APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
529 N.E.2d 277, 174 Ill. App. 3d 911, 124 Ill. Dec. 457 1988.IL.1465
Appeal from the Circuit Court of Hancock County; the Hon. Max B. Stewart, Judge, presiding.
JUSTICE BARRY delivered the opinion of the court. WOMBACHER, J., concurs. PRESIDING JUSTICE STOUDER, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY
Defendant David F. Eaves was arrested for driving under the influence of alcoholic liquor (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501(a)) on May 9, 1987, when he was found asleep behind the wheel of his automobile, which was parked in a private lot with the keys in the ignition, the headlamps on and the engine running. Officer Oral K. Lawrence of the Carthage police department had been called to the scene by a security guard for Robert Morris College, on whose lot defendant's car was parked. Lawrence advised defendant orally and in writing of the warning for statutory summary suspension of drivers' licenses pursuant to section 11-501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.1). Defendant agreed to submit to the breathalyzer test. The results indicated that defendant's blood-alcohol concentration was .14.
Defendant was formally charged with DUI in two counts. (Ill. Rev. Stat. 1985, ch. 95 1/2, pars. 11-501(a)(1), (a)(2).) Defendant pleaded not guilty and requested a hearing pursuant to section 2-118.1 (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 2-118.1) on the summary suspension. On June 23, 1987, the matter was heard by the circuit court of Hancock County, and the court entered an order rescinding the statutory summary suspension of defendant's driver's license. The court ruled that the implied consent and summary suspension statute did not apply because defendant's vehicle was not "upon the public highways." People v. Kissel (1986), 150 Ill. App. 3d 283, 501 N.E.2d 963.
The court having thus disposed of the summary suspension aspects of the case, the matter proceeded to prosecution of the DUI charge. Defendant moved to suppress the results of the breathalyzer test on the ground that his consent was given involuntarily because the arresting officer failed to inform him that the implied consent/statutory summary suspension provisions do not apply to vehicles parked on private property. Defendant testified that he agreed to take the breathalyzer test because of the implied consent warnings and his understanding that if he refused to take the test, his license would be suspended for six months. Further, it was established that Officer Lawrence knew when he read the warnings to defendant that they did not apply to vehicles on private property. Lawrence testified that he made no promises and did not threaten or intimidate defendant into taking the test. He merely read the warnings and asked defendant whether he would take it. At the Conclusion of the hearing, the court found that defendant's consent was not voluntary because the arresting officer did not inform defendant that he did not have to take the breathalyzer test and that defendant's license would not be suspended for refusing to take the test. On this basis the court entered its order suppressing the evidence as requested.
The State has perfected its appeal to this court pursuant to Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)). In this case we are are concerned only with whether the trial court properly suppressed the breathalyzer test results for purposes of the prosecution of defendant's DUI charge. The trial court's implied consent ruling is not challenged in this appeal.
For reasons that are not clear, neither party has chosen to direct our attention to recent precedent which we find particularly relevant to the suppression issue before us. In Village of Algonquin v. Ford (1986), 145 Ill. App. 3d 19, 21, 495 N.E.2d 595, 597, on facts similar to those before us today, the court on review held that under the current statutory scheme, "there is no prohibition against the taking of a breath-alcohol test without the consent of the donor." There, as here, defendant was found in the driver's seat of a vehicle parked on private property at an early hour of the morning with the motor running and the headlamps lit. Defendant was informed of the implied consent/summary suspension statute and she ultimately submitted to a breathalyzer test. The testimony was conflicting as to the circumstances leading up to defendant's consent; however, it was established that no threats or physical force were employed to administer the test.
The Ford court, relying on the Supreme Court's decision in Schmerber v. California (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826, observed that a breathalyzer test is not of a testimonial nature. Ergo, rather than analyzing the suppression issue under the constraints of the fifth amendment, the court applied, as in Schmerber, a fourth amendment "search and seizure" analysis. Under the fourth amendment, a nonconsensual intrusion implicating defendant's interests in human dignity and privacy is permissible if "the police were justified in requiring [defendant] to submit to the blood [alcohol] test, and [if] the means and procedures employed in [giving the test] respected relevant Fourth Amendment standards of reasonableness." (Schmerber, 384 U.S. at 768, 16 L. Ed. 2d 918, 86 S. Ct. at 1834.) Otherwise stated, where the police have probable cause to arrest defendant and charge him with driving while under the influence of intoxicating liquor, then, given the fact that "the percentage of alcohol in the blood begins to diminish shortly after drinking stops" (Schmerber, 384 U.S. at 770, 16 L. Ed. 2d at 919, 86 S. Ct. at 1836), a blood-alcohol or "breathalyzer" test, which involves no appreciable risk, trauma or pain, may be administered promptly and without a warrant.
In this case, as in Ford, we find that the arresting officer had reasonable grounds to initiate the investigation which culminated in the breathalyzer test. Here, the police were called to the parking lot by a campus security guard. From the record on appeal it appears that when Officer Lawrence arrived at the scene he found defendant passed out in his car with the headlamps on and the motor running. The record is silent as to what signs of intoxication the officer noticed prior to advising defendant of the implied consent statute and charging him with driving under the influence of alcohol. Although the issue of probable cause does not appear to have been raised in the trial court, the law is clear that probable cause determinations in these cases are not to be unduly technical. Rather, as stated in Ford, "[the courts] are to deal with probabilities." Ford, 145 Ill. App. 3d at 22, 495 N.E.2d at 598. See also People v. Barlow (1987), 163 Ill. App. 3d 281, 516 N.E.2d 982 (officer who was called to the scene of defendant's parked truck and found defendant asleep behind steering wheel at 12:20 a.m. had reasonable grounds to open vehicle door to determine whether defendant needed medical attention and to proceed with investigation which led to DUI charge).
Both parties to this appeal have focused on the voluntariness of defendant's consent and have presented arguments citing People v. Kissel. We have reviewed Kissel and find that it is only marginally relevant for purposes of this appeal. The primary issue in Kissel was whether the implied consent statute applied when there was no evidence that the defendant was driving or was in control of a vehicle on a public highway prior to being arrested on private property. The court, after reviewing the statute and construing the legislative intent, concluded that the statute did not apply under such circumstances.
In Kissel the court went on, however, to address the State's further argument that the trial court erred in suppressing the results of defendant Kissel's breathalyzer test. The State suggested in Kissel that the trial court should have conducted an evidentiary hearing as to the voluntariness of Kissel's consent before deciding the suppression issue. The court on appeal agreed, without further comment. (Kissel, 150 Ill. App. 3d at 287, 501 N.E.2d at 965.) Of particular note is the fact that ...