Brief on Refusal and DUI Blood Search Warrant

POINTS AND AUTHORITIES

PAGE

ARGUMENT

•I. THE POLICE OFFICER'S FAILURE TO COMPLY WITH THE STATUTORY SUMMARY SUSPENSION LAW WARRANTS A RESCISSION OF THE DEFENDANT'S SUSPENSION

People v. Eidel , 319 Ill.App.3d 496,

745 N.E.2d 736 (Ill. App. 2 nd Dist. 2001) ................................................2

People v. Johnson , 197 Ill.2d 478,

758 N.E.2d 805 (Ill. S. Ct. 2001).......................................................2, 3

People v. McClure , 218 Ill.2d 375,

843 N.E.2d 308 (Ill. S. Ct. 2006).......................................................2, 3

People v. Williamson , 2008 WL 4277521,

(Ill. App. 5 th Dist. 2008) .....................................................................2

II. JUST AS A DRIVER NEED NOT TESTIFY THAT HE WAS DRINKING ALCOHOL IN ORDER TO BOTAIN A RESCISSION FOR FAILURE TO WARN HIM ABOUT SUMMARY SUSPENSION LAW FOR ALCOHOL, NEITHER DOES THE DEFENDANT HEREIN HAVE TO PUT IN PROOF THAT HE WAS TAKING METHAMPHETAMINE, OR ANY OTHER DRUG, IN ORDER TO OBTAIN A RESCISSION

III. THE STATE'S ARGUMENT THAT THE DEFENDANT SHOULD BE SUSPENDED FOR A REFUSAL AFTER THE DEFENDANT SUBMITTED TO A CHEMICAL TEST IS NOT SUPPORTED BY ANY PRECEDENT AND LEADS TO ABSURD RESULTS

People v. Dvorak , 276 Ill.App.3d 544,

658 N.E.2d 869 (Ill. App. 2 nd Dist., 1995) .................................................7

People v. Johnson , 197 Ill.2d 478,

758 N.E.2d 805 (Ill. S. Ct. 2001)..........................................................7

People v. Jones , 214 Ill.2d 187,

824 N.E.2d 239 (Il. S. Ct. 2005)...........................................................6

People v. Severson 379 Ill.App.3d 699,

885 N.E.2d 411 (Ill.App. 2 Dist.,2008)...................................................6

STATUTES

625 ILCS 5/11-501.1...................................................................................passim

625 ILCS 5/11 -501.1(c), P.A. 95-382 §(c)(effective August 2007)....................................1

•I. THE POLICE OFFICER'S FAILURE TO COMPLY WITH THE STATUTORY SUMMARY SUSPENSION LAW WARRANTS A RESCISSION OF THE DEFENDANT'S SUSPENSION

Section 625 ILCS 5/11-501.1 defines the mandatory protocol for all summary suspensions. People v. Eidel , 319 Ill.App.3d 496, 502, 745 N.E.2d 736, 743 (Ill. App. 2 nd Dist. 2001) . The protocol requires that all drivers be read the mandatory language before their licenses can be suspended. 625 ILCS 5/11-501.1. The language states that the motorist "shall be warned," that testing positive for the list of intoxicating substances will suspend their driving privileges. 625 ILCS 5/11-501.1(c). The legislature's use of the word "shall" in the statute makes the obligation to correctly warn the driver of the applicable statutory language mandatory [emphasis added]. People v. Johnson , 197 Ill.2d 478, 488, 758 N.E.2d 805, 811 (Ill. S. Ct. 2001). In addition, the court should "interpret the language of a statute according to its plain and ordinary meaning," People v. McClure , 218 Ill.2d 375, 382, 843 N.E.2d 308, 312 (Ill. S. Ct. 2006). Therefore, "a court should not depart from the language of the statute by reading into it exceptions, limitations, or conditions that conflict with the intent of legislature," Id.

