GENERAL NO. 2-08-0496
APPELLATE COURT OF THE STATE OF ILLINOIS
SECOND JUDICIAL DISTRICT
PEOPLE OF THE STATE OF ILLINOIS
) Appeal from DuPage County
) Circuit Court 18 th District
) Circuit Court Case No: 08 CF 467
) The Honorable George Bakalis
) Judge Presiding
) Date of Notice of Appeal: 05-28-08
ARGUMENT AND BRIEF OF DEFENDANT-APPELLANT
Donald J. Ramsell
Ramsell & Associates, L.L.C.
128 S. County Farm Road, Suite F
Wheaton, IL 60187
Oral Argument Requested
POINTS AND AUTHORITIES
STANDARD OF REVIEW
THE DE NOVO STANDARD OF REVIEW APPLIES HERE...........................4
People v. Krueger, 175 Ill.2d 60, 64, 675 N.E.2d 604 (1996)..................................4
•I. WHEN THE OFFICER READ AN OUTDATED WARNING TO MOTORIST TO THE DEFENDANT, WHICH FAILED TO CONTAIN THE CORRECT STATUTORY LANGUAGE, THE TRIAL COURT ERRED WHEN IT REFUSED TO RESCIND THE SUSPENSION.
•II. WHERE THE POLICE OBTAIN A SEARCH WARRANT AND
SUCCESSSFULLY OBTAIN A BLOOD ALCOHOL CONCENTRATION FROM A DEFENDANT, THE STATE CANNOT IMPOSE A SUMMARY SUSPENSION FOR AN INITIAL REFUSAL.
625 ILCS 5/11-501.1..........................................................................passim
Branson v. Department of Revenue , 168 Ill.2d 247, 254,
659 N.E.2d 961 (1995)......................................................................6
People v. Eidel , 319 Ill.App.3d 496, 502,
745 N.E.2d 736, 743 (Ill. App. 2 nd Dist. 2001) .......................................6, 7
Paris v. Feder , 179 Ill.2d 173, 177,
668. N.E.2d 137 (1997).....................................................................6
People v. Johnson, 197 Ill.2d 478, 488,
758 N.E.2d 805, 811 (2001)..............................................................6, 8, 11
People v. Myers, 130 Ill.App.3d 681, 684,
86 Ill.Dec. 9, 474 N.E.2d 923 (1985)...................................................11
People v. Severson 379 Ill.App.3d 699,
885 N.E.2d 411 (Ill.App. 2 Dist.,2008).................................................11
SUPREME COURT RULES
Supreme Court Rule 301, 155 Ill.2d R. 301......................................................3
NATURE OF THE CASE
This is an appeal by the Defendant from a final judgment denying his Petition to Rescind a Summary Suspension. (C. 25) The facts are undisputed. The Defendant was arrested on February 20, 2008 for DUI by a Village of Downer's Grove police officer, which was later upgraded to an Aggravated DUI. (C. 1 & C. 29) After the arrest, instead of reading the correct version of the Warning to Motorist (with the amendments that went into effect August 23, 2007), the officer read an old Warning to Motorist which omitted the new mandatory statutory language. (C. 87 - 91) The Defendant then refused all chemical tests. (C. 92) Rather than honor the Defendant's refusal, the police officer obtained a search warrant for the Defendant's blood, breath, or urine. (C. 92) Pursuant to the warrant, a blood sample was taken from the Defendant at Hinsdale Hospital. (C. 95) The police subsequently issued a summary suspension of the Defendant's driver's license based upon the Defendant's initial refusal. (C. 9)
The summary suspension hearing was held on April 11, 2008. (C. 72) The Defendant moved for rescission of the summary suspension on two grounds. First, the Village of Downer's Grove Officer's failure to comply with the summary suspension statute (625 ILCS 5/11-501.1(c)) by reading the incorrect Warning to Motorist to the Defendant warranted a rescission. (C. 115 - 117) Second, because the police were able to compel the Defendant to submit to a blood test by acquiring a warrant, the Defendant should not have received a suspension for a refusal. (C. 122 - 122). The Court then denied the Defendant's Petition to Rescind on April 11, 2008. (C. 38) The Defendant subsequently filed a Motion to Reconsider the Denial of Summary Suspension on April 17, 2008. (C. 41). On May 28, 2008, the Court affirmed its previous rulings and denied the Defendant's Motion to Reconsider (C. 138). The Defendant filed his timely Notice of Appeal on May 28, 2008. (C. 49, see appendix p. 4)
ISSUES PRESENTED FOR REVIEW
•I. WHETHER THE TRIAL COURT SHOULD HAVE RESCINDED THE SUMMARY SUSPENSION WHEN THE POLICE OFFICER READ THE INCORRECT WARNING TO MOTORIST TO THE DEFENDANT
•II. WHETHER THE DEFENDANT'S DRIVER'S LICENSE CAN BE SUSPENDED FOR A REFUSAL IF HE DID IN FACT SUBMIT TO A BLOOD TEST
This appeal is taken as a matter of right under Supreme Court Rules 301 and 303(a)(1), which govern appeals from final judgments in civil proceedings. Supreme Court Rule 301 provides that every final judgment of a circuit court in a civil case is appealable as of right. 155 Ill.2d R. 301. Rule 303(a)(1) provides, in relevant part, that the notice of appeal from final judgments in civil cases "must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from." 155 Ill.2d R. 303(a)(1).
