NO. 5-09-0631
NOTICE
Decision filed 03/30/11. The text of
IN THE
this decision may be changed or
corrected prior to the filing of a
APPELLATE COURT OF ILLINOIS
Peti tion for Rehearing or th e
disposition of the same.
FIFTH DISTRICT
JOSHUA ANDREW ODOM, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Jefferson County.
)
v. ) No. 09-MR-2
)
JESSE WHITE, Illinois Secretary of State, ) Honorable
) Joe Harrison,
Defendant-Appellee. ) Judge, presiding.
NO. 5-10-0139
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
JASON H. JANES, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Jefferson County.
)
v. ) No. 09-MR-27
)
JESSE WHITE, Illinois Secretary of State, ) Honorable
) Terry H. Gamber,
Defendant-Appellee. ) Judge, presiding.
JUSTICE WELCH delivered the judgment of the court, with opinion.
Presiding Justice Chapman and Justice Donovan concurred in the judgment and
opinion.
OPINION
These cases, consolidated in this court for oral argument and decision only, come
before us on administrative review from the circuit court of Jefferson County, which
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affirmed the decisions of the Illinois Secretary of State (the Secretary) to deny the appellants'
petitions to rescind the suspensions of their driving privileges pursuant to section 6-
206(a)(31) of the Illinois Vehicle Code (the Code) (625 ILCS 5/6-206(a)(31) (West 2008)).
Both appellants had been drivers of motor vehicles that were involved in motor vehicle
accidents involving personal injuries to individuals who were transported from the scene in
ambulances. At all the stages of the proceedings, the appellants have argued only that the
motor vehicle accidents did not involve the types of personal injuries enumerated in the
statute as conferring their implied consent to blood-alcohol tests.
Some discussion of the statutory scheme may be helpful to further the discussion of
the facts and the law. Section 6-206(a)(31) of the Code gives the Secretary discretionary
authority to suspend or revoke the driving privileges of any person upon sufficient evidence
that the person has refused to submit to a blood-alcohol test as required by section 11-501.6
of the Code (625 ILCS 5/11-501.6 (West 2008)) or has submitted to a test resulting in an
alcohol concentration of 0.08 or more. 625 ILCS 5/6-206(a)(31) (W est 2008).
Section 11-501.6(a) of the Code provides that any person who drives or is in actual
control of a motor vehicle upon the public highways and who has been involved in an
accident resulting in personal injury or death for which he has been arrested for a
nonequipment violation, as evidenced by the issuance of a traffic ticket, shall be deemed to
have given consent for a blood-alcohol test. 625 ILCS 5/11-501.6(a) (West 2008). For
purposes of this section, a personal injury is defined as follows:
"includ[ing] any type A injury as indicated on the traffic accident report completed
by a law enforcement officer that requires immediate professional attention in either
a doctor's office or a medical facility. A type A injury shall include severely bleeding
wounds, distorted extremities, and injuries that require the injured party to be carried
from the scene." 625 ILCS 5/11-501.6(g) (West 2008).
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Although this paragraph of the statute speaks in terms of inclusion, the supreme court
has held that type A injuries are limited to those listed in the paragraph: severely bleeding
wounds, distorted extremities, or injuries that require the injured party to be carried from the
scene. Fink v. Ryan, 174 Ill. 2d 302, 310 (1996). Personal injuries requiring only a visit to
a doctor's office or a medical facility, without severe bleeding, distorted extremities, or the
need for the injured party to be carried from the scene, do not qualify as type A injuries.
This ensures that only drivers involved in more serious accidents, in which the expectation
of privacy is diminished and the administration of the blood-alcohol test is minimally
intrusive, are subjected to testing. Fink, 174 Ill. 2d at 311. Because the statute does not
require that the law enforcement officer have any suspicion or cause to believe that the driver
is intoxicated or under the influence of alcohol prior to asking him to submit to testing, its
application must be so limited only to motor vehicle accidents of a more serious nature.
Fink, 174 Ill. 2d at 309-12.
