ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Crossley, 2011 IL App (1st) 091893

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.

MARTHA CROSSLEY, Defendant-Appellee.

 District & No. First District, Third Division

Docket No. 1-09-1893

Filed December 7, 2011

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

In the prosecution of defendant for DUI, the appellate court dismissed the

State’s appeal from the trial court’s denial of the State’s petition for an

order certifying the keeper of the records of the hospital where

defendant’s blood was drawn as a material witness for the purpose of

establishing that a trained phlebotomist drewdefendant’s blood under the

supervision of a licensed physician and that a state trooper took the

correct sample into custody for transportation to the State Police lab,

since the order did not prevent the State from presenting any evidence at

trial and the State could call the phlebotomist and the trooper to testify

about the information included in the medical records, thereby satisfying

the foundation requirements for admitting the blood-alcohol test results

into evidence.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, Nos. 35271851,

M9229879; the Hon. Patrice Ball-Reed, Judge, presiding.

Judgment Appeal dismissed.
Counsel on

Appeal

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,

Susan Schierl Sullivan, and Veronica Calderon Malavia, Assistant

State’s Attorneys, of counsel), for the People.

Abishi Cunningham, Jr., Public Defender, of Chicago (Michelle

Hendrickson, Assistant Public Defender, of counsel), for appellee.

Panel JUSTICE NEVILLE delivered the judgment of the court, with opinion.

Presiding Justice Steele and Justice Salone concurred in the judgment and

opinion.

OPINION

¶ 1 Martha Crossley suffered injuries in a car accident in Illinois on August 17, 2008. A state

trooper found her at the scene of the accident and arranged transportation to take her to St.

Margaret Mercy Hospital in Hammond, Indiana. Prosecutors charged Crossley with driving

under the influence of alcohol and driving with a blood-alcohol concentration in excess of

0.08. See 625 ILCS 5/11-501(a)(2), (a)(1) (West 2008).

¶ 2 The State alleged that a phlebotomist at St. Margaret Mercy drew Crossley’s blood after

the accident and gave the blood sample to an Illinois state trooper for analysis in an Illinois

police lab. The State claimed that the lab test showed a blood-alcohol level of 0.128. The

State petitioned the court for an order certifying the keeper of records at St. Margaret Mercy

as a material witness for the prosecution of Crossley. The State explained that it sought the

medical records as a necessary step in proving that a trained phlebotomist drew the blood

under the supervision of a licensed physician and the state trooper took the correct blood

sample into custody for transportation to the Illinois State Police lab.

¶ 3 The trial court denied the petition to certify the keeper of records as a material witness.

The State now appeals.

¶ 4 ANALYSIS

¶ 5 The State asserts that Supreme Court Rule 604(a)(Ill. S. Ct. R. 604(a)(eff. July 1, 2006))

gives this court jurisdiction to consider the appeal. The rule permits this court to consider the

State’s appeal in a criminal case from an order suppressing evidence. In re K.E.F., 235 Ill.

2d 530, 537 (2009). Crossley argues that we lack jurisdiction to consider this appeal because

the trial court’s order does not suppress any evidence. We review de novo the issue of

whether this court has jurisdiction to hear the State’s appeal. K.E.F., 235 Ill. 2d at 538.

¶ 6 An order suppresses evidence “within the meaning of Rule 604(a)(1) when the trial

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court’s order ‘prevents [the] information from being presented to the fact finder.’ ” K.E.F.,

235 Ill. 2d at 538 (quoting People v. Drum, 194 Ill. 2d 485, 492 (2000)). An order that only

affects the means by which the State may present information does not suppress evidence,

so this court lacks jurisdiction to consider appeals from such orders. K.E.F., 235 Ill. 2d at

540.

¶ 7 In K.E.F., the State sought to use K.M.F.’s out-of-court statements to prove that K.E.F.

committed offenses against K.M.F. The trial court denied the motion to admit the out-ofcourt statements, holding that the State needed to first question K.M.F. in court about the

alleged occurrences. The trial court clarified that it would admit K.M.F.’s prior statements

into evidence after the State presented her live testimony. The State invoked Rule 604 as

authority permitting the reviewing court to hear the State’s appeal from the denial of its

motion to use the out-of-court statements. Our supreme court held that it lacked jurisdiction

to consider a similar appeal, because the trial court’s order only required the State to present

live testimony from K.M.F. The order did not effectively suppress information about what

K.M.F. said K.E.F. did to her. K.E.F., 235 Ill. 2d at 540.

¶ 8 The K.E.F. court analogized the case to People v. Truitt, 175 Ill. 2d 148 (1997),

overruled in part on other grounds by People v. Miller, 202 Ill. 2d 328 (2002). In Truitt, the

State sought to use a lab report to prove that the material it recovered from the defendant

contained a controlled substance. The trial court denied the motion, thereby requiring the

State to present live testimony to prove the chemical composition of the substance. Our

supreme court held:

“The order will not prevent any facts or opinions from being presented to the jury. From

the record before us, it appears that its sole impact will be on the manner in which those

facts and opinions are presented. Instead of being able to rely on a piece of paper, the

State will have to present testimony from an actual witness. There is no way this can

reasonably be viewed as a suppression.” Truitt, 175 Ill. 2d at 152 (quoted in K.E.F., 235

Ill. 2d at 539).

¶ 9 Here, the State admits that it can call the phlebotomist and the state trooper as witnesses

to testify about most of the relevant information included in the medical records. The State

asks us to distinguish this case from K.E.F. and Truitt because the State here does not know

the name of the physician who supervised the phlebotomist, and medical privacy rules may

prevent the phlebotomist from naming the physician. However, we see no law that requires

the State to name the supervising physician, as long as the State can present admissible

evidence that a physician supervised the phlebotomist. The State has not stated grounds for

us to conclude that the phlebotomist could not present the requisite testimony. The State

concedes that we should dismiss the appeal if the phlebotomist and the state trooper, along

with personnel from the Illinois State Police lab, can present sufficient testimony to meet the

foundation requirements for admitting the blood-alcohol test results into evidence.

¶ 10 We agree with Crossley that testimony from those witnesses could suffice to meet the

foundation requirements for the evidence the State seeks to admit. Because the court’s order

does not prevent the State from presenting any evidence at trial, we dismiss the appeal.

¶ 11 Finally, the State argues that our order dismissing the appeal should estop Crossley from

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objecting to the blood-alcohol test results on grounds that the supervising physician failed

to testify to his credentials. We note that Crossley asserted the position in this appeal that the

phlebotomist and the state trooper could testify to all the information the State sought to use

from the medical records. We also note that Crossley’s argument persuaded this court to

grant Crossley the relief she sought, the dismissal of this appeal. The trial court should

consider the estoppel effect of our decision if Crossley objects to the admissibility of the

blood test on grounds inconsistent with the position she took in this appeal.

¶ 12 Appeal dismissed.

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