*1 207 Todd, 1967 the amendment statute court noted supreme v. in Schmerber with the decision correlation California 1826, taking of held that a Ct. 757, 16 L. 2d 86 S. U.S. Ed. not violate of alcohol content did blood without consent Todd then opinion right of the individual. constitutional statute, for the required was not limiting consent concluded absent 534-45, N.E.2d 447-53. 59 Ill. 2d sample. of a blood taking amendment Todd court deemed that appears Schmerber decision legislative response 11—501 to the section driver preserve privilege individual designed which was driving while intoxicated. prosecuted to action for subject the tests so limiting the use of The Todd provisions termed the and a law unfortunate result provided “implied under consent” “an This anomaly.” (59 cruel claim of into actions projects anomaly the result and the civil privilege against self-incrimination relevant. provisions of Illinois Vehicle Code apparent
It is not how the provisions construing become the source antecedent coroner’s act.
I affirm the trial court. would ILLINOIS,
THE PEOPLE OF THE Plaintiff-Appellee, STATE OF DODSWORTH, Defendant-Appellant. KELLY B.
Fourth No. 14440 District Opinion May filed *2 TRAPP, J., dissenting. Flynn, Flynn Jacksonville, Flynn, & of appellant. Edward of for
J. Parkinson, Attorney, (Robert Perry, Edwin R. C. State’s of of Jacksonville Association, Attorneys Illinois counsel), People. of Mr. PRESIDING GREEN of the court: delivered JUSTICE This appeal concerns the prosecution involved a unlawful possession of a controlled substance when the defendant prevented from obtaining independent alleged an testing of the substance destroyed contraband has because the State the substance testing it has done.
Defendant, Dodsworth, by B. Kelly jury convicted after trial circuit Morgan County court of offense possession of unlawful substance, grams controlled .03 methylenedioxyamphetamine (MDA), 402(b) (Ill. violation section of the Illinois Controlled Substances Act 56½, 1402(b)). Rev. par. year Stat. ch. He to was sentenced $750 probation and fined and costs. parties agree
The that law enforcement officers found defendant to be possession of a him they certain substance which took from person delivered to analytical testing. The who grams tests .03 testified the substances contained purposes appeal, (1) MDA. parties stipulated For destroyed so testing much further substance done; (2) same results could be could have been done and the submitted; destruction of by reached one-third the substance had moved exclude results of the (3) defendant evidence of the and had moved to strike testimony was admitted before given. prior record further shows that to trial after it was directing the defendant for an granted motion order court had defendant, and that by the substance for produce the the State to left after only residue because the unable to do so the State was further small for was too is whether appeal raised defendant question The sole either dismiss request to refusing reversible error court committed State’s test of the results of the evidence deny the case or admission he had a before seized destroying the substance as a sanction for State’s made. independent analysis chance to have supplying in lieu of for use prepared which was stipulation fact: its statements following as one of proceedings begins with the containing of a substance weighing .03 “That a substance MDA, Was referred to hereinafter methylenedioxyamphetamine, The defendant Bureau of Identification. agent delivered to” the him that the be an admission not intended to maintains that testing was in him to the Bureau substance taken and delivered into an intentionally enter likely MDA. parties fact would not in the case factual issue the central agreement would confess Accordingly, we conclude make the error cited harmless. contrary inadvertently wording of this it in our determination. parties. We not consider intention of the the relief denial of supports the trial court’s argument The State’s *3 Supreme theory language that of by defendant on the requested the “may” R. that the court 415(g) (58 415(g)) provides Ill. 2d Court Rule contends The State further impose excluding the sanction of evidence. that, event, should be any in of exclusion of evidence sanction culpability the defendant or imposed only upon showing prejudice of hand, defendant, argues that upon the State. The other prejudiced necessarily greatly so regardless culpability, of the State’s he is the denial of testing done that by inability independent to have requests relief he was reversible error. appeal
People Taylor App. 54 Ill. 3d denied, _Ill. 2d _, ruling destructive upon is the Illinois case There, in a substance which testing of evidence a criminal case. an undercover by evidence indicated to been sold the defendant have testing conducted unnecessarily destroyed law enforcement officer was State, produce the substance State. The as was unable to delivery the unlawful testing prior defendant’s to the defendant’s appellate The alleged of the substance which was to be heroin. for a new subsequent conviction and remanded reversed the defendant’s trial, granted the defendant’s ruling that the trial court of the result of the State’s test. request to exclude evidence Taylor opinion emphasized allegedly laboratory testing that The infallible, citing a in B. Stein study contraband substances is not described al., Drug et An Evaluation Testing Procedures Forensic Used Qualifications Analysts, Laboratories and the Their Wis. L. Rev. 727, 736. The court that independent testing determined without way accused had no cross-examining reasonable the chemist who unnecessary the test for State and held that the destruction deprived substance process agree accused of due of law. We decision, court, with the conclusion of that in its inherent relief, prove prejudice arising entitled to the accused need not actual because, test, testing destructive the absence of an independent accused usually not know whether results of the State’s were inaccurate or incorrect.
