A Practical Guide to the DUI Summary Suspension Laws

A Practical Guide to the Illinois DUI Summary Suspension Laws
By Donald J. Ramsell

On January 1, 1986, statutory summary suspensions were added to the laws of Illinois against drunk driving. Since that time, various court decisions and legislative amendments have affected the practice of defending DUI drivers.
The following guide to the laws on summary suspensions includes practical tips and a recitations of cases interpreting the law. Any person arrested for the DUI-related offense is affected by two procedures, summary suspension of driving privileges and criminal prosecution, both of which are discussed below.

Statutory summary suspensions:
If a person refuses to submit to chemical testing or submits to a test disclosing a blood alcohol concentration of .08 or more, his or her license will be suspended on the 46th day from the date of service with a notice of suspension (also known as the law enforcement sworn report).
The length of suspension is as follows:
a) Three months for "first offenders" (those without prior DUI's in the past five years) who have an alcohol concentration of .08 or more.
b) One year for persons with a BAC of .08 or more who are not first offenders.
c) Six months for "first offenders" who refuse any or all testing; and
d) Two years for those who refuse chemical testing who are not "first offenders."
The term "first offender," as used in the above paragraph, is somewhat misleading. Those with a prior DUI conviction, court supervision, or reduction to reckless driving more than five years before the date of current arrest are considered first offenders even though they are ineligible for court supervision on the criminal charge of DUI. People v Wickland, 268 Ill App 3d 758, 644 NE2d 799 (2d D 1994), states that it is proper to inform a person that he is a first offender even though he is not eligible for court supervision because the civil suspension and criminal proceedings are separate and distinct.

Judicial driving permits:
Only first offenders are eligible for judicial driving permits. JDPs are issued by the judge, and allow a person to drive to and from home to work, school, medical treatments (for any family member) and alcohol treatment from the 31st day of the suspension until the end of the suspension period.
Non-first-offenders who fail chemical testing may apply for a restricted driving permit from the Secretary of State.
Non-first-offenders who refuse chemical testing are ineligible for any hardship licensing during the entire two-year period. However, a recent case has held that the lack of hardship relief to non-first-offenders who refuse testing violates equal protection and due process, and thus the trial court rescinded the two-year suspension. This case is presently on direct appeal to the Illinois Supreme Court.
In another case, the Illinois Supreme Court recently held that a summary suspension is not punishment and therefore does not violate the double jeopardy clauses of the Illinois or U.S. Constitutions. People v Lavariega, 175 Ill 2d 153, 676 NE2d 643 (1997).

The judicial hearing:

Statute of limitations: To contest a summary suspension, a petition to rescind must be filed in the circuit court of venue within 90 days of the service of the notice of summary suspension. 625 ILCS 5/2-118.1(b).

Burden of proof: The burden of proof at a summary suspension hearing rests upon the petitioner. People v Orth, 124 Ill 2d 326, 530 NE2d 210 (1988). Once a motorist has made a prima facie case that he or she was not under the influence of alcohol or that the test results were invalid or inaccurate, the burden shifts to the state to prove otherwise. Orth, 530 NE2d at 216. If a blood or breath test was taken, the state must establish the foundation for the test and admit it is not evidence to avoid rescission. Id.
The court may not grant a motion for a directed verdict where the testimony of the motorist is neither contradicted nor inherently improbable. People v Bavas, 251 Ill App 3d 720, 623 NE2d 876 (2d D 1993). If the motorist calls the officer in his case-in-chief, the court can choose which witness to believe in deciding the motion. People v Wise, 282 Ill app 3d 642, 669 NE2d 128 (4th D 1996).

Foundational requirements for alcohol tests: Because a summary suspension is civil in nature, the foundational requirements for admission of an alcohol test include both compliance with Illinois Department of Public Health rules and the civil rules of evidence. People v Graney, 234 Ill App 3d 497, 599 NE2d 574 (2d 1992). For example, at a summary suspension hearing, the state must not only prove that the logbook is a public record, it must also lay an adequate foundation to qualify the logbook as a business record. Graney, 599 NE2d at 506. Also, at a summary suspension hearing, the state is obligated to prove that the operator of a breath instrument is competent, i.e., that he or she knows the approved operator's procedure. Graney, 599 NE2d at 507; People v Keith, 148 Ill 2d 32 43, 591 NE2d 449 (1992).