The judgment denying the Defendant's Petition to Rescind was entered on May 28, 2008 (C. 38) The Notice of Appeal was timely filed with the clerk of the circuit court on May 28, 2008. (C. 49, see appendix p. 5)
STANDARD OF REVIEW
The issue of whether the court erred in denying the Defendant's petition to rescind is based on whether the reading of an incorrect and out-of-date Warning to Motorist subsequent to a DUI arrest constitutes grounds for rescission, and whether an initial refusal should suspend a motorist's driver's license if the motorist is later compelled to provide a blood sample. That question should be reviewed de novo because the facts are not in dispute, and the issue involved is wholly a question of law. People v. Krueger, 175 Ill.2d 60, 64, 675 N.E.2d 604 (1996). Thus, this appeal should be reviewed under the de novo standard.
STATEMENT OF FACTS
On February 20, 2008, the Defendant-Appellant, Scott O'Keefe, was arrested for Driving Under the Influence of Alcohol and Improper Lane Usage. (C. 1 - 2) When the Defendant was at the police station, Officer Eddy read him the Warning to Motorist before asking the Defendant to submit to a chemical test. (C. 87) However, the form that Officer Eddy read to the Defendant was an old Warning to Motorist form that did not contain the methamphetamine language recently added by the legislature. (C. 88, see appendix p. 3) The inclusion of the methamphetamine warning in the Warning to Motorist has been required by Public Act since August 23, 2007. 625 ILCS 5/11-501.1.
After the incorrect Warning to Motorist was read to the Defendant, the Defendant refused to submit to chemical testing. (C. 91). Subsequent to the refusal, the police obtained a search warrant that directed the Defendant to submit to the Illinois State DUI blood and urine kit. (C. 93). The Defendant was later taken to Hinsdale Hospital where a blood sample was taken from him. (C. 96).
On February 29, 2008, the Defendant filed a Petition to Rescind (C. 9, see appendix p. 1) and on April 11, 2008, both parties appeared for the scheduled summary suspension hearing (C. 33). During the hearing, Officer Eddy testified that the Warning to Motorist form he read to the Defendant did not contain the methamphetamine language because he used the old Warning to Motorist form (C. 87 - 88). The Defendant later submitted into evidence the proper, up-to-date Warning to Motorist as Defense Exhibit 2 (C. 37) and the outdated Warning to Motorist that the Officer read as Exhibit 1. (C. 90, see appendix pp. 4 & 3 respectively) Officer Eddy also testified that, after the Defendant refused all chemical tests, he obtained a search warrant for the Defendant to submit to a blood test. (C. 93). The Defendant was taken to Hinsdale Hospital and a blood sample was taken. (C. 95). After the witness' examinations concluded, the Defendant rested and the State made a motion for a directed finding. (C. 108).
