2015 IL App (3d) 140194
Opinion filed July 20, 2015 _____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2015
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-14-0194 v. ) Circuit Nos. 13-DT-1749 and ) 13-TR-106788 ) ENRIQUE GUTIERREZ, JR., ) Honorable ) Bennett J. Braun, Defendant-Appellant. ) Judge, Presiding. _____________________________________________________________________________
JUSTICE HOLDRIDGE delivered the judgment of the court, with Opinion. Justices Carter and Wright concurred in the judgment ad Opinion. _____________________________________________________________________________
OPINION
¶1 Defendant, Enrique Gutierrez, Jr., was an Aurora police officer involved in a traffic
accident while off duty. Aurora police suspected defendant of driving under the influence and
instructed a state trooper to administer a preliminary breath test (PBT). Defendant took the PBT,
which returned a 0.249 blood alcohol content (BAC). Defendant was arrested for driving under
the influence and refused further chemical testing. His driver's license was summarily
suspended. Defendant filed a petition to rescind the summary suspension. He also filed a
motion in limine seeking to preclude introduction of the PBT results at the hearing on his petition to rescind. The court denied both the motion in limine and the petition to rescind. Defendant
appeals. We affirm.
¶2 FACTS
¶3 The following facts were gleaned from the report of proceedings of the hearing on
defendant's motion in limine, the hearing on defendant's motion to rescind his statutory
suspension, and the common law record.
¶4 Defendant was a police officer with the Aurora police department. On December 24,
2013, defendant was off duty, driving in his personal vehicle, when he rear-ended another
vehicle at an intersection within the jurisdiction of the Aurora police department. The other
driver called the police. After waiting approximately 30 minutes to one hour without police
arriving, defendant and the other driver exchanged information, and defendant left the scene of
the accident and drove home.
¶5 After arriving home, defendant received a phone call from Sergeant Weber of the Aurora
police department, requesting that defendant return to the scene of the accident. Defendant drove
back to the scene. Illinois State Trooper David DeGraff administered to defendant a PBT. The
result of the PBT was a 0.249 BAC. Defendant was arrested for driving under the influence of
alcohol (625 ILCS 5/11-501 (West 2012)).
¶6 Defendant refused further chemical testing, and his driver's license was suspended.
Defendant filed a petition to rescind the suspension. The petition requested a hearing pursuant to
section 2-118 of the Illinois Vehicle Code (Code) (625 ILCS 5/2-118 (West 2012)).
¶7 Defendant filed a motion in limine seeking to exclude the PBT results from being
admitted at the hearing on the petition to rescind. The motion alleged that the PBT was
administered "for the purposes of an Aurora Police Department administrative employee
2 disciplinary investigation" and was therefore not consensual, as required by section 11-501.5(a)
of the Code (PBT statute) (625 ILCS 5/11-501.5(a) (West 2012)). In addition, the motion
claimed that the results of the PBT were compelled testimony in violation of the fifth amendment
(U.S. Const., amend. V). Furthermore, the motion argued that the results of the PBT were not
reliable.
¶8 At a hearing on the motion in limine, defendant argued that the PBT was an
"administrative blow," and therefore admission of the PBT at trial would violate defendant's fifth
amendment right against self-incrimination. Defendant testified that when he arrived on the
scene, Sergeant Bodman told him that he was required to take the PBT test as an administrative
blow. DeGraff administered the PBT using a device that belonged to the Aurora police
department. According to defendant, DeGraff seemed unaware of how to properly operate the
device. He twice administered the test unsuccessfully before obtaining a reading on the third try.
Defendant testified that he did not consent to taking the PBT but that DeGraff never told him that
he was required to take it.
¶9 DeGraff testified that he was a friend and neighbor of defendant's. He was called to the
scene to help investigate because the Aurora police who responded were concerned that they had
a conflict of interest in investigating a fellow Aurora police officer. When defendant arrived
back on the scene, DeGraff detected an odor of alcohol on defendant's breath. DeGraff stated
that he was "slightly unfamiliar" with the PBT device he used because it was a different model
than the device he typically used. Bodman requested that DeGraff administer the PBT as an
administrative blow. DeGraff could not remember whether he told defendant that the PBT test
was mandatory.
