People v. Blankschein

Case Date: 03/10/2003
Court: 2nd District Appellate
Docket No: 2-01-0629, 2-01-1253 cons. Rel

Nos. 2--01--0629 & 2--01--1253 cons.


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


THE PEOPLE OF THE STATE
OF ILLINOIS,

          Plaintiff-Appellee,

v.

DANIEL BLANKSCHEIN,

          Defendant-Appellant.

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Appeal from the Circuit Court
of Du Page County.


No. 00--DT--2456


Honorable
Ronald B. Mehling,
Judge, Presiding.

THE PEOPLE OF THE STATE
OF ILLINOIS,

          Plaintiff-Appellee,

v.

BRITTANY S. SMITH,

          Defendant-Appellant.

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Appeal from the Circuit Court
of Du Page County.


No. 01--DT--3960


Honorable
Michael J. Burke,
Judge, Presiding.


PRESIDING JUSTICE HUTCHINSON delivered the opinion of thecourt:

Defendants, Daniel Blankschein and Brittany S. Smith, appealfrom the denials of their petitions to rescind the statutorysummary suspensions of their driving privileges. In thisconsolidated appeal, defendants argue that their petitions shouldhave been granted because they received inaccurate warnings beforerefusing to submit to breathalyzer tests. We affirm.

Defendants were arrested for driving under the influence ofalcohol (DUI) (625 ILCS 5/11--501(a)(2) (West 2000)). Thearresting officers read the defendants the "warning to motorist." Each defendant received the following warnings:

"[Y]ou are warned:

1. If you refuse or fail to complete all chemical testsrequested and:

If you are a first offender, your driving privilegeswill be suspended for a minimum of 6 months; or

If you are not a first offender, your drivingprivileges will be suspended for a minimum of 3 years.

2. If you submit to a chemical test(s) disclosing analcohol concentration of 0.08 or more *** and:

If you are a first offender, your driving privilegeswill be suspended for a minimum of 3 months; or

If you are not a first offender, your drivingprivileges will be suspended for a minimum of one year." (Emphasis in original.)

Defendants refused to submit to chemical testing. Blankschein's driving privileges were summarily suspended for threeyears, and Smith's driving privileges were summarily suspended forsix months. Defendants petitioned to rescind the summarysuspensions. Each alleged, among other things, "I was not properlywarned by the arresting officer as provided in Section 11--501.1 ofthe Illinois Vehicle Code [(625 ILCS 5/11--501.1 (West 2000))]."

During the hearing on Smith's petition, the arresting officer,Kevin Driscoll, testified that he read the warnings to Smith andasked her if she understood them. Smith asked to call her father. Driscoll allowed her to call and then asked her if she would submitto a breath test. Smith replied that she wanted to wait until herfather arrived. Driscoll explained that the test could not bedelayed and that her father would not be allowed in the holdingarea to give her advice.

Smith asked what the suspension periods were, and Driscollread her the warnings again. Smith stated that she understood whatthe minimum suspension periods were but repeatedly asked what themaximum periods were. Each time, Driscoll replied that he did notknow. Another officer suggested that she take a copy of thewarnings to her cell and read it herself. After Smith sat in thecell for a short time, Driscoll returned and asked Smith if sheread the warnings. Smith replied that she had but stated that shewould not take the test until her father arrived. Driscollconsidered her response a refusal. The trial court found that thewarnings were accurate and granted the State's motion for adirected finding. Smith timely appealed.

During the hearing on Blankschein's petition, counsel statedthat the alleged grounds for rescission were "[p]robable cause andwarnings." The hearing focused primarily on whether the arrestingofficer had probable cause to arrest Blankschein for DUI. Blankschein testified that, after he was arrested and transportedto the police department, the officer read him the warnings. Blankschein stated he understood the warnings and refused to submitto a breath test. Blankschein argued that the warnings did notaccurately describe when someone will not be considered a firstoffender. The trial court granted the State's motion for adirected finding. Arguing that the decision was against themanifest weight of the evidence, Blankschein moved to reconsider. The trial court denied the motion, and Blankschein timely appealed. We granted defendants' requests to consolidate their appeals.

On appeal, defendants argue that the warnings they receivedwere inaccurate because they state that the suspension periods areminimums when in fact they are single, determinate terms. Also,they assert that the warnings are incomplete because they do notstate the maximum suspension periods. Initially, the Stateresponds that defendant Blankschein waived this contention becausehe failed to raise it below. During the hearing on his petition,Blankschein challenged the warnings but addressed a differentaspect of the warnings: whether they accurately described whensomeone will not be considered a first offender. See Eagan v.Chicago Transit Authority, 158 Ill. 2d 527, 534 (1994) (issues notraised in trial court may not be raised for first time on appeal). Because defendant Smith has raised and preserved for review theidentical contention, however, we will address it in connectionwith Blankschein's appeal as well.

