NO. 5-09-0174
N O T IC E
Decision filed 04/16/10. The text of
IN THE
this dec ision m ay b e changed or
corrected prior to the filing of a
APPELLATE COURT OF ILLINOIS
P e t i ti o n for Re hea ring or the
disposition of the same.
FIFTH DISTRICT
__________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) St. Clair County.
)
v. ) No. 09-DT-167
)
KAREN KEITHLEY, ) Honorable
) Zina R. Cruse,
Defendant-Appellee. ) Judge, presiding.
__________________________________________________________________________
JUSTICE WELCH delivered the opinion of the court:
The People of the State of Illinois appeal the order entered by the circuit court of St.
Clair County rescinding the summary suspension of the driving privileges of the defendant,
Karen Keithley. For the reasons that follow, we reverse.
On February 1, 2009, the defendant was charged by complaint with improper lane
usage (625 ILCS 5/11-709(a) (West 2008)), following too closely (625 ILCS 5/11-710 (West
2008)), and driving under the influence (625 ILCS 5/11-501(a) (West 2008)). On February
13, 2009, the defendant filed a motion to rescind her statutory summary suspension.
A hearing on the defendant's motion to rescind the statutory summary suspension was
held on March 24, 2009. Sergeant Joshua Donovan testified that he had been a patrol
sergeant with the Shiloh police department for more than nine years. Over his career, he had
arrested a little more than 200 people for driving under the influence. Accordingly, he was
familiar with the DUI laws in Illinois. He is also a certified Breathalyzer operator and a
field-training officer.
On the night of the incident, he observed a large-cab pickup truck swerve across the
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centerline and follow too closely to a vehicle in front of it. He effectuated a traffic stop and
approached the vehicle. The defendant was in the vehicle with her husband. Sergeant
Donovan observed that the defendant's eyes were red and glassy. He also observed a strong
alcohol odor. The defendant said that she had swerved because she had been eating White
Castle food. He asked her if she had consumed any alcoholic beverages, and she responded
that she had not. At that point, Sergeant Donovan obtained her driver's license and insurance
and took it to his patrol car. When he returned to the defendant's vehicle, he asked again
whether she had consumed any alcoholic beverages, and she replied that she had not. He
advised her that he could smell alcohol from her breath. He then asked her if she would
submit to a field sobriety test. The defendant responded that she did not feel that she had
done anything wrong and refused. He then asked her to step out of her vehicle and step to
the back of the vehicle. The defendant told him that he "might as well take her to jail."
Sergeant Donovan placed the defendant under arrest based on the strong odor of alcohol,
slurred speech, and red glassy eyes.
At the police station, the defendant advised Sergeant Donovan that she needed to use
the restroom, and he allowed her to do so. When she returned, she was placed in the holding
room. Sergeant Donovan read the warnings to the defendant at 10:38 p.m. The defendant
was adamant about her refusal to submit to a Breathalyzer test. The defendant remained in
the holding room while Sergeant Donovan finished the requisite paperwork in the booking
room. Sergeant Donovan admitted that he did not observe the defendant for 20 minutes prior
to asking her to submit to testing and reading the warning-to-motorist form to her.
The defendant testified that she had told Sergeant Donovan that she had been reaching
for a White Castle cheeseburger and that is why she had swerved. She recalled telling
Sergeant Donovan that she would not submit to a sobriety test. She also testified that
Sergeant Donovan did not observe her for 20 minutes prior to requesting that she submit to
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a Breathalyzer test.
The court granted the defendant's motion to rescind the summary suspension on March
25, 2009, finding that there had been "no 20[-]minute observation before logging the
defendant's refusal." The State filed a timely notice of appeal on April 17, 2009.
Generally, this court will not reverse a trial court's judgment on a motion 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 (2007). Initially, the defendant has the burden
of proof to demonstrate by a preponderance of the evidence a prima facie case for a
rescission. People v. Ehley, 381 Ill. App. 3d 937, 943 (2008). If the defendant establishes
a prima facie case, the burden then shifts to the State to present evidence justifying the
suspension. Ehley, 381 Ill. App. 3d at 943. However, where the issue is one of statutory
construction, this court will apply a de novo standard of review. People v. Howard, 228 Ill.
2d 428, 432 (2008). In the present case, because no issues of fact are presented, the issue is
one of statutory construction that we will review de novo. The appellee did not file a brief
in this matter, but since the appellant's brief and the record are sufficient to resolve this issue,
we will consider this appeal pursuant to First Capitol M ortgage Corp. v. Talandis
Construction Corp., 63 Ill. 2d 128 (1976).