3 ¶ 10 The court denied the motion in limine. It found that the PBT was an administrative
search, and therefore the results were admissible so long as the PBT was not merely a subterfuge
for discovering criminal activity. The court found that the PBT was not a subterfuge.
¶ 11 The cause proceeded to a hearing on defendant's petition to rescind. The issue before the
court was whether there were reasonable grounds for officers to believe that defendant was under
the influence of alcohol. 625 ILCS 5/2-118.1(b)(2) (West 2012). The court said, "Frankly,
without the portable breath test, the Court would not find that there was reasonable grounds for
the defendant to be arrested, so really this whole motion hinges on the admissibility of the
portable breath test." The court found that the combination of the PBT results, the odor of
alcohol emitting from defendant, and the collision established reasonable grounds for officers to
arrest defendant. The court denied the petition to rescind.
¶ 12 ANALYSIS
¶ 13 On appeal, defendant argues that the court should have granted his motion in limine and
excluded evidence of the PBT results from the hearing on his petition to rescind. He further
argues that, without admission of the PBT results, the court would have granted his petition to
rescind. He therefore asks us to reverse the court's decision denying the petition.
¶ 14 A hearing on a petition to rescind a summary suspension of driving privileges is a civil
proceeding. People v. Davis, 2012 IL App (2d) 110581, ¶ 47. The defendant bears the burden of
providing a prima facie case for rescission. People v. Smith, 172 Ill. 2d 289, 294-95 (1996). If
the defendant meets that burden, the burden shifts to the State to provide evidence justifying the
suspension. Id. at 295.
¶ 15 We agree with the trial court that in the present case the decision on the petition to
rescind turned on the admissibility of the PBT results. Therefore, we restrict our analysis to the
4 trial court's decision on defendant's motion in limine seeking to preclude the PBT results.
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2015 IL App (3d) 140194
Opinion filed July 20, 2015 _____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2015
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-14-0194 v. ) Circuit Nos. 13-DT-1749 and ) 13-TR-106788 ) ENRIQUE GUTIERREZ, JR., ) Honorable ) Bennett J. Braun, Defendant-Appellant. ) Judge, Presiding. _____________________________________________________________________________
JUSTICE HOLDRIDGE delivered the judgment of the court, with Opinion. Justices Carter and Wright concurred in the judgment ad Opinion. _____________________________________________________________________________
OPINION
¶1 Defendant, Enrique Gutierrez, Jr., was an Aurora police officer involved in a traffic
accident while off duty. Aurora police suspected defendant of driving under the influence and
instructed a state trooper to administer a preliminary breath test (PBT). Defendant took the PBT,
which returned a 0.249 blood alcohol content (BAC). Defendant was arrested for driving under
the influence and refused further chemical testing. His driver's license was summarily
suspended. Defendant filed a petition to rescind the summary suspension. He also filed a
motion in limine seeking to preclude introduction of the PBT results at the hearing on his petition to rescind. The court denied both the motion in limine and the petition to rescind. Defendant
appeals. We affirm.
¶2 FACTS
¶3 The following facts were gleaned from the report of proceedings of the hearing on
defendant's motion in limine, the hearing on defendant's motion to rescind his statutory
suspension, and the common law record.
¶4 Defendant was a police officer with the Aurora police department. On December 24,
2013, defendant was off duty, driving in his personal vehicle, when he rear-ended another
vehicle at an intersection within the jurisdiction of the Aurora police department. The other
driver called the police. After waiting approximately 30 minutes to one hour without police
arriving, defendant and the other driver exchanged information, and defendant left the scene of
the accident and drove home.
¶5 After arriving home, defendant received a phone call from Sergeant Weber of the Aurora
police department, requesting that defendant return to the scene of the accident. Defendant drove
back to the scene. Illinois State Trooper David DeGraff administered to defendant a PBT. The
result of the PBT was a 0.249 BAC. Defendant was arrested for driving under the influence of
alcohol (625 ILCS 5/11-501 (West 2012)).
¶6 Defendant refused further chemical testing, and his driver's license was suspended.
Defendant filed a petition to rescind the suspension. The petition requested a hearing pursuant to
section 2-118 of the Illinois Vehicle Code (Code) (625 ILCS 5/2-118 (West 2012)).
