NO. 4-05-0297

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

_________________________________________________________________

JUSTICE KNECHT delivered the opinion of the court:

Defendant, David L. Kavanaugh, was charged by citationwith driving under the influence (DUI) (625 ILCS 5/11-501(a)(2)(West 2002)) and illegal transportation of alcohol (625 ILCS5/11-502(a) (West 2002)). Pursuant to section 11-501.1 of theIllinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501.1 (West2002)), defendant was given a notice of statutory suspensionbecause he refused to submit to or failed to complete testing. The trial court granted defendant's amended petition to rescindthe statutory summary suspension. On appeal, the State arguesthe court erred in rescinding defendant's statutory summarysuspension. We reverse.

I. BACKGROUND

On July 25, 2004, defendant was charged by citationwith DUI and illegal transportation of alcohol. Five days later,a law-enforcement sworn report was filed. The report indicatedthat "[b]ecause [defendant] refused to submit to or failed tocomplete testing, [his] driver's license and/or privileges willbe suspended for a minimum of [six] months." A "warning tomotorist" form was also issued to defendant and filed with thetrial court. A confirmation of statutory suspension was filed onAugust 6, 2004, and stated defendant's driver's license would besuspended for a minimum of three years, beginning on September 9,2004.

On September 1, 2004, defendant filed a petition torescind the statutory summary suspension. Defense counsel wassubstituted on December 13, 2004. On February 1, 2005, defendantfiled an amended petition to rescind the statutory summarysuspension. The amended petition alleged that (1) the arrestingofficer did not have reasonable grounds to believe defendant wasdriving a motor vehicle while under the influence of alcohol; (2)defendant was not properly warned by the arresting officer asprovided in section 11-501.1 of the Code; and (3) defendant didnot refuse to submit to and/or complete the required chemicaltest upon the request of the arresting officer. Also on February1, 2005, defendant filed a motion to quash his arrest and suppress evidence.

On February 24, 2005, the trial court held a hearing ondefendant's motions. Because the parties are familiar with theproceedings at the hearing, we discuss only the testimony pertinent to the issue in this appeal, i.e., whether the court erredin rescinding the summary suspension of defendant's driver'slicense because the warning given defendant was equivocal as to"whether or not he was being offered a test on portable[B]reathalyzer machine or just a mere portable unit."

Defendant was the only defense witness. On July 25,2004, at approximately 1:30 a.m., defendant was traveling eastbound on Route 121 and was about to enter Warrensburg, Illinois. He had been at a class reunion near Lincoln, Illinois. Defendantarrived at the reunion at 7:30 p.m. and had four rum and Cokesbetween 8 p.m. and 11 p.m. In total, he consumed about a halfpint of alcohol. Defendant felt "fine" as he enteredWarrensburg. He did not feel he had been under the influence ofalcohol.

Defendant was going to visit his friend Brian Hoffmanin Warrensburg. Defendant could not find where Hoffman lived sohe was driving very slowly and stopping to look at houses whileusing his cellular phone to try to call Hoffman. Defendantpulled his vehicle off the road and attempted to call Hoffman onelast time. No other traffic was in the area at this time.

A police car pulled up behind defendant's vehicle. Officer Freimuth approached defendant and asked whether he hadbeen drinking. Defendant stated he had been drinking earlier inthe evening. Officer Freimuth asked defendant for his driver'slicense, which defendant provided. Officer Freimuth then askeddefendant to get out of the vehicle and take field sobrietytests. Defendant agreed to do the field sobriety tests.

After defendant completed the field sobriety tests,Officer Owens arrived. Officer Owens was carrying a little blackbox and told defendant he understood defendant did not want tofinish the field sobriety tests and then asked defendant whetherhe would be willing to take a breath test. Defendant said hewould not take it there but would take it at the Macon Countyjail. No warnings had been given to defendant about the consequences of refusing a breath test or taking one and failing. After defendant refused to take the breath test, the officershandcuffed him and told him he was under arrest for DUI. Theyput defendant in the back of the squad car of the first officeron the scene.