The matter of culpability presents question. more difficult dispute State does not if destroyed being the substance intentionally tested purpose and for the of preventing independent defendant, evidence of the State’s should have been excluded. court stated it did not think that there the record occurred gives cases, no indication of both occurring such here. In the destruction unnecessary was but in neither case was it shown the destruction whether intentionally knowingly done or whether occurred the result accident, negligence, speaking negligence other inadvertence. negligence determining we respect, distinguish between necessity destroy testing, operation destroyed. causes unintentionally the substance to be when, case, in a stated State is criminal unable to produce testing, alleged for defense controlled substance case, which is at the heart because the substance has been destroyed by testing, “heavy rests upon burden” State to necessary. (54 show that the destructive general We are with that statement. agreement By statement, analogy to that if the we also conclude that destructive accident, any may grounds excused on such as other negligence, placed inadvertence or even burden is similar We are not State to that this the reason the destruction. show ruling these reasons are excuses destructive testing upon Because the State offered these to excuse grounds question need not here. we consider *4 placed upon
We do not consider that an is law undue burden prove justification officials the for by requiring enforcement State to some unnecessary testing. appear destructive would that destructive deprive the ordinarily neither of an the State to occurs because intent an nor unintended opportunity defendant because of destruction, right to sensitivity rather lack of to defendant’s but from perform independent tests.
211 court, contrary is our decision We the that recognize, Taylor as did involved precedent jurisdictions. the cases in few other by courts recently received consideration destructive Ill. 2d Hardware, (1976), 63 Inc. (Sarver of review v. Barrett Ace case-by- develop on recognize that the law must 28). We also safeguarded by can Perhaps rights case the a defendant be basis. setting conditions for destructive protective court order forth at the present permit the defendant to have observer event, unnecessarily State (Sarver.) contraband without presumably intentionally destroys aUeged protection having his opportunity defendant own protect agree we with safeguards rights, court imposed admitting error in trial court commits reversible results of the test.
Accordingly, the defendant’s conviction sentence. we reverse agree offense without possibility proving We with present. For theoretically the aid is testimony chemist at least reason, we for a trial. remand new Reversed and remanded a new trial.
CRAVEN, J., concurs. TRAPP, Mr. dissenting: JUSTICE right A provide discovery failure to is not a of a constitutional denial (1969), v. process (United Augenblick under the due clause. States 537, 545, U.S. 21 L. Ed. 2d 89 S. Ct. That case concerns recordings certain which were lost and could not of interviews supplied purposes discovery.
One
highest
finds
in several states have determined
courts
the exhaustion of
narcotic
substance is not
supply
of a
or controlled
valid
as a
excluding
samples
basis for
available
1076;
v.
process.
(Alas. 1973),
denial of due
Lee v.
