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People v. Estrada, No. 3-99-0378

3rd District, 5 May 2000

JUSTICE HOLDRIDGE delivered the Opinion of the court:

The petitioner, Steven Estrada, was charged with driving under the influence of cannabis. 625 ILCS 5/11--501(a)(3) (West1998). He was subsequently notified of a six-month statutory summary suspension of his driver's license. He filed a petitionto rescind the suspension, claiming that: (1) the police did not have reasonable grounds to arrest him for driving under theinfluence of cannabis; and (2) the arresting officer read him a warning to motorist which incorrectly stated the law. The trialcourt granted the petition to rescind on the second ground. The State appeals, claiming that the trial court erred in grantingthe petition to rescind. On cross-appeal, the petitioner argues that the trial court erred in finding that the police hadreasonable grounds to arrest him. We affirm.

At the hearing on the petition to rescind, Illinois State Trooper Robert Swift testified that around 9:48 p.m. on January 29,1999, he was at a gas station in Gilman, Illinois. He observed a white Buick sideswipe a pallet of salt as the Buick left thestation. Some bags were knocked over and ripped open. Swift drove up to the Buick and performed a traffic stop.

As Swift was talking to the driver, whom he identified as the petitioner, he smelled a strong odor of cannabis coming frominside the vehicle. He asked the petitioner whether there was cannabis in the car. The petitioner said there was not, but thathe had smoked some cannabis earlier in the afternoon. Swift then asked him if he knew that he had hit a salt pallet at the gasstation. The petitioner said he knew that he had hit some pallets, but he did not stop because he thought the police wouldcome over and harass him.

Swift had the petitioner perform field sobriety tests. As he spoke with him outside the vehicle, Swift could again smell theodor of cannabis emanating from the petitioner. Swift arrested him for driving under the influence of drugs and read him thewarning to motorist.

The warning to motorist informed the petitioner that if he was a first time offender and he refused to take a chemical test,his driver's license would be suspended for a minimum of six months. It also notified the petitioner that if he was a firsttime offender and he submitted to testing which revealed a blood alcohol concentration of 0.08 or above, or any amount ofcannabis, his license would be suspended for a minimum of three months. Further, the warning indicated that a motorist isnot considered a first time offender if, in the five years prior to his arrest, he submitted to chemical testing that revealed analcohol concentration of 0.08 or more. The warning also noted that a non-first offender who refused chemical testing wouldreceive a two-year statutory summary suspension of his driver's license. 625 ILCS 5/6--208.1(a)(3) (West 1996). Finally,the warning informed the petitioner that if he was under the age of 21, he was a first time offender unless he had a previoussuspension for refusing a chemical test or he had submitted to a test which disclosed a blood-alcohol concentration greaterthan 0.00.

Swift then asked the petitioner to submit to a blood test. The petitioner said that he would not submit to a blood test until hehad talked to his lawyer. Swift told him that this would be regarded as a refusal.

The 18-year-old petitioner testified that he hit the salt pallets and knocked them over as he was driving away from the gasstation. He denied any odor of cannabis emanating from his person or vehicle, and denied having smoked any cannabis.

At the conclusion of the hearing, the trial court found: (1) the police officer had reasonable grounds to arrest the petitionerfor driving under the influence of drugs; and (2) the petitioner had refused to take a blood test. It then sought writtenmemoranda from the parties on the issue of the "warning to motorist." Later, the court found that the warning to motoristread to the petitioner was defective because it did not reflect the January 1, 1999, change in the law calling for a three-yearsuspension rather than a two-year suspension for a non-first offender who refused chemical testing. 625 ILCS 5/6--208.1(West 1998). The court held that this was not harmless error. Therefore, it granted the petition to rescind.

The State filed a motion to reconsider the court's ruling on the warning to motorist. The petitioner also filed a motion toreconsider, challenging the court's ruling with regard to reasonable grounds. At the hearing on the motion, the Statesubmitted the abstract of the petitioner's driver's license record from the Secretary of State. The abstract indicated that thepetitioner was a first offender. Therefore, the State argued that the petitioner was not prejudiced by any misstatement in thewarning to motorist about the length of suspension for a non-first time offender. The petitioner argued that the trial courterred in finding reasonable grounds to arrest. Both motions were denied.

On appeal, the State argues that the rescission of the petitioner's statutory summary suspension was improper since, as afirst time offender, the petitioner was properly warned of the consequences to him either of a refusal to take the blood testor of taking the test. Therefore, it argues, the petitioner was not prejudiced by the inaccuracies in the warning.

In response, the petitioner argues that the warning to motorist was fatally flawed in two respects. First, the warningindicated that the petitioner would not be considered a first time offender if, in the five years prior to his arrest, hesubmitted to chemical testing that revealed an alcohol concentration of 0.08 or more. However, prior to July 2, 1997, thelegal limit of alcohol concentration was 0.10. 625 ILCS 5/6--206(a)(31) (West 1996). That limit was reduced from 0.10 to0.08 with the passage of Public Act 90--43. Pub. Act 90--43,