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05/10/94 PEOPLE STATE ILLINOIS v. BRIAN D. BELL

APPELLATE COURT OF ILLINOIS, THIRD DISTRICT


May 10, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
BRIAN D. BELL, DEFENDANT-APPELLEE.

Appeal from the Circuit Court of the 14th Judicial Circuit, Mercer County, Illinois. Nos. 93-TR-631, 93-TR-633 and 93-TR-634. Honorable Dennis DePorter Judge, Presiding

Released for Publication June 15, 1994.

Present - Honorable Kent Slater, Presiding Justice, Honorable Allan L. Stouder, Justice, Honorable Tobias Barry, Justice

The opinion of the court was delivered by: Barry

JUSTICE BARRY delivered the opinion of the court.

The defendant, Brian D. Bell, was charged with driving under the influence of alcohol, failure to signal when required, disobeying a stop sign and failure to have insurance. The defendant pled guilty to the insurance offense. Prior to trial on the other charges, the defendant filed a motion in limine seeking to prohibit the State from introducing evidence that he had refused to take a blood-alcohol test. Following a hearing, the circuit court granted the defendant's motion. The State appeals.

At the hearing on the defendant's motion, it was undisputed that the defendant was asked to take a blood-alcohol test and was warned that the failure to take the test would result in the summary suspension of his driver's license. It was further agreed that Miranda warnings were not given to the defendant prior to his being asked to take the blood-alcohol test.

The State argued that the defendant's refusal to take the test was admissible despite the lack of any warning that the refusal could be used against him. Nevertheless, the circuit court granted the defendant's motion and suppressed, under Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, the defendant's refusal to take the requested blood-alcohol test. In so ruling, the circuit court expressly relied on People v. Millner (5th Dist. 1991), 239 Ill. App. 3d 8, 607 N.E.2d 560, 180 Ill. Dec. 491 (Millner I).

The sole issue on appeal is whether the circuit court, in relying on Millner I and Miranda, properly granted the defendant's motion to suppress.

We begin by noting that following a remand to the circuit court, Millner I was subsequently reheard by the Appellate Court ( People v. Millner (5th Dist. 1993), 245 Ill. App. 3d 597, 615 N.E.2d 56, 185 Ill. Dec. 761 (Millner II)). In Millner II, the court concluded that evidence of a defendant's refusal to take a blood-alcohol test may be admitted at trial without offending due process or the prohibition against compelled self-incrimination.

We find that the circuit court erred in relying on Millner I. Millner I did not address whether a defendant's refusal to submit to a blood-alcohol test should be excluded in the absence of prior Miranda warnings. In fact, Miranda is never even mentioned in Millner I, and it is unclear at what point, if ever, Miranda warnings were given to the defendant. Moreover, even if Millner I were to have involved Miranda, the holding in Millner II would have superseded the holding of Millner I.

Instead of relying on Millner I, the circuit court should have followed the reasoning set forth in South Dakota v. Neville (1983), 459 U.S. 553, 74 L. Ed. 2d 748, 103 S. Ct. 916. We recognize that Neville is not directly on point since the defendant in that case was apprised of his Miranda rights prior to his refusing to take a blood-alcohol test. Nevertheless, in Neville the Supreme Court did state that police inquiry into whether a suspect would submit to a blood-alcohol test was not interrogation within the meaning of Miranda. Thus, a refusal to submit to such tests enjoyed "no prophylactic Miranda protection outside the basic Fifth Amendment protection." South Dakota v. Neville (1983), 459 U.S. 553, 564, 74 L. Ed. 2d 748, 759, 103 S. Ct. 916, 923 n. 15.

Subsequently, this reasoning was adopted in Illinois cases which held that a defendant's refusal to submit to a blood-alcohol test is admissible even in the absence of Miranda warnings. ( People v. Thomas (2nd Dist. 1990), 199 Ill. App. 3d 79, 556 N.E.2d 1246, 145 Ill. Dec. 344; People v. Bugbee (2nd Dist. 1990), 201 Ill. App. 3d 952, 559 N.E.2d 554, 147 Ill. Dec. 381; People v. Thomas (2nd Dist. 1990), 200 Ill. App. 3d 268, 558 N.E.2d 656, 146 Ill. Dec. 693; see also People v. Roberts (2nd Dist. 1983), 115 Ill. App. 3d 384, 450 N.E.2d 451, 71 Ill. Dec. 16 (holding that the use of a defendant's refusal to submit to a blood-alcohol test after Miranda warnings were issued did not violate a defendant's privilege against self-incrimination under Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240).) Based on these cases, we find that the trial court erred in suppressing the defendant's refusal.

For the reasons set forth above, the judgment of the circuit court of Mercer County is reversed, and this cause is remanded for further proceedings.

Reversed and remanded.

SLATER, P.J. and STOUDER, J. concur.

19940510

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