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11/18/87 the People of the State of v. Thomas R. Klyczek

November 18, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

THOMAS R. KLYCZEK, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

516 N.E.2d 783, 162 Ill. App. 3d 557, 114 Ill. Dec. 628 1987.IL.1707

Appeal from the Circuit Court of Du Page County; the Hon. Maryellen T. Provenzale, Judge, presiding.

APPELLATE Judges:

JUSTICE UNVERZAGT delivered the opinion of the court. NASH and INGLIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

The State appeals from the trial court's order which rescinded the summary suspension of the driver's license of the defendant, Thomas Klyczek. The trial court determined that defendant's consent to the breathalyzer testing and subsequent refusal to undergo additional testing did not warrant summary suspension under section 11-501.1 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.1). On appeal, the State contends that the plain language of the Code reveals that refusal of any chemical testing warrants suspension of driving privileges.

Initially, we note that the defendant has not provided the court with a brief on appeal. Nevertheless, we will address the issue set out by the State in accordance with First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133.

The evidence at defendant's implied consent hearing on November 1, 1986, established that Officer Summerville arrested defendant for transportation of open alcohol (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-502), invalid registration (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 3-701), improper lane usage (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-709), and driving under the influence of alcohol and/or drugs (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501). The record indicated that defendant's vehicle was observed weaving from the left lane to the curb, and defendant had a strong odor of alcohol on his breath and was unable to perform field sobriety tests. After the officer advised defendant that "refusal or failure to complete all chemical tests requested will result in suspension of your driving privileges for a minimum of six months" and issued other warnings, defendant submitted to breathalyzer testing.

The State stipulated at the hearing that defendant had agreed to breathalyzer testing. The breathalyzer test revealed an alcohol concentration of .05, which was below the legal limit of .10. The officer testified that the breathalyzer reading was accurate and conclusive. Nevertheless, the officer requested defendant to undergo a blood or urine test, and defendant refused. Defendant's refusal constituted the basis of the summary suspension of his driving privileges.

The State argued at the hearing that the officer had discretion to request further tests in order to determine any alcohol or drug concentration in defendant's blood. The State supported its contention by referring to the language of the statute which referred to "tests" in the plural. In ruling for the defendant, the court interpreted the statute as indicating that "tests" referred to the three types: blood, urine, or breath. Because defendant did not refuse to take the breathalyzer test, which was requested of him, the court rescinded the suspension of his driver's license.

The State's contention on appeal is that the Code empowers the police to request a motorist to perform any combination of the three tests: urine, blood, and breath. In the officer's discretion, according to the State, individuals could be requested to perform all three tests or face suspension of their driver's license. The trial court determined that defendant's failure to undergo additional testing did not constitute refusal warranting suspension under the Code. A finding for defendant in an implied consent proceeding will be reversed on review if it is contrary to the manifest weight of the evidence. People v. Elledge (1986), 144 Ill. App. 3d 281, 283.

The issue presented, whether the defendant's driver's license may be suspended summarily when he refuses to submit to a test to determine the drug content of his blood or urine after he had already successfully completed a breathalyzer test, appears to be a question of first impression in Illinois. In this appeal, we are asked to interpret section 11 -- 501.1 of the Code, which provides in relevant part:

"(a) Any person who drives . . . 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, other drug, or combination thereof content of such person's blood if arrested . . .. The test or tests shall be administered at the direction of the arresting officer. The law enforcement agency employing said officer shall designate which of the aforesaid tests shall be administered.

(c) . . . The person shall also be warned by the law enforcement officer that if the person submits to the test or tests provided in paragraph (a) of this Section and the alcohol concentration in such person's blood or breath is 0.10 or greater, a statutory summary suspension of such person's privilege to operate a motor ...


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