Illinois Law Brief on Implied Consent Warnings

GENERAL NO. 2-08-0438

APPELLATE COURT OF THE STATE OF ILLINOIS

SECOND JUDICIAL DISTRICT

PEOPLE OF THE STATE OF ILLINOIS

Plaintiff-Appellee,

-vs-

WILLIAM NELSON,

Defendant-Appellant.

) Appeal from DuPage County
) Circuit Court 18 th Judicial District
) Circuit Court Case No. 08 DT 998
) Honorable Judge Guerin,
) Judge Presiding
) Date of Notice of Appeal: 5-13-08

______

REPLY BRIEF OF DEFENDANT-APPELLANT

WILLIAM NELSON

ORAL ARGUMENT REQUESTED

POINTS AND AUTHORITIES

PAGE

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

ARGUMENT

WHEN THE OFFICER READ AN OUTDATED WARNING TO MOTORIST TO THE DEFENDANT, WHICH FAILED TO CONTAIN THE CORRECT STATUTORY LANGUAGE, THE TRIAL COURT ERRED WHEN IT REFUSED TO RESCIND THE SUSPENSION.

STATUTES

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

CASE LAW

People v. Blankschein , 337 Ill.App.3d 526,

785 N.E.2d 231, 271 (Ill. App. 2 nd Dist., 2003) ..........................................5

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)................................................................5, 6, 8

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. 24) The facts are undisputed. The Defendant was arrested on March 1, 2008 for DUI by a Village of Wheaton police officer. (C. 1) 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. 55 - 56) The Defendant later refused all chemical tests and received a three year suspension of his driver's license. (C. 10) The summary suspension hearing was held on April 9, 2008. (C. 35) The Defendant moved for rescission of the summary suspension based on the Wheaton Police Officer's failure to comply with the summary suspension statute (625 ILCS 5/11-501.1(c)) because he read the incorrect Warning to Motorist to the Defendant. (C. 60-65, 72-78, & 80-81) The Court then denied the Defendant's Petition to Rescind on April 15, 2008. (C. 84-85) The Defendant filed his timely Notice of Appeal on May 13, 2008. (C. 30)


ISSUE PRESENTED FOR REVIEW

WHETHER THE TRIAL COURT SHOULD HAVE RESCINDED THE SUMMARY SUSPENSION WHEN THE POLICE OFFICER READ THE INCORRECT WARNING TO MOTORIST TO THE DEFENDANT.

JURISDICTIONAL STATEMENT

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 April 15, 2008 (C. 24) The Notice of Appeal was timely filed with the clerk of the circuit court on May 13, 2008. (C. 30, 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. 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 March 1, 2008, the Defendant-Appellant William Nelson was arrested for Driving Under the Influence of Alcohol, Unlawful Possession of Drug Paraphernalia, and Possession of Cannabis under 2.5 grams by a Village of Wheaton police officer. (C. 1-2) When the Defendant was at the police station, Officer Salzmann read him the Warning to Motorist before asking the Defendant to submit to a chemical test (C. 54) However, the form that Officer Salzmann read to the Defendant was an old Warning to Motorist form that did not contain the methamphetamine language recently added by the legislature. (C. 55-56, see appendix p. 4) 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. The Defendant refused to submit to chemical testing and was served with the law enforcement sworn report, which indicated that the Defendant's license would be suspended for three years. (C. 10)

On March 7, 2008, the Defendant filed a Petition to Rescind (C. 11, see appendix p. 1) and on April 9, 2008 both parties appeared for the scheduled summary suspension hearing (C. 40). During the hearing, Officer Salzmann 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. 55-56) The Defendant later submitted into evidence the proper, up-to-date Warning to Motorist as Defense Exhibit 2 and the outdated Warning to Motorist that the Officer read as Exhibit 1. (C. 55 & 57, see appendix pp. 3 & 4) After the State cross-examined Officer Salzmann, the Defendant rested and the State made a motion for a directed finding. (C. 58).