Section 11-501.1 of the Illinois Vehicle Code (the Code) (625 ILCS 5/11-501.1 (West
2008)) provides that any individual driving on an Illinois public highway who is arrested for
driving under the influence of alcohol is deemed to have consented to chemical testing of
blood, breath, or urine to determine the content of alcohol in his or her blood. A refusal to
submit to a breath test will result in the statutory suspension of the defendant's driving
privileges. 625 ILCS 5/11-501.1(c) (West 2008). Specifically, section 11-501.1 authorizes
the summary suspension of a defendant's driver's license when that individual has been
lawfully arrested for driving under the influence of alcohol and either (1) has refused to
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submit to chemical testing to determine blood-alcohol content or (2) has submitted to and
failed that testing. People v. Hacker, 388 Ill. App. 3d 346, 350 (2009).
The grounds upon which to rescind a statutory summary suspension are generally
limited to the following: (1) whether the motorist was arrested for DUI, (2) whether the
arresting officer had reasonable grounds to believe that the motorist was in physical control
of a vehicle upon a highway while under the influence of alcohol, drugs, or both, (3) whether
the motorist refused to submit to chemical testing after being advised that the refusal would
result in a statutory suspension of driving privileges, and (4) whether the motorist submitted
to chemical testing and had an alcohol concentration of 0.08 or more. 625 ILCS 5/2-118.1(b)
(West 2008). A rescission may also be granted where the motorist has consented to and has
taken a breath test but the breath test has not been performed in accordance with the
"standards promulgated by the Department of State Police by *** [an] individual possessing
a valid permit issued by that Department for this purpose." 625 ILCS 5/11-501.2(a)(1) (West
2008). The general sampling protocol promulgated by the Department of State Police (the
Department) provides in pertinent part as follows:
"Section 1286.300 General Sampling Protocol
The arresting officer has discretion to determine whether a subject will be
required to submit a breath, blood, and/or urine sample for testing.
***
b) The arresting officer or BAO shall deem a subject who fails to
submit to a requested test or additional testing to have refused testing." 20 Ill.
Adm. Code §1286.300(b), amended at 31 Ill. Reg. 7319, eff. May 1, 2007.
The protocol for approved evidentiary instrument operation, promulgated by the
Department, provides in pertinent part as follows:
"Section 1286.310 Approved Evidentiary Instrument Operation
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The following procedures shall be used to obtain a breath sample to determine
a subject's BrAC with an approved evidentiary instrument:
a) Prior to obtaining a breath[-]analysis reading from a subject, the
BAO or another agency employee shall continuously observe the subject for
at least 20 minutes.
1) During the 20[-]minute observation period the subject shall
be deprived of alcohol and foreign substances and shall not have
vomited.
2) If the subject vomits during the observation (deprivation)
period, the process shall be started over by having the individual rinse
the oral cavity with water.
3) If the individual continues to vomit, alternate testing shall be
considered." 20 Ill. Adm. Code §1286.310(a), amended at 28 Ill. Reg.
10038, eff. June 30, 2004.
The primary rule in construing a statute is to ascertain 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 (2007). The construction of an administrative rule or regulation
also focuses on ascertaining and giving effect to the drafters' intent, which is determined by
the language used in the regulation, given its plain and ordinary meaning. People v. Oliver,
387 Ill. App. 3d 1162, 1167 (2009). "[A] clearly written administrative rule must be applied
'as written' " and "should not be interpreted in a manner that produces 'decidedly absurd
results' or attributes 'nonsensical intentions' to its drafters." Oliver, 387 Ill. App. 3d at 1167
(quoting People v. Wilhelm, 346 Ill. App. 3d 206, 208 (2004), and People v. Hanna, 207 Ill.
2d 486, 500-01 (2003)).
According to the plain language of section 1286.300 of Title 20 of the Illinois
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Administrative Code, the arresting officer has the discretion to determine whether a person
will be required to submit to breath-testing and shall deem a subject who fails to submit to
a requested test to have refused testing. There is no requirement that an officer must wait any
period of time before determining that a subject has refused to submit to testing. While
section 1286.310 of Title 20 of the Illinois Administrative Code provides that a test cannot
actually be performed until after the expiration of a 20-minute observation period, there is
no requirement in that section that an officer must observe a subject for at least 20 minutes
prior to requesting that he or she submit to testing. No time limit should be read into the
regulations pertaining to when an officer may ask for consent for a breath test. Oliver, 387
Ill. App. 3d at 1167. This would lead to the absurd result that an officer must observe an
arrestee for at least a 20-minute time period before he even requests that the subject submit
to a breath test. This rationale would also lead to the absurd result that defendants would be
able to raise as a basis for a rescission the argument that a motorist may not be deemed to
have refused to submit to a breath test because the requested test does not comply with the
promulgations where there was no 20-minute observation period prior to the officer's request
for testing.
