People v. Fonner

NO. 4-08-0027
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
VERNON J. FONNER, ) No. 06DT799
Defendant-Appellant. )
) Honorable
) Richard P. Klaus,
) Judge Presiding.
_________________________________________________________________
MODIFIED UPON DENIAL OF REHEARING
JUSTICE TURNER delivered the opinion of the court:
In November 2006, defendant, Vernon J. Fonner, was
arrested for and charged by citation with driving under the
influence (DUI) (625 ILCS 5/11-501(a)(2) (West 2006) (as amended
by Pub. Acts 94-329, §5, eff. January 1, 2006 (2005 Ill. Legis.
Serv. 2181, 2181 (West)), and 94-963, §5, eff. June 28, 2006
(2006 Ill. Legis. Serv. 2172, 2199-2200 (West)))). After he was
taken to jail, defendant refused to submit to a Breathalyzer
test. In December 2006, the Secretary of State's office sent
defendant a notice, indicating the summary suspension of defen-
dant's driving privileges for three years, effective January 4,
2007. That same month, defendant filed a petition to rescind the
statutory summary suspension. After a hearing, the trial court
denied defendant's petition in December 2007.
Defendant appeals pro se, contending the trial court
erred by denying his petition to rescind his statutory summary
suspension because (1) the arresting officer lacked reasonable
grounds to believe defendant was driving or in actual physical
control of his motor vehicle on the morning in question and (2)
defendant did not refuse chemical testing. We affirm.
I. BACKGROUND
The November 19, 2006, DUI citation stated defendant
unlawfully operated a 1995 Green Cadillac Eldorado on Country
Fair Road and Springfield Avenue in Champaign, Illinois. Police
officer Eric Hart issued the citation and, after defendant
refused the breath test, prepared a sworn report indicating
defendant's refusal to submit to a chemical test as required by
section 11-501.1(d) of the Illinois Vehicle Code (625 ILCS 5/11-
501.1(d) (West 2006)). In December 2006, the Secretary of
State's office notified defendant of his three-year summary
suspension.
On December 29, 2006, defendant filed a petition to
rescind his statutory summary suspension based on the following
grounds: (1) the arresting officer did not have reasonable
grounds to believe he was driving or in actual physical control
of a motor vehicle, (2) he was not properly warned by the arrest-
ing officer as required by section 11-501.1(c) of the Illinois
Vehicle Code (625 ILCS 5/11-501.1(c) (West 2006)), and (3) he did
not refuse to submit to and/or complete the required chemical
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test requested by the arresting officer.
On May 11, 2007, the State made a motion to dismiss the
DUI charge in the criminal matter, which the trial court granted.
The court also commenced the hearing on defendant's petition to
rescind. Defendant testified on his own behalf and presented the
testimony of Rick Boley, defendant's friend; and Vernon Bruce
Fonner, defendant's father. The State presented the testimony of
Officer Hart and Officer Christina Benton.
Officer Hart testified that, in the early morning hours
of November 19, 2006, he was on patrol with Officer Benton, who
was his field training officer. At approximately 2:58 a.m., he
was driving eastbound on Springfield Avenue and approached the
stoplight at the intersection of Springfield Avenue and Country
Fair Road. Officer Hart turned right onto southbound Country
Fair Road to follow a dark green Cadillac that had proceeded
through the intersection without an operable rear registration
light, which is a violation of the Illinois Vehicle Code (see 625
ILCS 5/12-201(c) (West 2006)). The vehicle stopped halfway down
the block across from D.R. Diggers, a bar. When the vehicle
pulled over to stop, it did not use its right turn signal.
Officer Hart drove past the vehicle, went down the rest of the
block, and made a U-turn.
When he first passed the vehicle heading southbound, he
only observed one occupant. Officer Hart acknowledged he had
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told defense counsel he did not know whether the vehicle had one
or two occupants but at that time he had not reviewed his re-
ports. The squad car's headlights were sufficient to illuminate
the Cadillac as he drove by it. Further, as he drove by the
vehicle, Officer Benton pointed out she knew defendant. Officer
Hart then drove back and parked on the north side of D.R. Dig-
gers. Officer Hart did not lose sight of the vehicle from the
time he first observed it until he made the U-turn. After the
turn, he observed defendant, who was wearing an unusual hat,
walking across Country Fair. However, Officer Hart did not see
defendant drive or exit the vehicle. Additionally, Officer Hart
acknowledged he could have pulled up behind the Cadillac, ap-
proached the vehicle, and pointed out the violations to the
driver.
