Illinois Official Reports
Supreme Court
McElwain v. Office of the Illinois Secretary of State, 2015 IL 117170
Caption in Supreme KEVIN McELWAIN, Appellee, v. THE OFFICE OF THE ILLINOIS
Court: SECRETARY OF STATE, Appellant.
Docket No. 117170
Filed September 24, 2015
Decision Under Appeal from the Circuit Court of Cook County, the Hon. Peter Flynn,
Review Judge, presiding.
Judgment Affirmed.
Counsel on Lisa Madigan, Attorney General, of Springfield (Carolyn E. Shapiro,
Appeal Solicitor General, and Clifford W. Berlow, Assistant Attorney
General, of Chicago, of counsel), for appellant.
Steven M. Shebar, of Oak Park, for appellee.
Justices JUSTICE THOMAS delivered the judgment of the court, with
opinion.
Chief Justice Garman and Justices Freeman, Kilbride, Karmeier,
Burke, and Theis concurred in the judgment and opinion.
OPINION
¶1 This is a direct appeal from a circuit court order finding section 11-501.6 of the Illinois
Vehicle Code (625 ILCS 5/11-501.6 (West 2012)) unconstitutional as applied to this plaintiff.
This section provides that a driver who is arrested for a traffic violation related to a fatality or
other serious personal injury automatically consents to having his or her blood, breath or urine
tested for the presence of alcohol or drugs. Refusal to submit to the testing results in an
automatic suspension of the person’s driver’s license. Here, the circuit court of Cook County
found the statute unconstitutional as applied because the police requested the test almost 48
hours after the accident. For the reasons that follow, we affirm.
¶2 On May 20, 2012, plaintiff, Kevin McElwain, was involved in a traffic accident. At the
time, plaintiff was stopped at an intersection in the left turn lane of northbound Kirk Road in
the city of Geneva, Illinois. Plaintiff began to make a U-turn when a motorcycle traveling
southbound on Kirk Road came through the intersection and collided with the side of
plaintiff’s vehicle. Both the driver and passenger of the motorcycle received substantial
injuries, and the passenger died as a result of the injuries she sustained. On the date of the
accident, plaintiff was neither issued any tickets nor asked to take any chemical tests.
¶3 During their investigation of the accident, the police discovered in plaintiff’s vehicle
rolling papers and a small plastic bag containing a residue that appeared to be cannabis.
However, two police officers who were present at the scene of the accident did not think that
plaintiff appeared to be under the influence of cannabis.
¶4 Two days later, on May 22, plaintiff was asked to present himself at the Geneva police
station. He was questioned numerous times about his use of marijuana. Plaintiff admitted that
he had smoked marijuana two weeks prior to the accident. The police issued plaintiff a ticket
for failing to yield when turning left and also requested that he take a chemical test. The police
read the appropriate statutory warnings to plaintiff (see 625 ILCS 5/11-501.6(c) (West 2012)),
and plaintiff refused to take the test. The Secretary of State then suspended plaintiff’s driver’s
license for three years.
¶5 Plaintiff petitioned the Secretary to rescind the suspension on the basis that the police had
waited too long to request the chemical test. Following a hearing, an Administrative Law
Judge (ALJ) upheld the suspension. The ALJ reasoned as follows:
“[T]he sum and substance of the Petitioner’s argument seems to be that the officers
violated his Due Process rights by waiting too long to conduct their investigation into
his liability for the collision and his use of marijuana prior to the accident. This
presupposes that the officers must demonstrate probable cause to issue the ticket and
probable cause of intoxication prior to the collision. However, the statute does not
require either to be shown by the state prior to issuance of the Sworn Report. All that is
required is that a Uniform Traffic Ticket be issued to the Petitioner, the Petitioner be
read the appropriate traffic accident warnings to motorist and the Petitioner refuse to
take a chemical test. In this case, all three requirements of the statute were clearly met.”
The Secretary subsequently adopted the ALJ’s findings of fact and conclusions of law and
entered a final administrative order denying plaintiff’s request for rescission of the suspension.
¶6 Plaintiff filed an action for administrative review. In his complaint, plaintiff contended that
his due process and fourth amendment rights were violated when the police sought chemical
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testing two days after the accident. Plaintiff argued that section 11-501.6 was applied to him in
an unconstitutional manner.
