People v. Tomlinson , 295 Ill. App. 3d 193 ( 1998 )

NO. 4-97-0197

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from

Plaintiff-Appellee, ) Circuit Court of

v. ) Ford County

RENE A. TOMLINSON, ) No. 97DT13

Defendant-Appellant. )

) Honorable

) Scott Drazewski,

) Judge Presiding.

_________________________________________________________________

JUSTICE COOK delivered the opinion of the court:

Defendant Rene Tomlinson was arrested on February 8, 1997, for driving under the influence of alcohol.  625 ILCS 5/11-501(a)(2) (West 1996).  After her arrest, she was asked to take a breath test to determine her blood-alcohol level.  She refused to take the test and her driving privileges were summari­ly suspended pursuant to section 11-501.1 of the Illinois Vehicle Code (Code).  625 ILCS 5/11-501.1 (West 1996).

Defendant filed a petition to rescind the statutory summary suspension, and a hearing was held on March 21, 1997.  Defendant argued the suspension of her license must be rescinded because the Gibson police department (Department) did not comply with section 11-505.1(a) of the Code, which provides that law en­force­ment agencies " shall designate" which of the three chemical tests (blood, urine, or breath) shall be administered.  625 ILCS 5/11-501.1(a) (West 1996).  The arresting officer testified he was not aware of any departmental policies or procedures that desig­nat­ed which of the chemical tests he was authorized to use,

or the manner in which he should determine which test to use.  The trial court denied defendant's petition.  The court noted that according to section 2-118.1(b) of the Code, a law en­force­ment agency's failure to designate chemical tests could not be raised at a rescission hear­ing.  625 ILCS 5/2-118.1(b) (West 1996).  

Defendant appeals, arguing the trial court should have rescinded her suspended license because the implied consent statute man­dates that the Department desig­nate which chemical tests will be admin­istered before the defendant's license can be suspended.  She argues the use of the language "shall designate" in the statute evidences the legislature's intent that the obligation to desig­nate is mandato­ry, and the trial court should have consid­ered this issue at the rescission hearing.  625 ILCS 5/11-501.1(a) (West 1996).

The Illinois implied consent statute provides:

"Any person who drives or is in actual physi­cal control of a motor vehicle upon the pub­lic highways of this State shall be deemed to have given consent , subject to the provi­sions of Section 11-501.2 , to a chemical test or tests of blood , breath , or urine for the purpose of determining the content of alco­hol, other drug, or combination of both in the person's blood if arrested ***.  The test or tests shall be administered at the direc­tion of the arresting officer.   The law en­force­ment agency employing the officer shall des­ignate which of the aforesaid tests shall be administered ."  (Emphasis added.)  625 ILCS 5/11-501.1(a) (West 1996).

A driver's refusal to submit to chemical testing results in the automatic suspension of driving privileges.  625 ILCS 5/11-501.1 (West 1996).  The summary suspension system serves the salutary purpose of promptly removing impaired drivers from the road.   People v. Moore , 138 Ill. 2d 162, 166, 561 N.E.2d 648, 650 (1990).  Defendant may obtain a hearing on the summary suspension if a written request is provided within 90 days stating the grounds upon which defen­dant seeks to have the suspension rescinded.  625 ILCS 5/2-118.1 (West 1996).  A summary suspension hearing is intended by the legislature to be swift and of limited scope.   People v. Gafford , 218 Ill. App. 3d 492, 497, 578 N.E.2d 583, 586 (1991).  The scope of the hearing is limited to four issues:

"1. Whether the person was placed under ar­rest ***; and

2. Whether the officer had reasonable grounds to believe that the person was driv­ing *** a motor vehicle upon a highway while under the influence of alco­hol, other drug, or combi­nation of both; and

3. Whether the person, after being ad­vised by the officer that the privilege to operate a motor vehicle would be suspended if the per­son refused to submit to and complete the test or tests, did refuse to submit to or complete the test or tests ***; or

4. Whether the person *** did submit to and complete the test or tests that deter­mined an alcohol concentration of 0.10 or more."  625 ILCS 5/2-118.1(b) (West 1996).

The driver has the burden of proving the suspension should be rescinded, and the trial court's decision will not be re­versed unless it is against the manifest weight of the evi­dence.   Gafford , 218 Ill. App. 3d at 497, 578 N.E.2d at 586.

The legislature limited the scope of a rescission hearing to four specific issues, none of which involve an agency's failure to designate chemical tests.  625 ILCS 5/2-118.1(b) (West 1996).  The primary rule of statu­to­ry con­struc­tion is to ascer­tain and give effect to the inten­tion of the legisla­ture, and that inquiry appropriately begins with the language of the statute.   People v. Woodard , 175 Ill. 2d 435, 443, 677 N.E.2d 935, 939 (1997).  In deter­min­ing legisla­tive intent, courts must give statu­tory language its plain and ordi­nary mean­ing.   Lucas v. Lakin , 175 Ill. 2d 166, 171, 676 N.E.2d 637, 640 (1997).  A plain and ordinary reading of section 2-118.1(b) indicates defen­dant may not raise the issue of the Department's failure to meet the desig­na­tion require­ment.