After he parked the squad car, Officer Hart headed to
D.R. Diggers because his reasons for turning around were (1) to
investigate whether D.R. Diggers was serving alcohol after 2 a.m.
and (2) to find the location of the driver of the Cadillac. As
he was approached the bar, Officer Benton informed him of defen-
dant's location. When he and Officer Benton approached defen-
dant, defendant was talking on a cellular telephone. When
defendant saw the officers, he threw his keys behind him and
stated he was not driving a vehicle. Defendant repeatedly stated
he was not driving a vehicle and was trying to call a cab.
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Officer Hart did not know to whom defendant was talking on the
cellular telephone. No sobriety tests were performed on defen-
dant because he would not allow them. Based on his prior law-
enforcement experience, Officer Hart noted defendant appeared in
"an extreme and obvious manner" to be impaired by something.
Officer Benton made the decision to arrest defendant for DUI, and
Officer Hart put him in custody. While en route to the jail,
defendant continued to state he was not driving the vehicle.
Defendant indicated a friend was driving his vehicle, dropped
defendant off, left the vehicle, and headed southbound. Officer
Hart did not make any effort to determine the friend's identity
because Officer Benton had seen defendant driving. Officer Hart
was unaware of Officer Benton's history with defendant's family.
Further, Officer Hart did not believe defendant's statement he
was not driving due to the manner in which defendant reacted to
seeing the officers and the fact he did not see anyone else
around the area besides defendant.
Officer Hart further testified he was probably in the
squad car when he read verbatim to defendant the warning-to-
motorist form. The form indicated Officer Hart read the warning
at 3:36 a.m., and Officer Hart indicated that time was accurate.
Later, either he or Officer Benton asked defendant to submit to a
breath test, and defendant replied, "f--k no." Officer Hart did
not recall what time the request was made. Officer Hart also
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explained a 20-minute observation period must take place before
the breath test can be administered, and if the person being
observed regurgitates or vomits, the person must be allowed to
rinse his or her oral cavity and the 20-minute period starts
anew. Officer Hart was not present during the entire observation
period but did recall defendant belching and making noises.
Officer Hart did not personally offer to let defendant rinse out
his mouth.
Officer Hart also testified that, on November 19, 2006,
he was in his probationary period with the Champaign city police
department and had two years of prior experience with Zion city
police department. Officer Hart received criticism of his job
performance during the probationary period and ended up leaving
the Champaign police department in December 2006. While he did
not have a lot of experience with DUIs, DUI enforcement was not
one of his noted deficiencies.
Boley testified he was a 51-year-old maintenance worker
for Barr Real Estate and had met defendant almost 10 years
earlier through defendant's father. He and defendant had a
social relationship in which they would play cards and pool.
Boley had started the night at D.R. Diggers and had four beers
there. Boley felt he could not drive due to the amount of
alcohol he had consumed and got a ride to Chief's bar, where he
arrived at around 11 p.m. Between 12 and 12:30 a.m., Boley saw
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defendant at Chief's. When they were able to get a table, he and
defendant played pool together. Boley observed defendant drink-
ing both beer and hard liquor. They stayed at Chief's until
after "last call." Before leaving, they talked about maybe going
and playing some poker or something. Defendant indicated he had
too much to drink and could not drive. Boyle stated he could
drive them over to D.R. Diggers, drop off defendant's car, and
then go out in his truck.
Defendant gave Boyle the keys to his vehicle. Boyle is
6 feet 3 inches tall and considerably taller than defendant.
Boyle had to move the driver's seat of defendant car back to get
into it. Defendant sat in the passenger seat. Boyle could not
recall how defendant was sitting in the seat. In returning to
D.R. Diggers, Boyle headed southbound on Country Fair Road and
passed through the intersection with Springfield Avenue. He did
not notice any police vehicles on Springfield Avenue at the
intersection. A bank was located at the intersection, and Boyle
observed the bank sign displayed a time of 2:39 a.m. Defendant
asked Boyle to park on the west side of the road across from D.R.