¶7 The circuit court agreed with plaintiff and held section 11-501.6 unconstitutional as
applied. The court relied primarily on Fink v. Ryan, 174 Ill. 2d 302 (1996), in which this court
upheld section 11-501.6 against a facial constitutional challenge. The circuit court in Fink held
that section 11-501.6 authorized searches that violated the fourth amendment and that the
statute could not be justified by the “special needs” exception to the fourth amendment.1 This
court reversed and held that the statute authorized searches that fell within the “special needs”
exception to the fourth amendment. Central to this court’s analysis was its belief that drivers
have a diminished expectation of privacy shortly after their involvement in serious traffic
accidents. Id. at 310-11.
¶8 Here, the circuit court noted that the very circumstances that led the Fink court to uphold
the statute were absent in plaintiff’s case. In this case, the police sought the testing two days
after the accident, when plaintiff no longer had a diminished expectation of privacy. The
circuit court also found that the police were attempting to use the statute as an “unjustified
detour around a proper search.” The court explained that the special needs exception to the
fourth amendment underlies the validity of a section 11-501.6 search. Here, however, the
police had ample time to obtain a warrant. The drug paraphernalia was found in plaintiff’s car
on May 20, but the plaintiff was not called into the police station until May 22. The court found
that two days was ample time for the police to obtain a warrant. Finally, the court noted that
section 11-401(b-1) (625 ILCS 5/11-401(b-1) (West 2012)), which allows chemical testing of
a driver who is arrested after fleeing the scene of an accident, requires that the testing be done
within 12 hours of the accident. The court found the special needs exception underlies both
section 11-401(b-1) and section 11-501.6, and that it would be illogical to hold that a person
who flees the scene is subject to chemical testing for only 12 hours, but that a person who stays
at the scene and cooperates with the police is subject to testing for an indefinite amount of time.
Thus, the court held that section 11-501.6 was unconstitutional as applied to plaintiff.
¶9 We allowed the Secretary’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1, 2013).
¶ 10 ANALYSIS
¶ 11 Decisions of the Secretary of State suspending, revoking, cancelling, or disqualifying any
license or permit are subject to the Administrative Review Law. See 625 ILCS 5/11-501.8(h)
(West 2014). In an administrative review case, the agency’s factual findings are deemed
prima facie true and correct, and they will not be disturbed on review unless they are against
the manifest weight of the evidence. Gumma v. White, 216 Ill. 2d 23, 36 (2005). Pure questions
of law, however, are reviewed de novo. Provena Covenant Medical Center v. Department of
Revenue, 236 Ill. 2d 368, 387 (2010). This case involves a pure question of law requiring
de novo review for two reasons. First, it raises a question of statutory construction, and issues
of statutory construction are reviewed de novo. People ex rel. Madigan v. J.T. Einoder, Inc.,
Under the “special needs” exception to the fourth amendment, neither a warrant nor probable
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cause are required when “ ‘special needs, beyond the normal need for law enforcement, make the
warrant and probable-cause requirement impracticable.’ ” Griffin v. Wisconsin, 483 U.S. 868, 873
(1987) (quoting New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring in the
judgment)).
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2015 IL 117193, ¶ 27. Second, this case arises from a circuit court order declaring a statute
unconstitutional as applied, and our review of a statute’s constitutionality is de novo. People v.
Richardson, 2015 IL 118255, ¶ 8.
¶ 12 Before explaining why we agree with the circuit court that section 11-501.6 was applied to
plaintiff in an unconstitutional manner, we briefly address plaintiff’s contention that this court
can simply read a time limit into the statute. This court has explained that it will not reach a
constitutional question where the case can be resolved on other grounds. People v. White, 2011
IL 109689, ¶ 144. Noting this court’s duty to “construe a statute so as to affirm the statute’s
constitutionality and validity, if reasonably possible” (People v. Shephard, 152 Ill. 2d 489, 499
(1992)), plaintiff argues that this court should read a time limit into the statute. Here, however,
we do not believe that it is “reasonably possible” to do so. This court has explained that the
primary rule of statutory construction is to ascertain and give effect to the legislature’s intent,
and that the best indicator of legislative intent is the statutory language. People v. O’Connell,
227 Ill. 2d 31, 36 (2007). Moreover, we may not depart from plain statutory language by
reading into the statute exceptions, limitations, or conditions not expressed by the legislature.
People v. Lewis, 223 Ill. 2d 393, 402 (2006).
