Appeal from the Circuit Court of McHenry County; the Hon.
Conrad Floeter, Judge, presiding.
JUSTICE STROUSE DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 15, 1986.
On December 30, 1984, defendant, Christina M. Ford, was arrested and charged with the offense of driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501(a)(2)). The defendant filed a motion to suppress chemical analysis based on the allegations that her consent was not voluntarily given. On February 19, 1985, following a hearing, the trial court granted the motion to suppress because Miranda warnings were not given prior to the test. On February 21, the village of Algonquin filed a motion to reconsider which was denied. This appeal followed.
Evidence at the hearing showed that on December 30, 1984, Officer William Bacon of the Algonquin police conducted a routine investigation of a parked automobile in the rear parking lot at 107 S. Main Street in Algonquin, Illinois, at 5:57 a.m. The parties agreed the car was in a private driveway and not on a public highway. The officer observed the motor was running and the lights were on. He testified that when he shined his spotlight into the vehicle, he observed the passengers had slumped forward, and when he attempted to arouse the defendant by knocking on the window she did not respond. She was seated in the driver's seat. The officer then testified that he had the defendant step out of the car and submit to field sobriety tests.
At the police department, Officer Bacon and the defendant had a conversation concerning her refusal to take a breath-alcohol test. The testimony is conflicting. The defendant said he asked her whether she was going to refuse the test and that she responded by saying "[W]ell, I'm under the impression I'll be in a lot of trouble if I don't take it." She also stated that the officer told her that her license would be suspended if she did not take the test. The police officer testified, "I explained the rules of implied consent and told her it did not apply to this case because she was on private property. It only holds true to public roads and highways and that she did not have to take the Breathalyzer test." The officer further testified that he explained the rules of implied consent and their non-applicability to her case on two other occasions.
After processing, she was taken to the West Dundee police department, and the test was administered. On the way to the West Dundee police department, the rules of implied consent were again explained, and she was advised they did not apply and she would not lose her license if she refused to take the test. The defendant denied this. No threats or physical force were used to coerce her to take the test. The defendant admitted that she had three or four drinks earlier that evening. After she took the test she was returned to Algonquin where the officers read her Miranda rights.
On February 19, 1985, the trial court granted defendant's motion to suppress the test results on the basis that the consent was not given with a knowing voluntariness. On the motion to reconsider the suppression of the breath test, the court ruled:
"THE COURT: As to point two, whether the test was voluntarily given by the Defendant, she was in custody, was the target of the investigation. She refused to do anything else, was told by the officer that if she didn't take a test, she'd lose her license, and I don't find that to be a voluntary basis for giving a consent to take a test. It's sort of like asking a suspected bank robber, show us where the money is, then give him his Miranda warnings. So the Motion to Reconsider is respectfully denied.
ATTORNEY: On what basis, your Honor?
THE COURT: What I just said. Weren't you listening?
ATTORNEY: On the basis it was not voluntary?
Our supreme court in People v. Mulack (1968), 40 Ill.2d 429, clearly held that breath-alcohol results constituted physical evidence and, as such, should not be afforded the procedural protections encompassed by the Miranda warnings. (See also Schmerber v. California (1966), 384 U.S. 757, 16 L.Ed.2d 908, 86 S.Ct. 1826; People v. Cook (1981), 94 Ill. App.3d 73.) In Schmerber, the admittance of a blood test, taken in spite of defendant's refusal, was held admissible by the Supreme Court on the grounds that it was not communicative in nature. (Schmerber v. California (1966), 384 U.S. 757, 16 L.Ed.2d 908, 86 S.Ct. 1826.) In Cook, the defendant was charged with driving a motor vehicle under the influence of alcohol. On the evening of his arrest, a lab technician of a local hospital extracted a vial of blood from the defendant to determine the presence of alcohol. The test indicated 0.199% blood alcohol. The trial court granted the motion to suppress because the defendant was not advised of his Miranda rights, but this court reversed, stating that the Miranda warnings are required only when the evidence obtained is of a testimonial nature. (People v. Cook (1981), 94 Ill. App.3d 73, 76.) The taking of a breath-analysis test is not of a testimonial nature. 94 Ill. App.3d 73, 76.) The taking of a breath-analysis test is not of a testimonial nature. 94 Ill. App.3d 73, 76.
• 1 No consent is necessary to admit a breath-alcohol test into evidence in a DUI case. It is well settled that a compulsory blood test, taken without the consent of the donor, does not violate any constitutional right of an individual. (People v. Todd (1975), 59 Ill.2d 534; People v. Lentini (1982), 106 Ill. App.3d 695.) Although the above cases deal specifically with the taking of a blood sample, the reasoning applies to the taking of a breath sample. (See People v. Mulack (1968), 40 Ill.2d 429.) Absent a limiting statutory provision, there is no prohibition against the taking of a breath-alcohol test without the consent of the donor. (Cf. People v. Todd (1975), 59 Ill.2d 534, 545.) Prior to July 1982, Illinois imposed a ...