Diggers because defendant was concerned about his car being
towed. After parking the car, Boyle got out of the car and
walked across the street toward his truck, and defendant fol-
lowed. Boyle did not see any police vehicles as he crossed the
street.
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Once they were both inside Boyle's truck, Boyle gave
defendant the keys to defendant's vehicle. Defendant made
several telephone calls looking for a card game but could not
come up with anything. Boyle decided to go home, and defendant
exited Boyle's truck. Boyle saw defendant walking away from the
truck with a cellular telephone on his ear. Boyle lived about 10
minutes from D.R. Diggers, and it was a few minutes after 3 a.m.
when he got home. Boyle did not know what defendant did after
Boyle left D.R. Diggers' parking lot.
Defendant's father testified he was familiar with
Officer Benton. In October 2005, defendant's father had a
confrontation with her in the emergency room where defendant was
being treated. Officer Benton wanted to question defendant, and
defendant's father had refused her request. She was authorita-
tive and direct. The conversation got heated. Defendant's
father did not like the way she was asking him to do things.
Defendant's father was aware of other interactions between
defendant and Officer Benton based on what defendant had told
him.
Defendant's father further testified he received a call
from defendant at 3:03 a.m. on November 19, 2006. Defendant
indicated he was in the parking lot of D.R. Diggers and was
having a problem with the police. Defendant's father could hear
Officer Benton's voice in the background. Defendant's father
- 8 -
told defendant he would come to the parking lot. The telephone
call lasted around three minutes. Defendant's father arrived at
D.R. Diggers about five minutes after the end of the call but did
not see defendant. He did observe the vehicle defendant usually
drove parked on the west side of Country Fair.
Defendant's father received another call from defendant
at 3:38 a.m. Defendant indicated he was in the county jail.
Defendant's father could hear other voices but did not hear the
warning to motorists being read. The call ended at about 3:46
a.m. with the telephone just hanging up. Defendant's father
picked up defendant from jail at around 5 a.m., and defendant had
paperwork with him. However, defendant did not have a copy of
the warning to motorists. Defendant's father further testified
that, a couple of months after November 19, 2006, he checked
defendant's vehicle's rear registration light and found it was
working properly. He did not repair the light and did not know
of anyone else replacing the light. Moreover, defendant's father
did not get into the vehicle at the towing company when he and
defendant went to pick up the car.
Defendant testified he was drinking beer, wine, and
shots of tequila on the night in question and had a lot to drink.
His testimony regarding the time he spent with Boyle that night
was similar to Boyle's. Defendant also testified he liked to
ride with the seat up close and reclined. According to defen-
- 9 -
dant, he was not observable from outside of the vehicle that
morning. Like Boyle, defendant did not observe any police
vehicles at the intersection of Springfield Avenue and Country
Fair Road. Defendant also testified he exited his car 30 seconds
to a minute after Boyle left the vehicle. When he was standing
in front of his vehicle, he observed the back of a police vehicle
heading southbound on Country Fair Road. Defendant crossed the
street and went to Boyle's truck, which was more than half of a
football field away.
After he exited Boyle's truck, defendant started to
make some telephone calls looking for an after-hours party. At
2:57 and 2:59 a.m., defendant made calls to directory assistance
to get telephone numbers for cab companies. He stated he could
not have been at the intersection as Officer Hart testified
because he was sitting in D.R. Diggers' parking lot, making the
telephone calls. When defendant was placing the call to his
father at 3:03 a.m., Officers Benton and Hart approached him and
said, "hey." Defendant recognized Officer Benton, and as soon as
she saw him, her demeanor was aggressive. Before the officers
arrived, defendant had been swinging his car keys around his
finger and talking on his cellular telephone. When Officer
Benton said "hey," the keys slid off his finger and landed next
to his shoes. He told Officer Benton he was not driving because
he assumed the officers were checking on people to see who was
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intoxicated. Defendant testified it was Officer Benton who
arrested him.
