APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
526 N.E.2d 947, 172 Ill. App. 3d 845, 122 Ill. Dec. 554 1988.IL.1192
Appeal from the Circuit Court of Montgomery County; the Hon. Dennis M. Huber, Judge, presiding.
JUSTICE KARNS delivered the opinion of the court. HARRISON, P.J., and WELCH, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KARNS
Defendant, Craig Furness, was arrested on February 27, 1987, for driving under the influence of alcohol as a result of an accident which occurred near Illinois Route 16 in Montgomery County. Furness was issued a notice of summary suspension pursuant to section 11-501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.1) and charged by information with the offense of driving under the influence of alcohol in violation of section 11-501(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501(a)). The criminal charge was dismissed on motion by the State, and Furness filed a written notice in the circuit court of Montgomery County requesting a judicial hearing on the suspension pursuant to section 2-118.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 2-118.1). At the Conclusion of the hearing, the circuit court continued the suspension and this appeal followed.
On February 27, 1987, Officer Douglas Francis was called to the scene of an accident near Illinois Route 16. Upon arriving he observed an overturned pickup truck in a field and was informed by Montgomery County Deputy Unser that another deputy was bringing Craig Furness to the scene. The deputies informed Francis that Furness was the driver of the pickup. As Officer Francis was questioning Furness, he detected the odor of alcohol on Furness' breath. Officer Francis then proceeded to give Furness the horizontal gaze nystagmus test. Based on the smell of alcohol on Furness' breath and the results of the test, Furness was placed under arrest and taken to the Montgomery County jail. Furness was given his Miranda rights and a breathalyzer exam, which indicated a blood-alcohol content of .15.
Furness filed a motion to rescind the summary suspension and a motion to quash his arrest and suppress all statements and evidence arising therefrom on the basis that he should have been given his Miranda warning at the scene and prior to any questioning regarding driving under the influence. The trial court granted the motion to suppress, but refused to quash the arrest or rescind the summary suspension. The court further ruled that Furness' statements could be used in the summary suspension hearing.
Furness' first argument on appeal is that there was no probable cause to support his arrest and without an arrest, his statutory summary suspension should have been rescinded. Specifically, Furness argues that because the State did not lay a proper foundation by way of expert testimony for the horizontal gaze nystagmus test it was not admissible for the purpose of showing probable cause for arrest. Furness also argues that the information given by him to Officer Francis for the accident report was confidential under section 11-412 of the Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-412) and could not be used to support probable cause for arrest. Section 11-412 specifically provides that accident reports cannot be used as evidence in any trial, civil or criminal. (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-412.) Without an arrest, Furness maintains, there can be no suspension under section 11-501.
Section 11-501.1(a) of the Illinois Vehicle Code provides that anyone arrested for driving under the influence of drugs or alcohol is deemed to have consented to a blood, breath, or urine test. (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.1(a).) Section 11-501.1 further provides that if the person arrested either refuses testing or is tested and the results disclose a blood-alcohol content of 0.10 or greater, such person's driver's license shall be automatically suspended. Section 2-118.1 of the Vehicle Code provides that anyone whose license is suspended by virtue of section 11-501 may request a judicial hearing in the circuit court of venue. The scope of such hearing is limited to four issues:
(1) Whether the person was placed under arrest for a section 11-501 offense; and
(2) Whether the arresting officer had reasonable grounds to believe the person was driving under the influence of alcohol or drugs; and
(3) Whether the person refused to submit to testing; or
(4) Whether, if tested, the test results disclosed a blood-alcohol ...