A person may contest the suspension of his driving privileges by requesting an
administrative hearing with the Secretary in accordance with section 2-118 of the Code (625
ILCS 5/2-118 (West 2008)), at the conclusion of which the Secretary may rescind, continue,
or modify the order of suspension. 625 ILCS 5/11-501.6(e) (West 2008). The action of the
Secretary is subject to judicial review in the circuit court and thereafter in accordance with
the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2008)). 625 ILCS 5/2-
118(e) (W est 2008).
In both the cases before us, the appellant drivers were asked to and did submit to
blood-alcohol tests. Both tests revealed an alcohol concentration of 0.08 or more.
Accordingly, their driving privileges were suspended. Each driver contested the suspension
by requesting a hearing before the Secretary, and in each case the Secretary upheld the
suspension. Both drivers sought administrative review in the circuit court of Jefferson
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County, and in each case the circuit court affirmed the decision of the Secretary. The drivers
now appeal to this court.
As always on administrative review, we review the decision of the Secretary and not
the decision of the circuit court, because the Secretary is the fact finder responsible for
overseeing testimony, making credibility determinations, and assigning weight to statements
made by witnesses. Emergency Treatment, S.C. v. Department of Employment Security, 394
Ill. App. 3d 893, 901 (2009). Factual determinations by the Secretary are deemed to be
prima facie true and correct and will stand unless contrary to the manifest weight of the
evidence. Emergency Treatment, S.C., 394 Ill. App. 3d at 901. Questions of law are subject
to de novo review. Emergency Treatment, S.C., 394 Ill. App. 3d at 901. The question
whether the Secretary correctly considered all the facts and correctly applied the law to those
facts is a mixed question of fact and law, and the Secretary's decision will be overturned only
if clearly erroneous. Emergency Treatment, S.C., 394 Ill. App. 3d at 901.
The proceedings before the Secretary reveal the following facts. Appellant Joshua A.
Odom was involved in a single-vehicle accident May 11, 2008. He crested a hill too fast and
lost control of his vehicle, which became airborne and rolled several times. The car came
to rest against an embankment, which made it impossible for him to open the driver-side
door. His OnStar system alerted authorities and dispatched an ambulance. Odom repeatedly
told responding personnel that he was fine and was not injured. Responders told him not to
attempt to exit the vehicle until ambulance personnel arrived, in case he was injured.
Ambulance personnel removed him from the vehicle and placed him on a gurney. Odom did
not remember that any ambulance personnel had asked him if he was injured or if he needed
assistance. One of the ambulance personnel wrote in his report that Odom denied any pain
or injuries. Odom was not asked if he wanted or needed to go to the hospital in the
ambulance. Odom did not know that he could refuse, but he told everyone that he was fine.
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Had he been given a choice, he would not have gone in the ambulance. Odom's only injury
was a minor laceration on his head from a piece of glass. Hospital personnel simply cleaned
it up. He was given a CAT scan to check for head injuries, which was negative. He was
released from the hospital that night and felt fine the next day. He did not need to take the
muscle relaxants he had been sent home with. Odom denied that he had any severely
bleeding wounds, any distorted extremities, or any injuries that required he be carried from
the scene.
Deputy Donald W esley Harbison testified that he responded to the accident scene.
Harbison testified that Odom told him he was okay but that he was "humped over" and could
not get out of the car. It appeared to Harbison that Odom was "pushed forward" and
physically could not get over the passenger seat to get out of the car. Harbison did not
observe any injuries to Odom other than blood from a superficial cut, but he testified that he
was moaning and groaning when ambulance personnel started to move him. Harbison was
not aware of any severely bleeding wounds or distorted extremities on Odom. Harbison
believed that Odom's injuries did require him to be carried from the scene because when the
ambulance personnel put the cervical collar on him, Odom was moaning and groaning and
he never told them he was not injured. This moaning increased at the hospital. Harbison
testified that on the traffic accident report he indicated that Odom had an incapacitating
injury; the actual report shows a type B injury, which is a nonincapacitating injury. Based
on his observations, it was Harbison's opinion that Odom's injuries required that he be carried
from the scene in an ambulance. Harbison stated that based on the way Odom was sitting
in the vehicle and acting, he would not have been able to walk away from the accident and
be okay.
Odom testified that he does not remember moaning or groaning at the scene of the
accident or in the ambulance. He testified that he might have moaned at the hospital when
5
blood was being drawn because he does not like that procedure. The report of the ambulance
personnel did not report any moaning or groaning, nor did hospital records. Odom was only
at the hospital for about one hour, and he walked out under his own power and went to work
the next day.
