Rule 23 Order filed
July 8, 2004;
Motion to publish granted
August 17, 2004.

PRESIDING JUSTICE CHAPMAN delivered the opinion of the court:

The defendant, Stephen Tibbetts, was charged with driving a vehicle while under theinfluence of alcohol (DUI) pursuant to section 11-501(d)(1) of the Illinois Vehicle Code (625ILCS 5/11-501(d)(1) (West 2000)) and with the unlawful possession of drug paraphernaliaand cannabis (720 ILCS 600/3.5 (West 2000); 720 ILCS 550/4(a) (West 2000)). As a third-time DUI offender, Tibbetts' driver's license was suspended in accordance with section 11-501.1 of the Illinois Vehicle Code (625 ILCS 5/11-501.1 (West 2000)) for a minimum ofthree years. In his amended petition to rescind the statutory summary suspension of hisdriver's license, Tibbetts claims that his arrest was improper, that the officer had noreasonable grounds to believe he was driving under the influence, and that he was not givenproper warnings. He further claims that he did not refuse to submit to chemical testingbecause he agreed to a breath test and was physically and medically unable to submit to ablood test. After two hearings, Tibbetts rested his case and the State moved for a judgmentunder section 2-1110 of the Code of Civil Procedure (735 ILCS 5/2-1110 (West 2002)). Thetrial court found that Tibbetts had failed to establish a prima facie case, and the courtdismissed his amended petition. Tibbetts appeals.

Tibbetts and the arresting officer, Deputy Keeling, testified in Tibbetts' case in chiefat the hearings before the trial court. A videotape of the booking process was viewed by allthe parties at the beginning of the first hearing. This video was not made a part of the recordon appeal, and testimony at the hearings regarding the content of the video is confusing atbest. The following relevant evidence was adduced. On the day of his arrest, Tibbetts, acarpenter, was driving from Crossville to Lawrenceville and needed to use the restroom. Hepulled off the road and relieved himself. He backed his van into a ditch as he attempted toturn around. Tibbetts admitted that he had consumed three beers during the day. A coldopen can of beer was found in the van when Deputy Keeling arrived, as was cannabis andcannabis paraphernalia. A number of empty cans were found on the floor of the van. Keeling smelled alcohol on Tibbetts' breath and observed that his speech was slurred and hiseyes were bloodshot. He administered field sobriety tests consisting of the one-leg stand andthe eye nystagmus test followed by a portable breath test (PBT).

Keeling testified that it was obvious to him from the beginning of their encounter thatTibbetts had been drinking. Tibbetts also did not do well on the field sobriety tests. Theresults of the PBT indicated that Tibbetts' blood-alcohol level exceeded .08. Keelingtestified that they did not discuss types of testing at the scene and that he did not tell Tibbettson the drive to the jail that he would administer a breath test upon their arrival. Keelingtestified that deputies are given the discretion to administer whatever test they choose butthat it is his personal policy to ask for a blood test if he finds drugs in the vehicle and to askfor a breath test if only alcohol use is suspected. Keeling decided to ask for a blood testwhen he found cannabis in Tibbetts' van. According to Keeling, Tibbetts never told him thathe was afraid of blood tests. Keeling administered warnings to Tibbetts and informed himof his Miranda rights (Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602(1966)), but he testified that he did not tell Tibbetts that he could consult with an attorneyregarding the blood test.

Tibbetts testified that Keeling told him in the patrol car en route to the jail that hewould give him a breath test at the jail and did offer him a breath test upon their arrival. However, one was never administered. He also testified that after they reached the jail,Keeling asked him to submit to a blood test, which he refused because he has "had a problemwith blood tests" for years. Tibbetts claimed that when he was 12 or 13 years old, he sawa dead man in a park with a needle hanging out of his arm; he testified that he did not realizethe extent of the impact of this experience until 1975, when he was required to donate bloodas part of his wife's hospitalization. He testified that he got very excited, passed out, and wasunconscious for about 10 minutes. He testified that the combination of having a needle inhis arm and the drawing of blood causes him fear and trauma and that he had explained hisfear to Keeling.

