Appeal from the Circuit Court of Cook County; the Hon. Robert
Ericcson, Judge, presiding.
JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
On January 31, 1982, Bette Solzak was arrested for driving while under the influence of alcohol. At a hearing to determine whether her driver's license should be suspended, pursuant to Illinois' implied consent statute (Ill. Rev. Stat., 1982 Supp., ch. 95 1/2, par. 11-501.1), Ward Rhentgen, the arresting officer, testified that Solzak had refused his request that she submit to a chemical test to determine the alcohol content of her blood. Solzak testified that she did not remember anything. The trial court ruled that Solzak had not knowingly refused the request and, accordingly, there was no probable cause to suspend her driver's license. The People appeal. The issue presented for review is whether a refusal to take a chemical test for blood alcohol content by a person under arrest for driving while under the influence of alcohol must be knowing in order to be the basis for a suspension of the person's driver's license within the provisions of section 11-501.1 of the Illinois Vehicle Code (Ill. Rev. Stat., 1982 Supp., ch. 95 1/2, par. 11-501.1).
Officer Ward Rhentgen of the Northfield police department testified that on January 31, 1982, at about 1:56 p.m., he was notified of an automobile accident at 300 Waukegan Road, Northfield. He arrived at that address to find Solzak seated behind the steering wheel of an automobile with the key in the ignition and the motor running. The car was on top of the remains of a Regional Transportation Authority wind shelter. He smelled a strong alcoholic odor on Solzak's breath. After an ambulance arrived and provided medical treatment, Officer Rhentgen informed Solzak that she was under arrest for driving under the influence of alcohol. He repeatedly asked her if she was all right. Solzak did not respond to the questions. She was speaking, not making any sense, and moving in a "combative" manner.
Solzak was transported by ambulance to Glenbrook Hospital emergency room. Officer Rhentgen arrived there at about 3:30 p.m. and again advised her that she was under arrest for driving under the influence of alcohol. He asked her to submit to a test to determine the alcohol content of her blood, adding that failure to so submit would cause a six-month suspension of her driver's license. Solzak replied, "Nobody's going to take any blood from me." At this time, Solzak appeared coherent, not hysterical, and not in any pain. She subsequently was taken to the Northfield police station, where she was cited for driving under the influence of alcohol and released on bond.
Solzak testified that she did not recall a conversation with Officer Rhentgen or anything else prior to being at the police station.
The trial court found that there was no probable cause to suspend Solzak's license because she did not knowingly refuse to submit to the blood test. This appeal followed.
The People contend that the trial court based its decision on the erroneous assumption that a refusal to take a blood test must be knowing, and, therefore, its judgment should be reversed. The applicable statute provides, in pertinent part, as follows:
"(a) Any person who drives * * * a motor vehicle upon the public highways of this State shall be deemed to have given consent * * * to a chemical test or tests of blood, breath, or urine for the purpose of determining the alcohol * * * content of such person's blood if arrested [for driving while under the influence of alcohol]. * * *
(b) Any person who is dead, unconscious or who is otherwise in a condition rendering such person incapable of refusal, shall be deemed not to have withdrawn the consent provided by * * * this Section * * *." (Emphasis added.) (Ill. Rev. Stat., 1982 Supp., ch. 95 1/2, pars. 11-501.1(a), 11-501.1(b).)
This statute, which became effective on January 1, 1982, replaced an earlier statute which stated that any person who was unconscious or otherwise incapable of refusal was deemed to have withdrawn the implied consent presumed by the statute. (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-501.1(e).) Refusal to submit to the test results in suspension of the individual's driver's license. Ill. Rev. Stat., 1982 Supp., ch. 95 1/2, par. 11-501.1(c).
The question whether a refusal to take a chemical test for blood alcohol content must be knowingly made under the current implied consent statute has not, to our knowledge, been decided by a reviewing court in Illinois. Other jurisdictions which have considered this issue under identical statutes have determined that such a refusal need not be knowing to invoke suspension of the driver's license. In Hoban v. Rice (1971), 25 Ohio St.2d 111, 267 N.E.2d 311, a motorist appealed the suspension of his driver's license, contending that since he did not remember anything, he did not refuse to take the test, because the refusal must be knowingly and intentionally made. The Supreme Court of Ohio refused to consider such a subjective standard as the state of mind of the motorist, since requiring a determination whether he understood his refusal would place an impossible burden on the arresting officer. In affirming the order suspending the license, the court stated:
"Appellant's lack of recollection is not inconsistent with his refusal to take the sobriety test. It is possible for a licensee to be in such a state of intoxication that he does not understand what is happening, and, at the same time, by words, acts and general conduct to manifest an unwillingness or outright refusal to take the test. Although he may later have no memory of what occurred, his mere statement that he does not remember anything that happened is insufficient to show that he did not refuse to take the test.
If we were to adopt appellant's theory, a licensee could refuse the test * * * and then, at a * * * hearing [on the suspension of his license], testify that he does not remember anything. The result could be to nullify the effect of the statute." 25 Ohio St.2d 111, 117-18, 267 N.E.2d 311, 315-16.
In State of Minnesota Department of Highways v. Normandin (1969), 284 Minn. 24, 169 N.W.2d 222, the Supreme Court of Minnesota reversed a municipal court order which rescinded an order of the commissioner of highways which directed revocation of the driving license of an individual who refused to submit to a chemical test upon being arrested for driving under the influence of alcohol. The court concluded that a driver of an automobile who refuses to take the required chemical tests is subject to the suspension of ...