The tow truck driver came and towed defendant's vehicleaway. Officer Freimuth drove defendant to the jail. OfficerFreimuth never gave defendant the warnings to motorist afterinforming defendant he was under arrest. After being arrestedand placed in Officer Freimuth's vehicle, defendant never refusedto take a breath test.

On the way to Decatur, defendant asked Officer Freimuthif he would be able to do the field sobriety and take theBreathalyzer test at the Macon County jail, to which OfficerFreimuth replied "You're burned up, man. You had your chance."

Officer Freimuth was the State's only witness. Hetestified he saw defendant driving at a slow rate of speed at2:30 a.m. on July 25, 2004. The vehicle was traveling at 44miles per hour in a 55-mile-per-hour zone. Officer Freimuthstated he saw defendant's truck cross the fog line twice and thecenterline once.

Officer Freimuth witnessed defendant stop in the middleof the road. He pulled up behind defendant's car and activatedhis emergency lights. Defendant pulled to the side of the road. Officer Freimuth approached the driver's window, which was open. He "detected a strong odor of alcoholic beverage." Defendant'seyes were red and glassy. Defendant denied drinking earlier thatnight.

Officer Freimuth stated Chief Jesse Owens arrivedbefore the field sobriety tests began. Officer Freimuth administered the field sobriety tests. According to Officer Freimuth,defendant struggled when performing the tests.

Following the field sobriety tests, Officer Freimuthasked defendant if he would take a preliminary breath test (PBT). Officer Freimuth had a PBT device in his car. Defendant refusedto take the PBT test, and Officer Freimuth then arrested him forDUI. Officer Freimuth then read defendant the warning to motorist and asked if he would submit to a Breathalyzer. Defendantstated he would not. Officer Freimuth filled out a form describing that he had given the warning and filed it with the trialcourt.

The Warrensburg police do not give breath tests at theMacon County sheriff's office. Officer Freimuth stated theWarrensburg police department uses the RBT IV portable device toperform breath tests in the field. The RBT IV is an approvedevidentiary instrument for breath analysis. See 20 Ill. Adm.Code §1286.210(a)(3), as amended by 28 Ill. Reg. 10017 (effectiveJune 30, 2004). The RBT IV device was transported in ChiefOwens' car.

While this was happening, Chief Owens was either in hissquad car or "up by [Officer Freimuth's] windows." The tow truckdriver then came to take defendant's car and Officer Freimuthtransported defendant to the Macon County jail. After booking,defendant was released.

On cross-examination, Officer Freimuth testified ChiefOwens requested that defendant take the PBT after the completionof the field sobriety tests. Chief Owens had the portable breathmachine in his hand. Defendant refused, and at that point he wasplaced under arrest and put in Officer Freimuth's squad car. Officer Freimuth could not recall whether Chief Owens everremoved the RBT IV from his car.

Chief Owens did not testify.

On March 23, 2005, the trial court denied the motion toquash arrest and suppress evidence in a written order. The courtfound Officer Freimuth had probable cause to stop defendant andthe evidence that was obtained was obtained pursuant to a validstop and arrest.

On March 24, 2005, the trial court rescinded thesummary suspension of defendant's driver's license. The courtheld "the warning to the [d]efendant on whether or not he wasbeing offered a test on portable [B]reathalyzer machine or just amere portable unit was equivocal. Warning by the officer was notsufficient."

This appeal followed.

II. ANALYSIS

In this case there is no dispute defendant was pulledover, performed field sobriety tests, was asked to take andrefused a PBT, was arrested and then placed in Officer Freimuth'ssquad car. It is at this point where there is a variance in thetestimony.

