Appeal from the Circuit Court of Iroquois County, Twelfth
Judicial Circuit; the Hon. ROBERT J. IMMEL, Judge, presiding.
Reversed and remanded with directions.
This cause is before us on an appeal by the People of the State of Illinois, from a ruling of the trial court granting motion of defendant, Jessie L. Williams, to suppress a blood test. Defendant Williams was charged with driving while under the influence of intoxicating liquor as defined in Section 47 of the Uniform Act Regulating Traffic on Highways (1967 Ill Rev Stats, c 95 1/2, § 144). Section 47 was adopted in 1967 by act of the legislature and the section made a number of changes in the former statute with regard to the offense of driving while intoxicated. Section 47(c) provided:
"Upon the trial of any action or proceeding arising out of acts alleged to have been committed by any person while driving or in the actual physical control of a vehicle while under the influence of intoxicating liquor, evidence of the amount of alcohol in the person's blood at the time of the act alleged as shown by a chemical analysis of his breath, blood, urine, saliva, or other bodily substance is admissible, as provided hereinafter in this paragraph (c) and the result of any such analysis shall give rise to the following presumptions:"
The section later specifies that if there was less than .05% of alcohol in the blood, it is presumed that there was no intoxication; if over .05% and less than .10%, such evidence can be considered with other evidence of intoxication, but there is no presumption; if there was over .10% of alcohol in the blood, intoxication is presumed. The portion of Section 47(c) which is the basis of the problem causing this appeal provides:
"Evidence based upon a chemical analysis of blood, urine, breath or other bodily substance shall not be admitted unless such substance was procured and such analysis made with the consent of the person as provided for in Section 47.1 of this Act, whose bodily substance was so analyzed.
"The foregoing provisions of this paragraph (c) shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether or not defendant was under the influence of intoxicating liquor."
In Section 47(d) there is a provision for standards to be used in making blood or breath tests. In Section 47(e) it is provided that when a person was not capable of refusing to take a test under Section 47.1 of the Act, only a physician should administer the test when such test was requested by a law officer. Section 47(g) provided for furnishing the test results to the person submitting to the test. Section 47(h) provided that it was not possible to introduce evidence of a refusal to take the test under Section 47.1 in a similar criminal proceeding, but it should be presented at a hearing to suspend a driver's license. Section 47(i) established the penalties.
The legislature, however, did not pass Section 47.1 referred to in the above Section 47. The record discloses various bills passed through the Illinois Senate and the Illinois House, and as such bills passed, the Senate passed Section 47 referred to, apparently on the assumption that the Illinois House was going to pass 47.1. On that same day, however, the House failed to pass Section 47.1. The record shows that Section 47.1 contained the implied consent provisions requiring that anyone using the Illinois Highways impliedly consented to taking the blood test if so requested. Section 47 was, however, passed by the Senate with the reference to Section 47.1 and was never modified or amended to delete the references to Section 47.1.
Defendant in the cause before us demanded a jury trial and after the jury was selected but before any evidence was offered, defendant moved to suppress any evidence of a blood test which he alleged would be offered into evidence by the State. Defendant argued that under Section 47(c) of the Statute there was reference to a blood test being made "with the consent of the person as provided for in Section 47.1 of this Act." Defendant argues that since 47.1 was not passed, this made section 47(c) invalid. In the cause before us, so far as the record discloses, defendant has made no contention that his consent was obtained fraudulently or that he had not consented to the test, but he argues solely that any evidence of a blood test should be suppressed on the basis of the contended invalidity of Section 47(c) (by reason of the reference to 47.1 which was never passed). No procedural questions are raised as to the propriety of the motion and the trial court granted defendant's motion to suppress the blood tests, stating that Section 47 provided that in order for evidence of a blood test to be admitted, such test had to be made with the consent of the person under Section 47.1, and due to the fact that there was no Section 47.1, there was no way the court could interpret Section 47. As indicated previously, the State has appealed this ruling by the trial judge and the cause below was continued until disposition of such issue in this Court.
On appeal in this Court, the State contends that the trial court should have denied the motion to suppress the evidence of the blood test since the legislative history of Section 47 discloses that the provision designated as Section 47.1 was erroneously and inadvertently omitted from the act in the process of amendment. It is contended that the legislature had no intention to define or restrict the means by which a person's consent was to be obtained, but that, on the contrary, the legislature was attempting to adopt in Section 47.1 an implied consent doctrine whereby a person impliedly consented to a chemical test by the fact that he chose to use the State highways. It is contended that since the implied consent doctrine was not adopted, and although the legislature neglected to delete the references to Section 47.1 from Section 47, the trial court should have adopted the rule of statutory construction which required that such words referring to Section 47.1 should be disregarded and treated as surplusage. The consequence would be that treating the words as surplusage would make the provision completely sensible and leave the word "consent" to be interpreted in its ordinary common-law meaning.
[1-7] The basic question, therefore, is whether it was the intention of the legislature to pass Section 47, which dealt with driving while intoxicated, only in the event that Section 47.1 was also passed, or whether the reference to Section 47.1 was of such character that it can be treated as surplusage. In People ex rel. Roan v. Wilson, 405 Ill. 122, 127-8, 90 N.E.2d 224, the Supreme Court of this State outlined certain rules relating to statutory construction which are applicable where the court said:
"The primary aim of statutory construction is to ascertain the legislative intent by examining not only the language employed, but the evil to be remedied and the end to be obtained. (Schoellkopf v. DeVry, 366 Ill. 29.) Rules of interpretation are resorted to for the purpose of resolving ambiguities, and the entire section and act must be read together and so construed as to make it harmonious and consistent in all its parts. (Wells Brothers Co. v. Industrial Com., 285 Ill. 647.) This court is bound to give meaning to each word, clause and sentence. (People ex rel. Cameron v. Flynn, 265 Ill. 414.) The section must be interpreted according to its intent and meaning, and reasonably, so as to accomplish its general object. (People ex rel. Akin v. Kipley, 171 Ill. 44.) In interpreting statutes, words are presumed to be used in their ordinary meaning, and it is proper, in case of ambiguity, to consider the context to determine the meaning in which they are used. (Board of Education v. Morgan, 316 Ill. 143.) Further, it is the province of the legislature to enact the laws and that of the courts to construe them."
As we look to the legislative history of Section 47, we conclude that such inquiry makes apparent the intention of the legislature to enact Section 47 into law irrespective of whether Section 47.1 was adopted or not. Section 47 was first passed in 1961. The 1961 act provided (in 47(b)) that upon a trial, evidence of a blood or breath test was admissible and the statute set forth several presumptions based upon the percent of alcohol in the blood. It provided that if less than .05% was found there was no indication of alcoholic intoxication, that between .05% and .15% there was no presumption of such intoxication, and that if over .15% it was presumed that the person concerned was intoxicated. The 1967 Act amended and revised Section 47 by changing the percentages from .15% to .10% and Section 47 was also expanded to provide more expressly how the tests were to be administered. Section 47.1 which was proposed, dealt with implied consent, but there is no indication that such provision was so closely associated with the basic provisions of Section 47, that there was a legislative intent that Section 47 should not be passed or become effective in the event Section 47.1 failed to pass. We note that the provisions of Section 47 under the 1961 Act are substantially the same provisions as Section 47 under the 1967 amended Act. The chief changes are the lower alcohol percentages in the 1967 statute and a change in the procedure for taking tests. The 1961 Act had been in operation for six years and there is nothing to show the legislature intended to revoke ...