According to defendant, the officers did not take his
cellular telephone away until he reached the Breathalyzer room at
the jail. Before he was taken into the Breathalyzer room, he
called his father at 3:38 a.m. to let him know what was taking
place. He talked to his father for eight minutes and neither
Officer Hart nor Officer Benton was present during the conversa-
tion. When the call ended at 3:46 a.m., both officers had
returned and immediately took defendant to the Breathalyzer room.
Defendant stated neither officer read the warning to motorists to
him. He also testified that, while he was in the Breathalyzer
room, he was burping and belching, which brought "stuff" back up
into his mouth. The belching lasted for about three to four
minutes, which left a strong taste of alcohol in his mouth. The
officers asked him to stop belching because it was disgusting.
Defendant also indicated he was aware of the 20-minute observa-
tion period and knew 20 minutes had not passed when Officer
Benton asked him to submit to a Breathalyzer test. He was also
aware the absence of regurgitation in his mouth was required for
a valid breath test. Defendant stated he refused to submit to
the breath test because he was not driving. He also believed
Officer Benton was trying to obtain a false result because she
did not like him.
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After his arrest, defendant's vehicle was towed to a
towing company. Defendant and his father later went to the
towing company to pick up the vehicle. Defendant got into the
driver's side of the vehicle and had to move the seat up so he
could reach the pedals. Defendant is 5 feet 10 or 11 inches
tall. Moreover, subsequent to his arrest, defendant checked the
rear registration light and found it operable.
Defendant also testified about his prior contacts with
Officer Benton. In October 2004 or 2005, he was in the emergency
room because he had been assaulted. Despite being the victim,
defendant did not want to talk to Officer Benton before talking
to a lawyer. He testified Officer Benton was pretty mad and
frustrated she could not talk with defendant. His next encounter
was four to five months later at Bar Fly. A bar fight had broken
out, and one of the bartenders had been assaulted. Officer
Benton got mad at defendant and accused him of being involved in
the incident. Defendant asked if he could wash blood off him-
self, and she said he could. After he cleaned himself, he took a
cab home because he believed Officer Benton said he could leave.
However, she had blocked his car off with a squad car and a few
days later confronted him about leaving Bar Fly by putting him up
against her car and yelling at him. He also indicated she
handcuffed him but never arrested him. In August 2006, defendant
was in line at Soma's when Officer Benton pointed him out to
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another officer. The other officer pulled defendant out of line
and started asking him questions about a sexual assault, of which
defendant had no knowledge. Defendant described Officer Benton's
attitude toward him over the past 2 1/2 years as "[h]orrible."
Defendant was not surprised Officer Benton could recognize his
car because it was a unique two-door Cadillac coupe and the dark
green paint had gold speckles in it.
Defendant submitted a copy of his cellular-telephone
bill that showed the calls he placed on November 19, 2006. The
trial court admitted the document into evidence without objec-
tion.
Officer Benton testified she had been a police officer
for around 8 1/2 years, with the last five being in Champaign.
She is a certified breath-test operator and had been involved in
more than 25 DUI arrests. She first had contact with defendant
when he was the victim of a battery that occurred on her beat.
She took his information and photographs of his injuries. Both
of defendant's parents were present, and his father gave her some
information about the incident. She also had some other noncrim-
inal contacts with defendant at bar closings on her beat. He was
listed as a suspect in a sexual-assault report she took, but she
denied physically pointing out defendant to another officer.
Officer Benton also denied ever threatening to arrest defendant
and having any personal animus toward him.
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As to November 19, 2006, Officer Benton testified she
was training Officer Hart about probable cause to stop a vehicle.
She pointed out a vehicle that appeared to not have a rear
registration light and instructed Officer Hart to follow it. She
did not recognize the car as defendant's. After following the
vehicle for a half a block, the car did a quick slowdown and
pulled over without signaling. Officer Benton pointed out the
lack of a signal to Officer Hart. Officer Hart drove past the
vehicle at 10 miles per hour, and Officer Benton had at least
five seconds to observe the driver, whom she recognized as
defendant. Officer Benton stated defendant was wearing a very
particular kind of hat that he usually wears, and she recognized
his face as well. Defendant was sitting in the vehicle and
looked right at Officer Benton. She was positive only one person
was in the car. In the rearview mirror, she observed defendant
walk across the street. At that point, she advised Officer Hart
to turn around because the businesses in the area were closed and
D.R. Diggers should have been closed as well.