However, the Supreme Court of Illinois has not followed section 2-118.1(b) literally.  See People v. Hamil­ton , 118 Ill. 2d 153, 160, 514 N.E.2d 965, 969 (1987); People v. Badoud , 122 Ill. 2d 50, 54, 521 N.E.2d 884, 886 (1988).  In Hamilton (118 Ill. 2d at 160, 514 N.E.2d at 969), the Supreme Court of Illinois held it was appropriate for a defendant to chal­lenge the validity of the chemical test even though that issue was not enumerated in section 2-118.1(b).  The court reasoned that the implied consent statute specifically condi­tioned summary suspen­sion on whether the law enforcement agency complied with certain chemical testing procedures.  625 ILCS 5/11-501.1(a) (West 1996).  There­fore, it inescapably fol­lowed that a licens­ee should be permitted to contest the validity of the test results at a rescission of summary suspen­sion hearing.   Hamilton , 118 Ill. 2d at 160, 514 N.E.2d at 969.    

In Badoud (122 Ill. 2d at 54, 521 N.E.2d at 886), the court held a defendant could raise deficiencies in a police officer's sworn report, even though such issue was not enumerat­ed in section 2-118.1(b).  The court relied upon another portion of the statute that provided the hearing "may be conducted upon a review of the law enforcement officer's own official reports."  625 ILCS 5/2-118.1(b) (West 1996).  The court stated:  "It would seem incongruous to permit conduct­ing a hearing based on a report and yet not permit examination of whether the report was proper­ly sworn."   Badoud , 122 Ill. 2d at 54, 521 N.E.2d at 886.

We conclude the permissible scope of a summary suspen­sion hearing is not strictly limited to the issues enumerated in section 2-118.1(b).  Defen­dant may raise another issue if it concerns a mandatory provision that the summary suspension is predi­cated upon.  In accordance with Hamil­ton and Badoud , the legisla­ture did not intend to exclude from consideration such issues.  Therefore, whether defen­dant may raise the issue of the Department's failure to designate chemical tests depends on whether the designation provision is deemed "mandatory."  

The impled consent statute provides that the law enforcement agency "shall" designate which chemical tests it will use.  Use of the word "shall" is generally regarded as mandatory; however, it does not have a fixed or inflexible mean­ing and may be regarded as merely directory.   Stull v. Department of Chil­dren & Family Services , 239 Ill. App. 3d 325, 332, 606 N.E.2d 786, 791 (1992).  The provi­sion should be given a manda­to­ry meaning if the conduct was prescribed to safeguard someone's rights, which might be injuri­ous­ly affected by a failure to abide by the provision's direc­tives.   Andrews v. Foxworthy , 71 Ill. 2d 13, 21, 373 N.E.2d 1332, 1335 (1978).  Conversely, the word "shall" may be deemed direc­tive when "the provision merely directs a manner of conduct for the guidance of public officials or where the section is designed to secure order, system, and dispatch in proceed­ings."   Stull , 239 Ill. App. 3d at 332, 606 N.E.2d at 791.   

We conclude the legislature did not intend the desig­nation re­quire­ment to be manda­tory and defendant may not raise the issue at a rescission hearing.  The implied-consent statute specif­i­cally condi­tions consent to testing on three issues: (1) whether the driver is on a public highway of Illinois, (2) whether the driver was arrest­ed, and (3) whether the test­ing proce­dures of section 11-501.2 are met.  625 ILCS 5/11-501.1(a) (West 1996). The statute does not condi­tion consent on the designation of chemical tests.  In defendant's case, the three conditions were met and she con­sented to any or all three tests.  Therefore, she was not injuri­ously affect­ed by which test was actual­ly used or by the Department's failure to designate which test should be used.

We conclude the legislature intended the designation re­quire­ment to "direct[] a manner of conduct for the guid­ance of public offi­cials" (see Stull , 239 Ill. App. 3d at 332, 606 N.E.2d at 791), not to protect any right or to give drivers a right to with­hold consent to testing or rescind a suspended li­cense.  Had the legis­lature intended this result, the implied consent statute would have expressly condi­tioned summary suspen­sion on desig­na­tion, or the summary suspen­sion statute would have listed the issue as one to be raised at a rescission hearing.  Statutes should be construed in conjunc­tion with other statutes addressing the same subject.   Badoud , 122 Ill. 2d at 55, 521 N.E.2d at 886.   Defendant argues the designation requirement should be construed as mandatory because it was created to protect a certain right.  She argues it was meant to protect against police officers applying chemical tests with "unbri­dled discre­tion."  She contends that such discretion is also an unrea­sonable seizure and a violation of the fourth amend­ment.  U.S. Const., amend. IV.  However, the Department's failure to designate which chemi­cal tests it will use does not give police officers "unbri­dled discretion" to inflict intrusive chemical testing upon Illinois drivers.  Before an officer may administer any chemical test, he must have proba­ble cause to arrest the driver for drunk driving.  625 ILCS 5/11-501.1(a) (West 1996).  Also, the implied-consent statute limits the methods of testing and puts drivers on notice that they may be subjected to any of three testing options.  This ade­quate­ly pro­tects the public from arbitrary and unreason­able chemical test­ing.  The purpose of the language is to make clear that the local law enforcement agency, not the driver, is the entity which gets to choose the test.  Anyway, it is not clear that the local law enforcement agency did not designate a test.  The arresting officer asked defendant to take a breath test, and there has been no showing that the officer made that decision on his own or that his decision was contrary to agency policy.  The officer was not required to produce some kind of document to show what test was designated.

Even if the designation requirement was mandato­ry and defendant could raise it at the rescission hearing, she fails to show how she was preju­diced or injuri­ous­ly affected in any way.  Defendant refused to take the breath test, which she concedes in her appellate brief is "indisputably the least intrusive chemi­cal test."  Clearly, the legis­lature did not intend to provide defen­dant the remedy of rescission of her sus­pended license in such an instance.  

Affirmed.

GREEN and McCULLOUGH, JJ., concur.