In August 2007, the Illinois legislature purposefully amended 625 ILCS 5/11-501.1(c) to include the "methamphetamine" language in the Warning to Motorist because, as of September 2005, methamphetamine was no longer recognized as a "Controlled Substance" under the Illinois Controlled Substances Act. 625 ILCS 5/11 -501.1(c), P.A. 95-382 §(c)(effective August 2007); People v. Williamson , 2008 WL 4277521, 1 (Ill. App. 5 th Dist. 2008) . Prior to this amendment, it was well established that the failure to read the Warning to Motorist entitles the driver to a rescission of his summary suspension. According to basic statutory construction, it is presumed that the legislature acted with knowledge of this prevailing case law. People v. Hickman , 163 Ill.2d 250, 268, 644 N.E.2d 1147, 1153 (Il. S. Ct. 1994). Thus, the legislature intended that the motorist be told about the amended methamphetamine language and the failure to do so would lead to the same consequence before the amendment, i.e. a rescission. Since the legislature made a concerted effort to include this specific language, any failure to use the mandated language demonstrates a lack of compliance with the statute. In this case, the Officer did not read the Defendant the correct statutory language, thereby failing to comply with the requirements listed in the implied consent statute 625 ILCS 5/11 -501.1(c). Accordingly, the suspension should be rescinded on this basis alone.

In this case, the State misapplies the holding of People v. Johnson on the issue of the Warning to Motorist. In Johnson , the court refused to rescind a suspension when a first offender was given improper information about the length of suspension for second offenders. Johnson , 197 Ill.2d at 489. While the court stated that it would not hold that " any misinformation," warrants a rescission, it also held "in reviewing a petition for rescission based on inaccurate warnings, courts must determine whether the motorist is a member of the group affected by the inaccuracy, [emphasis added]" Johnson , 179 Ill.2d at 489. Therefore, the court refused to rescind in that specific case because the defendant was a first offender and the officer provided improper information about the suspension for a second offender. Id. Since a first offender is not in the same group as a second offender, the inaccuracy about second offenders did not affect the first offender.

However, in this case, the inaccuracy occurred not in reference to the length of the penalty, but rather the types of conduct for which any penalty would apply. The Warning to Motorist consists of two distinct sections. The first section establishes the list of intoxicating compounds that will cause a suspension. The second section indicates the consequences for testing positive for one or more of the intoxicating substances listed in section one. Johnson's holding only concerns the second section because first or second offenders will automatically fall into different classes based on whether they have received or been arrested for a DUI in the last 5 years. 625 ILCS 5/11 -501.1(c). However, the first section, which defines the illegal conduct, applies to every motorist. Therefore, applying the State's rationale, what, if any, prohibited conduct must be contained in the Warning to Motorist in order for it to be considered legally correct? According to the State, the answer is none, as long as the misinformation does not affect the length of suspension.

The State's misapplication of Johnson ultimately demonstrates the lack of precedent concerning the consequences that flow from any misinformation given about the types of intoxicating substances listed on the Warning to Motorist. Therefore, absent any case law on point, the court should "not depart from the language of the statute by reading into it exceptions, limitations, or conditions," McClure , 218 Ill.2d at 382. Accordingly, the court should rescind the Defendant's summary suspension.

II. JUST AS A DRIVER NEED NOT TESTIFY THAT HE WAS DRINKING ALCOHOL IN ORDER TO OBTAIN A RESCISSION FOR FAILURE TO WARN HIM ABOUT SUMMARY SUSPENSION LAW FOR ALCOHOL, NEITHER DOES THE DEFENDANT HEREIN HAVE TO PUT IN PROOF THAT HE WAS TAKING METHAMPHETAMINE, OR ANY OTHER DRUG, IN ORDER TO OBTAIN A RESCISSION

In the State's response, they argue that since methamphetamine was not involved in this case, the Defendant was not affected by the omission of the methamphetamine language in the Warning to Motorist. However, this backwards-looking argument is contrary to pre-existing law, implied consent law, and is unworkable in any practicable sense. Requiring the Defendant to admit to using methamphetamine as a prerequisite to obtaining a rescission is akin to requiring a defendant to admit that the seized materials from his home were in fact drugs in order to have them suppressed due to an illegal seizure. In other words, the presence or absence of the illegal conduct is superseded by the existence of an illegal seizure (or in this case, an inaccurate warning.) Practically, to hold otherwise, would require all drivers to waive their 5 th Amendment rights and force them to admit to the prohibited conduct (i.e. drugs, alcohol, methamphetamine, etc.) in order to have their suspensions rescinded. Furthermore, section 625 ILCS 5/11-501.1, which defines all protocol for summary suspension law, or any other precedent, are void of any requirements that the motorist must admit to using any of the listed intoxicating substances in order to have standing to rescind his summary suspension. Accordingly, the sole fact that the record is void of any methamphetamine use is irrelevant to the determination as to whether the police's failure to read the statutorily mandated Warning to Motorist warrants a rescission of the Defendant's summary suspension.

