                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Dovgan, 2011 IL App (3d) 100664




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                    IGORIS DOVGAN, Defendant-Appellee.



District & No.             Third District
                           Docket No. 3-10-0664


Filed                      December 5, 2011


Held                       The trial court improperly relied on section 6-500 of the Uniform
(Note: This syllabus       Commercial Driver’s License Act, which requires an alcohol test to be
constitutes no part of     administered within two hours of the driver being “stopped or detained,”
the opinion of the court   in granting defendant commercial truck driver’s motion to suppress the
but has been prepared      results of a breath test administered 4½ hours after his arrest, since
by the Reporter of         defendant was charged under the Illinois Motor Carrier Safety Law, not
Decisions for the          the Uniform Commercial Driver’s License Act, and section 6-500 was
convenience of the         inapplicable to his prosecution.
reader.)


Decision Under             Appeal from the Circuit Court of Will County, No. 09-CF-1359; the Hon.
Review                     Amy Bertani-Tomczak, Judge, presiding.



Judgment                   Reversed and remanded.
Counsel on                 James Glasgow, State’s Attorney, of Joliet (Terry A. Mertel and Laura E.
Appeal                     DeMichael, both of State’s Attorneys Appellate Prosecutor’s Office, of
                           counsel), for the People.

                           No brief filed for appellee.


Panel                      JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
                           Justice Wright concurred in the judgment and opinion.
                           Justice Holdridge specially concurred, with opinion.




                                             OPINION

¶1          The State charged defendant, Igoris Dovgan, with two counts of aggravated driving under
        the influence in violation of sections 18b-103, 18b-105 and 18b-108(b) of the Illinois Vehicle
        Code (Vehicle Code) (625 ILCS 5/18b-103, 18b-105, 18b-108(b) (West 2008)). The circuit
        court of Will County granted defendant’s motion to suppress evidence of a breath test
        administered 4½ hours after defendant’s arrest. The State appeals.

¶2                                             FACTS
¶3          The facts of this matter were not disputed below. Trooper Korando arrived on the scene
        of a traffic crash on Interstate 80 at 9:48 a.m. on May 11, 2009. The crash involved a
        commercial motor vehicle driven by defendant. Upon arrival, Trooper Korando placed
        defendant under arrest. The arresting trooper remained at the scene of the accident for an
        extended period of time. The trooper administered a breath test to defendant at 2:35 p.m.,
        which indicated defendant’s blood alcohol content to be 0.032.
¶4          The bill of indictment alleged:
                                               “Count I
                *** [D]efendant, a commercial motor vehicle driver, willfully operated a commercial
            motor vehicle *** at a time when he had a measured alcohol concentration in his blood
            or breath, based on the definition of blood or breath units in Chapter 625, Section 11-
            501.2, as prohibited by 49 CFR 392.5, in violation of Chapter 625, Section 5/18b-103,
            Section 5/18b-105 and section 5/18b-108(b) of the Illinois Compiled Statutes ***.
                                               Count II
                *** [D]efendant, a commercial motor vehicle driver, willfully operated a commercial
            motor vehicle *** at a time when he had a detectable presence of alcohol on his person,
            as prohibited by 49 CFR 392.5, in violation of Chapter 625, Section 5/18b-103, Section


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         5/18b-105 and section 5/18b-108(b) of the Illinois Compiled Statutes ***.”
¶5       Defendant filed a motion to suppress, claiming that the State administered his alcohol test
     outside the two-hour time limit imposed by section 6-500 of the Vehicle Code. 625 ILCS
     5/6-500 (West 2008). As such, defendant claimed the results of the tests were inadmissible.
     After originally rejecting defendant’s argument, the trial court granted defendant’s motion
     to suppress. Following denial of its motion to reconsider, the State filed a certificate of
     substantial impairment. This appeal followed.