¶ 13 There is no question that the plain language of the statute contains no language limiting the
time in which the chemical testing must be performed. Moreover, we have clear, unequivocal
evidence that the legislature did not intend for there to be a time limit in section 11-501.6. First,
when the legislature intends for there to be such a limitation, it says so expressly. As the trial
court noted, section 11-401(b-1) of the Vehicle Code, which mandates chemical testing for
those who flee the scene of an accident involving serious bodily injury or death, expressly
provides for a time limit:
“(b-1) Any person arrested for violating this Section is subject to chemical testing
of his or her blood, breath, or urine for the presence of alcohol, other drug or drugs,
intoxicating compound or compounds, or any combination thereof, as provided in
Section 11-501.1, if the testing occurs within 12 hours of the time of the occurrence of
the accident that led to his or her arrest.” (Emphasis added.) 625 ILCS 5/11-401(b-1)
(West 2012).
Thus, when the legislature intends for the chemical testing to be performed in a specific time
period, it provides the time limit expressly. Second, the General Assembly has twice recently
considered legislation that would have added a one-hour time limit to section 11-501.6, but the
proposed legislation failed each time. See 98th Ill. Gen. Assem., House Bill 2895, 2013 Sess.;
97th Ill. Gen. Assem., House Bill 3876, 2011 Sess. It seems beyond dispute that the legislature
does not intend for there to be a time limit in section 11-501.6. Therefore, we may not
reasonably construe the statute as containing a time limit.
¶ 14 We next consider whether the trial court correctly found that the statute was applied to
plaintiff in an unconstitutional manner. Statutes are presumed constitutional and the party
challenging a statute’s validity bears the burden of demonstrating a clear constitutional
violation. In re Derrico G., 2014 IL 114463, ¶ 54. We will uphold the constitutionality of a
statute whenever reasonably possible. People v. Mosley, 2015 IL 115872, ¶ 40.
¶ 15 In order to explain why we agree with the trial court’s determination, we must briefly
review this court’s previous decisions considering the constitutionality of section 11-501.6. In
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King v. Ryan, 153 Ill. 2d 449 (1992), this court held that a previous version of section 11-501.6
was facially unconstitutional. At the time, the statute provided, in relevant part:
“(a) Any person who drives or is in actual control of a motor vehicle upon the
public highways of this State shall be deemed to have given consent to a breath test
using a portable device as approved by the Department of Public Health or to a
chemical test or tests of blood, breath, or urine for the purpose of determining the
alcohol or other drug content of such person’s blood if there is probable cause to
believe that such person was the driver at fault, in whole or in part, for a motor vehicle
accident which resulted in the death or personal injury of any person.” Ill. Rev. Stat.
1989, ch. 95½, ¶ 11-501.6(a).
¶ 16 The statute defined personal injury as “any injury that requires immediate professional
attention in either a doctor’s office or a medical facility.” Ill. Rev. Stat. 1989, ch. 95½,
¶ 11-501.6(g). Moreover, the statute expressly provided that the results of a chemical test
performed pursuant to this section could be used as evidence in civil and criminal proceedings.
Ill. Rev. Stat. 1989, ch. 95½, ¶ 11-501.6(e).
¶ 17 The plaintiff in that case collided with another car, and the driver of that car and the two
passengers in the plaintiff’s car were injured. King, 153 Ill. 2d at 451.When the police arrived,
they detected a strong odor of alcohol on the plaintiff’s breath. The police determined that
there was probable cause to believe that the plaintiff was at least partly at fault for the accident,
so they asked him to accompany them to the police station. At the station, the plaintiff passed a
field sobriety test. However, he refused to submit to a breath test. Id. at 452. The Secretary of
State then suspended the plaintiff’s driver’s license. Id.; see Ill. Rev. Stat. 1989, ch. 95½,
¶ 6-206(a)(31).
¶ 18 The plaintiff petitioned for a rescission of the suspension. Following an administrative
hearing, the hearing officer recommended denying the request for rescission. The Secretary
adopted the hearing officer’s findings of fact and entered an order denying rescission. King,
153 Ill. 2d at 453. On administrative review, the circuit court declared the statute
unconstitutional on its face because it authorized unreasonable searches and seizures. The
court further enjoined the Secretary from enforcing the statute’s summary suspension
provisions against any driver in the state. Id. On direct review, this court affirmed the circuit
court’s order.
