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Docket No. 97791-Agenda 16-November 2004.

RYAN D. GUMMA, Appellee, v. JESSE WHITE, Secretary of State of Illinois, Appellant.

Opinion filed July 21, 2005.

CHIEF JUSTICE McMORROW delivered the opinion of the court:

In this appeal we review the Secretary of State's decision to deny Ryan Gumma's petition to rescind the summary suspension of his driver's license, which was imposed pursuant to section 11-501.8 of the Illinois Vehicle Code, commonly known as the zero-tolerance law. 625 ILCS 5/11-501.8 (West 1998). On administrative review, the circuit court of Cook County held that the Secretary of State's denial of Gumma's petition was against the manifest weight of the evidence and the appellate court affirmed this ruling. 345 Ill. App. 3d 610. However, in affirming, the appellate court concluded that an earlier judgment, rendered in a related municipal ordinance violation proceeding, operated to collaterally estop the Secretary of State from using the results of Gumma's breath-analysis test to support his zero-tolerance suspension.

We granted the Secretary of State's petition for leave to appeal and now hold that the appellate court erred when it held that the Secretary of State was prevented, by collateral estoppel, from using the results of the breath-analysis test to support the zero-tolerance suspension of Gumma's driver's license. Nevertheless, for the reasons that follow, we affirm the appellate court's judgment.

BACKGROUND

On September 22, 2000, Barrington police officer Scott Basel stopped a Ford Explorer, which was being driven by 20-year-old Ryan Gumma. According to the zero-tolerance sworn report⁽¹⁾ prepared by Officer Basel, the stop took place after Officer Basel witnessed Gumma drive over a curb and fail to stop at two stop signs. Officer Basel also indicated in his report that he "noticed an odor of alcoholic beverage as Gumma spoke" and that Gumma "did poorly on field sobriety tests." Gumma was arrested and taken to the Barrington police station, where he submitted to a breath-analysis test. A "test strip" generated by the breath-analyzing instrument indicated that Gumma took a breath-analysis test at the Barrington police station at 1:03 a.m. on September 22, 2000, and that his alcohol concentration registered 0.099.⁽²⁾ Gumma was ticketed for consumption of alcohol by a minor (complaint number LO-937-576) and for disobeying a stop sign (complaint number Y9-128-143), in violation of Village of Barrington ordinances. Gumma was also given notice that his driving privileges would be summarily suspended pursuant to the zero-tolerance law, section 11-501.8 of the Vehicle Code.⁽³⁾

On November 9, 2000, Gumma filed a motion in the circuit court of Cook County, Municipal Department, Third District (hereafter municipal court), entitled "Motion for Production for Discovery Concerning Purported Breath Analysis Pursuant to 625 ILCS 5/11-501.8(b)(iv) (2000)."⁽⁴⁾ In the motion, Gumma sought information concerning the police department's compliance with Illinois Department of Public Health rules and regulations.⁽⁵⁾ In particular, Gumma sought production of the logbook(s) for the breath-analysis instrument used by the Barrington police department to test his breath, which, pursuant to section 510.100 of the Public Health Code, the Barrington police department was required to maintain. Gumma requested the logbook entries for the previous 135 days, as well as any and all records or documents containing information concerning the instrument's usage, repair, maintenance, and certification, for the 45-day period encompassing the time that Gumma's breath test was administered.⁽⁶⁾

In response to the motion, the Village of Barrington provided Gumma with a copy of the "test strip" and a copy of Officer Basel's breath-analyzer operator's license. No logbook or other documentation concerning the instrument's certification for the 45-day period encompassing September 22, 2000, was produced.

On December 8, 2000, Gumma appeared in municipal court with regard to the two ordinance violation complaints. The court dismissed the two complaints and issued the following order:

"The Village of Barrington failed to comply with 77 Ill. Administrative Code, Section 510.100. The arresting officer failed to keep appropriate records and, therefore, as a matter of law, the blood-alcohol concentration is inadmissible against the Defendant in this or any other proceeding against the Defendant, including the summary suspension before the Secretary of State."

Thereafter, on June 19, 2001, Gumma filed a petition seeking rescission of his zero-tolerance suspension, as permitted by section 11-501.8(e) of the Code (625 ILCS 5/11-501.8(e) (West 1998)).⁽⁷⁾ An administrative hearing took place before the Secretary of State on August 29, 2001. Gumma challenged his zero-tolerance suspension on the grounds that he had submitted to testing, but that the testing "did not indicate a blood alcohol level greater than 0.00." See 625 ILCS 5/11-501.8(e)(5) (West 1998). More specifically, Gumma claimed that his breath-analysis test was invalid because the Barrington police department failed to comply with Department of Health rules and regulation and, thus, the breath-analysis test results were inadmissible.