It is not clear from the record to what extent the video reflected Tibbetts informingKeeling of his fear, if at all. Further, the record does not clearly reflect whether Tibbettsinitially consented to a blood test. However, it appears through testimony about the videofrom Tibbetts and Keeling that Tibbetts initially consented to a blood test and then changedhis mind. Tibbetts did not put on any medical testimony or offer any other corroboratingwitnesses regarding his fear of blood tests. He also testified that he had not obtained anytreatment or counseling for his fear. There was no testimony in the record that indicated thatit was physically or psychologically impossible for Tibbetts to give blood.

At the conclusion of the hearing, the trial court noted the absence in the record ofevidence supporting Tibbetts' statutory allegations and held that he failed to make a primafacie case regarding those specific paragraphs. The trial judge further found that it wasuncontroverted that Keeling had the authority and discretion to request any test he wantedand that once Keeling found cannabis in the car, it was reasonable for him to suspect druguse and to therefore request a blood test. The trial court further noted the absence of anymedical testimony showing that it was physically or psychologically impossible for Tibbettsto take a blood test, and the court recognized that the only evidence of such an impairmentwas Tibbetts' own self-serving statement that he had been traumatized as a young man andwas afraid of needles and blood. The trial court found that he clearly and unequivocallyrefused the blood test. Thus, the trial court held that Tibbetts failed to make a prima faciecase for rescission. A written order was subsequently entered dismissing Tibbetts' amendedpetition to rescind the statutory summary suspension of his license.

Tibbetts advances three arguments on appeal. He contends (1) that the trial courterred in finding that he failed to establish a prima facie case for rescission, (2) that theofficer's request for a blood test was unreasonable and violated Tibbetts' constitutional rights,and (3) that section 11-501.1 of the Illinois Vehicle Code (625 ILCS 5/11-501.1 (West2000)) is unconstitutionally vague. We disagree with Tibbetts on all three points and affirmthe trial court's order dismissing his amended petition.

Tibbetts and the State vigorously disagree on the standard of review we must apply,as well as the standard the trial court was required to apply in ruling on the State's motionfor a judgment. These matters merit our discussion before we address Tibbetts' points onappeal. We recognize that there is some authority for de novo review on appeals fromrulings on motions made under section 2-1110 of the Code of Civil Procedure (735 ILCS5/2-1110 (West 2002)). Had the trial court ruled as a matter of law that Tibbetts failed tomake a prima facie case, de novo review would have been appropriate. However, the trialcourt in this case did not rule as a matter of law; rather, the judge considered the credibilityof the witnesses and the weight and quality of the conflicting evidence presented by Tibbetts. Therefore, we find that a more deferential standard is appropriate in this case. We will notreverse a trial court's ruling on a motion for a judgment in a nonjury case made under section2-1110 of the Code of Civil Procedure unless it is against the manifest weight of theevidence. People v. Wise, 282 Ill. App. 3d 642, 647, 669 N.E.2d 128, 132 (1996); Peoplev. Orth, 124 Ill. 2d 326, 341, 530 N.E.2d 210, 217 (1988); Kokinis v. Kotrich, 81 Ill. 2d 151,154, 407 N.E.2d 43, 45 (1980). For a ruling to be against the manifest weight of theevidence, it must appear that a conclusion opposite to that reached by the trial court is clearlyevident. People v. Barwig, 334 Ill. App. 3d 738, 743, 778 N.E.2d 350, 355 (2002).

We further find that the trial court applied the correct standard to the State's motionfor a judgment before dismissing Tibbetts' amended petition. Tibbetts argues that the trialcourt erred in finding that he failed to make a prima facie case because he presented someevidence to establish that he did not refuse to submit to a blood test. According to Tibbetts,the trial court was required to evaluate the State's motion in this case like a motion for adirected verdict in a jury trial, which requires the trial court to view the evidence in the lightmost favorable to the nonmoving party. The State argues that the trial court did not err whenit weighed the conflicting evidence and the credibility of Tibbetts' witnesses. The issuebefore us is whether the trial court was permitted to make credibility determinations andweigh evidence at the close of Tibbetts' case on the State's motion for a judgment as a partof its finding that Tibbetts failed to establish a prima facie case. We find no error in the trialcourt's analysis.