When they approached defendant in front of a nearby
business, defendant was talking on his cellular telephone. They
had not yet said anything when defendant threw his hands in the
air, threw his keys on the ground, and stated the following: "'I
wasn't driving. My friend dropped me off here. I'm waiting for
a cab. You didn't see me driving. You can't prove s--t.'"
- 14 -
In arresting defendant, Officer Hart placed the hand-
cuffs on him while they both detained him. When they arrived at
the jail, defendant went to the booking area where he had his
property taken from him. He was then taken to the Intoxilyzer
room. There, she witnessed Officer Hart read the warning to
motorists to defendant. She also conducted a 20-minute observa-
tion period. During the period, defendant was belligerent and
burping. Defendant did not vomit or regurgitate during the 20-
minute period. He also did not request to go to the bathroom or
spit anything out into a garbage can. Officer Benton also did
not see anything in his mouth when defendant belched. When it
came time to do the breath test, a little confrontation took
place in getting defendant to walk to the machine. Defendant
complied with her second request to walk to the machine. At the
machine, Officer Benton asked defendant to take a breath test,
and he refused. From the time defendant arrived at the jail
until he refused the breath test, he was in Officer Benton's
presence. She did not recall if he used his cellular telephone
at the jail.
On December 4, 2007, the trial court entered a docket
entry denying defendant's petition to rescind. The entry noted
the court had questions about the witnesses' credibility but
found Officer Hart's testimony credible. The court also noted
the burden of proof was on defendant.
- 15 -
On January 2, 2008, defendant filed a notice of appeal
from the trial court's December 4, 2007, ruling in accordance
with Supreme Court Rules 301 and 303 (155 Ill. 2d R. 301; 210
Ill. 2d R. 303). See People v. Smith, 172 Ill. 2d 289, 294-95,
665 N.E.2d 1215, 1217 (1996) (noting "a hearing on a petition to
rescind the statutory summary suspension of driving privileges is
a civil proceeding").
II. ANALYSIS
Defendant contends the trial court erred by denying his
petition to rescind his statutory summary suspension.
In a hearing on a petition to rescind a statutory
summary suspension, the defendant-motorist has the burden of
proof to demonstrate by a preponderance of the evidence a prima
facie case for rescission. People v. Ehley, 381 Ill. App. 3d
937, 943, 887 N.E.2d 772, 777-78 (2008). If the defendant
establishes a prima facie case, the burden shifts to the State to
present evidence justifying the suspension. Ehley, 381 Ill. App.
3d at 943, 887 N.E.2d at 778. Generally, this court will not
reverse a trial court's judgment on a petition to rescind a
statutory summary suspension unless it is against the manifest
weight of the evidence. People v. Ewing, 377 Ill. App. 3d 585,
597, 880 N.E.2d 587, 598 (2007). "A finding is against the
manifest weight of the evidence only if the opposite conclusion
is clearly evident or if the finding itself is unreasonable,
- 16 -
arbitrary, or not based on the evidence presented." People v.
Deleon, 227 Ill. 2d 322, 332, 882 N.E.2d 999, 1005 (2008).
Section 2-118.1(b) of the Illinois Vehicle Code (625
ILCS 5/2-118.1(b) (West 2006)) limits the grounds upon which a
petition to rescind a statutory summary suspension may be based
to four. Ehley, 381 Ill. App. 3d at 942, 887 N.E.2d at 777. On
appeal, defendant argues the trial court erred by denying his
petition to rescind because two of the four grounds exist in his
case.
A. Reasonable Grounds for Arrest
Defendant first alleges the arresting officer lacked
reasonable grounds to believe he was driving or in actual physi-
cal control of his motor vehicle on the morning in question. See
625 ILCS 5/2-118.1(b)(2) (West 2006).
In a driving-under-the-influence situation,
"'[r]easonable grounds' is synonymous with 'probable cause.'"
