also specially concurring:
This is a direct appeal from an order entered by the circuit court of La Salle County holding section 11— 501.4— 1 of the Illinois Vehicle Code (625 ILCS 5/11— 501.4— 1 (West 1996)) unconstitutional. Section 11— 501.4— 1 states that results of blood or urine tests performed for the purpose of determining the level of alcohol or drugs in a person’s bloodstream while the person is in a hospital emergency room receiving treatment for injuries resulting from a car accident may be reported to law enforcement agencies. 625 ILCS 5/11— 501.4— 1 (West 1996). Section 11 — 501.4—1 also states that “confidentiality provisions of law pertaining to medical records and medical treatment” will not apply to the results of tests performed in these circumstances. 625 ILCS 5/11 — 501.4—1 (West 1996). The circuit court ruled that section 11 — 501.4—1 violates the privacy right in medical records guaranteed by the Illinois Constitution, citing Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997).
The majority reverses the circuit court and finds section 11 — 501.4—1 constitutional. While I concur in the result, I believe that the majority opinion fails to adequately explain the basis for its judgment. The legal community and the legislature rely on our opinions to map the evolving course of the law. I write separately, therefore, to provide the analysis which forms the basis for my decision in this case.
As an initial matter, the majority concludes that section 11 — 501.4—1 does not constitute an impermissible infringement on a driver’s privacy interests. The majority seems to ground its ruling on the reduced privacy expectation that drivers are deemed to have by virtue of their operation of an automobile, as well as the State’s compelling interest in discouraging driving while intoxicated. I agree.
Although this court has recognized a constitutionally based privacy interest in “confidential medical information” (Best v. Taylor Machine Works, 179 Ill. 2d 367, 459 (1997)), the court has also noted that an individual’s expectations of privacy are reduced when operating an automobile (Fink v. Ryan, 174 Ill. 2d 302, 310 (1996)). This is because the state subjects automobile driving to intensive regulation. Fink, 174 Ill. 2d at 310. Other factors may reduce an individual’s expectation of privacy even further. In Fink, for example, this court found mandatory analysis of an automobile driver’s blood-alcohol content constitutional because, among other factors, the conditions under which the blood could be drawn reduced a driver’s expectation of privacy. More specifically, under the statute, blood could be drawn only if the driver suffered specified, severe injuries in an automobile accident and an officer had already issued the driver a ticket for drunk driving. Also, the law required anyone involved in an auto accident to stay at the scene, exchange driver information and render aid to the injured. These are conditions which necessarily involve extended presence at the scene and the involvement of law enforcement officers. In sum, the court found that these facts increased the likelihood of a decreased expectation of privacy, so that a blood test performed under these circumstances could be deemed only minimally intrusive. Fink, 174 Ill. 2d at 311.
Additionally, the Fink court held that the mandatory blood testing served a “special need” of the State, beyond mere law enforcement, to keep chemically impaired drivers off of Illinois roads. Fink, 174 Ill. 2d at 302, 308-, 09. Thus, Fink appears to hold that the presence of a specialized need permits the state to intrude upon a privacy interest such as compelling a citizen to submit to a blood test, as long as the state can concurrently show the existence of a reduced expectation of privacy. Fink, 174 Ill. 2d at 309, 312.
The “special need” described in Fink to keep Illinois roads free of intoxicated drivers is present in the case at bar. Additionally, the driver whose blood or urine is collected under circumstances described in section 11— 501.4 — 1 has a reduced expectation of privacy concerning his person while operating an automobile. The mere operation of an automobile is a heavily regulated activity. Fink, 174 111. 2d at 310. The statute permits the blood or urine to be drawn under only very narrow circumstances: (1) in a hospital emergency room, (2) where the driver is brought for treatment of injuries sustained in an auto accident, and (3) solely for purposes of determining the presence of intoxicants in the driver’s system. 625 ILCS 5/11 — 501.4—1 (West 1996). In circumstances such as these, drivers would not only have a reduced expectation of privacy in information concerning their physical condition, but they might even expect that such information would necessarily be obtained in order to render medical treatment to them. Thus, the conclusion reached by the majority that section 11 — 501.4—1 is constitutional is consistent with Illinois legal authorities.
Defendant also argues that section 11 — 501.4—1 violates the separation of powers doctrine (111. Const. 1970, art. II, § 1; art. VI, §§ 1, 16) because it infringes upon this court’s authority to regulate the court system, and because it conflicts with supreme court rules concerning discovery. Defendant relies principally on Best and Kunkel v. Walton, 179 Ill. 2d 519 (1997), to urge this court to invalidate section 11 — 501.4—1. However, Best and Kunkel are distinguishable from the case at bar. In Best, the court construed an amendment to section 2 — 1003(a) of the civil procedure code that mandated a waiver of the physician-patient privilege for all plaintiffs filing personal injury claims. 735 ILCS 5/2 — 1003(a) (West 1996). The amendment prescribed a wholesale disclosure of all medical records, irrespective of their relevance to the plaintiffs lawsuit. The amendment also prescribed mandatory dismissal of the lawsuit if the plaintiff failed to comply with the medical record disclosure requirements.
The Best court held section 2 — 1003(a) unconstitutional because the statute conflicted with supreme court rules concerning discovery. Best, 179 Ill. 2d at 449. In particular, section 2 — 1003(a) undercut those rules that allow a court to tailor discovery sanctions to the severity of the recalcitrance exhibited by a litigant. Best, 179 Ill. 2d at 449. Section 2 — 1003(a) also conflicted with rules that permit a court to limit discovery to materials that are relevant to the claims or defenses raised by the parties, and to enter orders of protection to shield particularly sensitive materials from unnecessary disclosure. Best, 179 Ill. 2d at 445. In addition, this court found that section 2 — 1003(a) unduly infringed upon the court’s authority by requiring the court to dismiss a plaintiffs lawsuit, with prejudice, if the plaintiff failed to follow the statutory disclosure requirements. Best, 179 Ill. 2d at 441-42; see also Kunkel, 179 Ill. 2d at 528-37.
I agree with the majority that section 11 — 501.4—1 does not violate the separation of powers doctrine. The pertinent provision of section 11 — 501.4—1 at issue in this case permits a hospital worker to show the results of a blood test, conducted under limited circumstances, to law enforcement personnel. The subject provision is unrelated to discovery rules that control the course of any subsequent prosecution against the patient. Therefore, nothing in this provision is adverse to rules of discovery promulgated by this court. Nor are the terms of section 11 — 501.4—1 at odds with a court’s authority to control the course of litigation.
Finally, I share the concerns voiced by Justice Freeman in his specially concurring opinion, and join in his specially concurring opinion. I believe that Justice Freeman is correct in his observation that the remarks of Chief Justice Harrison and Justice Rathje which are critical of the State and the Attorney General’s office are untimely and unfair, because the State and the Attorney General’s office have been denied an opportunity to respond to those criticisms. As Justice Freeman states, had a majority of the court found the State’s brief incomprehensible, the court should have issued a show cause order (155 111. 2d R. 375), or, as advocated by Justice Bilandic, directed the parties to further brief the issue.
JUSTICES MILLER and FREEMAN join in this special concurrence.