Defendant claims he was never given the warning tomotorist or asked to take a breath test after he was arrested. Officer Freimuth stated he gave defendant the warning to motoristand requested that he submit to a breath test after arrestinghim. The language of the trial court's order rescinding thesuspension of defendant's driver's license implies that the courtfound defendant was given the warning to motorist. However, itappears the court thought there was confusion as to whetherdefendant was being offered a PBT or a breath test under section501.1(a) of the Vehicle Code (625 ILCS 5/11-501.1(a) (West2002)), using an approved evidentiary device as set forth in theAdministrative Code (20 Ill. Adm. Code §1286.210(a)(3), asamended by 28 Ill. Reg. 10017 (effective June 30, 2004)), ofwhich the refusal to take would result in defendant's driver'slicense being summarily suspended.

The petitioner (defendant) carries the burden ofproviding a prima facie case for rescission at a hearing on apetition for rescission of a statutory summary suspension of adriver's license. People v. Rozela, 345 Ill. App. 3d 217, 222,802 N.E.2d 372, 376 (2003). The burden of presenting evidencejustifying the suspension then shifts to the prosecution. Rozela, 345 Ill. App. 3d at 222, 802 N.E.2d at 376. Normally,the trial court's decision on whether defendant has met hisburden will not be reversed unless against the manifest weight ofthe evidence. See People v. Brummett, 279 Ill. App. 3d 421, 430,664 N.E.2d 1074, 1082 (1996). However, the ultimate issue inthis case is whether the Vehicle Code imposes a duty on thepolice to give the warning to motorist and then make sure defendant is not confused as to whether he is being offered a PBT or abreath test that is admissible by the State in a DUI prosecution. This is an issue of statutory construction.

"The fundamental rule of statutory construction is to ascertain and give effect to thelegislature's intent. [Citation.] The bestindication of legislative intent is the statutory language, given its plain and ordinarymeaning. [Citation.] Where the language isclear and unambiguous, we will apply thestatute without resort to further aids ofstatutory construction. [Citation.] Theconstruction of a statute is a question oflaw that is reviewed de novo. [Citation.]" People v. Ramirez, 214 Ill. 2d 176, 179, 824N.E.2d 232, 234-35 (2005).

"The statutory summary suspension procedures wereenacted primarily to protect highway travellers and to evaluatewhether motor vehicle drivers are intoxicated." People v.Aultman, 237 Ill. App. 3d 304, 307, 604 N.E.2d 416, 419 (1992). Courts liberally construe section 11-501.1 of the Vehicle Code(625 ILCS 5/11-501.1 (West 2002)) to accomplish its purpose ofquickly removing impaired drivers from our highways. Aultman,237 Ill. App. 3d at 307, 604 N.E.2d at 419.

To understand the trial court's apparent thoughtprocess in rescinding the summary suspension on the basis it did,we must discuss the difference between a PBT and a breath test ona device from which admissible evidence of intoxication isobtained, and each test's role in the DUI-arrest process.

Section 11-501.5 of the Vehicle Code (625 ILCS 5/11-501.5 (West 2002)) is the statutory authority for requesting aPBT and states the following:

"(a) If a law enforcement officer hasreasonable suspicion to believe that a personis violating or has violated [s]ection 11-501[(625 ILCS 5/11-501 (West 2002))] or a similar provision of a local ordinance, the officer, prior to an arrest, may request theperson to provide a sample of his or herbreath for a preliminary breath screeningtest using a portable device approved by theDepartment of State Police. The person mayrefuse the test. The results of this preliminary breath screening test may be used bythe law[-]enforcement officer for the purposeof assisting with the determination ofwhether to require a chemical test as authorized under [s]ections 11-501.1 and 11-501.2[(625 ILCS 5/11-501.1, 11-501.2 (West2002))], and the appropriate type of test torequest. Any chemical test authorized under[s]ections 11-501.1 and 11-501.2 [(625 ILCS5/11-501.1, 11-501.2 (West 2002))] may berequested by the officer regardless of theresult of the preliminary breath screeningtest, if probable cause for an arrest exists.The result of a preliminary breath screeningtest may be used by the defendant as evidencein any administrative or court proceedinginvolving a violation of [s]ection 11-501 or11-501.1 [(625 ILCS 5/11-501, 11-501.1 (West2002))]." (Emphases added.) 625 ILCS 5/11-501.5(a) (West 2002).

