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Village of Lincolnshire v. Follensbee

December 01, 2000

THE VILLAGE OF LINCOLNSHIRE, PLAINTIFF-APPELLANT,
v.
JAMES FOLLENSBEE, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Lake County. No. 99--DT--1763 Honorable Terrence J. Brady, Judge, Presiding.

The opinion of the court was delivered by: Justice Hutchinson

Defendant, James Follensbee, was arrested for the offense of driving under the influence of alcohol (625 ILCS 5/11--501(a)(2) (West 1998)). He subsequently filed a petition to rescind the statutory summary suspension of his driving privileges, alleging that he did not refuse to consent to take a breath test or a blood test. Following a hearing, the trial court granted defendant's petition. Plaintiff, the Village of Lincolnshire, appeals the trial court's order granting defendant's petition. We affirm.

The record reflects that, on April 24, 1999, at approximately 12:49 a.m., defendant was stopped by Officer Gary Wrzesinski of the Lincolnshire police department for speeding and improper lane usage. He was arrested and taken to the police department for the offense of driving under the influence of alcohol. Defendant agreed to take a breath test. At 2:03 a.m., defendant blew into the breathing apparatus, which registered "mouth alcohol," and the apparatus printed out that test result. The officer recycled the breathing apparatus, replaced the mouthpiece, and waited an additional 20 minutes before offering the test to defendant again.

At 2:36 a.m., defendant blew into the breathing apparatus; the printout showed the result of "test refused." The officer noted that defendant almost blew hard enough for the instrument to register a result but not before the instrument indicated "test refused." During the test defendant lost consciousness and struck his head on a counter. Paramedics were called to tend to defendant.

Defendant informed the paramedics that he did not want to be transported to the hospital. Officer Wrzesinski asked defendant to submit to another breath test. The officer replaced the mouthpiece. At 3:22 a.m., defendant blew into the breathing apparatus, but the result printed out as "test refused."

Officer Wrzesinski asked defendant to go to Highland Park Hospital to take a blood test; defendant agreed to do so. The officer drove defendant to the hospital and took him to the admissions desk. He saw hospital personnel give defendant a form to sign and watched defendant cross out the release-of-liability language on the form. Officer Wrzesinski heard the nurse in charge of the emergency room advise defendant that they would not draw blood or take a urine sample from him if he did not sign the form as it was prepared.

Paragraph 6 of the hospital's consent for emergency treatment and disclosure statement states:

"I realize that there are certain priorities which must be followed in rendering care and treatment of persons in the Emergency Department. Further, I understand that under certain circumstances, patients who experience more serious medical conditions than mine may be given higher priority. Therefore, I release HIGHLAND PARK HOSPITAL and its officers and directors, the Emergency Department Physician and his designee, for all other damages, losses or liability which may result by reasons of the exercise of reasonable judgment in establishing priorities of treatment among two or more patients receiving treatment in the Emergency Department."

Officer Wrzesinski informed defendant that, if he did not sign the hospital form in its entirety, it would be recorded as a refusal to submit to the chemical test. Defendant replied that he was not refusing to take the test; he was simply unwilling to sign the form provided by the hospital that included the release of liability. Defendant again stated that he would not sign the form, citing a fear of AIDS and a fear of releasing the hospital from liability. Officer Wrzesinski retrieved the form and thereafter completed the "Law Enforcement Sworn Report" indicating that defendant refused to take all requested chemical tests. The Secretary of State suspended defendant's driving privileges, and defendant petitioned the trial court for a rescission of the statutory summary suspension.

Following the hearing, the trial court found that, according to defendant's testimony, he attempted on seven occasions to take a breath test, and according to the officer's testimony, defendant made at least three attempts to take the breath test. The trial court noted that a number of mouthpieces were used and that defendant was trying to blow into the breath machine. However, on the second or fifth test, defendant lost consciousness, and the officer called paramedics. The trial court further found that defendant expressed consent to take a blood test at the hospital. The trial court ruled that the defendant's refusal to execute the Highland Park Hospital consent for emergency treatment and disclosure form without being allowed to strike the liability lines in paragraph 6 was not a refusal to submit to and complete the requested blood test. The trial court granted defendant's petition to rescind the statutory summary suspension.

On August 20, 1999, the trial court denied plaintiff's motion to reconsider. Plaintiff timely appeals.

In a summary suspension proceeding, the motorist must show by a preponderance of the evidence that she or he is entitled to rescission. People v. Massie, 305 Ill. App. 3d 550, 554 (1999). The trial court is responsible for weighing the evidence and judging the credibility of the witnesses. Massie, 305 Ill. App. 3d at 554, citing People v. Smith, 172 Ill. 2d 289, 295 (1996). A trial court's decision to grant a petition to rescind a motorist's statutory summary suspension of her or his driving privileges will not be reversed on appeal unless it is against the manifest weight of the evidence. People v. Estrada, 313 Ill. App. 3d 245, 248 (2000).

Section 11--501.1 of the Illinois Vehicle Code provides, in relevant part:

"(a) Any person who drives *** a motor vehicle upon the public highways of this State shall be deemed to have given consent *** to a chemical test or tests of blood, breath, or urine for the purpose of determining the content of alcohol, other drug or drugs, *** or any combination thereof in the person's blood if arrested, as evidenced by the issuance of a Uniform Traffic Ticket, for any offense as defined in Section 11--501 ***. The test or tests shall be administered at the direction of the arresting ...


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