In a similar case, People v. Fonner, 385 Ill. App. 3d 531 (2008), the defendant refused
to submit to a breath test and appealed the denial of his petition to rescind the summary
suspension. On appeal the defendant asserted that 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 Code (625 ILCS 5/11-501.2 (West 2006)) because there had
been no 20-minute observation period prior to the police officer requesting that he submit to
a breath test. The State argued in response that the defendant could not raise noncompliance
with the regulations applying to testing as a basis for a rescission because the defendant did
not submit to testing. Fonner, 385 Ill. App. 3d at 541. Treating the issue as a case of first
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impression, the appellate court held that in summary suspension proceedings, a defendant
cannot raise a chemical test's potential noncompliance with section 11-501.2 as a basis for
supporting his refusal to submit to testing. Fonner, 385 Ill. App. 3d at 544. Construing the
plain language of section 11-501.2, the appellate court found that the statute does not provide
that the admissibility of a refusal may be challenged on the basis that the defendant believed
the offered test would be noncompliant with the standards of section 11-501.2(a) of the Code
(625 ILCS 5/11-501.2(a) (W est 2006)). Fonner, 385 Ill. App. 3d at 543. The appellate court
further noted that the admissibility of test results is conditioned on compliance with section
11-501.2(a) and the regulations promulgated thereunder. Section 11-501.2(a) expressly
addresses the circumstances where a person has taken a test. Fonner, 385 Ill. App. 3d at 542-
43. Section 11-501.2(c) of the Code (625 ILCS 5/11-501.2(c) (West 2008)) addresses the
refusal to take a test and does not place any conditions on the admissibility of the refusal.
Fonner, 385 Ill. App. 3d at 543. A person is subject to a summary suspension if the person
refuses to submit to testing (625 ILCS 5/11-501.1(d) (West 2008)), and section 11-501.2(c)
does not place any conditions on the admissibility of the refusal. Fonner, 385 Ill. App. 3d
at 543. The appellate court concluded that even if the person who refused the test could
show that 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
suspension. Fonner, 385 Ill. App. 3d at 543.
In the instant case, it is undisputed that the defendant refused to submit to testing from
the outset. Therefore, section 11-501.2 does not even apply because there was no need for
a 20-minute observation period before testing. Had the defendant submitted to testing, at that
point a 20-minute observation period should have commenced prior to testing as promulgated
by the Department. However, because the defendant refused to submit to testing, there was
no requirement for a 20-minute observation period. The clear language of the promulgations
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does not require officers to observe a subject for at least 20 minutes prior to requesting that
the subject submit to testing, nor was that the intent of the drafters. The promulgations
provide that after the subject has consented to testing, an officer must observe the subject for
at least 20 minutes prior to obtaining the breath test, not prior to obtaining the subject's
consent to submit to testing.
Accordingly, we reverse the judgment entered by the circuit court of St. Clair County
rescinding the defendant's statutory summary suspension.
Reversed.
SPOMER and STEWART, JJ., concur.
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NO. 5-09-0174
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) St. Clair County.
)
v. ) No. 09-DT-167
)
KAREN KEITHLEY, ) Honorable
) Zina R. Cruse,
Defendant-Appellee. ) Judge, presiding.
___________________________________________________________________________________
Opinion Filed: April 16, 2010
___________________________________________________________________________________
Justices: Honorable Thomas M. Welch, J.,
Honorable Stephen L. Spomer, J.,
Honorable Bruce D. Stewart, J.,
Concur
___________________________________________________________________________________
Attorneys Hon. Robert Haida, State's Attorney, St. Clair County, 10 Public Square, Belleville,
for IL 62220; Patrick Delfino, Director, Stephen E. Norris, Deputy Director, Rebecca
Appellant E. McCormick, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor,
730 E. Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864
___________________________________________________________________________________
Attorney Ronald R. Duebbert, Attorney at Law, 23 Public Square, Suite 415, Belleville, IL
for 62220 (no brief filed)
Appellee
___________________________________________________________________________________