While we are not concerned with the standards ofadmissibility of PBT test results in this case, it is importantto have a general understanding of the role of the PBT in theDUI-arrest process in order to understand what the trial courtappears to have contemplated in this case.

This court has held that PBT results are "not admissible by the State during its case in chief in a criminal proceeding involving a DUI charge" (People v. Rose, 268 Ill. App. 3d174, 181, 643 N.E.2d 865, 870 (1994)), nor are they to be admitted into evidence by the State on rebuttal to impeach a defendant's testimony (People v. Bass, 351 Ill. App. 3d 1064, 1067,815 N.E.2d 462, 465 (2004)). As this court noted in Rose, thelegislative history of section 11-501.5 indicates the PBT tests"'are used to develop probable cause for the arrest and there isno penalty for refusing any of these tests.'" (Emphasis omitted.) Rose, 268 Ill. App. 3d at 180, 643 N.E.2d at 869, quoting88th Ill. Gen. Assem., House Proceedings, April 20, 1993, at 22(statements of Representative Parke). Defendant acknowledges"that there need not be a warning prior to administering orrefusing a [PBT]."

On the other hand, section 11-501.1(a) of the VehicleCode (625 ILCS 5/11-501.1(a) (West 2002)), commonly referred toas the "implied-consent law," states in pertinent part:

"(a) Any person who drives or is inactual physical control of a motor vehicleupon the public highways of this State shallbe deemed to have given consent, subject tothe provisions of [s]ection 11-501.2 [(625ILCS 5/11-501.2 (West 2002))], to a chemicaltest or tests of blood, breath, or urine forthe purpose of determining the content ofalcohol, other drug or drugs, or intoxicatingcompound or compounds or any combinationthereof in the person's blood if arrested***." (Emphasis added.) 625 ILCS 5/11-501.1(a) (West 2002).

The test results from the breath test referred to in this sectionare admissible by the State in a DUI prosecution.

Section 11-501.1(c) sets forth the warnings that law-enforcement officers are required to give a motorist prior torequesting that they submit to a breath test under section 11-501.1(a) and provides the following:

"(c) A person requested to submit to atest as provided above shall be warned by thelaw[-]enforcement officer requesting the testthat a refusal to submit to the test willresult in the statutory summary suspension ofthe person's privilege to operate a motorvehicle as provided in [s]ection 6-208.1 ofthis [c]ode. [625 ILCS 5/6-208.1 (West2002).] The person shall also be warned bythe law[-]enforcement officer that if theperson submits to the test or tests providedin paragraph (a) of this [s]ection and thealcohol concentration in the person's bloodor breath is 0.08 or greater *** a statutorysummary suspension of the person's privilegeto operate a motor vehicle, as provided in[s]ections 6-208.1 and 11-501.1 of this[c]ode [(625 ILCS 5/6-208.1, 11-501.1 (West2002))], will be imposed." (Emphasis added.)625 ILCS 5/11-501.1(c) (West 2002).

The "if arrested" language of section 11-501.1(c) shows thesewarnings are to be given only after the motorist has been arrested. Further, "[t]he plain language of section 11-501.1(c)requires officers to give the warnings contained in section 6-208.1." People v. Johnson, 197 Ill. 2d 478, 488, 758 N.E.2d 805,811 (2001). The language of section 6-208.1 or 11-501.1(c) doesnot require that law-enforcement officers must warn motoristsarrested on suspicion of DUI that it is a test that is used forevidentiary purposes that is being offered rather than a PBT. Ifthe legislature wanted to impose such a requirement on law-enforcement personnel, it could have clearly set forth suchintent in the Vehicle Code. For an example of a statute that hassuch clarity, see section 257.625a(6)(b) of the Michigan CompiledLaws, which sets forth a list of what a motorist arrested "shallbe advised of," including that "[t]he results of the [breath]test are admissible in a judicial proceeding as provided underthis act and will be considered with other admissible evidence indetermining the defendant's innocence or guilt." Mich. Comp.Laws §257.625a(6)(b)(ii) (2004).