The right to a timely hearing:
A hearing must be held within 30 days of the date the petition is filed and served in the state, or on the first appearance date if a traffic ticket is issued for filing of the DUI charge (whichever is later). People v Luyten, 285 Ill app 3d 959, 675 NE2d 271 (1st D 1996). But see People v Lagowski, 273 Ill App 3d 1012, 653 NE2d 1 (1st D 1995). If a timely hearing is not provided, the summary suspension must be rescinded.

Grounds for rescission:
The following is a list of various grounds which can result in the rescission of a summary suspension:

Requests to admit: In People v Mindham, 253 Ill app 3d 792, 625 NE2d 835 (2d D 1992), the appellate court ruled that the failure of the state to answer a request to admit is an appropriate basis on which to rescind a suspension where the facts admitted established a ground for a rescission. Requests to admit are effective tools in summary suspension proceedings.

Requests to produce: Many trial judges have ruled that since civil discovery rules apply to a summary suspension hearing, the failure of the state to comply with a timely request to produce pursuant to Supreme Court Rule 237 is a basis for a rescission. Items and persons commonly requested to be present at the summary suspension hearing include:

1) the arresting officer;
2) the breath test operator
3) the logbook for the breath test instrument;
4) audiotapes or videotapes regarding the investigation, stop, arrest, and processing of the defendant;
5) any records of repairs or malfunctions to the instrument which occurred within 45 days prior to or after defendant's test.

It is strongly recommended that a request to produce at summary suspension hearing be filed concomitantly with the petition for summary suspension hearing.

Defective Pleadings: A sworn report and a warning to motorist are considered pleadings which must state a cause of action to properly initiate the summary suspension of a motorist's driving privileges. In People v Palacios, 266 Ill app 3d 341, 640 NE2d 657 (3d D 1994), a summary suspension was rescinded where the sworn report did not establish that proper service of the notice of summary suspension had been made on the motorist. The Secretary of State, who by law has been ascribed the duty to review the propriety of the sworn reports, proceeded to suspend that motorist's driving privileges anyway. As a result, the appellate court ruled that the motorist's rights were violated and rescinded the suspension.
Other examples of defective pleadings include:

a) time of test precedes arrest or warning;
b) date of arresting officers signature precedes date of blood test analysis;
c) place of arrest does not establish venue;
d) unsigned pleadings;
e) date of service of notice precedes date of test;

Service of notice: Failure to serve the notice of summary suspension on the motorist is a basis for a rescission. People v Cooper, 174 Ill app 3d 500, 528 NE2d 1011 (2d D 1988).

Confirmation of summary suspension: A suspension may not be rescinded until it has been confirmed by the Secretary of State. Where a motorist files a petition for summary suspension hearing and is prevented from having a hearing within 30 days due to the delay in filing of the confirmation of summary suspension by the Secretary of State, the motorist is entitled to a rescission. People v Madden, 273 Ill App 3d 114, 652 NE2d 480 (3d d 1995). Always check the court file before the hearing is held to ensure that the confirmation is on file.

Warning to motorist: Misleading or improper statements by the law enforcement officer regarding the consequences of submitting to or refusing chemical testing, regardless of whether the warning to motorist was read, can form the basis of a rescission of the suspension. For example, telling the motorist that he can only get the judicial driving permit if he takes the test is improper. People v Monckton, 191 Ill app 3d 106, 547 NE2d 673 (3d D 1989). Informing a motorist of an incorrect length of suspension will cause the rescission of a suspension. People v Engelbrecht, 225 Ill app 3d 550, 588 NE2d 452 (2d D 1992).

Also, failing to read the motorist's warning because the defendant was belligerent or uncooperative can also be grounds for a rescission. City of Higland Park v Didenko, 274 Ill App 3d 24, 653 NE2d 1378 (2d D 1995).

Right to an attorney: Although defendants do not have the right to consult with an attorney prior to deciding to submit to or refuse chemical testing, those who are permitted to consult cannot be forced to submit to or refuse testing until they have received a full and fair opportunity to obtain a consultation. Goss v State of Illinois, 272 Ill App 3d 498, 650 NE2d 1078 (1st D 1995).

