## 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 . Crossley , 2011 IL App (1st) 091893

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appellant, v. MARTHA CROSS L EY, De fenda nt-Appellee

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District & N o. First District, Third Division Docke t No. 1-09-1893

Filed Dec ember 7, 2011

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

. ) In the prosec ution of defe ndant for DUI , the appellate court dismiss ed the State’s appea l from the trial court’s denial of the S t ate’ s petition for an order cer tifying the keepe r of th e re cords of the hospital wher e defe ndant’s blood was dra wn as a materia l witness for the purpose of establishing that a trained phlebotomist drew defe ndant’s blood under the supervision of a licensed phy sician and th at a state trooper took the

co rr ect sample into custody for transporta tion to the State Police l ab , since the order did not preve nt the State from prese nting any evidenc e at trial and the State could call the phlebotomist and the tro o p er t o testify about the information included in the medical rec ords, there by satisfying the foundation require ments for a dmitti ngthe blood-alc ohol test results into evidence

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Dec ision Under Review Appea l from the Circui t C o urt of Cook County , Nos. 35271851, M9229879; the Hon. Patrice B all-Reed, Judge , presiding

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J udg ment Appea l dismi ssed.Counsel on

Appea l Anita M. Alvare z, S tate’s Attorne y , of Chicag o (Alan J. Spellberg , Susan Schierl Sullivan, and Ver onica Calde ron Malavia , Assistant State’s Attorney s, of counse l), for the People.

Abishi Cunningham, Jr., Publ ic Def ender , of Chicag o (Michelle Hendrickson, Assistant Publi c De fende r, of c ounsel), for appellee

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Panel J USTI CE NEVI L L E delivere d the judg ment of the c ourt, with opinion. Pre s iding Justice Steele and J ustice Salone concur red in the judgme nt and opinion.

OP INION

¶ 1 Martha Crossley suffe red injuries in a car acc ident in I llinois on August 17, 2008. A state trooper f ound her at the scene of the a ccide nt and arr ang ed transporta tion to take he r to St. Marg are t Merc y Hospital in Hammond, Indiana. Prosecutors charg ed Crossley with driving under the influence of alc ohol and driving with a blood-alcohol conce ntration in excess of 0.08. See 625 I L CS 5/ 11-501(a)(2) , (a) (1) ( West 2008). ¶ 2 The State alleg ed that a phlebotomist at St. Marg are t Merc y drew Crossley ’s blood a fter the acc ident and g ave the blood sample to an I llinois state trooper for analy sis in an I llinois police l ab

. T h e S t at e claimed that the lab test showed a blood-alcohol level of 0.128. The State petitioned the court for an order cer tifying the keepe r of rec ords at St. Marg are t Merc y
as a materia l witness for the prosec ution of Crossley

. The State explained that it sought the medical rec ords as a nece ssary step in proving that a tr ai n ed p h l ebotomist drew the blood under the supervision of a li ce n s ed p hy sician and the state trooper took the corr ect blood sample into custody

for tra nsportation to the I llinois State Police lab. ¶ 3 The trial court denied the petition to cer tify the keepe r of rec ords as a materia l witness. The State now a

ppeals.

¶ 4 ANALYSI S ¶ 5 The State asser ts that Supreme Court Rule 604(a) (I ll. S. Ct. R. 604(a) (ef f. J uly 1, 2006)) g ives this court jurisdiction to consider the appea l. The rule permits this court to consider the State’s appe al i n a criminal case f rom an orde r suppre ssing e vidence

. In re K.E.F. , 235 I ll. 2d 530, 537 (2009). Crossley argues that we lack jurisdiction to consider this appea l beca use the trial court’s order does not suppress any evidenc e. We revie w d e n o vo t h e issue of whether this court has jurisdiction to hear the State’s appe al. K.E.F. , 235 I ll. 2d at 538. ¶ 6 An order suppresses evidenc e “within the meaning of Rule 604(a) (1) when t h e t ri al

