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August 4, 1995


Appeal from the Circuit Court of Lake County. Nos. 94-TR-97670, 94-TR-97673. Honorable Victoria Martin, Judge, Presiding.

Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Colwell delivered the opinion of the court: Rathje, J., concurs. Justice Inglis, dissenting:

The opinion of the court was delivered by: Colwell

JUSTICE COLWELL delivered the opinion of the court:

Defendant, Yevgeniy Didenko, appeals the trial court's order denying his petition to rescind the summary suspension of his driver's license (see 625 ILCS 5/2-118.1(b) (West 1994)). The question for review is whether the trial court erred in ruling that the arresting officer's failure to give the required warning about refusal to submit to breath testing was excused by defendant's combativeness. We reverse.

Because there is no bystander's report or transcript of the testimony from the summary suspension hearing, we derive the facts from the trial court's findings set forth in a written order, the traffic citation, and the facts as agreed upon by trial counsel. Defendant was driving 81 miles per hour in a 50 mile-per-hour zone. When the police officer attempted to pull defendant over, defendant increased his speed to 108 miles per hour. Defendant was forced to stop when semi-tractor trailers barricaded his vehicle. Defendant refused to exit his vehicle and did not respond to the officer's requests. Instead, defendant wrapped his arms around the steering wheel. The officer had to turn off the ignition and remove the key. The officer also pried defendant's hands and arms from the steering wheel and physically removed him from the car. Defendant and the officers struggled, falling onto the trunk of the car. Defendant kicked at the officers. The arresting officer noticed a strong odor of alcohol on defendant's breath. He was handcuffed, physically placed in the back of the squad car, and taken to the police station. The officers read the Miranda rights to defendant, but he refused to listen and was loud and abusive.

On arrival at the station, defendant remained uncooperative and physically combative. His driver's license had to be forcibly taken from him. At some point, defendant stated that he refused to do anything without a Russian lawyer. Defendant's responses to any verbal requests were obscenities. He refused to answer questions and was physically aggressive. Because defendant was "extremely combative," for the personal safety of the police officers, defendant was placed in a holding cell. Although the arresting officer attempted to read the Miranda warnings again to defendant, he decided that it was futile to attempt to read the "Warning to Motorist" to defendant. The officer wrote on the "Warning to Motorist" form that the warning was "not given as subject was placed into lockup, combative," and the printed phrase "Time of Warning" was crossed out.

The court found that every effort the officer made to comply with the statute was "completely thwarted" by defendant's refusal to cooperate and his physical aggression; that defendant's actions interfered with the officer's efforts to provide the warnings about refusal to submit to testing and to request that defendant submit; and that reading the "Warning to Motorist" to defendant would have been futile because defendant "made every effort to prevent the officer from arresting and processing" him. The court concluded that defendant's conduct was a constructive refusal and, therefore, the officer did not need to provide the warning or request defendant to submit to testing.

In a summary suspension rescission proceeding, the motorist has the burden of proving one or more of the statutory grounds for rescission. ( People v. Orth (1988), 124 Ill. 2d 326, 338, 125 Ill. Dec. 182, 530 N.E.2d 210.) We will not reverse the trial court's decision unless it is against the manifest weight of the evidence. People v. Graney (1992), 234 Ill. App. 3d 497, 503, 174 Ill. Dec. 790, 599 N.E.2d 574.

Any person who drives on a public highway and is arrested for driving under the influence of alcohol is deemed to have given implied consent to a test to determine whether he or she is under the influence of alcohol. (625 ILCS 5/11-501.1(a) (West 1994).) Before administering the test, the arresting officer is required to warn the motorist that refusal to take the test or failure to pass the test will result in the suspension of driving privileges. (625 ILCS 5/11-501.1(c) (West 1994).) The officer's failure to give the required warnings is a ground for the rescission of the suspension. People v. Engelbrecht (1992), 225 Ill. App. 3d 550, 556, 167 Ill. Dec. 811, 588 N.E.2d 452.

The trial court relied on People v. Aultman (1992), 237 Ill. App. 3d 304, 178 Ill. Dec. 160, 604 N.E.2d 416, when it concluded that it would have been futile for the officer to have read the "Warning to Motorist." However, Aultman is distinguishable because in that case the officer twice attempted to read the warning over the defendant's screaming. ( Aultman, 237 Ill. App. 3d at 306.) By contrast, here the officer never attempted to read the warning. Although defendant was combative, he was in a holding cell, where he could not harm the officer. As such, defendant's combativeness did not prevent the officer from attempting to read the warning. As the court in Aultman explained, "in all but the most egregious circumstances, an arresting officer should provide the statutory warnings." ( Aultman, 237 Ill. App. 3d at 309.) Exceptions to the statute should not be engrafted lightly. Aultman, 237 Ill. App. 3d at 309.

The futility of reading the warning does not excuse the officer's duty to attempt to do so. (See People v. Wegielnik (1992), 152 Ill. 2d 418, 424, 178 Ill. Dec. 693, 605 N.E.2d 487 (the officer must read the warning even if the suspect would not understand it).) If the person is conscious and present, the officer must make an effort to read the warning. (Cf. People v. Doty (1987), 164 Ill. App. 3d 53, 57, 115 Ill. Dec. 136, 517 N.E.2d 338 (defendant's fleeing from the scene before officer had opportunity to read warning constituted constructive refusal).) While it is likely that defendant would have refused to cooperate even had the officer read the warning, we believe the officer has the obligation to do so and may not ignore the statutory requirement based on that officer's subjective determination that a suspect will refuse to cooperate. The purpose of the warning is to "motivate[] drivers to take the test, thereby allowing the State to obtain objective evidence of intoxication." ( Wegielnik, 152 Ill. 2d at 425.) Consequently, it is in the State's interest to provide the warning. The suspect might decide to cooperate when threatened with the loss of his or her license.

In light of the statutory purpose, we conclude that an officer cannot make the subjective determination that a suspect is too uncooperative to even attempt to provide the warning. To allow the officer to make this determination would encourage litigation, and the court might disagree with the officer's inference that the suspect refused. ( People v. Huisinga (1993), 242 Ill. App. 3d 418, 422, 182 Ill. Dec. 744, 610 N.E.2d 168.) As the court in Huisinga noted:

"Cases based solely on the failure of officers to ask defendants to submit to a breathalyzer test are a complete waste of judicial resources. Courts should not have to be making such determinations when the whole situation could be avoided by an officer simply asking ...

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