511 P.2d
State
State
84;
(Miss. 1974),
So.2d
(Me. 1973),
Cloutier
Poole v. State
A.2d
723;
Lightle
v.
In terms of the consideration of departed as to defendant’s reading stipulation from the literal recites that stipulation While the admission of nature of substance. .01 same with could have substance, limited cross-examination attached record of the support stipulation suggests partially but correct. This distinguishable People Taylor (1977), case is actually wherein the concluded *5 .5 In the of a “unnecessarily Taylor, substance received was consumed.” gram apparently purchased by agents undercover as substance was initial, verify to probably required, heroin. The and the sole test was was in such substance as heroin. One-half of the substance consumed determining its half consumed in identification test and the other unnecessary. quality. was the latter test which the court declared Here, This record percent Taylor. of the amount quantity was suggests packet powder of an was found incident to a unidentified upon search another arrest. find no initial or tentative identification of We transcript nature of the substance at that time. The chemist’s testimony presented the issue only support and is limited to the cross-examination sensitivity gas the chemist witness chromatograph surprise that “it would not me to be able to [the witness] detect MDA a From gram].” at concentration of .01 a such [of gross defendant argues that we must therefore conclude that there was i.e., negligence using quantity, complete the entire the .03 to test. argument assumption gas chromatograph requires fact, was, was the one to made. In the witness’answer “That be test, the final yes.” apparent
It is Taylor, analyst that unlike circumstances in here gas could not MDA simply verify to the substance as undertake Rather, chromatograph test. proceed perform he would have to to tests in the context of complete unknown.
In State v. (Me. 1973), Cloutier 302 A.2d the court noted:
“A very practical problem different posed for the Court’s resolution when the has in possession its very as evidence a small quantity exhausted, substance which will destroyed, substantially diminished or chemically altered chemical analysis. With great increase in involving cases the unlawful possession sale or drugs, great becomes matter of importance. Obviously, vary what is cases reasonable’ such will markedly from case to case. So also the nature of the court orders if the court is preserve to a fair just balance as between the legitimate interests practical necessity of the defendant of protecting preserving the State’s evidence.” Cloutier, LSD, the evidence consisted of one tablet of three-fourths of which was in testing. consumed The trial court denied defendant’s motion for an independent remaining one-fourth tablet and was affirmed.
There are practical here which not illustrated are solved Hardware, citation of Sarver v. Barrett Ace Inc. N.E.2d which concerned orders be protective entered Here, obtained the unidentified substance discovery police civil cases. laboratory August It was delivered to in the latter 1976. 8, 1976, and the October was dated August the 9th of with service of warrant on complaint was filed on date entry of rule present statutory procedure October. There is been and cannot be to criminals who have not protective orders as analyzed. charged until the substance has been the evidence of holds that reason of this record states at trial and is hereinafter inadmissible and chemical * * * lack of testing “ordinarily occurs conclusion that destructive The tests sensitivity right perform independent tests.” defendant’s *6 in in tried September were or October 1976. This case was 1977. published in March November the trial During preparation proceedings and trial those neither nor had access in that judge counsel to the conclusions proof the burden where the evidence was unavailable. available legal concerning admissibility Augenblick was that of standard prosecution test was been or suppressed whether evidence had good had not acted in faith.
In certain People Stamps (1977), 52 Ill. notes of had between initial trial and a retrial. statements been lost charges Defendant be dismissed or contended should of the testimony disallowed in maintenance alleging gross negligence findings records. that the This court affirmed the court it records, although prosecution good acted keeping had faith had here. negligent degree. been to some That be the standard presented validity
We are suggests with record which genuine question chemical identification was of fact at trial. Defendant presented This record discovery. with validity of questions concerning does not show cross-examination accuracy Upon the method of record or the of the results. presented cannot even be that the record shows said the conduct test. The trial court heard all of implicit issue and the denial defendant’s motion it found no faith. bad light the facts contrasting and the circumstance trial will
discovery quantity remanding of MDA for a new doubtless be gesture. a useless judgment below should be affirmed.