People v. Nohren , 283 Ill. App. 3d 753 ( 1996 )

JUSTICE GREEN,

specially concurring:

I concur in the decision to reverse the circuit court’s order denying the State’s motion to view the evidence obtained through the subpoena duces tecum. I do so on the basis; well stated by the majority, that by the time of hearing a proper DUI charge had been filed with the circuit court. The following of the Carey and Hathaway procedures prevented a disclosure of privileged information until the filing of the DUI charge created an exception to the privilege and a basis for the subpoena.

I cannot agree that the general powers and duties in regard to investigation by the State’s Attorney imply that when no criminal charge is pending, the State’s Attorney has any power to obtain a subpoena duces tecum in any way other than through the procedure of a grand jury subpoena. The majority cites no direct authority for the existence of such a subpoena. I am aware of none and I assume such authority would exist if such a subpoena could be obtained. If a State’s Attorney could obtain a subpoena for investigative purposes, the grand jury subpoena would be significant only when the grand jury wished to seek information the State’s Attorney was unwilling to seek.