Right to choose type of test: Although a motorist does not have the right to choose the type of chemical test, a suspension will be rescinded where the officer allows the defendant to choose and then refuses to honor his or her choice. People v Elledge, 144 Ill app 3d 281, 494 NE2d 911 (3d D 1986).

Invalid or inaccurate test results:

a) Where a breath test result is followed by the words "highest value obtained - deficient sample" the motorist cannot be suspended for failing the test because the value printed does not accurately reflect a true breath sample. See e.g., People v Wisbrock, 223 Ill App 3d 173, 584 NE2d 513 (3d D 1991).
b) Where a breath result is tainted by chemicals other than ethyl alcohol, such as asthma spray, paint thinners, etc., and proof is established that the true breath sample of ethyl alcohol would not have exceeded the legal limit, a rescission is appropriate. See e.g., People v Kamide, 254 Ill app 3d 67, 626 NE2d 337 (2d D 1993).
c) Violations of the Illinois Department of Public Health standards governing the administration of breath, blood, and urine tests for drugs and alcohol are properly the basis for a rescission. See e.g., People v Bergman, 253 Ill App 3d 369, 623 NE2d 1052 (5th D 1993)(breath mints in the mouth).

Anonymous tips: An anonymous report of drunk driving, without independent police corroboration, cannot form the basis for the stop of a motorist. People v Messamore, 245 Ill App 3d 627, 615 NE2d 762 (3d D 1993).

Unusual behavior: Unusual behavior, such as driving slowly and stopping in the middle of the street for a matter of seconds, cannot justify a Terry stop of the motorist. People v Dionesotes, 235 Ill App 3d 967, 603 NE2d 118 (2d D 1992).

Community caretaking function: The use of physical force or the show of authority to make contact with a motorist is not a proper "community caretaking" encounter with a motorist. See e.g., People v Murray, 137 Ill 2d 382, 560 NE2d 309 (1990).

Fourth Amendment violations: A violation of the Fourth Amendment right to be free of a search, seizure, or arrest is the proper basis for a rescission. See e.g., People v Krueger, 208 Ill App 3d 897, 567 NE2d 717 (2d D 1991) (warrantless entry into defendant's home to arrest for DUI invalid).

Improper lane usage: The brief, momentary crossing of the center line to avoid parked cars is not a proper basis to stop a vehicle, and thus the suspension was properly rescinded. People v Collins, 154 Ill app 3d 149, 506 NE2d 963 (3d D 1987).

Evidence of malfunctions or repairs: In People v Boughton, 268 Ill app 3d 170, 644 NE 2d 471 (4th d 1994) the court held that the mere entry of a repair in the logbook shifted the burden to the state to prove that the repair did not affect the accuracy of the breath test results.

Belching: If a motorist belches during the 20 minutes immediately preceding the breath test, a rescission will be granted if there is sufficient proof that the belching "skewed" the results. People v Bertsch, 183 Ill App 3d 23, 538 NE2d 1306 (2d D 1989).

Private property: If the motorist did not operate the vehicle in question on a publicly maintained highway or parking lot, he or she cannot receive a statutory summary suspension. People v Montelongo, 152 Ill app 3d 518 504 NE2d 936 (1st D 1987). (but an intoxicated motorist who "sleeps it off" while the car is running is in actual physical control of the vehicle.

Medication: If the motorist is given medication shown to affect the accuracy of a subsequent blood or breath test, a rescission is appropriate. See e.g., People v Culpepper, 254 Ill App 3d 215, 625 NE2d 868 (4th D 1993).

Improper appearance date: If the arresting officer sets the first appearance date outside the parameters of Supreme Court Rule 504 (where applicable) and the date prejudices the driver's ability to obtain a prompt post-suspension hearing, most judges will rescind the suspension based upon a due process violation.

Failure of arresting officer to appear under motorist's subpoena: The failure of an arresting officer to appear at the hearing under subpoena shall be treated as the failure of a complaining witness to appear at trial, generally resulting in a rescission.

Conclusion:
Although the summary suspension laws appear straightforward and absolute, a diligent and well-prepared attorney may indeed find grounds to support the rescission of his or her client's summary suspension.