The Court denied the Defendant's argument that the Officer's failure to use an up-to-date Warning to Motorist warranted a rescission of the summary suspension because it did not affect the Defendant's decision to refuse or take the test. (C. 126) Regarding the issue about the Defendant's refusal, and the subsequent blood test that was executed pursuant to a search warrant, the Court found that the Defendant's behavior constituted a refusal under 625 ILCS 5/11-501.1, and therefore, the suspension was proper. (C. 127) The Defendant's petition to rescind summary suspension was ultimately denied. (C. 127 & C. 38). On May 28, 2008, the Court affirmed its previous findings during the Defendant's Motion to Reconsider the Denial of Summary Suspension. (C. 138) The Defendant filed his timely Notice of Appeal on May 28, 2008. (C. 49, & see appendix p. 5)
I. WHEN THE OFFICER READ AN OUTDATED WARNING TO MOTORIST TO THE DEFENDANT, WHICH FAILED TO CONTAIN THE CORRECT STATUTORY LANGUAGE, THE TRIAL COURT ERRED WHEN IT REFUSED TO RESCIND THE SUSPENSION.
The Court erred by not granting the Defendant's petition to rescind summary suspension based on the inadequate Warning to Motorist, pursuant to 625 ILCS 5/11 - 501.1(c). The statute sets out the all the protocol for summary suspensions. People v. Eidel , 319 Ill.App.3d 496, 502, 745 N.E.2d 736, 743 (Ill. App. 2 nd Dist. 2001) .
"The person shall [emphasis added] also be warned that if the person submits to the test or tests provided in paragraph (a) of this Section and the alcohol concentration in the person's blood or breath is 0.08 or greater, or any amount of a drug, substance, or compound as covered by the Cannabis Control Act, a controlled substance listed in the Illinois Controlled Substances Act, an intoxicating compound listed in the Use of Intoxicating Compounds Act, or methamphetamine as listed in the Methamphetamine Control and Community Protection Act is detected in the person's blood or urine, a statutory summary suspension of the person's privilege to operate a motor vehicle....will be imposed." 625 ILCS 5/11 - 501.1(c)
The legislature's use of the word "shall" makes the obligation to correctly warn the driver of the applicable statutory language mandatory. People v. Johnson , 197 Ill.2d 478, 488, 758 N.E.2d 805, 811 (Ill. S. Ct. 2001). Additionally, the actual language in the summary suspension statute acts as the best guide to ascertaining its legislative intent. Id., citing Paris v. Feder , 179 Ill.2d 173, 177, 668. N.E.2d 137 (1997). If the language is unambiguous, then the court must follow it. Id., citing Branson v. Department of Revenue , 168 Ill.2d 247, 254, 659 N.E.2d 961 (1995). As of August 2007, the legislature amended the Warning to Motorist to include a positive testing of "methamphetamines" as an additional basis for suspending a motorist's license. 625 ILCS 5/11 - 501.1(c), P.A. 95-382 § (c). In fact, the actual "warning" in the Warning to Motorist form mirrors the exact language in the summary suspension statute. (see appendix 4 & 625 ILCS 5/11-501.1(c))
In the instant case, the officer read the old Warning to Motorist form that did not contain the mirrored language from the summary suspension statute. (C. 87 - 88). The language stating "shall be read," followed directly by the warnings, unambiguously demonstrates that the officer must read all of the warnings to the motorist. 625 ILCS 5/11-501.1(c). Accordingly, the failure to read the correct Warning to Motorist should result in the rescission of the Defendant's summary suspension.
The grounds for rescission in this case are further supported by the policy and function of statutory summary suspension. Specifically, "a summary suspension is not a judicial act but an administrative function of the Secretary [of State]." People v. Eidel , 319 Ill.App.3d at 502. Thus, the Court, as a judiciary, must enforce the plain meaning of the statute because it was carefully crafted to act as a legal tool for the Secretary of State. Since the statutory summary suspension created the Warning to Motorist form that should have been read to the Defendant, the only function the court should have performed was enforcing the law and rescinding the summary suspension.
This rationale explains why the concepts of "implied consent" and summary suspension are entirely codified in 625 ILCS 5/11 - 501.1. The statute explains and defines "implied consent" ( 625 ILCS 5/11 - 501.1(a)), the cause of action for summary suspension ( 625 ILCS 5/11 - 501.1(c)), the requirements for summary suspension ( 625 ILCS 5/11 - 501.1(f)), when the suspension begins ( 625 ILCS 5/11 - 501.1(g)), how the suspension must be served ( 625 ILCS 5/11 - 501.1(d)), and which warnings must be given ( 625 ILCS 5/11 - 501.1(c)). Because the legislature has enumerated all the procedures that must be followed for a valid summary suspension, there must be total compliance with the statute in order to summarily suspend a motorist's driver's license. The methamphetamine language is included in the warning and, therefore, "shall" be read to the motorist in order to comply with the statute. 625 ILCS 5/11 - 501.1(c)). The trial court lacks the power to simply ignore the legislatively mandated warnings and yet, at the same time, uphold the legislatively created suspension. Under these circumstances, the judiciary's role is to enforce the plain meaning of the statute and obligate police officers to read the entire, updated Warning to Motorist.