Because defendants raise a purely legal issue, we review thetrial court's rulings de novo. People v. Garriott, 253 Ill. App.3d 1048, 1050 (1993). Section 11--501.1 of the Illinois VehicleCode (the Code) is commonly referred to as the "implied-consentlaw." It provides, in pertinent part:

"(a) Any person who drives or is in actual physicalcontrol of a motor vehicle upon the public highways of thisState shall be deemed to have given consent *** to a chemicaltest or tests of blood, breath, or urine for the purpose ofdetermining the content of alcohol, other drug or drugs, orintoxicating compound or compounds or any combination thereofin the person's blood if arrested ***. ***

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(c) A person requested to submit to a test as providedabove shall be warned by the law enforcement officerrequesting the test that a refusal to submit to the test willresult in the statutory summary suspension of the person'sprivilege to operate a motor vehicle as provided in Section 6--208.1 of this Code. The person shall also be warned by thelaw enforcement officer that if the person submits to the testor tests provided in paragraph (a) of this Section and thealcohol concentration in the person's blood or breath is 0.08or greater, *** a statutory summary suspension of the person'sprivilege to operate a motor vehicle, as provided in Sections6--208.1 and 11--501.1 of this Code, will be imposed." 625ILCS 5/11--501.1 (West 2000).

Section 6--208.1 of the Code provides:

"(a) Unless the statutory summary suspension has beenrescinded, any person whose privilege to drive a motor vehicleon the public highways has been summarily suspended, pursuantto Section 11--501.1, shall not be eligible for restoration ofthe privilege until the expiration of:

1. Six months from the effective date of thestatutory summary suspension for a refusal or failure tocomplete a test or tests to determine the alcohol ***concentration, pursuant to Section 11--501.1; or

2. Three months from the effective date of thestatutory summary suspension imposed following theperson's submission to a chemical test which disclosed analcohol concentration of 0.08 or more *** pursuant toSection 11--501.1; or

3. Three years from the effective date of thestatutory summary suspension for any person other than afirst offender who refuses or fails to complete a test ortests to determine the alcohol *** concentration pursuantto Section 11--501.1; or

4. One year from the effective date of the summarysuspension imposed for any person other than a firstoffender following submission to a chemical test whichdisclosed an alcohol concentration of 0.08 or morepursuant to Section 11--501.1 ***.

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(c) Full driving privileges may not be restored until allapplicable reinstatement fees, as provided by this Code, havebeen paid to the Secretary of State and the appropriate entrymade to the driver's record." 625 ILCS 5/6--208.1 (West2000).

Defendants stress that section 6--208.1 of the Code saysnothing about the stated periods being minimums. People v.Johnson, 197 Ill. 2d 478 (2001), sets forth the standards fordetermining whether inaccurate warnings require rescission. TheJohnson court noted that the implied-consent law was remedial andtherefore should be construed liberally to accomplish its goal ofhighway safety. Johnson, 197 Ill. 2d at 486. The court rejectedthe notion that the warnings required by the implied-consentstatute are intended to enable the motorist to make an informedchoice about whether to take the test. Instead, the warningsbenefit the State. The threat of an extended suspension formotorists who refuse to take the test motivates individuals to takethe test, thereby allowing the State to gain objective evidence ofintoxication. Johnson, 197 Ill. 2d at 487. Principles of fairnessdictate, however, that law enforcement officers may not misinformmotorists. Johnson, 197 Ill. 2d at 488.

Considering these principles, the court held that, as ageneral rule, the warnings should be consistent with theinformation provided in section 6--208.1 of the Code. Erroneous orinaccurate warnings justify rescinding the summary suspension onlyif the misinformation directly affects the motorist's potentiallength of suspension. Johnson, 197 Ill. 2d at 488.

We conclude that the warnings here are consistent with section6--208.1 of the Code. The warnings certainly do not contain anyincorrect information. As the State argues, the use of "minimum"is consistent with the effect of section 6--208.1(c). Although thestatute sets single, determinate suspension periods, section 6--208.1(c) states that full driving privileges may not be restoreduntil all applicable reinstatement fees have been paid. Thus, thewarnings accurately convey that the suspension could be longer thanthe stated period. See People v. Martinez, 184 Ill. 2d 547, 552(1998) (period of statutory summary suspension continues untilreinstatement fee is paid).

That the warnings here did not explain why the stated periodswere only minimums is of no consequence. This court has recognizedthat a motorist does not need to be informed about all of theprovisions of section 6--208.1 of the Code. People v. Hart, 313Ill. App. 3d 939, 942 (2000) (motorist need not be warned that,under section 6--208.1(g), a nonfirst offender cannot apply for arestricted driving permit during first two years of summarysuspension). The required warnings are simply designed to notifydrivers that refusing to take or failing a breath test will resultin the summary suspension of their driving privileges as providedin section 6--208.1. Hart, 313 Ill. App. 3d at 941. The warningshere accomplished that purpose.

Even if, arguendo, the warnings were deficient, we cannot saythat the omission directly affected the potential length ofdefendants' suspensions. Defendants were not misled to theirdetriment in any way. The reinstatement fee applies whether theperson refuses the test or takes it and fails, and the warningsaccurately convey the consequences of refusing to take the test. Thus, the alleged deficiency has not caused defendants to besubject to a potentially longer suspension. Compare People v.Diestelhorst, 253 Ill. App. 3d 867, 876 (1993) (defendant notentitled to rescission where warnings did not erroneously lead himto believe his choice would result in a shorter suspension), withPeople v. Engelbrecht, 225 Ill. App. 3d 550, 555-56 (1992)(defendant, a nonfirst offender, was incorrectly warned thatsuspension period for refusing test was one year; defendant refusedtest and received two-year suspension).

The warnings defendants received were consistent with section6--208.1 of the Code. Therefore, the trial court properly refusedto rescind the summary suspensions of their driving privileges.

The judgments of the circuit court of Du Page County areaffirmed.

Affirmed.

BOWMAN and BYRNE, JJ., concur.