The traffic accident report submitted by Deputy Harbison indicates a type B injury.
Harbison's narrative report indicates that upon his arrival at the scene, Odom told him that
he was not injured but could not get out of the vehicle. It further indicated that Odom was
transported to the hospital via ambulance.
The Secretary denied Odom's petition to rescind his suspension, holding, "The fact
that [Odom] was carried from the scene by ambulance to a local hospital at the discretion of
ambulance personnel is sufficient evidence for a reasonable police officer to conclude that
a Type A injury was sustained."
Appellant Jason H. Janes was driving a motor vehicle that was involved in an accident
on August 30, 2007, in which his passenger was injured. According to Janes, the passenger
only had a small cut above his right eye. Nevertheless, he was taken by ambulance from the
scene to the hospital. The passenger was not given any choice whether to go in the
ambulance; he was told he was going. Janes could remember his passenger stating that he
did not want to go in the ambulance but that he was told he must. The passenger stated that
he was okay and did not need or want to go in the ambulance, but he was forced to go. The
passenger was released from the hospital that night with only a bandage. Janes did not see
any severely bleeding wounds or distorted extremities on his passenger, who was able to
walk. The passenger did not appear to have any injuries that would have prevented him from
continuing his normal activities.
Sheriff's deputy Jeff Moore testified that he responded to the accident in which the
passenger had been injured. Moore did not know the extent of the injuries suffered. He
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could not tell if the passenger had any severely bleeding wounds or any distorted extremities.
Moore did not know of any other injuries. The ambulance was already on the scene when
Moore arrived. Moore simply saw the passenger on a stretcher being loaded into the
ambulance. Moore completed the traffic accident report and admitted that it did not indicate
any injuries as a result of the accident, much less a type A injury. Moore also admitted that
the report did not even contain the correct name of the passenger. He stated that these were
his mistakes. Moore did observe the passenger on a stretcher being loaded into an
ambulance.
Sheriff's deputy James Webb testified that he also responded to the scene of the
accident. He observed the passenger lying on an ambulance cot receiving treatment. He was
transported from the scene in the ambulance. Webb completed a narrative supplement to the
traffic accident report completed by Moore. Both he and Moore testified that this was a part
of the official traffic accident report. In his narrative report, Webb indicated that the
passenger was injured and was carried from the scene in an ambulance. The report did not
refer to the injury as a type A injury or an incapacitating injury. Webb was not aware of any
severely bleeding wounds or any distorted extremities on the passenger. Webb did not see
the passenger object to going in the ambulance.
The traffic accident report form prepared by Deputy Moore indicates no injuries. The
narrative portion of the report prepared by Deputy Webb states only that the passenger was
on an ambulance cot when Webb arrived and was later transported to the hospital. It says
nothing about the passenger's injuries.
The Secretary denied Janes's petition to rescind the suspension of his driving
privileges, holding that the fact that the passenger was carried from the scene by ambulance
fulfills the statutory requirement of a type A injury. According to the Secretary, that the
passenger was carried from the scene by an ambulance is indicated in the narrative
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supplement to the traffic accident report, and this is sufficient even if the appropriate box is
not marked on the form portion of the report.
On appeal, we must first determine the appropriate standard of review. The historical
facts of the cases are essentially undisputed, as set forth above. Neither party argues that the
Secretary's findings of fact are contrary to the manifest weight of the evidence. The parties
dispute only whether these facts establish the existence of type A injuries within the
definition of the statute.
We conclude that the Secretary's decisions are ones involving a mixed question of law
and fact, and our standard of review is to determine whether the decisions are clearly
erroneous. A mixed question of law and fact is one involving an examination of the legal
effect of a given set of facts. AFM Messenger Service, Inc. v. Department of Employment
Security, 198 Ill. 2d 380, 391 (2001). Stated another way, a mixed question is one in which
the historical facts are admitted or established, the rule of law is undisputed, and the issue
is whether the facts satisfy the statutory standard or whether the rule of law as applied to the
established facts is or is not violated. AFM Messenger Service, Inc., 198 Ill. 2d at 391. The
Secretary examined the facts to decide whether those facts established injuries that met the
statutory definition of a type A injury sufficient to confer implied consent for a blood-alcohol
test. Our standard of review for this decision is whether it is clearly erroneous. A decision
is clearly erroneous only when the reviewing court, on the entire record, is left with the
definite and firm conviction that a mistake has been committed. AFM Messenger Service,
Inc., 198 Ill. 2d at 395.
