People v. Kavanaugh

840 N.E.2d 807, 362 Ill. App. 3d 690, 298 Ill. Dec. 694, 2005 Ill. App. LEXIS 1282
Appellate Court of Illinois·Decided December 22, 2005·No. 4-05-0297·Published·Cited by 14 cases

Opinion

JUSTICE KNECHT

delivered the opinion of the court:

Defendant, David L. Kavanaugh, was charged by citation with driving under the influence (DUI) (625 ILCS 5/11 — 501(a)(2) (West 2002)) and illegal transportation of alcohol (625 ILCS 5/11 — 502(a) (West 2002)). Pursuant to section 11 — 501.1 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11 — 501.1 (West 2002)), defendant was given a notice of statutory suspension because he refused to submit to or failed to complete testing. The trial court granted defendant’s amended petition to rescind the statutory summary suspension. On appeal, the State argues the court erred in rescinding defendant’s statutory summary suspension. We reverse.

I. BACKGROUND

On July 25, 2004, defendant was charged by citation with DUI and illegal transportation of alcohol. Five days later, a law-enforcement sworn report was filed. The report indicated that “[b]ecause [defendant] refused to submit to or failed to complete testing, [his] driver’s license and/or privileges will be suspended for a minimum of [six] months.” A “warning to motorist” form was also issued to defendant and filed with the trial court. A confirmation of statutory suspension was filed on August 6, 2004, and stated defendant’s driver’s license would be suspended for a minimum of three years, beginning on September 9, 2004.

On September 1, 2004, defendant filed a petition to rescind the statutory summary suspension. Defense counsel was substituted on December 13, 2004. On February 1, 2005, defendant filed an amended petition to rescind the statutory summary suspension. The amended petition alleged that (1) the arresting officer did not have reasonable grounds to believe defendant was driving a motor vehicle while under the influence of alcohol; (2) defendant was not properly warned by the arresting officer as provided in section 11 — 501.1 of the Code; and (3) defendant did not refuse to submit to and/or complete the required chemical test upon the request of the arresting officer. Also on February 1, 2005, defendant filed a motion to quash his arrest and suppress evidence.

On February 24, 2005, the trial court held a hearing on defendant’s motions. Because the parties are familiar with the proceedings at the hearing, we discuss only the testimony pertinent to the issue in this appeal, i.e., whether the court erred in rescinding the summary suspension of defendant’s driver’s license because the warning given defendant was equivocal as to “whether or not he was being offered a test on portable [BJreathalyzer machine or just a mere portable unit.”

Defendant was the only defense witness. On July 25, 2004, at approximately 1:30 a.m., defendant was traveling eastbound on Route 121 and was about to enter Warrensburg, Illinois. He had been at a class reunion near Lincoln, Illinois. Defendant arrived at the reunion at 7:30 p.m. and had four rum and Cokes between 8 p.m. and 11 p.m. In total, he consumed about a half pint of alcohol. Defendant felt “fine” as he entered Warrensburg. He did not feel he had been under the influence of alcohol.

Defendant was going to visit his friend Brian Hoffman in Warrensburg. Defendant could not find where Hoffman lived so he was driving very slowly and stopping to look at houses while using his cellular phone to try to call Hoffman. Defendant pulled his vehicle off the road and attempted to call Hoffman one last time. No other traffic was in the area at this time.

A police car pulled up behind defendant’s vehicle. Officer Freimuth approached defendant and asked whether he had been drinking. Defendant stated he had been drinking earlier in the evening. Officer Freimuth asked defendant for his driver’s license, which defendant provided. Officer Freimuth then asked defendant to get out of the vehicle and take field sobriety tests. Defendant agreed to do the field sobriety tests.

After defendant completed the field sobriety tests, Officer Owens arrived. Officer Owens was carrying a little black box and told defendant he understood defendant did not want to finish the field sobriety tests and then asked defendant whether he would be willing to take a breath test. Defendant said he would not take it there but would take it at the Macon County jail. No warnings had been given to defendant about the consequences of refusing a breath test or taking one and failing. After defendant refused to take the breath test, the officers handcuffed him and told him he was under arrest for DUI. They put defendant in the back of the squad car of the first officer on the scene.

The tow truck driver came and towed defendant’s vehicle away. Officer Freimuth drove defendant to the jail. Officer Freimuth never gave defendant the warnings to motorist after informing defendant he was under arrest. After being arrested and placed in Officer Freimuth’s vehicle, defendant never refused to take a breath test.

On the way to Decatur, defendant asked Officer Freimuth if he would be able to do the field sobriety and take the Breathalyzer test at the Macon County jail, to which Officer Freimuth replied “You’re burned up, man. You had your chance.”

Officer Freimuth was the State’s only witness. He testified he saw defendant driving at a slow rate of speed at 2:30 a.m. on July 25, 2004. The vehicle was traveling at 44 miles per hour in a 55-mile-per-hour zone. Officer Freimuth stated he saw defendant’s truck cross the fog line twice and the centerline once.

Officer Freimuth witnessed defendant stop in the middle of the road. He pulled up behind defendant’s car and activated his emergency lights. Defendant pulled to the side of the road. Officer Freimuth approached the driver’s window, which was open. He “detected a strong odor of alcoholic beverage.” Defendant’s eyes were red and glassy. Defendant denied drinking earlier that night.

Officer Freimuth stated Chief Jesse Owens arrived before the field sobriety tests began. Officer Freimuth administered the field sobriety tests. According to Officer Freimuth, defendant struggled when performing the tests.

Following the field sobriety tests, Officer Freimuth asked defendant if he would take a preliminary breath test (PBT). Officer Freimuth had a PBT device in his car. Defendant refused to take the PBT test, and Officer Freimuth then arrested him for DUI. Officer Freimuth then read defendant the warning to motorist and asked if he would submit to a Breathalyzer. Defendant stated he would not. Officer Freimuth filled out a form describing that he had given the warning and filed it with the trial court.

The Warrensburg police do not give breath tests at the Macon County sheriffs office. Officer Freimuth stated the Warrensburg police department uses the RBT IV portable device to perform breath tests in the field. The RBT IV is an approved evidentiary instrument for breath analysis. See 20 Ill. Adm. Code § 1286.210(a)(3), as amended by 28 Ill. Reg. 10017 (eff. June 30, 2004). The RBT IV device was transported in Chief Owens’ car.

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People v. Kavanaugh, 840 N.E.2d 807, 362 Ill. App. 3d 690, 298 Ill. Dec. 694, 2005 Ill. App. LEXIS 1282 (Ill. Ct. App. 2005).

840 N.E.2d 807 (People v. Kavanaugh) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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