At the administrative hearing, the Secretary of State presented the following exhibits: a copy of the zero-tolerance sworn report; a copy of Officer Basel's breath-analyzer operator's license; a copy of Gumma's breath-analysis "test strip"; and copies of the complaints showing that Gumma had been ticketed for consumption of alcohol by a minor and for disobeying stop signs, in violation of Village of Barrington ordinances. In addition, the Secretary of State submitted a document dated August 24, 2001, entitled "Sworn Statement of Breath Test Operator." This document was a preprinted form with blank spaces where information had been filled in. In this document "S. Basel" averred that, on "9/22/00," he administered a breath-analysis test to "Gumma, Ryan D," using the "INTOX EC/IR" instrument, serial number "04128," and that the results of the breath-analysis test was a blood-alcohol concentration reading of ".099." He further averred in paragraph 5:

"This instrument was operating correctly when I administered this test, and had most recently been tested and certified accurate by M. Rose I.S.P. on 7/13/01, pursuant to standards promulgated by the Illinois Department of Public Health."

And in paragraph 8, he averred:

"I made a written record of the above test in the log book maintained for the instrument in question. A copy of that written record is attached hereto as Addendum #3."

However, beneath paragraph 8 was written "UNABLE TO LOCATE RECORD" and no Addendum #3 was attached to the form.

Both the Secretary of State and Gumma submitted to the hearing officer copies of Gumma's motion for discovery, which, as noted above, Gumma filed in the municipal court proceedings, as well as copies of the December 8, 2000, order, which the municipal court issued upon the dismissal of the ordinance violation complaints.

Gumma was the only witness to testify at the administrative hearing. He testified that on September 22, 2000, when he was 20 years old, he was arrested and taken to the Barrington police station by Barrington police officer Scott Basel after he made a "rolling stop" at a stop sign. Gumma denied that he had been drinking any alcoholic beverages that night and suggested that any odor of alcohol that might have been detected by the officer could have come from his passenger, Matt, who, Gumma admitted, had been intoxicated that evening. Gumma also testified that he was not asked to perform, and did not perform, any field sobriety tests prior to being arrested. Finally, Gumma admitted that he took a breath-analysis test at the Barrington police station which gave a reading of 0.09. Gumma stated, however, that he had no idea how the machine worked and could not explain why the machine had given that reading when he had not been drinking.

In closing argument, Gumma's counsel argued that the Barrington police department failed to comply with Department of Public Health rules and regulations concerning the certification and maintenance of the breath-analysis instrument used to test Gumma's breath. Accordingly, counsel argued that the breath test was invalid and the results inadmissible. The Secretary of State offered no argument in response.

Subsequently, the hearing officer issued a written report containing his findings and recommendation. In this report, the hearing officer acknowledged that the breath-analysis test had been "thrown out" in municipal court because the arresting agency had not produced the requested "records in regard to the authenticity of said reading." Nonetheless, the hearing officer, finding that the Secretary of State was not bound by the municipal court's ruling, rejected Gumma's argument that the test results were inadmissible. Relying on the breath-analysis tape and the officer's sworn report, the hearing officer found that Gumma submitted to testing which showed that Gumma had a blood-alcohol level greater than 0.00. Thus, the hearing officer found Gumma's request for rescission to be without merit and recommended that the petition be denied. The Secretary of State adopted the findings and recommendation of the hearing officer and, in an order dated October 16, 2001, denied Gumma's petition for rescission of the zero-tolerance suspension of his driver's license.

Gumma filed a complaint in the circuit court of Cook County seeking administrative review of the Secretary of State's decision. On August 23, 2002, the circuit court issued a memorandum opinion and order finding the Secretary of State's denial of Gumma's petition for rescission against the manifest weight of the evidence. The circuit court held that Gumma had called into question the validity of the breath-analysis test and that the sworn statement of the breath-test operator "affirmatively stated that the log book for the subject machine could not be located." Thus, the court held that the State had failed to "show that the machine had been tested as required by the Department of Public Health regulations and that those inspections were current at the time the breath test was administered to" Gumma. For this reason, the court ruled that the test results were inadmissible to support the summary suspension. In addition, the circuit court held that the officer's sworn report was "devoid of factual content" and, for that reason, insufficient evidence that Gumma had consumed alcohol. The circuit court reversed the Secretary of State's decision to deny Gumma's petition.

The Secretary of State appealed the circuit court decision, and the appellate court affirmed, but on different grounds. 345 Ill. App. 3d 610. The appellate court held that the breath-analysis test results were inadmissible because they were barred by collateral estoppel. The appellate court stated:

"The circuit court's [December 8, 2000] order barring the use of evidence concerning plaintiff's blood-alcohol concentration in any proceeding including any statutory summary suspension proceeding before the Secretary of State was tantamount to an exclusion based on the doctrine of collateral estoppel." 345 Ill. App. 3d at 616.

