rea sonable” wher e sever al fac tors balanc ed in favor of the forc e u s ed : (1) the environment wher e the test was conducte d; (2) the severity o f t h e cr i me at issue; (3) whether the defe ndant posed an immediate t hreat to the s afe ty of off icer s or others; (4) whether the def endant wa s actively resisting ; (5) whether the police ref used a rea sonable reque st for an alternative test; and (6) the degree of the State’s ne ed for the test. Krause , 484 N.W.2d at 352. ¶ 19 The State sug g ests that this court undertake the same analy sis of rea sonablene ss that was undertaken by the Krause court. It further sug g ests that, if this court wer e to do so, it would deter min e t h at the bl ood draw in the i nstant case passed constitut ional muster, i.e.
, (1) the blood was drawn incident to an arr est; (2) the office r’s observations of an od o r o f an alcoholic bevera g e on the defendant’s breath and the defendant’s b el l i ger ent atti tude gave

a clea r indication rathe r than a mere chanc e that the blood would reg ister over the leg al limit ; and (3) exigent circ umstances exis ted in the need to obtain the sample befor e the alcohol level in the blood dissipated. ¶ 20 L ikewise, the State sug g ests that the forc e was o b j ec t i v el y re asonable in the instant
matter beca

use: (1) the test was conducte d in an appropr iate environment, i.e.
, a hospital; (2) DUI is a sever e crime for wh i ch a fo rce d blood draw is nece ssary ; (3) the defe ndant’s bellige rent attitude posed a threat to the safe ty of the office rs and the hospital personne l; (4) the defe ndant was actively resisting the forc ed blood draw ; (5) the defe ndant made no reque st of an alternative means o f t es t i n g; and (6) the S tate’s need for the bl ood sample was g reat since scientific test results are much better evidenc e of DUI than the arr esting office r’s observations and the infere nce of guilt that can be drawn from her ref usal to submit to testing. ¶ 21 In addition to Krause and Schme rber
, the State cites to sever al case s which stand for the proposition that forc ed blood draw s are objectively reasonable and can pass constitutional muster under

the fourth a

mendment. See State v. Clary
, 2 P.3d 1255, 1256 ( Ariz. Ct. App. 2000); Carlet o n v. Superior Court
, 216 Cal. Rptr. 890 (Cal. Ct. App. 1985); State v. W orthington
, 65 P.3d 211 (I daho Ct. App. 2002); State v. Lanier
, 452 N.W

. 2 d 1 4 4 (S.D. 1990). Howeve r, we find eac h of these case s to be irrele vant to the question befor e us, which is whether the trial court corr ectly held that a forc ed blood draw was not permitted under the Vehicle Code. The trial court, rely ing upon our supreme court’s holding in Jones
, held that forc e is not permitted under the statute. Specifica lly
, the trial court relied upon the Jones court’s “cla

rification” that it was “n o t s u gges t [ ing] that a DUI arr estee ’s lack of a rig ht to ref use chemica l testing under section 11-501.2(c )(2) permits law enfor ceme nt office rs to use phy sical for ce in obtainingblood, urine, and br eath samples.” Jones , 214 I ll. 2d at 201. ¶ 22 Reviewing the trial court’s holding de novo
, we hold that t h e tri al court was corr ect in its analy sis o f the supreme court’s holding. The court clea rly wanted to “cla

rify” that, althoug h it wa s holding in Jones that a def endant did not have a statutory right to refuse to comply with a reque st for a blood sample, law enfor ceme nt had no statutory rig ht to use forc e to extract said sample if the defe ndant ref used to cooper ate. That is a clea r and unambiguous in terpre tation of the court’s holding. That our supreme court did not see a need for forc ed

-6-sample collection is made even more clea r by its observation that taking a blood sample by forc e serve d n o l egit imate law enfor ceme nt purpose. As the Jones court noted, the defe ndant’s ref

usal to c omply with the reque st for a sample, in a nd of itself, is suf

ficient to justify a statutory summary suspension of the defe ndant’s d ri v er ’s license, the purpose of which is to protect the public f rom intox icated motorists. ¶ 23 Moreove r, in Jones our supreme court was quite clea r that there is no prac tical need f or phy s i cal forc e in obtaining bodily fluid samples since the Vehicle Code eliminates any advanta g e a D UI

arr estee might hope to g ain from r efusingchemica l testing: “Unde r section 11-501.2(c )(2)
, if a DUI arr estee ref uses t o submit to chemica l testing, evidenc e of the ref

usal is a dmissibl e in the arr estee ’s DUI prosec ution. 625 I L CS 5/11- 501.2(c) (1) (West 2002) ; se e also People v. Edwards
, 241 I ll. App. 3d 839, 843 (1993) (indicating that a defe ndant’s ref usal to sub m it to blood testing has ‘some tendenc y to indicate a consciousness of guilt’ and is thus re l ev an t and admissible in a DUI
prosec ution). In addition, ref usal to submit will result in the summary suspension of the

arr estee ’s driving privileg es. This penalty is the s am e as that imposed wher e tests are conducte d and the results indicate a blood-alcohol conce ntration over the leg al limit