¶ 19 This court explained that whether a search is reasonable under the fourth amendment
“depends on the facts and circumstances giving rise to the search as well as the nature of the
search itself” (id. at 457) and that this determination is made by “ ‘balancing [the search’s]
intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate
governmental interests’ ” (id. (quoting Delaware v. Prouse, 440 U.S. 648, 654 (1979))). In a
criminal investigation, that balance will typically require a warrant based upon probable cause.
Id. However, neither a warrant nor probable cause is required in those limited circumstances
where “ ‘ “special needs, beyond the normal need for law enforcement, make the warrant and
probable-cause requirement impracticable.” ’ ” Id. (quoting Griffin, 483 U.S. at 873, quoting
T.L.O., 469 U.S. at 351 (Blackmun, J., concurring in the judgment)). The court further
explained that, at a minimum, some quantum of individualized suspicion is generally required.
However, in limited circumstances, “ ‘where the privacy interests implicated by the search are
minimal, and where an important governmental interest furthered by the intrusion would be
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placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable
despite the absence of such suspicion.’ ” Id. at 458 (quoting Skinner v. Railway Labor
Executives’ Ass’n, 489 U.S. 602, 624 (1989)).
¶ 20 This court rejected the Secretary’s argument that section 11-501.6 fell within the special
needs exception to the fourth amendment. This court explained that in those cases where a
search or seizure had been deemed reasonable without some level of individualized suspicion,
either the intrusion was minor or the searched person had a diminished expectation of privacy.
Id. This court held that the subjective intrusion of a section 11-501.6 search is significant. Id. at
463. Moreover, this court held that a driver does not have a diminished expectation of privacy
simply by virtue of his status as a driver. Id. at 460. On this basis, this court distinguished
Skinner, 489 U.S. 602, in which the United States Supreme Court upheld the constitutionality
of a Federal Railroad Administration regulation that required railroad employees to submit to
chemical testing of their blood, breath, and urine when they have been involved in a major train
accident. In upholding that regulation, the Supreme Court noted that railroad employees have a
diminished expectation of privacy based on their “participation in an industry that is regulated
pervasively to ensure safety.” Id. at 627. King also distinguished Skinner on the basis that there
was no dispute that the regulation at issue in Skinner was implemented solely to prevent
railroad accidents and not to aid in the criminal prosecution of employees. King, 153 Ill. 2d at
459. By contrast, section 11-501.6 had as one of its stated purposes the collection of evidence
for use in criminal proceedings. Id. at 460.
¶ 21 The court acknowledged that the State of Illinois has a compelling interest in protecting its
citizens from the hazards posed by intoxicated drivers, and that the summary suspension
provisions of the Vehicle Code helped deter people from driving drunk. The court explained
that, “[t]o the extent that section 11-501.6 accomplishes these goals without relying on
criminal sanctions, it serves the State’s interests beyond the need for normal law enforcement.”
Id. at 461. However, the court then held that, because section 11-501.6 is also designed to
gather evidence for use in criminal proceedings, it did not fall within the special needs
exception. This court further explained that, although the United States Supreme Court had on
occasion upheld searches under the special needs exception even where the evidence was used
in a criminal trial, the evidence in those cases was found incidentally during a search that was
constitutionally valid under the special needs exception. See Griffin, 483 U.S. 868; New York
v. Burger, 482 U.S. 691 (1987); T.L.O., 469 U.S. 325. By contrast, one of the stated purposes
of section 11-501.6 was to gather evidence for criminal prosecutions, and thus it did not “fall
within the category of special governmental needs outside the normal need for law
enforcement.” King, 153 Ill. 2d at 462. Accordingly, this court upheld the trial court’s
determination that section 11-501.6 was facially unconstitutional under the fourth amendment.
The suspension of the plaintiff’s driver’s license based upon his refusal to consent to the search
was thus invalid, as the statute that authorized the search was unconstitutional. Id. at 465.
¶ 22 The legislature subsequently made several amendments to section 11-501.6, and this court
again considered the facial constitutionality of the statute in Fink v. Ryan, 174 Ill. 2d 302
(1996). In Fink, the plaintiff drove into a telephone pole, and he and his passenger were both
injured. They were transported from the scene of the accident to the hospital. At the hospital,
the police issued the plaintiff a traffic ticket, asked him to consent to a blood test, and warned
that his driver’s license would be suspended if he refused. Plaintiff consented, and his
blood-alcohol content was determined to be 0.14. Id. at 306. The plaintiff was charged with
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driving under the influence, and the State sent the plaintiff notice that his driver’s license
would be suspended for three months. The plaintiff filed a declaratory judgment action, asking
the circuit court to declare section 11-501.6 facially unconstitutional under the fourth
amendment. The circuit court granted the declaratory judgment, finding that the amended
statute was not substantively different from the one that this court invalidated in King. Id. at
