Find Legal Information

JUSTICE McLAREN delivered the opinion of the court:

Defendant, Craig M. McKenna, appeals from an order of thecircuit court of Du Page County denying his petition to rescind thestatutory summary suspension of his driving privileges undersection 11--501.1 of the Illinois Vehicle Code (Code) (625 ILCS5/11--501.1 (West 2000)). Defendant argues that the trial courterred in sustaining the suspension based on the criteria of section11--501.8 of the Code (625 ILCS 5/11--501.8 (West 2000)). Wereverse and remand.

On December 23, 2000, defendant was arrested for driving underthe influence (DUI) (625 ILCS 5/11--501(a)(2) (West 2000)) after hewas observed operating a vehicle in an erratic manner at a stopsign. Defendant was 19 years old at the time of his arrest. Hewas also charged with unlawful possession of fraudulentidentification (235 ILCS 5/6--16(a) (West 2000)), unlawful use oflicense or permit (625 ILCS 5/6--301(a)(3) (West 2000)), unlawfulpossession of alcohol by a minor (235 ILCS 5/616(a) (West 2000)),having no front registration plate (625 ILCS 5/3--413(a) (West2000)), and having only one red tail lamp (625 ILCS 5/12--201(b)(West 2000)).

The arresting officer submitted a sworn report to the circuitcourt and the Secretary of State pursuant to section 11--501.1(d)of the Code (625 ILCS 5/11--501.1(d) (West 2000)) stating that (1)the officer requested that defendant submit to chemical testing todetermine the alcohol content of defendant's blood and warneddefendant of the applicable consequences under section 11--501.1;and (2) defendant refused or failed to complete the requestedchemical testing. Defendant was warned by means of a preprintedform providing, in pertinent part:

"[Y]ou are warned:

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

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

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

• If you submit to a chemical test(s) disclosing an alcoholconcentration of 0.08 or more *** and:

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

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

MOTORIST UNDER AGE 21

You are further warned that as a motorist under age 21 ifyou submit to chemical test(s) disclosing an alcoholconcentration greater than 0.00 and less than 0.08 yourdriving privileges will be suspended as provided underSections 6--208.2 and 11--501.8 of the Illinois Vehicle Code.

As provided in Section 6--208.2, you are a first offenderunless you have had a previous suspension under Section 11--501.8 ***.

• If you are a first offender, your drivingprivileges will be suspended for a minimum of3 months; or
• If you are not a first offender, your drivingprivileges will be suspended for a minimum ofone year."

The Secretary of State mailed defendant a notice confirmingthe statutory summary suspension of his driving privileges pursuantto section 11--501.1 of the Code, commonly known as the "impliedconsent law," for a six-month period beginning February 7, 2001. On January 25, 2001, defendant filed a petition and request for ahearing to rescind the suspension. At the hearing, the arrestingofficer testified that he observed defendant stopped at a stop signon Chestnut Street in Hinsdale. Defendant began to make a leftturn onto Monroe Street and then stopped to allow traffic on Monroeto pass, at which point the officer stopped defendant. The officertestified that he detected the odor of alcohol when defendant firstrolled down his window. The officer further testified thatdefendant's speech was slurred and he failed various field sobrietytests. Defendant contradicted portions of the officer's testimonyconcerning the field sobriety tests and other details of thetraffic stop. The roadside encounter was videotaped, and the tapewas played at the hearing and admitted into evidence. However, thetape has not been included in the record on appeal.

At the close of defendant's evidence, the State moved for thetrial court to find in its favor under section 2--1110 of the Codeof Civil Procedure (735 ILCS 5/2--1110 (West 2000)). The Stateargued, inter alia, that the arresting officer had probable causeto arrest defendant for the consumption of alcohol by a minor. Thetrial court granted the State's motion and denied defendant'spetition. The court made no finding whether the arresting officerhad probable cause to believe that defendant had been driving underthe influence of alcohol. Defendant moved to reconsider. Indenying the motion, the trial court explained that becausedefendant was under the age of 21, his driving privileges weresubject to suspension under section 11--501.8 of the Code (625 ILCS5/11--501.8 (West 2000)), commonly known as the "zero tolerancelaw," which only requires that the arresting officer have probablecause to believe that the driver has consumed any amount of analcoholic beverage.

Defendant argues that because the arresting officer warned himin accordance with the implied consent law and the Secretary ofState confirmed the suspension of his driving privileges on thatbasis, the trial court erred in sustaining the suspension under thezero tolerance law. Defendant contends that in reviewing thesuspension the trial court should have considered not merelywhether there was probable cause to believe that defendant hadconsumed alcohol but whether there was probable cause to believethat he was driving under the influence of alcohol.

The implied consent law provides in pertinent part:

"Any person who drives or is in actual physical controlof a motor vehicle *** shall be deemed to have given consent*** to a chemical test or tests of blood, breath, or urine forthe purpose of determining the content of alcohol, other drugor drugs, or intoxicating compound or compounds or anycombination thereof in the person's blood if arrested, asevidenced by the issuance of a Uniform Traffic Ticket, for[DUI]." 625 ILCS 5/11--501.1(a) (West 2000).

