Appeal from the Circuit Court of Peoria County; the Hon.
Arthur H. Gross, Judge, presiding.
JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
This case comes to us on the State's certification that a suppression order of the trial court substantially impairs its ability to prosecute. The relevant order excluded from evidence certain statements of the defendant, Robert T. Naseef. The State argues that the court erred in excluding the defendant's statements. We affirm.
The defendant was ticketed for driving under the influence of alcohol. (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501(a).) When the defendant was in the arresting officer's squad car, the officer, Randy Reagan, requested that the defendant take a breath analysis test. He also informed the defendant of the consequences of refusing to take the test. According to the officer, the defendant declined to consent to the test. The officer then transported the defendant to the police station. According to the officer, as he and the defendant entered the station, he again asked if the defendant wanted to take the breath test. The defendant again stated he did not want to take the test. The defendant and the officer continued to the breath test room.
After sitting briefly in the room, the defendant asked to go to the restroom. In the restroom, Officer Reagan observed the defendant using breath spray. The officer confiscated the spray bottle and told the defendant that if he decided to take the test he could not have anything in his mouth at the time. The defendant then announced that he would submit to the test. The test showed that the defendant's breath alcohol level was greater than 0.10, at which concentration the Illinois Vehicle Code sets out a presumption that one is under the influence of alcohol. Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501.2(b)(3).
Prior to his trial, the defendant filed a motion to suppress the result of the breath analysis test and all of his statements. The court denied the motions. The defendant then filed a motion in limine in which he prayed, inter alia, that the court exclude evidence that he had refused the breath test. Following a hearing on the motion in limine, the court excluded any evidence that the defendant had refused the breath test. The State appeals from that order.
On appeal the State argues first that the defendant's refusal was admissible under section 11-501.2(c) of the Illinois Vehicle Code. The statute provides that "[i]f 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 * * * was driving * * *." Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501.2(c).
The State argues that the plain language of the statute provides for admissibility of a refusal and that it makes no exception for a refusal followed by a consent. The State further argues that the defendant's later consent should go only to the weight to give the prior refusal. Additionally, the State contends that the legislative purpose of the statute was to admit all competent evidence bearing on the question of the defendant's intoxication. According to the State, the defendant's statements constitute admissions of guilt and are, therefore, competent evidence which should have been admitted.
Alternatively, the State argues that even if the trial court properly held that an accused's initial refusal of a breath analysis test is inadmissible when he subsequently consents to take the test, then the defendant here did not consent to take the test. More specifically, the State asserts that the defendant's uncooperative act of using breath spray so clearly interfered with the objective results of the test that it constituted a refusal.
The defendant argues in response that the legislature intended that a refusal be admitted only in lieu of test results. In the defendant's view, since he did ultimately consent to take the test, he did not refuse as contemplated by the legislature. Additionally, the defendant points out that Officer Reagan made persistent and repeated attempts to have the defendant take the breath test. He argues, then, that it would be fundamentally unfair to allow the State to present evidence both of the defendant's initial refusals and of the ultimately acquired test results.
We first address the issue of whether a defendant's initial refusal of a breath test is admissible under section 11-501.2(c) when the defendant later consents and completes the test. The issue appears to be one of first impression in Illinois.
The foremost consideration of a court's construing a statute is to give effect to the intent of the legislature. (People v. Scott (1974), 57 Ill.2d 353, 312 N.E.2d 596.) In ascertaining the legislative intent, a court of review considers the language used, the evil to be remedied, and the object to be obtained. People v. Dednam (1973), 55 Ill.2d 565, 304 N.E.2d 627.
The Illinois General Assembly, as part of its program to deter drinkers from driving, enacted an "implied consent" law (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-5-1.1), to which the instant statute is related. The Illinois implied consent law and its companion provisions are similar to the State statute which the United States Supreme Court upheld in South Dakota v. Neville (1983), 459 U.S. 553, 74 L.Ed.2d 748, 103 S.Ct. 916.
The Illinois statutes, like the statute in Neville, declare that any person operating a vehicle on public highways in the State is deemed to have consented to a chemical test for alcohol content in his blood if he is arrested for driving while intoxicated. While a State can force a person suspected of driving while intoxicated to submit to a blood alcohol test under an implied consent statute (South Dakota v. Neville (1983), 459 U.S. 553, 559, 74 L.Ed.2d 748, 756, 103 S.Ct. 916, 921), under the Illinois statutes, a suspect is allowed to refuse to take a chemical test for intoxication. However, the statutes discourage refusal by providing that if a person under arrest refuses to submit to a test, his refusal shall be admissible in court against him. Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501.2.
The Illinois Vehicle Code's provision for admission in a criminal proceeding of a defendant's refusal to submit to a chemical examination for intoxication was added by Public Act 82-311, sec. 1, effective January 1, 1982. Public Act 82-311 also struck the Code's prior provision that a defendant's refusal was inadmissible in a ...