-2-court’s order ‘pre vents [the] infor mation f rom being prese nted to the fac t finder.’ ” K.E.F. , 235 I ll. 2d at 538 (quoting People v. Drum , 194 I ll. 2d 485, 492 (2000))

. An order that only aff ects the means by which the State may prese nt information does not suppress evidence,

s o this court lacks jurisdiction to consider appea ls from such order s. K.E.F. , 235 I ll. 2 d at 540. ¶ 7 In K.E.F. , the State soug ht to use K.M.F.’ s out-of-c ourt statements to prove that K.E.F

. committed offe nses ag ainst K.M.F. The t ri al court denied the motion to admit the out-ofcourt statements, holding that the State neede d to first question K.M.F. in court about the alleg ed occ urre nces. The trial court c larified that it would a dmit K.M.F.’s prior state ments into eviden ce afte r the State prese nted her live testimony

. The State invoked Rule 604 as authority p erm i t t i n g the revie wing court to hear the State’s appea l from the denial of its motion to use the out-of-c ourt statements. Our supreme court held that it lacke d jurisdiction to consider a simil ar appea l, beca use the trial court’s order only require d the State to prese nt live testimony

from K.M.F . The orde r did not eff ectively suppress information about what K.M.F. sa id K.E.F. did to her

. K.E.F. , 235 I ll. 2d at 540. ¶ 8 T h e K

. E

. F

. co u rt analogized the case to People v. Truit t , 175 I ll. 2d 148 (199 7 ), overruled in part on other grounds by People v. Miller , 202 I ll. 2d 328 (2002). In Truit t , the State so u gh t t o u se a lab repor t to prove that the materia l it rec overe d from the defe ndant contained a controlled substance. The trial court denied the motion, there by requiring the State to prese nt live testimony to prove the chemica l com p o s i t i on of the substance. Our supreme c ourt held: “The order will not preve nt any fac ts or opinions from being prese nted to the jury

. Fr om the rec ord befor e us, it appea rs that its sole impact will be on the manner in which those fac ts and opinions are prese nted. Instead o f b eing able to rely on a piece of paper , the State will have to prese nt testimony from an actua l witnes s. There is no way this can
rea sonably be viewed as a suppression.” Truit t , 175 I ll. 2d at 152 (quoted in K.E.F. , 235 I ll. 2d at 539). ¶ 9 Her e, the State admits that it can call the phlebotomist and the state trooper as witnesses to testify about most of the rele vant information included in the medical rec ords. The State asks us to distinguish this case from K.E.F. and Truit t beca use the State here does not know the name of the phy sician who supervised the phlebotomist, and medical privac y rules may preve nt the phlebotomist from naming the phy sician. Howeve r, we see no law that require s the State to name the supervising phy sician, as long as the State can prese nt admissible evidenc e that a phy sician supervised the phlebotomist. The State has not stated grounds for

us to co n cl u d e t hat the phlebotomist could not prese nt the requisite testimony

. The State

conce des that we should dismiss the appea l if the phlebotomist and the state trooper, along with personne l from the I llinois State Police lab, can prese nt sufficie nt testimony to meet the foundation re quirements for admitting the blood-a lcohol test results into evidence

. ¶ 10 We agree with Crossley that tes t i m o ny from those witnesses could suffice to meet the foundation require ments for the evidenc e the State seeks to admit. Be cause the court’s order does not preve nt the State from pre sentingany evidenc e at tria l, we dismiss the appea l. ¶ 11 Finally , the State argues that our order dismiss ing the appea l should estop Crossley from

-3-objecting to the bl ood-alc ohol t est results on grounds that the supervising phy sician failed

to testify to his cre dentials. We note that Crossley asser ted 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 rec ords. We also n o t e t h at C rossley ’s argument persua ded this court to gra n t Crossley the relief she sought, the dismiss al of this appea l. The trial court sho u l d consider the estoppel eff

ect of our decision if Crossley objects to t he admissibili ty of the blood test on gr ounds inconsistent with the positi on she took in this appeal.

¶ 12 Appea l dismi ssed.

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