¶7 Defendant filed a motion in limine seeking to exclude the PBT results from being
admitted at the hearing on the petition to rescind. The motion alleged that the PBT was
administered "for the purposes of an Aurora Police Department administrative employee
2 disciplinary investigation" and was therefore not consensual, as required by section 11-501.5(a)
of the Code (PBT statute) (625 ILCS 5/11-501.5(a) (West 2012)). In addition, the motion
claimed that the results of the PBT were compelled testimony in violation of the fifth amendment
(U.S. Const., amend. V). Furthermore, the motion argued that the results of the PBT were not
reliable.
¶8 At a hearing on the motion in limine, defendant argued that the PBT was an
"administrative blow," and therefore admission of the PBT at trial would violate defendant's fifth
amendment right against self-incrimination. Defendant testified that when he arrived on the
scene, Sergeant Bodman told him that he was required to take the PBT test as an administrative
blow. DeGraff administered the PBT using a device that belonged to the Aurora police
department. According to defendant, DeGraff seemed unaware of how to properly operate the
device. He twice administered the test unsuccessfully before obtaining a reading on the third try.
Defendant testified that he did not consent to taking the PBT but that DeGraff never told him that
he was required to take it.
¶9 DeGraff testified that he was a friend and neighbor of defendant's. He was called to the
scene to help investigate because the Aurora police who responded were concerned that they had
a conflict of interest in investigating a fellow Aurora police officer. When defendant arrived
back on the scene, DeGraff detected an odor of alcohol on defendant's breath. DeGraff stated
that he was "slightly unfamiliar" with the PBT device he used because it was a different model
than the device he typically used. Bodman requested that DeGraff administer the PBT as an
administrative blow. DeGraff could not remember whether he told defendant that the PBT test
was mandatory.
3 ¶ 10 The court denied the motion in limine. It found that the PBT was an administrative
search, and therefore the results were admissible so long as the PBT was not merely a subterfuge
for discovering criminal activity. The court found that the PBT was not a subterfuge.
¶ 11 The cause proceeded to a hearing on defendant's petition to rescind. The issue before the
court was whether there were reasonable grounds for officers to believe that defendant was under
the influence of alcohol. 625 ILCS 5/2-118.1(b)(2) (West 2012). The court said, "Frankly,
without the portable breath test, the Court would not find that there was reasonable grounds for
the defendant to be arrested, so really this whole motion hinges on the admissibility of the
portable breath test." The court found that the combination of the PBT results, the odor of
alcohol emitting from defendant, and the collision established reasonable grounds for officers to
arrest defendant. The court denied the petition to rescind.
¶ 12 ANALYSIS
¶ 13 On appeal, defendant argues that the court should have granted his motion in limine and
excluded evidence of the PBT results from the hearing on his petition to rescind. He further
argues that, without admission of the PBT results, the court would have granted his petition to
rescind. He therefore asks us to reverse the court's decision denying the petition.
¶ 14 A hearing on a petition to rescind a summary suspension of driving privileges is a civil
proceeding. People v. Davis, 2012 IL App (2d) 110581, ¶ 47. The defendant bears the burden of
providing a prima facie case for rescission. People v. Smith, 172 Ill. 2d 289, 294-95 (1996). If
the defendant meets that burden, the burden shifts to the State to provide evidence justifying the
suspension. Id. at 295.
¶ 15 We agree with the trial court that in the present case the decision on the petition to
rescind turned on the admissibility of the PBT results. Therefore, we restrict our analysis to the
4 trial court's decision on defendant's motion in limine seeking to preclude the PBT results. A
court's decision on a motion in limine is reviewed for an abuse of discretion. People v.
Robinson, 368 Ill. App. 3d 963, 974 (2006).
¶ 16 Defendant first argues that the PBT results were inadmissible under the fifth
amendment's protection against self-incrimination. U.S. Const., amend. V. Defendant cites to
Garrity v. New Jersey, 385 U.S. 493 (1967), and its progeny for the proposition that the potential
employment disciplinary consequences for refusing the PBT compelled him to take the PBT, in
violation of the fifth amendment. See, e.g., People v. Smith, 399 Ill. App. 3d 534, 541 (2010)
(holding that statements made under threat of employment termination could not be used to
incriminate defendant at a criminal proceeding).