307. The Secretary of State appealed directly to this court.
¶ 23 On direct review, this court reversed and held that the statute was constitutional. This court
determined that the legislature had made sufficient changes to the statute since King. This court
summarized the changes to the statute as follows:
“In response to this court’s holding in King, the legislature amended the statute by: (1)
deleting the requirement that chemical testing be premised upon a driver’s fault in
causing an accident; (2) deleting the provision that chemical test results could be used
in civil and criminal proceedings; (3) adding a requirement that chemical testing be
premised upon the issuance of a Uniform Traffic Ticket for a non-equipment traffic
offense; and (4) defining with more particularity the types of ‘personal injury’ that
trigger the chemical testing provision.” Id. at 309.
This court determined that these changes were sufficient to reduce the intrusiveness of section
11-501.6 chemical tests and to ensure that the testing would only be done in situations in which
drivers had a reduced expectation of privacy.
¶ 24 First, the court noted that, like the railroad industry in Skinner, the Illinois highways are
heavily regulated. Thus, while drivers clearly do not lose all expectation of privacy when
driving, it is somewhat less than what they enjoy in their homes. Id. at 310. More importantly,
however, this court believed that by changing the types of personal injuries that would trigger
chemical testing, the legislature had ensured that testing would be done only where drivers
clearly had a diminished expectation of privacy. Id. at 310-11. The version of section 11-501.6
at issue in King provided that a driver consented to a chemical test anytime he or she was at
fault in a traffic accident that resulted in personal injuries that require “immediate professional
attention in either a doctor’s office or a medical facility.” Ill. Rev. Stat. 1989, ch. 95½,
¶ 11-501.6(g). The legislature changed that to allow chemical testing when there was a “type A
injury,” which included “severely bleeding wounds, distorted extremities, and injuries that
require the injured party to be carried from the scene.” 625 ILCS 5/11-501.6(g) (West 1994).
¶ 25 This court explained that, by limiting testing only to those situations when there were more
serious injuries, the legislature had ensured that the testing would be done only where the
driver had a reduced expectation of privacy:
“Accidents involving a fatality still trigger the chemical testing provision.
However, personal injury requiring only a visit to a doctor’s office or a medical facility
no longer can be the basis for testing. Thus, the legislature’s more particularized
definition of type A injuries subjects a driver to chemical testing in only the more
serious accidents. No reasonable driver expects to leave the scene of a serious accident
moments after its occurrence. With law enforcement personnel investigating the
accident and other personnel attending to the participants’ physical conditions, a
driver expects less privacy.” (Emphasis added.) Fink, 174 Ill. 2d at 310-11.
The court further explained that an arrest, as evinced by a uniform traffic ticket, is required
before there can be chemical testing and that “the movement of an arrested driver is already
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subject to restrictions.” Id. at 311-12. Addressing the intrusiveness of the testing, this court
explained that:
“[A]ny driver subject to chemical testing under the amended statute has a statutory duty
to remain at the scene of the accident, render aid to injured parties, and exchange basic
information with those involved. See 625 ILCS 5/11–401, 11–403 (West 1994). Given
the amount of time required to attend to law enforcement and emergency medical
needs, the addition of a chemical test is minimally intrusive. Thus, by the very nature of
the circumstances in which drivers find themselves, the legislature has imposed testing
only when a driver’s expectation of privacy has been diminished and a test is minimally
intrusive.” (Emphases added.) Id. at 311.
Therefore, “[t]he intrusion upon an arrested driver is minimal or nonexistent depending upon
the length of time required by law enforcement personnel to process the accident scene and
emergency medical personnel to attend to the injured parties.” (Emphasis added.) Id. at 312.
¶ 26 The court thus concluded that the amended version of section 11-501.6 fell within the
“special needs” exception to the fourth amendment: “The State of Illinois has a special need
beyond the normal needs of law enforcement to determine whether drivers are chemically
impaired and to suspend those drivers’ licenses.” Id. And the court determined that the
legislature, in the amended statute, had now ensured that chemical testing would be done only
in situations in which the testing was minimally intrusive and the driver’s expectation of
privacy was lowered. Id.