A person requested to submit to testing must be warned, interalia, that if he refuses to submit to testing, or submits totesting that discloses an alcohol concentration of 0.08 or greater,a statutory summary suspension of his driving privileges will beimposed. 625 ILCS 5/11--501.1(c) (West 2000). If the personrefuses to submit to testing or submits to testing that disclosesan alcohol concentration above the legal limit, the officer shallimmediately submit a sworn report to the Secretary of State, andupon receipt of the sworn report, the Secretary of State shallenter the statutory summary suspension and confirm it by mailingnotice to the driver and to the court of venue. 625 ILCS 5/11--501.1(d),(e),(h) (West 2000). In addition, the officer whorequests the test must serve immediate notice of the statutorysummary suspension on the driver; the suspension takes effect onthe 46th day following the date notice was given. 625 ILCS 5/11--501.1(f),(g) (West 2000). The length of the statutory summarysuspension depends on whether the driver is a "first offender" asdefined in section 11--500 of the Code (see 625 ILCS 5/11--500(West 2000)) and whether he or she submitted to testing. See 625ILCS 5/6--208.1(a) (West 2000).

A broader suspension scheme applies to drivers under the ageof 21 who are suspected of having consumed alcohol. The zerotolerance law provides that a driver under the age of 21 is deemedto consent to chemical testing of blood alcohol content if arrestedfor any violation of the Code or a similar provision of a localordinance and if, in addition, the arresting officer has probablecause to believe that the driver has consumed any amount of analcoholic beverage. 625 ILCS 5/11--501.8(a) (West 2000). Suspensions are imposed on those who refuse testing or who submitto testing that discloses an alcohol concentration greater than0.00. 625 ILCS 5/11--501.8(a) (West 2000). The length of thesuspension depends on whether the driver submits to testing andwhether he or she has previously been suspended under the zerotolerance law. 625 ILCS 5/6--208.2(a) (West 2000).

Here, the record establishes that the arresting officer readthe applicable warnings under the implied consent law to defendant. Defendant contends that these warnings did not fully conform to thewarnings required under the zero tolerance law, and, accordingly,the suspension of his driving privileges cannot be upheld underthat enactment. We note, however, that in People v. Johnson, 197Ill. 2d 478, 489 (2001), our supreme court held that, in reviewinga petition for rescission based on inaccurate warnings, courts mustdetermine whether the motorist is a member of the group affected bythe inaccuracy. Johnson held that an inaccurate warning concerningthe length of the statutory summary suspension for nonfirstoffenders was not a basis for rescinding the suspension of amotorist who was a first offender.

Defendant was warned that if he was a first offender and herefused to submit to chemical testing, his driving privileges wouldbe summarily suspended under the implied consent law for a periodof six months. Although he was not specifically warned of theconsequences of refusing testing under the zero tolerance law, theconsequences are identical for motorists whose driving privilegeshave not previously been suspended under the zero tolerance law. Because it is undisputed that defendant had no previous suspensionsunder the zero tolerance law, he was accurately warned of theconsequences that he personally faced. Furthermore, the warningsunder the implied consent law include an admonition concerning theconsequences of submitting to testing under the zero tolerance law. Accordingly, defendant was warned about every aspect of the zerotolerance law except the length of the suspension for motoristswhose driving privileges have previously been suspended under thezero tolerance law and who refuse testing. Defendant is not amember of this class of motorists, so under Johnson the warningsgiven to defendant were adequate notwithstanding this omission.

Although the warnings defendant received were sufficient under the zero tolerance law, we agree with defendant that the trialcourt should have confined its inquiry to the criteria governingsuspensions under the implied consent law. The officer whoarrested defendant submitted a sworn report pursuant to the impliedconsent law and the Secretary of State confirmed the suspensionunder the implied consent law. The State argues, without citationof authority, that defendant had "no vested right to have thehearing proceed under one particular provision over the other." While we express no view on whether the right at issue is "vested,"we otherwise disagree with this proposition.

The State envisions the rescission hearing as a plenaryproceeding to determine whether there is any basis to suspend adefendant's driving privileges. However, the implied consent lawand the zero tolerance law are independent statutory schemes withdistinct hearing provisions involving different issues raised indifferent forums. Both the implied consent law and the zerotolerance law afford the affected driver the right to request ahearing to review the suspension. The implied consent law providesfor a judicial hearing, ordinarily limited to specified issues, inthe circuit court of venue. 625 ILCS 5/2--118.1(b) (West 2000). In contrast, however, the zero tolerance law provides that "[a]driver may contest this driver's license sanction by requesting anadministrative hearing with the Secretary of State." 625 ILCS5/11--501.8(e) (West 2000). The action of the Secretary of Statein suspending a license under the zero tolerance law is subject tojudicial review under the Administrative Review Law (735 ILCS 5/3--101 et seq. (West 2000)), but only in the circuit courts ofSangamon County and Cook County. 625 ILCS 5/11--501.8(h) (West2000). Moreover, suspensions under the implied consent law and thezero tolerance law are not mutually exclusive. We have recognizedthat a driver's privileges may be suspended under both schemes. People v. Delcorse, 305 Ill. App. 3d 76, 79 (1999). Assuming,arguendo, that that is what occurred here (see Delcorse, 305 Ill.App. 3d at 79), each form of suspension must still be reviewedindependently in the proper forum.