¶6                                         ANALYSIS
¶7       When reviewing a trial court’s ruling on a motion to suppress evidence, we apply the
     two-part standard of review adopted by the Supreme Court in Ornelas v. United States, 517
     U.S. 690 (1996); People v. Luedemann, 222 Ill. 2d 530 (2006). We are to review a trial
     court’s findings of historical fact for clear error, give due weight to any inferences drawn
     from those facts by the trial court and reverse those findings only if they are against the
     manifest weight of the evidence. Id. at 542. However, we remain free to undertake our own
     assessment of the facts in relation to the issues and draw our own conclusions when deciding
     what relief should be granted. Id. As such, we review de novo the trial court’s ultimate legal
     ruling as to whether suppression is warranted. Id.
¶8       Contained within the Vehicle Code are numerous different rules, laws and acts. See 625
     ILCS 5/18b-100 et seq. (West 2008) (Illinois Motor Carrier Safety Law (IMCSL)); 625 ILCS
     5/18c-1101 et seq. (West 2008) (Illinois Commercial Transportation Law); 625 ILCS 5/11-
     100 et seq. (West 2008) (the Rules of the Road); 625 ILCS 5/6-500 et seq. (West 2008) (the
     Uniform Commercial Driver’s License Act (UCDLA)). At issue in this appeal is section 6-
     500, which states as follows:
         “Notwithstanding the definitions set forth elsewhere in this Code, for purposes of the
         Uniform Commercial Driver’s License Act (UCDLA), the words and phrases listed
         below have the meanings ascribed to them as follows:
             ***
             (2) Alcohol concentration. ‘Alcohol concentration’ means:
                 (A) the number of grams of alcohol per 210 liters of breath; or
                 (B) the number of grams of alcohol per 100 milliliters of blood; or
                 (C) the number of grams of alcohol per 67 milliliters of urine.
             Alcohol tests administered within 2 hours of the driver being ‘stopped or detained’
         shall be considered that driver’s ‘alcohol concentration’ for the purposes of enforcing this
         UCDLA.” 625 ILCS 5/6-500 (West 2008).
¶9       Defendant convinced the trial court that this section of the UCDLA mandated
     suppression of the results of his breath test conducted beyond two hours after he had been
     stopped or detained. The State argued to the trial court that it never charged defendant with
     violating the UCDLA and, as such, section 6-500 is totally inapplicable to defendant’s
     prosecution. The State noted that it alleged defendant operated a commercial motor vehicle
     in violation of the IMCSL (625 ILCS 5/18b-100 et seq. (West 2008)): specifically, sections

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       18b-103, 18b-105, and 18b-108. The State reiterates those arguments on appeal, claiming the
       trial court erred in using a section of the UCDLA as authority to suppress evidence in a
       prosecution initiated under the IMCSL. Alternatively, the State asserts that even if section
       6-500 of the UCDLA is applicable to this matter, proper application of the statute does not
       mandate suppression of the results of defendant’s breath test.
¶ 10        Defendant has not filed a responsive brief in this matter and, as such, we review this
       appeal pursuant to the standards set forth in First Capitol Mortgage Corp. v. Talandis
       Construction Corp., 63 Ill. 2d 128 (1976) (see also People v. Miller, 212 Ill. App. 3d 195
       (1991)). The Talandis court held that reversal should not be automatic when an appellee fails
       to file a brief but, instead, when the record is simple and the claimed error is such that the
       reviewing court can easily decide the matter without the aid of an appellee’s brief, the court
       should decide the merits of the appeal. Talandis, 63 Ill. 2d at 133; Miller, 212 Ill. App. 3d
       at 199. If a case is complex, a court of review should not be compelled to serve as an
       advocate for the appellee. Talandis, 63 Ill. 2d at 133; Miller, 212 Ill. App. 3d at 199. We find
       this matter is not complex and that it can be decided without the aid of defendant’s brief.
¶ 11        As noted above, both the UCDLA and the IMCSL are found within the Vehicle Code.
       625 ILCS 5/1-100 et seq. (West 2008). Our task of determining whether the trial court
       properly suppressed the results of defendant’s breath test calls upon us to interpret statutes
       contained within the Vehicle Code. Specifically, we must determine how section 6-500 of
       the UCDLA applies, if it applies at all, to someone charged under the IMCSL.
¶ 12        The fundamental rule of statutory construction is to ascertain and give effect to the
       legislature’s intent, while presuming the legislature did not intend to create absurd,
       inconvenient, or unjust results. In re E.B., 231 Ill. 2d 459 (2008); In re B.L.S., 202 Ill. 2d 510
       (2002). The language of the statute is the best indication of legislative intent, and we must
       give that language its plain and ordinary meaning. Id. at 515. “Because all provisions of a
       statutory enactment are viewed as a whole [citations], words and phrases should not be
       construed in isolation, but must be interpreted in light of other relevant provisions of the
       statute [citations]. *** Accordingly, in determining the intent of the legislature, the court may
       properly consider not only the language of the statute, but also the reason and necessity for
       the law, the evils sought to be remedied, and the purpose to be achieved.” In re Detention of
       Lieberman, 201 Ill. 2d 300, 308 (2002).
¶ 13        We acknowledge, as defendant argued to the trial court, that section 6-500 of the UCDLA
       defines “alcohol concentration” as that which results from a breath test administered within
       two hours of a driver being stopped or detained. 625 ILCS 5/6-500 (West 2008). However,
       that definition begins by noting it is limited by “the definitions set forth elsewhere in this
       Code” and further only applies “for the purposes of enforcing [the] UCDLA.” 625 ILCS 5/6-
       500 (West 2008).
¶ 14        Through section 18b-105 of the IMCSL, the legislature adopted various provisions of the
       Code of Federal Regulations. 625 ILCS 5/18b-105(b) (West 2008). Section 18b-105(b) states
       that the “following parts of Title 49 of the Code of Federal Regulations, as now in effect, are
       hereby adopted by reference as though they were set out in full: *** Part 382–Controlled
       Substances and Alcohol Use and Testing; *** Part 392–Driving of Motor Vehicles.” 625