. See 625 I L CS 5/ 11-501.1(c ) (West 2002).” Jones , 214 I ll. 2d at 201-02. Thus, the infer ence of guilt from a def endant’ s ref

usal to comply with a re quest for te sting is sufficie nt to protec t the p ub l i c i n t ere st in the prosec ution of DUI tickets, and the use of forc e to secur e bodily fluid samples adds nothing to the protec tion of the public. Jones
, 214 I ll. 2d at 202. ¶ 24 The State’s argument that the forc ed taking of a b l o o d s am p l e d o es n o t violate the defe ndant’s fourth amendment rig ht to be fre e from unrea sonable sear ch and seizure fails to addre ss the trial court’s finding that the arr esting office r lacke d statutory au thority to use forc e to obtain a blood sample. We a ffirm the trial court’ s holding that police office rs lack the statuto ry au t h o ri ty to use forc e in taking samples of bodily fluids under section 11- 501.2(c) (2) of

the Vehic le Code.

¶ 25 2. Motion to Amend Sworn Report ¶ 26 An offic er’ s sworn re port may be amended at the hea

ringon the petition to rescind the statutory summary suspension. People v. Badoud
, 122 I ll. 2d 50 (1988). The State sug g ests that the standard of revie w is de novo since the matter involves a matter of statutory construction and there is no is sue of witness cre dibilit y

. See Village of Mundele in v. Thompson
, 341 I ll. App. 3d 842 (2003). The defe ndant sug g ests that the standard of revie w is abuse o f d i s cretion since the court has the discretion to allow a motion to amend a pleading

. See People v. W yzgowski
, 323 I ll. App. 3d 604, 605-06 (2001). In a proce eding to

resc ind a statutory summary suspension, the o fficer’s sworn repor t serve s a function analog ous to a complaint in a civil p ro ce ed i n g

. Badoud
, 122 I ll. 2d at 54. As such, the office r’s sw o r

n r ep o rt play s a unique role in a statutory summary suspension hearing beca use, like a complaint in a civil case , it is the jurisdictional step that starts the proce eding

. People v. Palacios
, 226 I ll. App. 3d 341 (1994). Given the fa ct that the sworn r eport stands a s the complaint, we will r eview the trial court’s denial of the State’s motion to amend the sworn

-7-repor t for an abuse of discretion. An abuse of discretion occur s wher e no rea sonable person would agree with the position adopted by the trial court. Schwartz v

. Cortelloni
, 177 I ll. 2d 166, 176 (1997). Thus, a trial court cannot be said to have abused its discretion if rea sonable
persons could differ as to its decision. In re Adoption of D.
, 317 I ll. App. 3d 155, 160 (2000). ¶ 27 In order to deter mine whether the trial court has abused its discretio n i n d en y i n g an

am ended complaint, courts g ener ally look to four fac tors: (1) whether the pro p o s ed amendment would c ure the defe ctive plea ding; ( 2) whe ther the othe r parties would sustain prejudice or surprise by virtue of th e p ro posed amendment; (3) whether the proposed amendment is timely ; and (4) whether previous opportunities to amend the complaint could be identified. Loyola Acade my v. S& S RoofMaintenance

, Inc.
, 146 I ll. 2d 263, 273 (1992). ¶ 28 Her e, the tria l court denie d the motion to amend the offic er’ s sworn report bec ause the “propose d amendme n t completely chang es the predic ate for the suspension as well as the duration of the suspension.” Whil e the court did not articulate its ruling in terms of prejudice and surprise, it would not be unrea sonable to agree with the position adopted by the trial
court. To have all o we d the office r’s sworn repor t to be amende d cer

tainly would have prejudice d the defe ndant and likely introduced an element of surprise

. Ad d i t i onally
, the timing of the motion to amend could be called into question, as well as whether there wer e previous opportunities to amend the sworn repor t. G iven the rec ord, we cannot say that the trial court a

bused its discretion in denying the motion to amend the office r’s swor n repor t.

¶ 29 3. Statutory Summary

Suspension ¶ 30 The S tate lastl y maintains that the t rial court err ed in g ranting t h e d ef en d ant’s petiti on to resc ind her statutory summary suspension. The State sug g ests that the standard of revie w is de novo

. Village of Mundelein , 341 I ll. App. 3d at 848. Her e, g iven the fa ct t hat t he trial
court proper ly suppressed the results o f the blood alcohol test, and g iven the fac t that the

sworn office r’s repor

t did not indicate that the defe ndant ref used a reque st for testing, we find that the trial court was corr ect in g ranting the petition to resc ind the statutory summary suspension.