The State argued, based on the holding in People v. Blankschein , 337 Ill.App.3d 526, 785 N.E.2d 231, 271 (Ill. App. 2 nd Dist., 2003) , that the petition should be denied because the omission of the methamphetamine language did not affect the length of the Defendant's potential suspension. (C. 59) The Defendant disagreed, stating that the Officer failed to comply with 625 ILCS 5/11-501.1(c) by reading the incorrect Warning to Motorist (C. 60). Since the officer failed to read the Warning to Motorist pursuant to the applicable statute, rescission of the summary suspension is the only appropriate remedy. (C. 60). After the Court heard both arguments, the Court continued the case until April 15, 2008 to analyze how to apply the law in People v. Johnson, 197 Ill.2d 478, 488, 758 N.E.2d 805, 811 (2001) and People v. Blankschein , 337 Ill.App.3d 526, 785 N.E.2d 231, 271 (Ill. App. 2 nd Dist., 2003) to the novel facts in the Defendant's case. (C. 66)

On April 15, 2008, both parties appeared for further arguments regarding the Defendant's summary suspension. (C. 70). The Court ultimately denied the Defendant's petition to rescind summary suspension because the Court, relying on the holding in Johnson and Blankschein, did not believe the failure to read the updated Warning to Motorist was a basis for rescinding the Defendant's summary suspension. (C. 85) On May 13, 2008, the Defendant filed his timely Notice of Appeal. (C. 30, see appendix p. 5)

ARGUMENT

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) .

It states:

"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)

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 Exhibit 2, & 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. 55-56). 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.


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.


APPENDIX

ITEM PAGE

Petition to Rescind 1

Order Denying Summary Suspension Hearing (4-15-2008) 2

Current Warning to Motorist (Defense Exhibit 1) 3

Out of Date Warning to Motorist (Defense Exhibit 2) 4

Notice of Appeal (5-13-2008) 5


INDEX TO THE RECORD

C0000001 02-06-08 Complaint

C0000002 02-06-08 Bail Bond

C0000003 03-04-08 Complaint Verification

C0000004 03-01-08 Ticket

C0000005 03-01-08 Ticket

C0000006 02-06-08 Bail Bond

C0000007 03-01-08 Bail Bond

C0000008 03-01-08 Warning to Motorist

C0000009 03-01-08 Notice to the Secretary of State of Hearing of Disposition

C0000010 03-01-08 Law Enforcement Sworn Report

C0000011 03-07-08 Confirmation of Statutory Summary Suspension

C0000012 03-07-08 Appearance

C0000013 03-07-08 Petition to Rescind Summary Suspension

C0000014 03-10-08 Notice of Filing

C0000015 03-10-08 Motion for Discovery

C0000016 03-10-08 Motion for Discovery

C0000017 03-10-08 Notice to Produce at Summary Suspension Hearing

C0000018 03-10-08 Notice to Produce at Summary Suspension Hearing

C0000019 03-10-08 Motion to Produce Confessions

C0000020 03-10-08 Subpoena

C0000021 03-10-08 Subpoena

C0000022 03-25-08 Confirmation of Summary Suspension

C0000023 04-15-08 Evidence Receipt

C0000024 04-15-08 Order Summary Suspension

C0000025 Continuance of Summary Suspension

C0000026 05-12-08 Transfer to Presiding Judge for Re-Assignment Order

C0000027 05-13-08 Notice of Filing

C0000028 05-13-08 Motion to Quash Arrest and Suppress Evidence

C0000030 05-13-08 Notice of Filing

C0000031 05-13-08 Notice of Appeal

C0000032 05-13-08 Writ of Praecipe

C0000033 06-17-08 Order of Appellate Brief Deadlines

C0000034 06-19-08 Amended Order of Appellate Brief Deadlines

C0000035 06-09-08 Report of Proceeding from 04-09-08

C0000069 06-23-08 Report of Proceeding from 04-15-2008