III. THE STATE'S ARGUMENT THAT THE DEFENDANT SHOULD BE SUSPENDED FOR A REFUSAL AFTER THE DEFENDANT SUBMITTED TO A CHEMICAL TEST IS NOT SUPPORTED BY ANY PRECEDENT AND LEADS TO ABSURD RESULTS

The State attempts to differentiate People v. Severson from the instant case because the police in the case at bar obtained a warrant for the Defendant's blood draw, whereas in Severson , no warrant was obtained. 379 Ill.App.3d 699, 700, 885 N.E.2d 411, 412 (Ill.App. 2 nd Dist., 2008) . Therefore, the State argues, the Defendant in the instant case should be punished for a refusal because the police took the additional step of obtaining a warrant. However, according to People v. Jones , the police are not required to obtain a warrant in order to compel the motorist to submit to a chemical test. 214 Ill.2d 187, 195, 824 N.E.2d 239, 243 (Il. S. Ct. 2005). Thus, the Defendant should not be punished by the police's decision to take the unnecessary step of obtaining a warrant. In fact, the police's ability to compel a chemical test is likely why the police in Severson told the defendant that "he had no right to refuse and that his blood could be drawn without his consent," 379 Ill.App.3d at 702.

Thus, the State's attempt at showing a differentiation between this case and Severson fails. With the exception of the unnecessary warrant that the police obtained in the case at bar, the facts are significantly similar and legally analogous to those in Severson . Therefore, People v. Severson should control and the Defendant should not receive an extended suspension for a refusal.

The State further argues that by obtaining a warrant to obtain the Defendant's blood, the testing is mysteriously taken out of the scope of the implied consent statute. However, the State provides no statute, authority, or case law to support this bald assertion. Why does obtaining a warrant automatically remove the testing from the "implied consent" statute, 625 ILCS 5/11-501.1? Furthermore, if it does take the testing out of the implied consent statute, then what statute does apply? Without any authority to stand for the State's proposition, this "extra step" is of no consequence and does not alter the applicability of Severson in this case.

In addition, the implied consent statute is "designed to protect persons who travel the highways; it is not punishment," People v. Dvorak , 276 Ill.App.3d 544, 550, 658 N.E.2d 869, 875 (Ill. App. 2 nd Dist., 1995) . Even if the effect of the suspension acts as deterrence and produces the "sting of punishment," it is still not considered punishment. Id.at 876. Instead, the "threat of an extended suspension for motorists who refuse the test motivates individuals to take the test so that the State may gain objective evidence of intoxication," Johnson , 197 Ill.2d at 487. In this case, the State argues, contrary to Johnson , that the "threat" should now become a punishment because the police took the extra step of obtaining an (unnecessary) warrant. Therefore, not only is the State's argument unsupported by precedent, but it also runs inconsistent with current case law.

In the simplest terms, the State cannot have their cake and eat it too. They are seeking to suspend the Defendant for a refusal, even though they obtained a chemical test, solely because the police took an extra step that they were not even required to take. Furthermore, if the State's argument is taken to its logical conclusion, there will be absurd results. For example, the motorist could refuse a breath test, which would cause the breath machine to print up a refusal ticket. However, if the motorist immediately changes his mind and wants to take a breath test, the police officer would have to reset the machine in order for the motorist to now take the test. In this scenario, according to the State's logic, because the police had to take the extra step in resetting the machine, the motorist would both receive an extended suspension for a refusal and the police would have chemical evidence. This result is opposite to the remedial and evidence-gathering purposes of the implied consent statute.

The State fails to differentiate Severson from the case at bar and to support their bald legal conclusions with any authority. Accordingly, if this court ultimately denies the Defendant's petition to rescind, then the Defendant should not receive an extended suspension for a refusal under 625 ILCS 5/11-501.1 because he submitted to a chemical test.

CONCLUSION

Defendant prays that this Honorable Court reverse the order entered by the trial court denying the Defendant's petition to rescind, and in its stead enter an order directing the trial court to rescind the Defendant's summary suspension.