Furthermore, having a Warning to Motorist read to a DUI arrestee before chemical testing is analogous to a defendant being Mirandized before statements are elicited from him through custodial interrogation. Johnson , 197 Ill.2d 478 at 489 - 490 (citing concurring opinion). Before a motorist agrees to submit chemical evidence that may incriminate him, he must be advised of all the intoxicating compounds that would subject him to a 1-3 year summary suspension. The omission of any mandated language is tantamount to omitting one of the enumerated Miranda rights read to a defendant before his statements can be admissible in court. If police officers are given the discretion to choose which parts of warnings they could read (or fail to read) to motorists, then the door would be opened to the possibility of infinite variations of inadequate warnings. The mandatory language of the summary suspension statute prohibits this choice. Therefore, rescission is the appropriate remedy if there was no strict compliance with section 625 ILCS 5/11 - 501.1.
Accordingly, the court should have rescinded the Defendant's summary suspension because the officer failed to comply with the statutory requirements for summary suspension by reading the incorrect Warning to Motorist to the Defendant.
II. WHERE THE POLICE OBTAIN A SEARCH WARRANT AND SUCCESSSFULLY OBTAIN A BLOOD ALCOHOL CONCENTRATION FROM A DEFENDANT, THE STATE CANNOT IMPOSE A SUMMARY SUSPENSION FOR AN INITIAL REFUSAL.
In addition to the issue of the incorrect Warning the Motorist, the trial court also erred by allowing the Police to suspend the Defendant's license for a refusal to submit to a chemical test, despite the fact that the police did obtain a blood sample from the Defendant. Compelling a Defendant to submit to testing, yet still suspending him for his initial refusal, renders an inequitable and unlawful result. First, the nature of a summary suspension is not punitive, but remedial. Johnson , 197 Ill.2d at 486. Second, a search warrant legally renders a defendant incapable of refusing. Chapter 625 ILCS 5/11-501.1(b) states that:
"Any person who is dead, unconscious, or who is otherwise in a condition rendering the person incapable of refusing shall be deemed not to have withdrawn the consent provided by paragraph (a) ..." (italics added)
Since the search warrant negated the refusal by rendering the defendant legally 'incapable of refusing', the trial court erred in upholding a suspension for the defendant's initial refusal in this case.
Although one of the main purposes of the implied consent law is to help law enforcement officers gather evidence for DUI prosecutions by inducing motorists to submit to testing (see People v. Myers, 130 Ill.App.3d 681, 684, 86 Ill.Dec. 9, 474 N.E.2d 923 (1985)), the controlling case in this matter is People v. Severson 379 Ill.App.3d 699, 885 N.E.2d 411 (Ill.App. 2 Dist.,2008). In Seversen , the defendant initially refused to submit to a blood test, but later permitted his blood to be drawn after being told that he had no right to refuse. Id. at 702. The Court rescinded the statutory summary suspension because the motorist did comply with the test despite the initial refusal, thus holding that a motorist's choice of words should not be controlling. Id.
In the instant case, the Defendant initially refused to submit to a blood alcohol test. (C. 92). Under Illinois "implied consent law", a defendant who refuses to submit to an alcohol test can be summarily suspended. 625 ILCS 5/11 - 501.1(c). However, the State did not honor the defendant's refusal. Instead, the State obtained a search warrant and compelled the defendant to submit. (C. 93). The State is still seeking to suspend the defendant for refusing, even though they exercised their right to compel testing and obtained a blood sample
Additionally, the State's argument that the defendant should be suspended because he forced the State to obtain a search warrant is improper. Logically, this argument suggests that the court should punish the Defendant for the refusal, which contradicts the remedial, not punitive, purpose of implied consent law. Johnson , 197 Ill.2d at 486. Therefore, such a suspension would not suit the purpose of implied consent, nor remain consistent with its legislative intent.
