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People v. Malloy

OPINION FILED APRIL 16, 1980.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

THOMAS G. MALLOY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Moultrie County; the Hon. W.B. KRANZ, Judge, presiding.

MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

This appeal presents solely a question of statutory construction. The facts are not controverted.

On December 9, 1977, defendant was arrested by an Illinois State police officer for driving while intoxicated. Defendant refused to take the test required by the statute (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 11-501.1) (herein implied-consent law), and thereafter filed a request for hearing as provided in the same statute. At the hearing in the circuit court of Moultrie County, the trial court dismissed the case on defendant's motion, for reasons hereinafter explained, and the State appealed to this court. We dismissed the appeal for want of an appealable order, based on our erroneous decision in People v. Quinn (1974), 17 Ill. App.3d 1058, 309 N.E.2d 249. The State further appealed to the supreme court which reversed Quinn and remanded the case to this court with directions to reinstate the appeal and address the merits. People v. Malloy (1979), 76 Ill.2d 513, 395 N.E.2d 381.

The general outline of the statutory scheme of the implied-consent law is reasonably clear. Upon arresting a person for driving under the influence of intoxicating liquor, the officer is required to inform that person of the requirement that he submit to a test to determine by chemical analysis the alcoholic content of his blood, and of the consequences of his failure to submit. If that person refuses to submit, then the officer is required to file with the circuit clerk of the county in which the arrest was made a sworn statement concerning the arrest and the refusal. The clerk is then required to notify the person of his right to request a hearing and further that his driving privileges will be suspended unless he does request a hearing within 28 days from the date of mailing the notice.

If the arrested person desires the hearing, he is required to file a complaint in the circuit court of that county. A hearing is then required to be held and is limited to the determination of whether there were reasonable grounds for arrest, whether proper admonitions were given to the arrested person by the officer, and whether that person persisted in his refusal to submit to the test. The court is required to notify the Secretary of State of its decision and the Secretary is required to suspend the license if that be the court's decision.

The trial court dismissed, finding that an irreconcilable conflict existed in the implied-consent law. Two parts of that law are involved. The first is concerned with the admonitions given by the officer at the time of arrest and is found in subparagraph (a)(2) which reads as follows:

"(2) that he may refuse to submit to either such analysis and that his refusal to submit to either analysis within 90 minutes after receiving the notice may result in the suspension of his privilege to operate a motor vehicle for 3 months on his first such arrest * * *." (Emphasis added.) Ill. Rev. Stat. 1977, ch. 95 1/2, par. 11-501.1(a)(2).

The second part is found in subparagraph (d), which concerns the scope of the proceedings at the hearing requested by the arrested person and reads as follows:

"* * * the scope of the proceedings shall cover only the issues of * * * whether the person was informed orally and in writing as provided in paragraph (a) that his privilege to operate a motor vehicle would be suspended if he refused to submit to and complete the test * * *." (Emphasis added.) Ill. Rev. Stat. 1977, ch. 95 1/2, par. 11-501.1(d).

The record discloses a printed form identical to the one used in this case which was given to defendant at the time of arrest, and also then read to him. It contains the exact language of the statute and advises the recipient that refusal to submit to the test "may" result in suspension of his license. The trial court, in substance, held that the latter part of the statute controls, and that defendant should have been advised that refusal to submit to the test "would" result in suspension of his license; that, therefore, defendant did not receive the proper admonition; and the trial court then dismissed. We do not agree and reverse.

The error of the trial court was in reading "would" in a colloquial manner and in giving the word a mandatory implication. While such an interpretation might find sanction in workaday idiom, it is not approved by authorities on grammar and syntax.

Wilson Follett's Modern American Usage (Hill and Wang, Inc., 1966), edited and completed by Jacques Barzun, devotes an entire appendix to "Shall (Should), Will (Would)" and starts by saying:

"The auxiliaries shall and should, will and would lead the user of English into as confused a jungle as he is ever ...


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