The trial court had the statutory authority only to review asuspension arising from the implied consent law. 625 ILCS 5/2--118.1(b) (West 2000). The scope of a judicial hearing under theimplied consent law is primarily limited to the four issues setforth in section 2--118.1(b) of the Code: (1) whether the personwas placed under arrest for DUI; (2) whether the arresting officerhad probable cause to believe that the person was driving whileunder the influence; (3) whether the person refused to take achemical test; and (4) whether the person failed a test to whichthat person submitted. 625 ILCS 5/2--118.1(b) (West 2000); seePeople v. Dvorak, 276 Ill. App. 3d 544, 552 (1995). The driver mayalso raise another issue "if it concerns a mandatory provision thatthe summary suspension is predicated upon." (Emphasis added.) People v. Tomlinson, 295 Ill. App. 3d 193, 197 (1998). Forexample, a driver may challenge the validity of chemical testresults (People v. Hamilton, 118 Ill. 2d 153, 160 (1987)), but maynot raise a law enforcement agency's failure to comply with theimplied consent law's directive to designate the type of test to beadministered (Tomlinson, 295 Ill. App. 3d at 197-98).

The evenhanded application of the statute dictates that, likethe driver, the State should not be permitted to inject otherissues into the hearing. There is no provision in section 2--118.1permitting the circuit court to consider whether the defendant'sdriving privileges are subject to suspension under the zerotolerance law. Similarly, by definition, a hearing under section2--118.1 concerns a statutory summary suspension predicated uponthe implied consent law; therefore the hypothetical applicabilityof the zero tolerance law is not an issue that "concerns amandatory provision that the summary suspension is predicatedupon." (Emphasis added.) Tomlinson, 295 Ill. App. 3d at 197.

The State notes that the zero tolerance law sets forthdifferent issues to be determined in a hearing to review asuspension. Those issues are whether the arresting officer hadprobable cause to believe that one in actual physical control of amotor vehicle violated any provision of the Code or a similarprovision of a local ordinance; whether a Uniform Traffic Ticketwas issued; whether the officer had probable cause to believe that the driver had consumed any amount of an alcoholic beverage;whether, after being properly warned, the driver refused to submitto or complete testing to determine alcohol concentration, orsubmitted to testing disclosing an alcohol concentration of morethan 0.00; and whether a test result showing an alcoholconcentration of more than 0.00 was based on the person'sconsumption of alcohol in connection with a religious service orceremony or through the ingestion of a prescribed or recommendeddosage of medicine. 625 ILCS 5/11--501.8(e) (West 2000). Aspreviously noted however, hearings concerning zero tolerancesuspensions take place before the Secretary of State, not thecircuit court. Thus the zero tolerance law does not expand thescope of the issues properly before the court in a judicialrescission hearing pursuant to the implied consent law.

The trial court's "mix and match" approach is also unfair todefendant because suspensions under the implied consent law havepotentially harsher consequences than those under the zerotolerance law. Nonfirst offenders under the implied consent lawface longer suspensions than first offenders. First offenderstatus is determined, in part, with reference to previoussuspensions under the implied consent law. See 625 ILCS 5/11--500(West 2000) (" 'first offender' shall mean *** any person who hasnot had a driver's license suspension for violating Section 11--501.1 within 5 years prior to the date of the current offense") Incontrast, suspensions under the zero tolerance law affect thelength of future suspensions under that statute (625 ILCS 5/6--208.2(a) (West 2000)), but do not affect the driver's status as afirst offender for purposes of the implied consent law.

Here, the trial court erred by applying the criteria of thezero tolerance law in granting the State's motion under section 2--1110 of the Code of Civil Procedure (735 ILCS 5/2-1110 (West2000)). Accordingly, we reverse the judgment of the circuit courtof Du Page County and remand the cause for further proceedings. Onremand, the circuit court is directed to reconsider the State'ssection 2--1110 motion in light of the criteria under the impliedconsent law set forth in section 2--118.1(b) of the Code (625 ILCS5/2--118.1(b) (West 2000)).

For the foregoing reasons, the judgment of the circuit courtof Du Page County is reversed, and the cause is remanded forfurther proceedings consistent with this opinion.

Reversed and remanded with directions.

BOWMAN and BYRNE, JJ., concur.