Furthermore, upholding a suspension for an initial refusal that is neither honored, nor left intact by law enforcement, would ultimately lead to absurd consequences. For example, a driver could initially refuse a breath test, change his mind minutes later, and be both suspended for refusing and prosecuted with the breath test results. Therefore, the Court erred in its decision and should not have suspended the Defendant's driver's license for a refusal when he ultimately submitted to a chemical test.
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.
Petition to Rescind (02-29-08) 1
Order Denying Summary Suspension Hearing (4-11-2008) 2
Out of Date Warning to Motorist (Defense Exhibit 1) 3
Current Warning to Motorist (Defense Exhibit 2) 4
Notice of Appeal (5-28-2008) 5
INDEX TO THE RECORD
C0000001 02-21-08 Complaint
C0000002 02-21-08 Ticket for Improper Lane Usage
C0000003 02-20-08 Notice to Secretary State of Hearing Disposition
C0000004 02-20-08 Notice to Secretary State of Hearing Disposition
C0000005 02-21-08 Warning to Motorist
C0000006 02-21-08 Law Enforcement Sworn Report
C0000007 02-22-08 Bail Bond
C0000008 02-22-08 Mittimus
C0000009 02-29-08 Notice of Filing
C0000010 02-29-08 Appearance
C0000011 02-29-08 Petition to Rescind Summary Suspension
C0000012 03-03-08 Notice of Filing
C0000013 03-03-08 Motion for Discovery
C0000017 03-03-08 Motion to Produce Confessions
C0000018 03-03-08 Notice to Produce at Summary Suspension Hearing
C0000020 03-03-08 Subpoena Duces Tecum Served
C0000022 03-03-08 Subpoena Duces Tecum Served
C0000023 03-03-08 Subpoena Duces Tecum Served
C0000024 03-03-08 Subpoena Duces Tecum Served
C0000025 03-04-08 Confirmation of Summary Suspension
C0000026 03-11-08 Letter - Receipt and Transmittal of Subpoenaed Material
C0000027 03-13-08 Indictment Identification Information
C0000028 03-13-08 Superceding Indictment
C0000029 03-13-08 Superceding Indictment
C0000030 03-17-08 Discovery Order
C0000031 03-17-08 Order - Continuation of Summary Suspension Hearing
C0000032 03-17-08 Original Disclosure to Defendant
C0000034 04-06-08 Supplemental Disclosure to Defendant
C0000036 04-11-08 Petition to Rescind is Denied
C0000037 04-11-08 Copy of Warning to Motorist
C0000038 04-11-08 Order Summary Suspension
C0000040 04-17-08 Notice of Filing
C0000041 04-17-08 Motion to Reconsider Denial of Summary Suspension
C0000042 05-09-08 Continued
C0000043 05-28-08 Continued
C0000044 05-28-08 Notice of Filing
C0000045 05-28-08 Demand for Speedy Trial
C0000046 05-28-08 Writ of Pracipe
C0000047 05-28-08 Writ of Pracipe
C0000048 05-28-08 Notice of Filing
C0000049 05-28-08 Notice of Appeal
C0000050 05-28-08 Notice of Filing
C0000051 05-29-08 Corrected Notice of Appeal
C0000052 06-06-08 Supplemental Disclosure to Defendant II
C0000054 06-06-08 Notice of Filing
C0000055 06-06-08 Notice of Filing
C0000056 06-06-08 Subpoena Duces Tecum Served
C0000057 06-11-08 Letter to Appeals Clerk
C0000058 06-11-08 Criminal Subpoena Served
C0000059 06-17-08 Supplemental Disclosure to Defendant III
C0000061 06-17-08 Notice of Filing
C0000062 06-17-08 Motion to Quash Def's Subpoena Duces Tecum
C0000064 06-19-08 Appellate Court Order
C0000065 06-23-08 Continued
C0000066 06-23-08 Notice
C0000067 06-23-08 Motion for a Continuance
C0000068 06-23-08 Affidavit Attached to Motion for a Continuance
C0000069 07-08-08 Denied Order
C0000070 07-14-08 Criminal Subpoena Served
C0000072 06-11-08 Report of Proceedings Dated 04-11-08
Witness: Village of Downer's Grove Officer Michael Eddy
C0000080 1. Direct Examination
C0000097 2. Cross Examination
C0000106 3. Re-Direct Examination
C0000107 4. Re-Cross Examination
C0000130 06-11-08 Report of Proceedings Dated 05-09-08
C0000134 06-11-08 Report of Proceedings Dated 05-28-08