Defendant argues that because the RBT IV, an approvedevidentiary instrument, is portable, "its use makes it susceptible to subterfuge by unscrupulous members of law enforcement." According to defendant, because of this susceptibility, law-enforcement personnel should be required to "make a clear requestto take the test, including an unequivocal indication that it isnot a PBT but is a [B]reathalyzer test on an evidentiary instrument which produces results that are admissible against thedefendant." Apparently, the argument is based on the premise themotorist needs to know this information because a refusal to takea PBT carries no consequences and the refusal to submit to anevidentiary breath test results in the summary suspension ofone's driver's license. We reject this argument.

First, the warnings required by the Vehicle Code'simplied-consent statute are not meant to enable the motorist tomake an informed choice. Johnson, 197 Ill. 2d at 487, 758 N.E.2dat 811. "[T]he warnings benefit the State, not the motorists. Specifically, warnings are an evidence-gathering tool for theState." Johnson, 197 Ill. 2d at 487, 758 N.E.2d at 811. Defendant's suggested warning is one that is meant to enable themotorist to make an informed choice which, as stated above, isnot the intent of the implied-consent statute.

Moreover, as defendant acknowledges, there is no needto give the warning to motorist before a law-enforcement officerrequests a motorist submit to a PBT. If a motorist has beenarrested and given the warning to motorist, it is not a PBT thatis being requested. If a test on a PBT device is given, theresults would not be admissible by the State in a DUI prosecutionagainst the motorist because no approved PBT device has beenapproved as an evidentiary device. See 20 Ill. Adm. Code§§1286.210(a), 1286.240(a), as amended by 28 Ill. Reg. 10017(effective June 30, 2004). For a summary suspension to beupheld, defendant must have been given the warnings required bystatute after being arrested for DUI and prior to the request tosubmit to testing. If the warnings were not given, the suspension would be rescinded. Thus, we see no reason for requiringlaw-enforcement personnel to differentiate between the two testsafter a defendant has been arrested for DUI.

More important, our supreme court does not require suchclarity. The only reason we see for requiring officers toclarify whether the test being offered is a PBT or a test whoseresults are admissible by the State in a DUI prosecution is sothat a defendant motorist may understand the consequences ofrefusing the test, or in the case of a PBT, the lack of consequences for refusing to take the test. Our supreme court hasstated the following:

"[W]e find that the implied-consentstatute requires only that the summary suspension warnings be given in order for motorists suspected of drunken driving to havebeen properly warned. The statute does notrequire that a motorist understand the consequences of refusing to take a blood-alcoholtest before the State may summarily suspendhis or her driver's license for failure totake the test." (Emphasis added.) People v.Wegielnik, 152 Ill. 2d 418, 424, 605 N.E.2d487, 489-90 (1992).

The statute does not require the clarity defendant suggests. Again, the purpose of the statute is not to enable the motoristto make an informed choice, it is an evidence-gathering tool forthe State. Johnson, 197 Ill. 2d at 487, 758 N.E.2d at 811. "Thethreat of an extended suspension for motorists who refuse thetest motivates individuals to take the test so that the State maygain objective evidence of intoxication." Johnson, 197 Ill. 2dat 487, 758 N.E.2d at 811. If the legislature intended for thewarnings to have the clarity defendant requests, it would havestated so in the Vehicle Code. Accordingly, we reverse the trialcourt's rescission of defendant's statutory summary suspension. III. CONCLUSION

For the reasons stated, we reverse the trial court'sjudgment.

Reversed.

TURNER, P.J., and STEIGMANN, J., concur.