People v. Fortney, 297 Ill. App. 3d 79, 87, 697 N.E.2d 1, 7
(1998). In reviewing probable-cause determinations, this court
has adopted the two-part standard of review established by the
United States Supreme Court in Ornelas v. United States, 517 U.S.
690, 699, 134 L. Ed. 2d 911, 920, 116 S. Ct. 1657, 1663 (1996).
People v. Wear, 371 Ill. App. 3d 517, 529-30, 867 N.E.2d 1027,
1038-39 (2007). Under that standard, a reviewing court gives
deference to the trial court's findings of historical fact but
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prescribes a de novo standard of review for the ultimate determi-
nation of probable cause. Wear, 371 Ill. App. 3d at 529, 867
N.E.2d at 1038.
To determine whether reasonable grounds and/or probable
cause existed for a defendant's arrest, a court "must determine
whether a reasonable and prudent person, having the knowledge
possessed by the officer at the time of the arrest, would believe
the defendant committed the offense." Fortney, 297 Ill. App. 3d
at 87, 697 N.E.2d at 7. That standard requires the officer to
have "more than a mere suspicion, but does not require the
officer to have evidence sufficient to convict." People v. Long,
351 Ill. App. 3d 821, 825, 815 N.E.2d 72, 76-77 (2004). In
analyzing probable cause, we utilize an objective inquiry into
the police officer's conduct. People v. Lindmark, 381 Ill. App.
3d 638, 658, 887 N.E.2d 606, 623 (2008). Moreover, we note
"probable cause is a fluid concept[,] turning on the assessment
of probabilities in particular factual contexts." Illinois v.
Gates, 462 U.S. 213, 232, 76 L. Ed. 2d 527, 544, 103 S. Ct. 2317,
2329 (1983). Thus, a probable-cause determination is a "practi-
cal, common-sense decision" that requires the consideration of
the totality of the circumstances. Gates, 462 U.S. at 238, 76 L.
Ed. 2d at 548, 103 S. Ct. at 2332.
Contrary to defendant's assertion, Officer Hart's
testimony alone is sufficient to show he had probable cause to
- 18 -
arrest defendant for DUI. While Officer Hart neither saw defen-
dant drive the vehicle nor exit the vehicle, Officer Hart only
observed one person in the vehicle, kept sight of the vehicle
except for a U-turn, and then saw defendant walking eastbound
across the street. He did not see anyone else in the area of the
vehicle. The fact Officer Hart could not identify defendant as
the driver does not negate a reasonable inference from the
totality of the circumstances that defendant was the driver of
the vehicle. As Officer Hart explained, one of the reasons he
did not believe defendant's claims a friend had been driving was
because the officer had not observed anyone else in the vicinity.
Further, when he and Officer Benton approached defendant, defen-
dant threw down his car keys and claimed he had not been driving.
Additionally, as they drove by the vehicle, Officer Benton
indicated she knew defendant and saw him driving the vehicle.
When officers are working together, "the knowledge of each is the
knowledge of all," and the arresting officer has the right to
rely on the knowledge of the officer that gave the command to
arrest together with his own personal knowledge. People v. Peak,
29 Ill. 2d 343, 349, 194 N.E.2d 322, 326 (1963). Thus, Officer
Hart could rely on Officer Benton's recognition of defendant as
the vehicle driver in forming probable cause to arrest defendant
for DUI.
Accordingly, we find defendant failed to prove by a
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preponderance of the evidence a reasonable and prudent person,
having the knowledge possessed by Officer Hart at the time he
arrested defendant, would have believed defendant was not the
driver of the vehicle.
B. Refusal To Submit to Testing
Defendant also asserts he did not refuse to submit to
testing because the test the police offered was not in compliance
with the regulations promulgated under section 11-501.2 of the
Illinois Vehicle Code (625 ILCS 5/11-501.2 (West 2006)). Specif-
ically, he asserts (1) the police did not observe him for 20
minutes before he was offered to take the Breathalyzer test and
(2) he regurgitated during the 20-minute observation period and
was not given the opportunity to rinse out his mouth. The State
essentially contends defendant cannot raise noncompliance with
the regulations because he did not submit to testing. The
State's contention is a matter of first impression in Illinois.