A motorist whose driver's license has been summarily suspended may file a petitionto rescind the suspension pursuant to section 2-118.1 of the Illinois Vehicle Code (625 ILCS5/2-118.1 (West 2002)). A statutory summary suspension hearing is a civil action where thedefendant motorist, as the petitioner, requests the judicial rescission of a suspension, and theState is placed in the position of a civil defendant. People v. Bavas, 251 Ill. App. 3d 720,723, 623 N.E.2d 876, 879 (1993). The motorist bears the burden of establishing a primafacie case. People v. Orth, 124 Ill. 2d 326, 337-38, 530 N.E.2d 210, 215 (1988); People v.Barwig, 334 Ill. App. 3d 738, 743, 778 N.E.2d 350, 355 (2002); People v. Bonutti, 338 Ill.App. 3d 333, 342, 788 N.E.2d 331, 338 (2003). Prima facie evidence has been defined as"the quantum of evidence required to meet the preponderance-of-the-evidence standard", andwhether the motorist meets this burden of proof is a question of fact for the trial court. People v. Barwig, 334 Ill. App. 3d 738, 744, 778 N.E.2d 350, 356 (2002); People v. Bonutti,338 Ill. App. 3d 333, 342, 788 N.E.2d 331, 338 (2003). A motorist makes out a prima faciecase if he puts on some evidence on every element essential to his cause of action. Kokinisv. Kotrich, 81 Ill. 2d 151, 154-55, 407 N.E.2d 43, 45 (1980). If the motorist establishes aprima facie case, the burden then shifts to the State to negate the motorist's claim and justifythe suspension. People v. Bonutti, 338 Ill. App. 3d 333, 342, 788 N.E.2d 331, 338 (2003). The burden shifts to the State only if the trial court finds the motorist's testimony to becredible. People v. Orth, 124 Ill. 2d 326, 341, 530 N.E.2d 210, 217 (1988); People v.Tucker, 245 Ill. App. 3d 161, 164, 614 N.E.2d 875, 877 (1993). However, the mere "factthat the motorist has presented some credible evidence in a rescission of summary suspensioncase does not require denial of the State's section 2-1110 motion." People v. Wise, 282 Ill.App. 3d 642, 647, 669 N.E.2d 128, 131-32 (1996).

Section 2-1110 of the Code of Civil Procedure provides:

"In all cases tried without a jury, defendant may, at the close of plaintiff's case,move for a finding or judgment in his or her favor. In ruling on the motion the courtshall weigh the evidence, considering the credibility of the witnesses and the weightand quality of the evidence. If the ruling on the motion is favorable to the defendant,a judgment dismissing the action shall be entered. If the ruling on the motion isadverse to the defendant, the defendant may proceed to adduce evidence in supportof his or her defense, in which event the motion is waived." (Emphasis added.) 735ILCS 5/2-1110 (West 2002).

Thus, section 2-1110 "recognizes that where the judge is the trier of fact it is illogical torequire the [State] to put on [its] case when the trial court would rule for [the State] at theclose of [the motorist's] case." People v. Wise, 282 Ill. App. 3d 642, 646, 669 N.E.2d 128,131 (1996).

Pursuant to the foregoing statute, the trial court must consider all the evidence inruling on a motion for a judgment filed by the State at the close of a motorist's case in chief,including evidence favorable to the State. The trial court must also assess the witnesses'credibility, draw all the reasonable inferences from their testimony, and consider the weightand the quality of the evidence. Kokinis v. Kotrich, 81 Ill. 2d 151, 154, 407 N.E.2d 43, 44(1980). All of this must be done by the trial court in determining whether or not the motoristhas put on sufficient evidence at the close of his case to establish a prima facie case forrescission. See Jackson v. Navik, 37 Ill. App. 3d 88, 90, 346 N.E.2d 116, 119 (1976).

