Appeal from the Circuit Court of Clinton County, the Hon.
Arthur G. Henken, Judge, presiding.
JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 30, 1984.
On November 14, 1982, defendant, Gary Rolfingsmeyer, was arrested and charged with driving under the influence of alcohol (Ill. Rev. Stat., 1982 Supp., ch. 95 1/2, par. 11-501(a)(2)). At the police station, the "Implied Consent Warning" (Ill. Rev. Stat., 1982 Supp., ch. 95 1/2, par. 11-501.1(c)), which warns a driver that a refusal to submit to a so-called breath test will result in a six-month suspension of his motor vehicle driver's license, was read to him. The police officer then asked him to take the test, and he refused.
On December 8, 1982, the defendant filed a motion attacking the constitutionality of sections 11-501.1 and 11-501.2(c) of the Illinois Vehicle Code (Ill. Rev. Stat., 1982 Supp., ch. 95 1/2, par. 11-501.1; Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-501.2(c)). Previously section 11-501.1 had provided a driver with the right to consult an attorney prior to deciding whether to take a breath test (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-501.1(a)(3)), but this provision had been eliminated from the section (Ill. Rev. Stat., 1982 Supp., ch. 95 1/2, par. 11-501.1(a)). Section 11-501.2(c) provides that evidence of a defendant's refusal to submit to a breath test "shall be admissible" at the defendant's civil or criminal trial. Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-501.2(c).
On December 13, 1982, the circuit court of Clinton County entered a judgment captioned "Order Striking Certain Portion of Ch. 95 1/2, par. 11-501.2(c)." The order read:
"This cause coming on to be heard, the Court strikes the words `or criminal action' from Chapter 95 1/2 Section 11-501.2(c) finding that portion unconstitutional."
It did not state the ground of unconstitutionality. A direct appeal was taken by the People under Supreme Court Rule 302(a) (87 Ill.2d R. 302(a)).
Our State, as most States have done, has adopted an "implied consent" statute to assist in determining whether motor vehicle drivers suspected of intoxication are in fact under the influence of alcohol. Section 11-501.1 of the Illinois Vehicle Code, in the part pertinent here, provides:
"(a) Any person who drives or is in actual physical control of a motor vehicle upon the public highways of this State shall be deemed to have given consent, subject to the provisions of Section 11-501.2, to a chemical test or tests of blood, breath, or urine for the purpose of determining the alcohol, other drug, or combination thereof content of such person's blood if arrested, as evidenced by the issuance of a Uniform Traffic Ticket, for any offense as defined in Section 11-501 or a similar provision of a local ordinance. * * *" (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-501.1(a).)
Section 11-501.2(c) further provides:
"(c) If a person under arrest refuses to submit to a chemical test under the provisions of Section 11-501.1, evidence of refusal shall be admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person under the influence of alcohol, or other drugs, or combination of both was driving or in actual physical control of a motor vehicle." (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-501.2(c).)
The defendant states that the trial court's judgment was correct because (1) section 501.2(c) is contrary to the separation-of-powers provision of the Constitution of Illinois and (2) the section violates an accused's privilege against self-incrimination under the constitutions of the United States and Illinois.
Section 11-501.2(c) offends the separation-of-powers clause of our constitution because, the defendant contends, the legislature improperly invaded the judicial authority by providing that evidence of a refusal of a breath test shall be admitted at a trial. This contention fails, for it is clear that "the legislature of a State has the power to prescribe new and alter existing rules of evidence or to prescribe methods of proof." (People v. Wells (1942), 380 Ill. 347, 354. See also People v. Youngbey (1980), 82 Ill.2d 556, 560; People v. Buford (1982), 110 Ill. App.3d 46, 53.) Examples of this are section 115-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 115-5 (business records)), section 115-5.1 of that code (Ill. Rev. Stat. 1981, ch. 38, par. 115-5.1 (coroner's records)), section 115-7 of that code (Ill. Rev. Stat. 1981, ch. 38, par. 115-7 (evidence of rape victims' prior sexual conduct)), and section 8-1901 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 8-1901 (evidence of defendant's payment of plaintiff's medical expenses)).
Section 11-501.2(c) of the Illinois Vehicle Code simply provides that an accused's refusal to submit to a breath test shall be admissible as evidence at his trial, and it is not ...