¶ 27 Considering the above authority, it becomes abundantly clear why the statute was applied
to plaintiff in an unconstitutional manner. Central to this court’s holding in Fink was this
court’s assumption that the testing would be done shortly after the accident. And this
assumption was key to this court holding that the statute passed constitutional muster. Both
when discussing the intrusiveness of the search and a driver’s diminished expectation of
privacy, the court discussed the relevance of the driver being at the accident scene. The court
explained that the test was less intrusive than it might otherwise be because of the plaintiff’s
statutory duty to remain at the scene of the accident. Moreover, the court clearly explained that
a person subject to the test has a diminished expectation of privacy not only because of his
status as a driver, but because of his presence at the scene of a serious accident that is being
investigated by the police. These factors were simply not present in the case before us, where
the police sought a chemical test two days after the accident. The intrusiveness of the search
was no longer lessened for the reasons set forth in Fink, nor did plaintiff any longer have the
diminished expectation that a driver has in the aftermath of a serious traffic accident. The Fink
analysis simply does not make sense when applied to a request for a chemical test two days
after the accident. Further, the “special need” referenced in Fink was the need to suspend the
driver’s licenses of those who drive while chemically impaired. But a chemical test requested
two days after the accident, rather than shortly after the accident, is obviously much less
probative of the question whether the person was driving while impaired and carries the risk of
serious prejudice by possibly indicating impairment at a time other than at the time of the
accident. Fink compels a holding that the statute is unconstitutional as applied to plaintiff.
¶ 28 For the first time in this court, the Secretary argues that, despite King and Fink, this court
should be analyzing the constitutionality of the statute solely under an unconstitutional
conditions analysis. We note that it was the Secretary who began arguing these cases under the
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“special needs” exception to the fourth amendment. See King, 153 Ill. 2d at 459. Moreover, the
United States Supreme Court used the special needs analysis to assess the constitutionality of a
railroad regulation requiring employees to consent to chemical testing when they are involved
in major accidents. See Skinner, 489 U.S. at 620.
¶ 29 Regardless, however, even if we ignore Skinner, King, and Fink and analyze this case
solely under the unconstitutional conditions test, we would still find the statute
unconstitutional as applied to plaintiff. Under the doctrine of “unconstitutional conditions,” the
“government may not require a person to give up a constitutional right *** in exchange for a
discretionary benefit conferred by the government where the benefit sought has little or no
relationship” to the right. Dolan v. City of Tigard, 512 U.S. 374, 385 (1994). The Seventh
Circuit has explained that the meaning of the doctrine is simply that “conditions can lawfully
be imposed on the receipt of a benefit—conditions that may include the surrender of a
constitutional right, such as the right to be free from unreasonable searches and
seizures—provided the conditions are reasonable.” Burgess v. Lowery, 201 F.3d 942, 947 (7th
Cir. 2000). The Supreme Court has adopted a two-part test for evaluating unconstitutional
conditions questions: first, is there an essential nexus between the condition burdening rights
and a legitimate state interest and second, is there a “rough proportionality” between the
burden on the individual and the harm the government seeks to remedy through the condition.
Dolan, 512 U.S. at 386-91.
¶ 30 The Secretary contends that there is no question that the State can condition the receipt of a
driver’s license on a driver’s agreement to consent to a chemical test if he or she is involved in
a serious motor vehicle accident, as there is obviously an essential nexus between the State’s
interest in protecting the public from intoxicated drivers and requiring consent to a chemical
test following an arrest for a moving violation related to a serious accident. While it seems
beyond dispute that this is the case, the problem is that the essential nexus no longer exists
when the test is requested two days after the accident. In other words, while it is not difficult to
see the essential nexus between the State’s interest in protecting the public from intoxicated
drivers and requiring a driver’s consent to a chemical test when he is arrested for a moving
violation shortly after his involvement in a serious accident, there is clearly not such a nexus
between that legitimate state interest and a chemical test remote in time from the accident.
Thus, even assuming the statute is facially valid under the unconstitutional conditions test, the
statute was still applied to plaintiff in an unconstitutional manner.
¶ 31 In closing, we decline to draw a bright line as to how soon after the accident the testing
must be requested. This is a task best left to the legislature, while it would be this court’s job to
determine if the line drawn by the legislature is sufficient to pass constitutional muster.
¶ 32 CONCLUSION
¶ 33 For all of the above reasons, we affirm the circuit court’s decision finding section 11-501.6
unconstitutional as applied to plaintiff.
¶ 34 Affirmed.
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