specially concurring:
It seems clear that the involuntary blood test here could not be upheld under section 11—501.6(a) of the Code, the section upheld in Fink. The three prerequisites to the applicability of section 11—501.6(a) are (1) a driver; (2) involvement in a personal injury motor vehicle accident; and (3) arrest for a nonequipment violation of the Code. 625 ILCS 5/11—501.6(a) (West 1996). Such a driver “shall be deemed to have given consent” (625 ILCS 5/11—501.6(a) (West 1994)) to a blood test for the purpose of determining the driver’s BAG, even if there is no individualized suspicion, no probable cause, that the driver was chemically impaired. Fink, 174 Ill. 2d at 309, 673 N.E.2d at 286.
Under the “special needs” exception, a search or seizure may be reasonable absent individualized suspicion in two types of cases: (1) when the intrusion upon the person to be searched is minor; or (2) when the person to be searched has a diminished expectation of privacy. King, 153 Ill. 2d at 458-59, 607 N.E.2d at 159; Fink, 174 Ill. 2d at 306, 673 N.E.2d at 284. The constitutionality of section 11—501.6(a) has been upheld because it fills such a “special need”: it removes chemically impaired drivers from the road without relying on criminal sanctions. Fink, 174 Ill. 2d at 308, 673 N.E.2d at 285. Section 11—501.6(a) is not unconstitutional just because the chemical test results may also be used in a criminal proceeding. Such a use of the results would only be incidental to the primary purpose of the statute. Fink, 174 Ill. 2d at 313, 673 N.E.2d at 287.
As applied in this case, section 11—501.6(a) would be unconstitutional. The police officer here requested that defendant submit to a breathalyzer test. See 625 ILCS 5/11—501.6(a) (West 1996). Defendant refused, and as a consequence of that refusal the Secretary of State was entitled to summarily suspend defendant’s driver’s license. 625 ILCS 5/11—501.6(d) (West 1996). It was not necessary for the police officer to involuntarily take defendant’s blood in order to fulfill the “special need” of removing a chemically impaired driver from the road. After the defendant refused the breathalyzer test, the officer insisted on a blood test, not to allow defendant’s license to be suspended, but to bolster the evidence that would be presented against defendant in the criminal case. Of course the refusal to submit to the breathalyzer test was itself admissible in the criminal case (625 ILCS 5/11—501.2(c)(1) (West 1996)), but the officer correctly observed that the evidence of DUI was weak, as borne out by the jury’s vote to acquit on that charge. It was not necessary for the officer to require a blood test here as it might be in cases where the driver was unconscious. It is also clear that a driver cannot be forced to submit to a blood test under section 11—501.6(a) of the Code. 625 ILCS 5/11—501.6(c) (West 1996) (“[a] person requested to submit to a test as provided above shall be warned *** that a refusal to submit to the test *** may result in the suspension of such person’s privilege to operate a motor vehicle”).
As the majority points out, the section involved in this case, section 11—501.2(c)(2) of the Code, differs from section 11—501.6(a) in that section 11—501.2(c)(2) requires there be probable cause to believe that the motor vehicle was driven by a person under the influence of alcohol. The analysis of this section is accordingly completely different from the analysis under Fink, despite the similarity of the statutes. Although the question is a close one, I accept the finding of the trial court that the officer had probable cause. I also agree with the majority that the language of section 11—501.2(c)(2) of the Code, which differs from the language of section 11—501.6(a), allows blood to be drawn involuntarily.