Further, it presents a matter of statutory construction, which is
a question of law, and thus our standard of review is de novo.
People v. Howard, 228 Ill. 2d 428, 432, 888 N.E.2d 85, 87 (2008).
The primary rule in construing a statute is to ascer-
tain and give effect to the legislature's intent, which is best
indicated by the statutory language itself. People v. O'Connell,
227 Ill. 2d 31, 36, 879 N.E.2d 315, 318 (2007). Thus, we begin
our analysis by examining the relevant statutory provisions.
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Section 11-501.1(a) of the Illinois Vehicle Code (Ill.
Rev. Stat. 1985, ch. 95 1/2, par. 11-501.1(a) (now 625 ILCS 5/11-
501.1(a) (West 2006))) is "the implied-consent statute upon which
summary suspension is based." People v. Hamilton, 118 Ill. 2d
153, 158, 514 N.E.2d 965, 968 (1987). Section 11-501.1(a)
provides, in pertinent part, the following:
"Any person who drives or is in actual
physical control of a motor vehicle upon the
public highways of this State shall be deemed
to have given consent, subject to the provi-
sions of [s]ection 11-501.2 [of the Illinois
Vehicle Code (625 ILCS 5/11-501.2 (West
2006))], to a chemical test or tests of
blood, breath, or urine for the purpose of
determining the content of alcohol, other
drug or drugs, or intoxicating compound or
compounds or any combination thereof in the
person's blood if arrested, as evidenced by
the issuance of a Uniform Traffic Ticket, for
any offense as defined in [s]ection 11-501
[of the Illinois Vehicle Code] ***." (Empha-
sis added.) 625 ILCS 5/11-501.1(a) (West
2006).
Section 11-501.2(a) then states, in pertinent part, the
- 21 -
following:
"Upon the trial of any civil or criminal
action *** or proceedings pursuant to
[s]ection 2-118.1 [of the Illinois Vehicle
Code], evidence of the concentration of alco-
hol, other drug or drugs, or intoxicating
compound or compounds, or any combination
thereof in a person's blood or breath at the
time alleged, as determined by analysis of
the person's blood, urine, breath[,] or other
bodily substance, shall be admissible. Where
such test is made the following provisions
shall apply:
1. Chemical analyses of the per-
son's blood, urine, breath[,] or other
bodily substance to be considered valid
under the provisions of this [s]ection
shall have been performed according to
standards promulgated by the Department
of State Police by a licensed physician,
registered nurse, trained phlebotomist
acting under the direction of a licensed
physician, certified paramedic, or other
individual possessing a valid permit
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issued by that [d]epartment for this
purpose. The Director of State Police
is authorized to approve satisfactory
techniques or methods, to ascertain the
qualifications and competence of indi-
viduals to conduct such analyses, to
issue permits which shall be subject to
termination or revocation at the discre-
tion of that [d]epartment[,] and to
certify the accuracy of breath[-]testing
equipment. The Department of State
Police shall prescribe regulations as
necessary to implement this [s]ection."
(Emphases added.) 625 ILCS
5/11-501.2(a) (West 2006).
Section 11-501.2(a) further lists four other provisions. See 625
ILCS 5/11-501.2(a)(2) through (a)(5) (West 2006). Section 11-
501.2(c)(1) addresses refusals to test and states the following:
"If a person under arrest refuses to
submit to a chemical test under the provi-
sions of [s]ection 11-501.1 [of the Illinois
Vehicle Code], evidence of refusal shall be
admissible in any civil or criminal action or
proceeding arising out of acts alleged to
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have been committed while the person under
the influence of alcohol, other drug or
drugs, or intoxicating compound or compounds,
or any combination thereof was driving or in
actual physical control of a motor vehicle."
625 ILCS 5/11-501.2(c)(1) (West 2006).
A reading of the plain language of the aforementioned
statutory provisions indicates the testing standards of section
11-501.2(a) do apply to summary-suspension proceedings. See
Hamilton, 118 Ill. 2d at 161, 514 N.E.2d at 970. However,
section 11-501.2(a) expressly addresses the situation of when the
person has taken a test as it states "[w]here such test is made."
