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02/24/87 the People of the State of v. Tonya Bains

February 24, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

TONYA BAINS, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

505 N.E.2d 13, 152 Ill. App. 3d 951, 105 Ill. Dec. 887 1987.IL.228

Appeal from the Circuit Court of McLean County; the Hon. William M. Dalton, Judge, presiding.

APPELLATE Judges:

JUSTICE GREEN delivered the opinion of the court. SPITZ, P.J., and McCULLOUGH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

On April 23, 1986, defendant, Tonya Bains, was arrested for the offense of driving under the influence of alcohol (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501(a)(2)), and her driver's license was subsequently summarily suspended pursuant to provisions of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.1). On May 23, 1986, defendant filed a petition to rescind the suspension in the circuit court of McLean County, and, following a hearing, the court granted defendant's petition on July 11, 1986. The State appeals. The question is a close and complicated one. However, we reverse.

Section 11-501.1(a) (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.1(a)) provides that motorists using public highways of this State consent to submit to certain chemical tests upon their arrest for certain offenses involving drunk driving. The tests are to be administered at the direction of "the arresting officer." Section 11-501.1(c) (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.1(c)) provides for a summary suspension of the arrested driver's license if that driver refuses a test or takes a test which indicates that the driver's breath or blood had an alcohol concentration of 0.10 or greater. Section 2-118.1(b) of the Illinois Vehicle Code sets forth the procedure for a hearing when a person seeks to rescind a statutory summary driver's license suspension and provides in part:

"The scope of the hearing shall be limited to the issues of:

1. Whether the person was placed under arrest for an offense as defined in Section 11 -- 501, or a similar provision of a local ordinance, as evidenced by the issuance of a Uniform Traffic Ticket; and

2. Whether the arresting officer had reasonable grounds to believe that such person was driving or in actual physical control of a motor vehicle while under the influence of alcohol, other drug, or combination thereof; and

3. Whether such person, after being advised by the arresting officer that the privilege to operate a motor vehicle would be suspended if the person refused to submit to and complete the test or tests, did refuse to submit to or complete such test or tests to determine the person's alcohol or drug concentration; or

4. Whether the person, after being advised by the arresting officer that the privilege to operate a motor vehicle would be suspended if the person submits to a chemical test, or tests, and such test discloses an alcohol concentration of 0.10 or more, and such person did submit to and complete such test or tests which determined an alcohol concentration of 0.10 or more." (Emphasis added.) Ill. Rev. Stat. 1985, ch. 95 1/2, par. 2-118.1(b).

Evidence introduced at the hearing indicated that Officer John Clingon, a Normal, Illinois, police officer, arrested defendant for the offense of driving under the influence of alcohol in Bloomington, Illinois, where Officer Clingon had gone to investigate a runaway case. The trial court found that Officer Clingon did not make the arrest in his capacity as a police officer, but as a private citizen. (Ill. Rev. Stat. 1985, ch. 38, par. 107-3.) The court concluded that because Officer Clingon had acted as a private citizen, he lacked the authority to administer the breathalyzer test because he was not an "arresting officer" within the meaning of sections 2-118.1(b) and 11- 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, pars. 2-118.1(b), 11-501.1) and, accordingly, ordered the rescission of the suspension of defendant's driver's license.

Under the common law, peace officers generally lacked the authority to make warrantless arrests outside the territorial limits of the political entity by which they were employed unless they were in hot pursuit of a suspected felon fleeing from their own territory. (People v. Marino (1980), 80 Ill. App. 3d 657, 661, 400 N.E.2d 491, 494.) This common law rule has been ...


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