The Secretary of State filed a petition for leave to appeal, which this court granted. 177 Ill. 2d R. 315(a).

ANALYSIS

The Secretary of State raises two issues in his appeal: (1) whether the appellate court erred when it held that the Secretary of State was collaterally estopped from using the results of the breath-analysis test to support the zero-tolerance suspension of Gumma's driver's license, and (2) whether the Secretary of State's decision to deny Gumma's petition to rescind the zero-tolerance suspension of his driver's license was against the manifest weight of the evidence. Before addressing these issues, we examine the zero-tolerance law under which Ryan Gumma's driver's license was suspended.

The zero-tolerance statute, which came into effect on January 1, 1995, is set forth in section 11-501.8 of the Vehicle Code (625 ILCS 5/11-501.8 (West 1998)). The statute provides in subsection (a) that, if a person under the age of 21, while operating a motor vehicle on the public roads of this state, is arrested for any traffic violation and the arresting officer "has probable cause to believe that the driver has consumed any amount of an alcoholic beverage," the driver "shall be deemed to have given consent to a chemical test or tests of blood, breath, or urine for the purpose of determining the alcohol content of the person's blood." 625 ILCS 5/11-501.8(a) (West 1998). When the conditions in subsection (a) are met and the driver is asked to submit to testing, the driver must be warned that his driving privileges may be suspended if he refuses to submit to the testing or if he submits to the test and the test reveals an alcohol concentration greater that 0.00. 625 ILCS 5/11-501.8(c) (West 1998). After being warned, if the driver refuses to submit to testing or if he submits to testing and the testing establishes an alcohol concentration greater than 0.00, the officer "shall immediately submit a sworn report to the Secretary of State" certifying whether the driver submitted to testing or refused. 625 ILCS 5/11-501.8(d) (West 1998). The Secretary of State, upon receipt of the officer's sworn report, "shall enter the driver's license sanction on the individual's driving record" and suspension of the person's driving privileges automatically goes into effect "on the 46th day following the date notice of the sanction was given to the person." 625 ILCS 5/11-501.8(d) (West 1998).

Although the zero-tolerance law is similar in some respects to the summary suspension provision for driving while intoxicated (DUI) (625 ILCS 5/11-501.1 (West 1998)), it is separate and distinct. See People v. McKenna, 328 Ill. App. 3d 396, 402 (2002) (the implied-consent law and the zero-tolerance law are independent statutory schemes with distinct hearing provisions involving different issues raised in different forums). Unlike a DUI summary suspension, which may be imposed when a driver is arrested for driving while under the influence of alcohol or other intoxicating substances (625 ILCS 5/11-501 (West 1998)), the zero-tolerance summary suspension may be imposed if a driver under the age of 21 has been arrested for any traffic violation, provided the arresting officer has probable cause to believe that the driver has consumed some amount of alcohol and the driver refuses testing or submits to testing which reveals a blood-alcohol concentration greater than 0.00. As we noted in Arvia v. Madigan, 209 Ill. 2d 520, 539 (2004), a zero-tolerance summary suspension provides "youthful drivers an incentive-not found in the DUI law-to refrain from consuming any amount of alcohol."

The forum in which zero-tolerance suspensions may be challenged also differs from DUI summary suspensions. Pursuant to section 2-118.1(b) of the Illinois Vehicle Code, a driver may petition for rescission of a DUI statutory summary suspension by making "a written request for a judicial hearing in the circuit court of venue." 625 ILCS 5/2-118.1(b) (West 1998). A zero-tolerance license suspension, however, must be contested before the Secretary of State in an administrative hearing, which is limited in scope to seven issues: (1) whether the police officer had probable cause to believe that the person was driving or in actual physical control of a motor vehicle and whether police officer had reason to believe that the person was in violation of any provision of the Illinois Vehicle Code or a similar provision of a local ordinance, (2) whether the person was issued a Uniform Traffic Ticket, (3) whether the police officer had probable cause to believe that the driver had consumed any amount of an alcoholic beverage, (4) whether the person, after receiving the required warnings, refused to submit to or complete the test or tests to determine the person's alcohol concentration, (5) whether the person, after receiving the required warnings, submitted to and completed the test or tests that determined an alcohol concentration of more than 0.00, (6) whether the test result of an alcohol concentration of more than 0.00 was based upon the person's consumption of alcohol in the performance of a religious service or ceremony, or (7) whether the test result of an alcohol concentration of more than 0.00 was based upon the person's consumption of alcohol through ingestion of the prescribed or recommended dosage of medicine. 625 ILCS 5/11-501.8(e) (West 1998).

Although the forum in which the challenge is brought differs, a driver seeking relief from a zero-tolerance summary suspension, like a petitioner under the DUI law, bears the initial burden of proof. 92 Ill. Adm. Code