dissenting:
The majority finds that section 11 — 501.6 of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 — 501.6) violates both the fourth amendment to the United States Constitution and article I, section 6, of the Illinois Constitution of 1970.1 respectfully dissent.
Like the majority, I would apply the special needs test to the present case. In Michigan Department of State Police v. Sitz (1990), 496 U.S. 444, 110 L. Ed. 2d 412, 110 S. Ct. 2481, the Court found the problem of intoxicated drivers sufficient to justify use of the special needs test. Because the underlying State interest in Sitz is the same as in the instant case, I believe the special needs test is appropriate.
Whether a particular practice is permissible under the special needs test is judged by balancing its intrusion on the individual’s fourth amendment interests against its promotion of legitimate governmental interests. (Delaware v. Prouse (1979), 440 U.S. 648, 654, 59 L. Ed. 2d 660, 667-68, 99 S. Ct. 1391, 1396.) The majority agrees that the State has a compelling interest in protecting its citizens from intoxicated drivers. The majority, however, finds this interest insufficient to justify the burden caused by section 11 — 501.6.1 disagree.
The majority holds that because information gathered under, section 11 — 501.6 may be used as evidence in a criminal proceeding, the exemption available under the special needs test is inappropriate. In addition to its evidence-gathering function, section 11 — 501.6 has a significant deterrent effect. If drivers know they may be tested for intoxication after causing an accident and the results of the tests may be used against them in a subsequent prosecution, they will be less likely to drive while intoxicated. The evidentiary function of section 11 — 501.6, therefore, serves to increase its deterrent effect.
I believe the present case is analogous to Skinner v. Railway Labor Executives’ Association (1989), 489 U.S. 602, 103 L. Ed. 2d 639, 109 S. Ct. 1402. In Skinner, the Court held the government interest in deterring intoxicated train operators justified subjecting employees involved in major train accidents to blood, breath and urine tests. (Skinner, 489 U.S. 602, 103 L. Ed. 2d 639, 109 S. Ct. 1042.) In reaching this decision, the Court found that railroad employees had a diminished expectation of privacy because of their participation in a regulated industry and that authorities exercised limited discretion in ordering the tests. (Skinner, 489 U.S. at 634, 103 L. Ed. 2d at 670, 109 S. Ct. at 1422.) The majority distinguishes Skinner on grounds that those subject to testing in Skinner had a diminished expectation of privacy, while those subject to testing under section 11— 501.6 do not.
I believe those subject to testing under section 11— 501.6 do have a diminished expectation of privacy. While drivers do not lose all reasonable expectation of privacy due to their status as drivers, the State does regulate the use of automobiles and highways. A person’s reasonable expectation of privacy, therefore, is decreased when he drives an automobile. Additionally, section 11 — 501.6 deems a driver to have consented to the tests in question prior to driving on the public highways of Illinois. Therefore, drivers are on notice that if probable cause exists to believe they were at fault in an accident involving death or personal injury, they may be tested for intoxication through blood, breath or urine tests.
As in Skinner, law enforcement personnel have limited discretion in applying section 11 — 501.6. Only where probable cause exists that a driver is at fault in an accident involving death or personal injury may section 11— 501.6 be invoked.
Application of section 11 — 501.6 also imposes minimal time restraints. Drivers expect to be detained after involvement in an accident which results in death or personal injury. The additional time required to undergo section 11 — 501.6 tests is a minimal inconvenience relative to the other consequences of involvement in such an accident.
Because I believe that the special needs balancing test weighs in favor of the State, and agree with the State constitutional analysis contained in Justice Heiple’s dissent, I respectfully dissent from the majority opinion.