People v. Keithley

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People v. Keithley

State: Illinois

Court: 5th District Appellate

Docket No: 5-09-0174 Rel

Case Date: 04/16/2010

Preview:NO. 5-09-0174
N O T IC E Decision filed 04/16/10. The text of this dec ision m ay b e changed or corrected prior to the P e t i ti o n for filing of a or the

IN THE APPELLATE COURT OF ILLINOIS

Re hea ring

FIFTH DISTRICT __________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) St. Clair County. ) v. ) No. 09-DT-167 ) KAREN KEITHLEY, ) Honorable ) Zina R. Cruse, Defendant-Appellee. ) Judge, presiding. __________________________________________________________________________ JUSTICE WELCH delivered the opinion of the court: The People of the State of Illinois appeal the order entered by the circuit court of St. Clair County rescinding the summary suspension of the driving privileges of the defendant, Karen Keithley. For the reasons that follow, we reverse. On February 1, 2009, the defendant was charged by complaint with improper lane usage (625 ILCS 5/11-709(a) (West 2008)), following too closely (625 ILCS 5/11-710 (West 2008)), and driving under the influence (625 ILCS 5/11-501(a) (West 2008)). On February 13, 2009, the defendant filed a motion to rescind her statutory summary suspension. A hearing on the defendant's motion to rescind the statutory summary suspension was held on March 24, 2009. Sergeant Joshua Donovan testified that he had been a patrol sergeant with the Shiloh police department for more than nine years. Over his career, he had arrested a little more than 200 people for driving under the influence. Accordingly, he was familiar with the DUI laws in Illinois. He is also a certified Breathalyzer operator and a field-training officer. On the night of the incident, he observed a large-cab pickup truck swerve across the

disposition of the same.

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centerline and follow too closely to a vehicle in front of it. He effectuated a traffic stop and approached the vehicle. The defendant was in the vehicle with her husband. Sergeant Donovan observed that the defendant's eyes were red and glassy. He also observed a strong alcohol odor. The defendant said that she had swerved because she had been eating White Castle food. He asked her if she had consumed any alcoholic beverages, and she responded that she had not. At that point, Sergeant Donovan obtained her driver's license and insurance and took it to his patrol car. When he returned to the defendant's vehicle, he asked again whether she had consumed any alcoholic beverages, and she replied that she had not. He advised her that he could smell alcohol from her breath. He then asked her if she would submit to a field sobriety test. The defendant responded that she did not feel that she had done anything wrong and refused. He then asked her to step out of her vehicle and step to the back of the vehicle. The defendant told him that he "might as well take her to jail." Sergeant Donovan placed the defendant under arrest based on the strong odor of alcohol, slurred speech, and red glassy eyes. At the police station, the defendant advised Sergeant Donovan that she needed to use the restroom, and he allowed her to do so. When she returned, she was placed in the holding room. Sergeant Donovan read the warnings to the defendant at 10:38 p.m. The defendant was adamant about her refusal to submit to a Breathalyzer test. The defendant remained in the holding room while Sergeant Donovan finished the requisite paperwork in the booking room. Sergeant Donovan admitted that he did not observe the defendant for 20 minutes prior to asking her to submit to testing and reading the warning-to-motorist form to her. The defendant testified that she had told Sergeant Donovan that she had been reaching for a White Castle cheeseburger and that is why she had swerved. She recalled telling Sergeant Donovan that she would not submit to a sobriety test. She also testified that Sergeant Donovan did not observe her for 20 minutes prior to requesting that she submit to

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a Breathalyzer test. The court granted the defendant's motion to rescind the summary suspension on March 25, 2009, finding that there had been "no 20[-]minute observation before logging the defendant's refusal." The State filed a timely notice of appeal on April 17, 2009. Generally, this court will not reverse a trial court's judgment on a motion to rescind a statutory summary suspension unless it is against the manifest weight of the evidence. People v. Ewing, 377 Ill. App. 3d 585, 597 (2007). Initially, the defendant has the burden of proof to demonstrate by a preponderance of the evidence a prima facie case for a rescission. People v. Ehley , 381 Ill. App. 3d 937, 943 (2008). If the defendant establishes a prima facie case, the burden then shifts to the State to present evidence justifying the suspension. Ehley, 381 Ill. App. 3d at 943. However, where the issue is one of statutory construction, this court will apply a de novo standard of review. People v. Howard , 228 Ill. 2d 428, 432 (2008). In the present case, because no issues of fact are presented, the issue is one of statutory construction that we will review de novo . The appellee did not file a brief in this matter, but since the appellant's brief and the record are sufficient to resolve this issue, we will consider this appeal pursuant to First Capitol M ortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128 (1976). Section 11-501.1 of the Illinois Vehicle Code (the Code) (625 ILCS 5/11-501.1 (West 2008)) provides that any individual driving on an Illinois public highway who is arrested for driving under the influence of alcohol is deemed to have consented to chemical testing of blood, breath, or urine to determine the content of alcohol in his or her blood. A refusal to submit to a breath test will result in the statutory suspension of the defendant's driving privileges. 625 ILCS 5/11-501.1(c) (West 2008). Specifically, section 11-501.1 authorizes the summary suspension of a defendant's driver's license when that individual has been lawfully arrested for driving under the influence of alcohol and either (1) has refused to

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submit to chemical testing to determine blood-alcohol content or (2) has submitted to and failed that testing. People v. Hacker, 388 Ill. App. 3d 346, 350 (2009). The grounds upon which to rescind a statutory summary suspension are generally limited to the following: (1) whether the motorist was arrested for DUI, (2) whether the arresting officer had reasonable grounds to believe that the motorist was in physical control of a vehicle upon a highway while under the influence of alcohol, drugs, or both, (3) whether the motorist refused to submit to chemical testing after being advised that the refusal would result in a statutory suspension of driving privileges, and (4) whether the motorist submitted to chemical testing and had an alcohol concentration of 0.08 or more. 625 ILCS 5/2-118.1(b) (West 2008). A rescission may also be granted where the motorist has consented to and has taken a breath test but the breath test has not been performed in accordance with the "standards promulgated by the Department of State Police by *** [an] individual possessing a valid permit issued by that Department for this purpose." 625 ILCS 5/11-501.2(a)(1) (West 2008). The general sampling protocol promulgated by the Department of State Police (the Department) provides in pertinent part as follows: " Section 1286.300 General Sampling Protocol The arresting officer has discretion to determine whether a subject will be required to submit a breath, blood, and/or urine sample for testing. *** b) The arresting officer or BAO shall deem a subject who fails to submit to a requested test or additional testing to have refused testing." 20 Ill. Adm. Code

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