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       ILCS 5/18b-105(b) (West 2008).
¶ 15       Part 382 states:
           “Alcohol concentration (or content) means the alcohol in a volume of breath expressed
           in terms of grams of alcohol per 210 liters of breath as indicated by an evidential breath
           test under this part.” 49 C.F.R. § 382.107 (2010).
¶ 16       Section 392.5(a)(1) prohibits any driver from using alcohol “within 4 hours before going
       on duty or operating, or having physical control of, a commercial motor vehicle.” 49 C.F.R.
       § 392.5(a)(1). Section 392 further states that “no driver shall *** [u]se alcohol *** or have
       any measured alcohol concentration or detected presence of alcohol, while on duty, or
       operating, or in physical control of a commercial motor vehicle.” 49 C.F.R. § 392.5(a)(2).
¶ 17       We find nothing in either part 382 or part 392 of title 49 of the Code of Federal
       Regulations that limits the definition of “alcohol concentration” to results from tests
       administered within two hours of the driver being stopped or detained as is found within
       section 6-500 of the UCDLA. We note the definition of “alcohol concentration” found in
       section 382.107 of title 49 of the Code of Federal Regulations contains no time limitation
       whatsoever. 49 C.F.R. § 382.107. The definition of “alcohol concentration” found within the
       IMCSL, under which the State charged defendant, differs from that contained within the
       UCDLA. Again, our legislature was clear in its language that the definition of “alcohol
       concentration” found in section 6-500 of the UCDLA only applies “for the purposes of
       enforcing [the] UCDLA” and does not trump “the definitions set forth elsewhere in this
       Code.” 625 ILCS 5/6-500 (West 2008).
¶ 18       As the State did not charge defendant under the UCDLA but, instead, charged him under
       the IMCSL, which contains a competing definition of “alcohol concentration,” we hold as
       a matter of law that section 6-500 of the UCDLA is inapplicable to this prosecution. As such,
       we find the trial court improperly relied upon section 6-500 (625 ILCS 5/6-500 (West 2008))
       as authority to suppress the results of defendant’s breath test.
¶ 19       Courts have routinely held the timing of a breath exam goes to the weight of the test and
       not its admissibility. People v. Zator, 209 Ill. App. 3d 322, 332 (1991) (“Illinois law is well
       settled that any delay between the time of the incident and the breathalyzer test goes to the
       weight given the results, viewed in light of the totality of the circumstances.”). While we may
       one day be called upon to determine whether and how section 6-500 alters that general
       principal, today is not that day.

¶ 20                                    CONCLUSION
¶ 21      For the foregoing reasons, the judgment of the circuit court of Will County is reversed
       and this matter remanded for further proceedings.

¶ 22      Reversed and remanded.

¶ 23      JUSTICE HOLDRIDGE, specially concurring:
¶ 24      I agree with the majority’s judgment and analysis. I write separately to note that, even if

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the results of the breath test were properly suppressed, the State likely could have proceeded
against the defendant on count II of the indictment based entirely on the testimony of the
arresting officer. Count II alleged that the defendant “willfully operated a commercial motor
vehicle *** at a time when he had a detectable presence of alcohol on his person, as
prohibited by 49 CFR 392.5,” which the Illinois Motor Carrier Safety Law adopts by
reference. See 625 ILCS 5/18b-105 (West 2008). During the bond hearing, the State
informed the court that the arresting officer “noted an odor of alcohol on the defendant’s
breath” immediately after the accident. If the officer were able to testify to that effect, such
testimony alone could establish that the defendant operated a commercial motor vehicle at
a time when he had a “detectable presence of alcohol on his person,” in violation of section
18b-105.




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