The weight of the authority in Illinois rejects Tibbetts' contention that the standard fora directed verdict motion in a jury trial applies to a motion for a judgment in a nonjury case. See In re A.P., 283 Ill. App. 3d 395, 397, 669 N.E.2d 1273, 1274 (1996); Wehde v. RegionalTransportation Authority, 237 Ill. App. 3d 664, 675-76, 604 N.E.2d 446, 455 (1992);Jackson v. Navik, 37 Ill. App. 3d 88, 90-93, 346 N.E.2d 116, 119-21 (1976). In this case,the trial judge very clearly stated his conclusions at the end of the summary suspensionhearing and in his order dismissing Tibbetts' amended petition. Specifically, the judge statedthat he had considered the credibility of the witnesses and the weight and quality of theevidence and dismissed Tibbetts' amended petition because Tibbetts failed to presentevidence to establish a prima facie case. We find no error in the methods used by the trialcourt in adjudicating the State's motion and find that it applied the correct standard embodiedby section 2-1110 of the Code of Civil Procedure and case law.

We now consider the merits of Tibbetts' appeal. Tibbetts' first contention is that thetrial court erred when it found that he failed to establish a prima facie case that he had notrefused to submit to a test pursuant to section 11-501.1 of the Illinois Vehicle Code (625ILCS 5/11-501.1 (West 2002)). Tibbetts seeks the reversal of the trial court's order on thebasis that he presented some evidence to establish that he did not refuse the blood test. Thereare three aspects to Tibbetts' argument, and we address the first two together. First, Tibbettscontends that he cannot be found to have refused the blood test because he testified thatKeeling offered to give him a breath test at the jail and he consented to take it. Second,Keeling extended Tibbetts the right to counsel before making a decision about whether totake the blood test and then denied him the assistance of counsel. As the State points out,the law does not afford Tibbetts the right to request a particular test or to consult withcounsel specifically with regard to taking a test. The import of Tibbetts' argument, however,is that once a motorist is given a right not provided by the law and that right is subsequentlydenied, any purported refusal by a motorist to take a test is negated. See People v. Elledge,144 Ill. App. 3d 281, 494 N.E.2d 911 (1986); Goss v. People, 272 Ill. App. 3d 498, 650N.E.2d 1078 (1995).

While we have no disagreement with the cases on which Tibbetts relies, he essentiallyargues that the trial court should have believed Tibbetts' testimony and disbelieved ordisregarded Keeling's testimony. As stated above, this is not the law. We find no error inthe standard applied by the trial court in ruling on the State's motion for a judgment. Thetrial court was not required to view the evidence in the light most favorable to Tibbetts. Wefound that the trial court properly and judiciously weighed the quality and quantity of theevidence and assessed the credibility of the witnesses put on by Tibbetts. The trial court wasrequired to assess the witnesses' credibility and weigh the evidence, including evidence infavor of the State, in determining whether Tibbetts made a prima facie case. We agree thatTibbetts put on some evidence to establish that he had been offered a breath and the right toconsult with counsel. But some evidence is not enough-the law requires credible evidence. We find no basis in the record for finding error in the trial court's ruling or order.

The third aspect of Tibbetts' first point on appeal is that he put on sufficient evidenceto establish that he was unable to take a blood test and, hence, cannot be deemed to haverefused it. The determination of whether a motorist's physical inability to complete a testconstitutes a refusal is made on a case-by-case basis. People v. Bank, 251 Ill. App. 3d 187,190-91, 621 N.E.2d 1054, 1056 (1993). Notwithstanding Tibbetts' testimony regarding theextent, nature, and source of his fear of needles, the record is void of any medical evidenceor other corroborating testimony regarding his aversion or fear. More dispositive, however,is the absence of evidence demonstrating that it was physically or psychologically impossiblefor him to take a blood test. See People v. Bank, 251 Ill. App. 3d 187, 191, 621 N.E.2d1054, 1056 (1993). Further, Tibbetts' initial consent to the blood test requested by Keelingis utterly inconsistent with the existence of his purported "deep-rooted" fear. In this case,we find that Tibbetts' fear of submitting to a blood test, even if we assume it to be true, is notsufficient to demonstrate that he was physically unable to take the test, nor should it excusehis refusal to submit to one. See Borger v. Commonwealth, Department of Transportation,110 Pa. Commw. 512, 532 A.2d 892 (1987). A contrary finding would enable a motorist todefeat the purposes of the implied consent statute by articulating a fear of the test to beadministered-an absurd result we cannot allow. We find that the trial court did not err infinding that Tibbetts clearly and unequivocally refused the blood test and that a prima faciecase had not been made.