¶ 17 Defendant's argument fails on two levels. First, the fifth amendment protects against the
use of testimonial evidence, not physical evidence such as the PBT results. See Schmerber v.
California, 384 U.S. 757, 764-65 (1966) (fifth amendment did not bar blood-alcohol analysis
results, as results were not testimonial). Second, the fifth amendment prevents the introduction
of compelled testimony at criminal proceedings rather than civil proceedings, such as summary
suspension proceedings. U.S. Const., amend. V ("nor shall be compelled in any criminal case to
be a witness against himself"); People v. Hall, 378 Ill. App. 3d 666, 670 (2007). The fifth
amendment and the holding of Garrity, 385 U.S. 493, did not preclude the admission of the PBT
results.
¶ 18 Defendant next argues that the PBT results should have been excluded because the PBT
statute (625 ILCS 5/11-501.5 (West 2012)) requires consent, and defendant did not consent to
the PBT in the present case. The PBT statute provides that when an investigating officer has
reasonable suspicion to believe that a person is driving under the influence, the officer "may
5 request the person to provide a sample of his or her breath" through a PBT. 625 ILCS 5/11-
501.5(a) (West 2012). However, "[t]he person may refuse the test." Id. Defendant, citing
People v. Rozela, 345 Ill. App. 3d 217 (2003), argues that the statutory language creates a
requirement that the person must affirmatively consent to the PBT.
¶ 19 In Rozela, PBT results were introduced at a hearing on the defendant's petition to rescind
her summary suspension. The court relied on the PBT results in denying the defendant's petition.
Rozela, 345 Ill. App. 3d at 221. On appeal, the defendant argued that the PBT results should
have been excluded for three reasons: (1) the PBT statute was unconstitutional because it
allowed a PBT to be conducted absent probable cause; (2) the PBT was not supported by
reasonable suspicion; and (3) PBT results are generally inadmissible at summary suspension
proceedings. This court denied all three of the defendant's arguments and affirmed the trial
court's decision to deny the petition to rescind. Although unnecessary to its decision, the Rozela
court, in its discussion of the PBT statute, stated that the statute requires that the "suspect
consent[] to the test." Id. at 224.
¶ 20 We disagree with defendant that the PBT statute requires affirmative consent. Rozela's
statement that the statute requires consent was dicta and was reached without an explicit analysis
of the statutory language. Rozela, 345 Ill. App. 3d at 224. We decline to adopt Rozela's
characterization of the PBT statute. The statutory language states that, upon reasonable
suspicion, an officer "may request" a suspect to take a PBT, and the suspect "may refuse" that
request. 625 ILCS 5/11-501.5 (West 20120). The statutory language does not require the officer
to explain the suspect's right to refuse, nor does it require that the suspect "consent" to the PBT.
Rather, the "may request" language indicates that the officer cannot command a suspect to take a
6 PBT. The "may refuse" language evidences that there is no penalty for a suspect refusing to take
the test.
¶ 21 If the legislature had intended for the suspect to be informed of his or her right to refuse,
such language could have been included in the statute. During debate on the bill that added the
"may refuse" language, a senator questioned whether the statute mandated that the officer
explain that the suspect was not required to take the test. 91st Ill. Gen. Assem., Senate
Proceedings, February 25, 2000, at 62. The bill's sponsor confirmed that the suspect may refuse
the test and added that the statute does not require the officer to inform the suspect of his or her
ability to refuse. Id. The legislature's decision not to add such language evidences its intent that
a PBT does not require the informed consent of the suspect.
¶ 22 In the present case, defendant testified that DeGraff did not tell defendant that he was
required to take the PBT. DeGraff was not required to inform defendant of his right to refuse.
Defendant did not exercise his right to refuse the PBT. The PBT results were acquired in
compliance with the dictates of the PBT statute (625 ILCS 5/11-501.5(a) (West 2012)).
¶ 23 We conclude that the trial court did not abuse its discretion in admitting the PBT results.
As a result, the court's decision denying defendant's petition to rescind his summary suspension
is affirmed.
¶ 24 CONCLUSION
¶ 25 The judgment of the circuit court of Will County is affirmed.
¶ 26 Affirmed.