¶ 31 CONCLUSI ON ¶ 32 For the fore g oing rea sons, the judgme nt of th e ci rc u i t co u rt of Kankakee County is aff irmed.

¶ 33 Affir

med.

¶ 34 J USTI CE WR I GHT, c oncurr ing in pa rt and dissentingin part: ¶ 35 The police office r cited defe ndant for driving under the influence of alcohol pursuant to section 11-501(a)(2)

. The trial court g rante d defe ndant’s petition to resc ind t h e s tatutory summary suspension and motion in limine

. This ruling on the motion in limine preve nted the State from introducing the blood test results on g rounds that po l i ce obtained the blood sample by forc e, contrary to our supre me cour t’s rulingin People v

. Jones
, 214 I ll. 2d 187

-8-(2005).

¶ 36 I agree Jones establishes that forc e cannot be used to compel the collection of a blood te st afte r the driver ref

uses to consent to the test when the DUI violation does not involve a death

or serious injury to another person. There fore
, I concur with the majori ty ’s decision aff irming the trial court’s decision to exclude the blood test results beca use the fac ts of this DUI violation fell under the provisions of section 11-501.2(c )(1)
, simil ar to the fac ts considere d by our supre me cour

t in Jones (

Jones , 214 I ll. 2d 187). ¶ 37 Jones did not involve an acc ident with inj u ri es t o an o t her person. Thus, our supre me court has not been called upon to s p ec i fi ca lly resolve whether a law enfor ceme nt office r could use some rea sonable amount of ph y s i ca l forc e when compelling the collection of a require d blood sample under sect io n 1 1

- 5 0 1

. 2 ( c ) ( 2 )

. 6 2 5 IL CS 5 /1 1

- 5 0 1 .2(c) (2) (West 2008). There fore
, I dissent from that portion of the majority ’s decision interpre ting Jones to forbid the use of forc e in all situations, including those circ umstances wher e section 11-501.2(c )(2) applies. I fee l it is premature for the majority to interpre t Jones
, in this appea l, to clea rly hold that forc e may never be used to obtain a nonconsensua l blood draw under any circ umstances, including those involving the serious injury or death of another pursuant to section 11- 501.2(c) (2). ¶ 38 In fac t, J ustice Ki l b ri d e distanced himself from the majority ’s rea soning in Jones by observing that the statutory languag e of section 11 -501.2(c)(2) would be meaning less if a police off icer could not “compe l” nonconse nsual testing of a DUI defe ndant who killed or

cause d serious injury to another

. Jones
, 214 I ll. 2d at 202-06 (Kilbri de, J
., dissenting)

. I consider Justice Kilbride’s view s to be persua sive. ¶ 39 In some situations, not prese nted by either the fac ts of Jones or the fa cts in the case at bar, authorities s h o u l d b e allowed to compel the collection of a blood sample when the suspected DUI driver cause s death or serious har

m to another, re fuses to conse nt, a nd then phy sically resists all rea sonable eff orts to compe l th e collection of a blood sample. Obviously
, the degree of for ce u s ed by the authorities to compel compliance should not exceed the amount of compulsion rea sonably nece ssary to counter act the level of resistanc e exerted by a combative driver who has been involved in the death of or great bodily harm to another

. ¶ 40 Additionally
, I dissent from the majority ’s holding to af fi rm t h e trial court’s de cision denying the State’s m otion to amend the offic er’ s sworn report. An off icer ’s sworn r eport, in a statutory summary suspension hearing, is analog ous to a complaint or pleading in a civil
proce eding and the rules of civil procedure apply

. People v. Badoud
, 122 I ll. 2d 50, 54 (1988); 626 I L CS 5/2-118.1(b) (West 2008). Section 2-616(c ) of the Code of Civil Procedur e provides a pleading may be amende d “at any time, befor e or afte r judgme nt, to confor m the pleading s to the proo fs

. ” 735 I L CS 5/2-616(c) (West 2008). In People v. Pollitt
, the court

rec og nized that amendments t o defe cts in an officer ’s s worn report gene rally occur befor e

or at the suspension hearing, but held that sworn repor ts may be amende d to confor m to the proofs after judgment as well. People v. Pollitt , 2011 I LApp (2d) 091247,¶ 19; Mandel v. Hernande z , 404 I ll. App. 3d 701, 707 (2010). ¶ 41 According ly
, I believe that the trial court’s denial of the State’s motion t o am en d t h e

-9-office r’s sworn repor t afte r judgme nt, to include that defe ndant ref used to submit to chemica l testing, constituted an abuse of discretion. Ba sed on that ref usal, I conclude that the trial court

er red by g ranting defe ndant’s petition to resc ind the statutory summary suspension i n t h i s

case

. ¶ 42 For

these re asons, I

respe ctfully

concur in part and dissent in par t.

-10-