We summarily reject Tibbetts' two remaining points on appeal. Tibbetts contends thatKeeling's request for a blood test was arbitrary and unreasonable and violated hisconstitutional rights to due process of law and to be free from unreasonable searches andseizures, because there was "no need" to request a blood test. Without deciding whetherTibbetts has standing to assert a fourth amendment claim, as argued by the State, we find thatKeeling was not required to articulate a need before requesting any or all such tests. Bystatute, Keeling was vested with the discretion to administer one or all of the tests providedfor therein, including breath, urine, and blood (625 ILCS 5/11-501.1(a) (West 2000)). Furthermore, Tibbetts ignores the fact that Keeling found cannabis and related paraphernaliain his van and testified that he decided to request a blood test when he located the evidence. The trial court specifically found Keeling's decision to be reasonable under thecircumstances. Further, the State notes on appeal that blood test results are necessary todetermine whether to charge an impaired motorist for DUI only or for driving under theinfluence of drugs or the combined influence of drugs and alcohol under sections 11-501(a)(4) and (a)(5) of the Illinois Vehicle Code (625 ILCS 5/11-501(a)(4), (a)(5) (West2000)). We find no constitutional error with Keeling's request for a blood test in this case.

Tibbetts' last argument is equally without merit. He contends that sections 11-501.1(c) and (d) of the Illinois Vehicle Code (625 ILCS 5/11-501.1(c), (d) (West 2000)) areunconstitutionally vague and deprive Tibbetts of the due process of law because it is unclearand ambiguous whether a motorist is required to submit to a single test or multiple tests andwhether an officer may request a motorist to submit to a single test or multiple tests. We findno such ambiguity when the entire statute is construed as a whole, and we further find thata person of common intelligence could understand its provisions. See People v. Falbe, 189Ill. 2d 635, 639-40, 727 N.E.2d 200, 204 (2000); In re Marriage of Kates, 198 Ill. 2d 156,163, 761 N.E.2d 153, 157 (2001). Section 11-501.1(a) clearly reflects that a motorist maybe requested to submit to any one or more of the tests. 625 ILCS 5/11-501.1(a) (West 2000). Other provisions outline the consequences of refusing or failing any such test. We declineTibbetts' invitation to review a single section of the implied consent law in isolation.

The trial court's order finding that Tibbetts failed to present evidence to establish aprima facie case and dismissing Tibbetts' amended petition turned on its assessment of thecredibility of Tibbetts' witnesses who provided conflicting testimony. The trial judge foundthat it was uncontroverted that Deputy Keeling had the discretion to request the tests herequested and that his request was reasonable under the circumstances. The trial judgefurther found that Tibbetts' fear of a blood test was not supported by medical testimony andthat there was no evidence that he was unable to submit to the test. He found Tibbetts'refusal to be unequivocal. Although the trial judge did not remark on the glaringinconsistency with regard to Tibbetts' fear of blood tests and his initial consent to Keeling'srequest for such a test, we find it hard to believe that the judge did not consider thisincongruity while assessing Tibbetts' credibility. Even without this assumption, however,the record does not reflect anything to indicate that the trial court erred in finding thatTibbetts had failed to make a prima facie case. Thus, we cannot say that a conclusionopposite to that reached by the trial court is clearly evident. Accordingly, the trial court'sdecision to dismiss Tibbetts' amended petition to rescind the statutory summary suspensionof his license was not against the manifest weight of the evidence.

For the foregoing reasons, we affirm the trial court's order dismissing Tibbetts'amended petition to rescind the statutory summary suspension of his license.

Affirmed.

WELCH and DONOVAN, JJ., concur.