Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Circuit Nos. 13-DT-1749 and 13-TR-106788 Honorable Bennett J. Braun, Judge, Presiding.
JUSTICE HOLDRIDGE delivered the judgment of the court, with Opinion. Justices Carter and Wright concurred in the judgment ad Opinion.
¶ 1 Defendant, Enrique Gutierrez, Jr., was an Aurora police officer involved in a traffic accident while off duty. Aurora police suspected defendant of driving under the influence and instructed a state trooper to administer a preliminary breath test (PBT). Defendant took the PBT, which returned a 0.249 blood alcohol content (BAC). Defendant was arrested for driving under the influence and refused further chemical testing. His driver's license was summarily suspended. Defendant filed a petition to rescind the summary suspension. He also filed a motion in limine seeking to preclude introduction of the PBT results at the hearing on his petition to rescind. The court denied both the motion in limine and the petition to rescind. Defendant appeals. We affirm.
¶ 2 FACTS
¶ 3 The following facts were gleaned from the report of proceedings of the hearing on defendant's motion in limine, the hearing on defendant's motion to rescind his statutory suspension, and the common law record.
¶ 4 Defendant was a police officer with the Aurora police department. On December 24, 2013, defendant was off duty, driving in his personal vehicle, when he rear-ended another vehicle at an intersection within the jurisdiction of the Aurora police department. The other driver called the police. After waiting approximately 30 minutes to one hour without police arriving, defendant and the other driver exchanged information, and defendant left the scene of the accident and drove home.
¶ 5 After arriving home, defendant received a phone call from Sergeant Weber of the Aurora police department, requesting that defendant return to the scene of the accident. Defendant drove back to the scene. Illinois State Trooper David DeGraff administered to defendant a PBT. The result of the PBT was a 0.249 BAC. Defendant was arrested for driving under the influence of alcohol (625 ILCS 5/11-501 (West 2012)).
¶ 6 Defendant refused further chemical testing, and his driver's license was suspended. Defendant filed a petition to rescind the suspension. The petition requested a hearing pursuant to section 2-118 of the Illinois Vehicle Code (Code) (625 ILCS 5/2-118 (West 2012)).
¶ 7 Defendant filed a motion in limine seeking to exclude the PBT results from being admitted at the hearing on the petition to rescind. The motion alleged that the PBT was administered "for the purposes of an Aurora Police Department administrative employee disciplinary investigation" and was therefore not consensual, as required by section 11-501.5(a) of the Code (PBT statute) (625 ILCS 5/11-501.5(a) (West 2012)). In addition, the motion claimed that the results of the PBT were compelled testimony in violation of the fifth amendment (U.S. Const., amend. V). Furthermore, the motion argued that the results of the PBT were not reliable.
¶ 8 At a hearing on the motion in limine, defendant argued that the PBT was an "administrative blow, " and therefore admission of the PBT at trial would violate defendant's fifth amendment right against self-incrimination. Defendant testified that when he arrived on the scene, Sergeant Bodman told him that he was required to take the PBT test as an administrative blow. DeGraff administered the PBT using a device that belonged to the Aurora police department. According to defendant, DeGraff seemed unaware of how to properly operate the device. He twice administered the test unsuccessfully before obtaining a reading on the third try. Defendant testified that he did not consent to taking the PBT but that DeGraff never told him that he was required to take it.
¶ 9 DeGraff testified that he was a friend and neighbor of defendant's. He was called to the scene to help investigate because the Aurora police who responded were concerned that they had a conflict of interest in investigating a fellow Aurora police officer. When defendant arrived back on the scene, DeGraff detected an odor of alcohol on defendant's breath. DeGraff stated that he was "slightly unfamiliar" with the PBT device he used because it was a different model than the device he typically used. Bodman requested that DeGraff administer the PBT as an administrative blow. DeGraff could not remember whether he told defendant that the PBT test was mandatory.
¶ 10 The court denied the motion in limine. It found that the PBT was an administrative search, and therefore the results were admissible so long as the PBT was not merely a subterfuge for discovering criminal activity. The court found that the PBT was not a subterfuge.
¶ 11 The cause proceeded to a hearing on defendant's petition to rescind. The issue before the court was whether there were reasonable grounds for officers to believe that defendant was under the influence of alcohol. 625 ILCS 5/2-118.1(b)(2) (West 2012). The court said, "Frankly, without the portable breath test, the Court would not find that there was reasonable grounds for the defendant to be arrested, so really this whole motion hinges on the admissibility of the portable breath test." The court found that the combination of the PBT results, the odor of alcohol ...