We reverse the decisions of the Secretary because the Secretary's findings that the
mere fact that an injured party was carried from the scene by ambulance is sufficient to
establish a type A injury are clearly erroneous. The plain language of the statute requires not
only that the injured party be carried from the scene but that they have injuries which require
8
that they be carried from the scene. The Secretary's decisions completely ignore and obviate
this key element of the statutory definition.
In the instant cases, the law enforcement officers involved admitted that they had no
knowledge concerning the injuries of the individuals carried away by ambulance. Although
they did not see any severely bleeding w ounds or any distorted extremities, they had no
knowledge of whether or not the individuals had other injuries which required that they be
carried from the scene by ambulance. The evidence in the records with respect to their
injuries does not indicate that they had injuries which required that they be carried from the
scene by ambulance. Indeed, the evidence in the records indicates the contrary. The law
enforcement officers simply knew that the injured persons were carried away by ambulance.
By finding that this was sufficient to establish a type A injury within the definition of the
statute, the Secretary ignored a key element of that definition: that the person have injuries
that require that they be carried from the scene. The Secretary cannot simply and willfully
ignore a key element of the statutory definition of the type of injury required to confer
implied consent to a blood-alcohol test.
In Fink, 174 Ill. 2d at 311, this implied-consent statute was held constitutional because
it was narrowly drawn to apply only to drivers involved in more serious accidents, in which
the expectation of privacy is diminished and the administration of the blood-alcohol test is
minimally intrusive. By his rulings in the case at bar, the Secretary has expanded the statute
to include accidents which may be of a less serious nature, where the injuries are not so
severe that they require that a person be carried from the scene by ambulance, but where a
person is carried from the scene by ambulance regardless of the severity of the injuries. That
expansion of the statute is contrary to the holding of Fink and contrary to the plain language
of the statute. Indeed, that expansion of the implied-consent statute to accidents of a less
serious nature may render its application unconstitutional. See Fink, 174 Ill. 2d at 309-12.
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We are left with the definite and firm conviction that, in so holding, the Secretary has
committed a mistake. See AFM Messenger Service, Inc., 198 Ill. 2d at 395.
Where the evidence is insufficient to establish that the appellant drivers were involved
in motor vehicle accidents which resulted in death or personal injuries within the meaning
of the statute, they should not have been subjected to blood-alcohol tests and their driving
privileges should not have been suspended. Accordingly, we reverse the decisions of the
Secretary in the cases at bar and the decisions of the circuit court of Jefferson County that
affirmed those decisions.
Reversed.
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NO. 5-09-0631
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
JOSHUA ANDREW ODOM, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Jefferson County.
)
v. ) No. 09-MR-2
)
JESSE WHITE, Illinois Secretary of State, ) Honorable
) Joe Harrison,
Defendant-Appellee. ) Judge, presiding.
______________________________________________________________________________
NO. 5-10-0139
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
JASON H. JANES, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Jefferson County.
)
v. ) No. 09-MR-27
)
JESSE WHITE, Illinois Secretary of State, ) Honorable
) Terry H. Gamber,
Defendant-Appellee. ) Judge, presiding.
______________________________________________________________________________
Opinion Filed: March 30, 2011
_______________________________________________________________________________
Justices: Honorable Thomas M. Welch, J.
Honorable Melissa A. Chapman, P.J., and
Honorable James K. Donovan, J.,
Concur
_______________________________________________________________________________
Attorney J. Israel Slone
for P.O. Box 306
Appellants O'Fallon, IL 62269
_______________________________________________________________________________
Attorneys Lisa Madigan, Attorney General, State of Illinois, Michael A. Scodro,
for Solicitor General, Janon E. Fabiano, Assistant Attorney General, 100 W est
Appellee Randolph Street, 12th Floor, Chicago, IL 60601
________________________________________________________________________________
Odom v. White
Combined Opinion