625 ILCS 5/11-501.2(a) (West 2006). Thus, the admissibility of
test results is conditioned on compliance with section
11-501.2(a) and the regulations promulgated thereunder. See
People v. Larsen, 323 Ill. App. 3d 1022, 1026, 753 N.E.2d 378,
382 (2001). Section 11-501.2(c) addresses refusals to test and
does not place any conditions on the admissibility of the re-
fusal. Thus, the plain language of the provisions does not
provide the admissibility of a refusal may be challenged on the
basis the defendant believed the offered test would be
noncompliant with section 11-501.2(a)'s standards.
Moreover, a person is subject to a summary suspension
if "the person refuses testing or submits to a test that dis-
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closes an alcohol concentration of 0.08 or more" or the presence
of any other drug. 625 ILCS 5/11-501.1(d), (e) (West 2006).
Thus, when a person has received a summary suspension due to a
test, a showing of the test's invalidity under section 11-
501.2(a) of the Illinois Vehicle Code (625 ILCS 5/11-501.2(a)
(West 2006)) would nullify the ground upon which the summary
suspension was based. However, if the person who refused the
test could show the proposed test would have been noncompliant if
taken, the person has still refused the test and any potential
noncompliance would not nullify the basis for the summary suspen-
sion.
In support of his argument, defendant cites Hamilton,
in which the supreme court addressed whether a defendant seeking
rescission of a summary suspension could raise the issue of
noncompliance with section 11-501.2 at a rescission hearing.
Hamilton, 118 Ill. 2d at 160, 514 N.E.2d at 969. In analyzing
the issue, the court noted its decision in People v. Emrich, 113
Ill. 2d 343, 351, 498 N.E.2d 1140, 1143 (1986), in which it held
the failure to comply with section 11-501.2 and the regulations
promulgated under it rendered the results of the chemical test
inadmissible in a criminal DUI prosecution. The Hamilton court
extended its holding in Emrich to summary-suspension proceedings
and found "compliance with section 11-501.2 is mandatory for
summary[-]suspension purposes, [and] noncompliance will render
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test results invalid and inadmissible." Hamilton, 118 Ill. 2d at
160, 514 N.E.2d at 969. The Hamilton court concluded a defendant
must be permitted to raise the issue of noncompliance with
section 11-501.2 standards at a rescission hearing, and thus
challenges to the validity of the tests are permissible in such
proceedings. Hamilton, 118 Ill. 2d at 161, 514 N.E.2d at 970.
Thus, the Hamilton case did not address a defendant's ability to
raise potential noncompliance with section 11-501.2 when chal-
lenging a refusal to submit to testing.
Accordingly, we find that, in summary-suspension
proceedings, a defendant cannot raise a chemical test's potential
noncompliance with section 11-501.2 of the Illinois Vehicle Code
as a basis for supporting his or her refusal to submit to test-
ing.
Defendant also challenges his refusal to test based on
Goss v. People, 272 Ill. App. 3d 498, 501, 650 N.E.2d 1078, 1080
(1995), where the First District concluded that, since the police
afforded the petitioner the additional right to consult with his
attorney, the petitioner's insistence on additional consulting
with his attorney should not have been considered a refusal to
submit to the Breathalyzer test. Defendant contends the extra
right afforded to him was "to present to him a test" that suppos-
edly was in compliance with section 11-501.2's standards "prior
to asking [him] whether he would submit or refuse by requiring
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him to stand before the machine." (Emphases in original.)
Defendant's arguments in support of that contention are unclear.
Our review of the record does not reveal Officer Benton conveyed
either verbally or nonverbally to defendant the test was a
compliant test. We note Officer Benton's intent to ask defendant
to take the test she prepared and believed was compliant with
applicable standards did not afford defendant any additional
rights.
Accordingly, we find the trial court's denial of
defendant's rescission petition was not against the manifest
weight of the evidence.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
denial of defendant's petition to rescind his statutory summary
suspension.
Affirmed.
MYERSCOUGH and COOK, JJ., concur.
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