Appeal from the Circuit Court of Du Page County; the Hon.
Philip J. Equi, Judge, presiding.
JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:
Following a hearing conducted pursuant to the implied-consent provisions of section 11-501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501.1), the trial court found that the State had failed to produce evidence that the defendant refused to submit to a breathalyzer test and, thus, granted the defendant, Matthew Doherty, his motion to dismiss the State's petition. The State appeals from that decision, contending that the trial court's finding is against the manifest weight of the evidence. For the reasons set forth below, we reverse.
At the hearing, Officer Petrick of the Carol Stream police department testified that on August 25, 1984, he received a dispatch concerning a possible drunk driver on North Avenue. He received a description of the vehicle and subsequently observed a blue AMC Alliance heading eastbound on North Avenue. He observed it make numerous lane changes without signaling. Officer Petrick activated his siren and stopped the car.
The officer asked the driver, later determined to be the defendant, to roll down his window. At this time he noticed the odor of alcohol and vomit. The officer then asked the defendant to exit the vehicle which the defendant could not do without bracing himself against the door and roof of the car. The officer also observed vomit and an empty beer can in the vehicle.
On this basis the officer arrested the defendant for driving under the influence of alcohol and read him the implied-consent warnings. The officer then transported the defendant to the station where he again advised the defendant of the implied-consent warnings. At the station the defendant agreed to take the breathalyzer test. Officer Blaha, the breathalyzer operator, first instructed the defendant on the correct procedure. The defendant then took the mouthpiece, but did not seal his lips around it, and thus, when he blew threw it, air escaped around the mouthpiece. The officers allowed the defendant 8 to 10 attempts. With each attempt, however, the defendant did not make a proper seal over the mouthpiece, and air escaped around it. Consequently, the machine registered no reading.
At trial the defendant pleaded guilty to charges of driving under the influence of alcohol in violation of section 11-501(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501(a)(2)) and improper lane usage. The trial court placed him on supervision for one year and ordered him to pay a fine. In its dismissal of the State's implied-consent petition, the court held that the defendant consented and attempted to take the test, but was unable to complete it and, therefore, did not refuse to take the test.
The sole issue on appeal is whether the defendant's conduct constituted a refusal to take a breathalyzer test for purposes of the Illinois implied-consent statute (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501.1). Specifically, the State contends that we should categorize Doherty's actions as the kind of failure to follow instructions we have previously held tantamount to a refusal, rather than merely as a physical inability to complete the test following a prior consent. See People v. Schuberth (1983), 115 Ill. App.3d 302.
Section 11-501.1 of the Illinois Vehicle Code provides, in pertinent part, that:
"(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 * * * 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 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 paragraph (a) of this Section * * *.
(c) A person requested to submit to a test as provided above shall be warned by the law enforcement officer requesting the test that a refusal to submit to the test will result in suspension of such person's license to operate a motor vehicle for six (6) months for the first such arrest and refusal and a suspension of such privilege for 12 months for the second and each subsequent such arrest and refusal within 5 years." Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501.1.
• 1 Illinois courts have consistently held that section 11-501.1 should be liberally construed to accomplish its purpose of protecting the citizens of Illinois upon the highways. (People v. Ellerbusch (1983), 118 Ill. App.3d 500, 503.) Thus, the courts have found an effective refusal to submit to the test, even in the absence of an express refusal, where the driver expressly consents to the test but only feigns performance of the test (People v. Schuberth (1983), 115 Ill. App.3d 302); where the driver is so intoxicated at the time she is requested to take the test that she later has no memory of the request (People v. Solzak (1984), 126 Ill. App.3d 119); and where the driver is so intoxicated at the time he is requested to take the test that he cannot even comprehend the request (People v. Carlyle (1985), 130 Ill. App.3d 205).
• 2 In an implied-consent hearing, the State has the burden of proving by a preponderance of the evidence that the person to whom the request to take an intoxication test was given refused to submit to the test. (People v. Schuberth (1983), 115 Ill. App.3d 302, 304.) A decision of the trial court in an implied-consent hearing will not be overturned on appeal unless it is contrary to the manifest weight of the evidence. (People v. Schuberth (1983), 115 Ill. App.3d 302, 304.) A fundamental of statutory construction is to ascertain the intention of the legislature and then to give effect to it. (People v. Rink (1983), 97 Ill.2d 533, 539.) Finally, the purpose of the Illinois implied-consent statute is to assist in the determination of whether motor-vehicle drivers suspected of intoxication are in fact under the influence of alcohol and to make the streets and highways of this State safer for its citizens by making ...