                                                    NO. 5-09-0631
                   NOTICE

 Decision filed 03/30/11. The text of
                                                       IN THE
 this decision may be changed or

 corrected prior to the filing of a
                                            APPELLATE COURT OF ILLINOIS
 Peti tion   for    Rehearing   or   th e

 disposition of the same.
                                                  FIFTH DISTRICT


JOSHUA ANDREW ODOM,                                                 )   Appeal from the
                                                                    )   Circuit Court of
             Plaintiff-Appellant,                                   )   Jefferson County.
                                                                    )
v.                                                                  )   No. 09-MR-2
                                                                    )
JESSE WHITE, Illinois Secretary of State,                           )   Honorable
                                                                    )   Joe Harrison,
             Defendant-Appellee.                                    )   Judge, presiding.


                                                    NO. 5-10-0139

                                                       IN THE

                                            APPELLATE COURT OF ILLINOIS

                                                  FIFTH DISTRICT


JASON H. JANES,                                                     )   Appeal from the
                                                                    )   Circuit Court of
             Plaintiff-Appellant,                                   )   Jefferson County.
                                                                    )
v.                                                                  )   No. 09-MR-27
                                                                    )
JESSE WHITE, Illinois Secretary of State,                           )   Honorable
                                                                    )   Terry H. Gamber,
             Defendant-Appellee.                                    )   Judge, presiding.


             JUSTICE WELCH delivered the judgment of the court, with opinion.
             Presiding Justice Chapman and Justice Donovan concurred in the judgment and
             opinion.

                                                    OPINION

             These cases, consolidated in this court for oral argument and decision only, come

before us on administrative review from the circuit court of Jefferson County, which


                                                         1
affirmed the decisions of the Illinois Secretary of State (the Secretary) to deny the appellants'

petitions to rescind the suspensions of their driving privileges pursuant to section 6-

206(a)(31) of the Illinois Vehicle Code (the Code) (625 ILCS 5/6-206(a)(31) (West 2008)).

Both appellants had been drivers of motor vehicles that were involved in motor vehicle

accidents involving personal injuries to individuals who were transported from the scene in

ambulances. At all the stages of the proceedings, the appellants have argued only that the

motor vehicle accidents did not involve the types of personal injuries enumerated in the

statute as conferring their implied consent to blood-alcohol tests.

       Some discussion of the statutory scheme may be helpful to further the discussion of

the facts and the law. Section 6-206(a)(31) of the Code gives the Secretary discretionary

authority to suspend or revoke the driving privileges of any person upon sufficient evidence

that the person has refused to submit to a blood-alcohol test as required by section 11-501.6

of the Code (625 ILCS 5/11-501.6 (West 2008)) or has submitted to a test resulting in an

alcohol concentration of 0.08 or more. 625 ILCS 5/6-206(a)(31) (W est 2008).

       Section 11-501.6(a) of the Code provides that any person who drives or is in actual

control of a motor vehicle upon the public highways and who has been involved in an

accident resulting in personal injury or death for which he has been arrested for a

nonequipment violation, as evidenced by the issuance of a traffic ticket, shall be deemed to

have given consent for a blood-alcohol test. 625 ILCS 5/11-501.6(a) (West 2008). For

purposes of this section, a personal injury is defined as follows:

       "includ[ing] any type A injury as indicated on the traffic accident report completed

       by a law enforcement officer that requires immediate professional attention in either

       a doctor's office or a medical facility. A type A injury shall include severely bleeding

       wounds, distorted extremities, and injuries that require the injured party to be carried

       from the scene." 625 ILCS 5/11-501.6(g) (West 2008).


                                               2
       Although this paragraph of the statute speaks in terms of inclusion, the supreme court

has held that type A injuries are limited to those listed in the paragraph: severely bleeding

wounds, distorted extremities, or injuries that require the injured party to be carried from the

scene. Fink v. Ryan, 174 Ill. 2d 302, 310 (1996). Personal injuries requiring only a visit to

a doctor's office or a medical facility, without severe bleeding, distorted extremities, or the

need for the injured party to be carried from the scene, do not qualify as type A injuries.

This ensures that only drivers involved in more serious accidents, in which the expectation

of privacy is diminished and the administration of the blood-alcohol test is minimally

intrusive, are subjected to testing. Fink, 174 Ill. 2d at 311. Because the statute does not

require that the law enforcement officer have any suspicion or cause to believe that the driver

is intoxicated or under the influence of alcohol prior to asking him to submit to testing, its

application must be so limited only to motor vehicle accidents of a more serious nature.

Fink, 174 Ill. 2d at 309-12.

       A person may contest the suspension of his driving privileges by requesting an

administrative hearing with the Secretary in accordance with section 2-118 of the Code (625

ILCS 5/2-118 (West 2008)), at the conclusion of which the Secretary may rescind, continue,

or modify the order of suspension. 625 ILCS 5/11-501.6(e) (West 2008). The action of the

Secretary is subject to judicial review in the circuit court and thereafter in accordance with

the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2008)). 625 ILCS 5/2-

118(e) (W est 2008).

       In both the cases before us, the appellant drivers were asked to and did submit to

blood-alcohol tests.    Both tests revealed an alcohol concentration of 0.08 or more.

Accordingly, their driving privileges were suspended. Each driver contested the suspension

by requesting a hearing before the Secretary, and in each case the Secretary upheld the

suspension. Both drivers sought administrative review in the circuit court of Jefferson


                                               3
County, and in each case the circuit court affirmed the decision of the Secretary. The drivers

now appeal to this court.

       As always on administrative review, we review the decision of the Secretary and not

the decision of the circuit court, because the Secretary is the fact finder responsible for

overseeing testimony, making credibility determinations, and assigning weight to statements

made by witnesses. Emergency Treatment, S.C. v. Department of Employment Security, 394

Ill. App. 3d 893, 901 (2009). Factual determinations by the Secretary are deemed to be

prima facie true and correct and will stand unless contrary to the manifest weight of the

evidence. Emergency Treatment, S.C., 394 Ill. App. 3d at 901. Questions of law are subject

to de novo review. Emergency Treatment, S.C., 394 Ill. App. 3d at 901. The question

whether the Secretary correctly considered all the facts and correctly applied the law to those

facts is a mixed question of fact and law, and the Secretary's decision will be overturned only

if clearly erroneous. Emergency Treatment, S.C., 394 Ill. App. 3d at 901.

       The proceedings before the Secretary reveal the following facts. Appellant Joshua A.

Odom was involved in a single-vehicle accident May 11, 2008. He crested a hill too fast and

lost control of his vehicle, which became airborne and rolled several times. The car came

to rest against an embankment, which made it impossible for him to open the driver-side

door. His OnStar system alerted authorities and dispatched an ambulance. Odom repeatedly

told responding personnel that he was fine and was not injured. Responders told him not to

attempt to exit the vehicle until ambulance personnel arrived, in case he was injured.

Ambulance personnel removed him from the vehicle and placed him on a gurney. Odom did

not remember that any ambulance personnel had asked him if he was injured or if he needed

assistance. One of the ambulance personnel wrote in his report that Odom denied any pain

or injuries. Odom was not asked if he wanted or needed to go to the hospital in the

ambulance. Odom did not know that he could refuse, but he told everyone that he was fine.


                                              4
Had he been given a choice, he would not have gone in the ambulance. Odom's only injury

was a minor laceration on his head from a piece of glass. Hospital personnel simply cleaned

it up. He was given a CAT scan to check for head injuries, which was negative. He was

released from the hospital that night and felt fine the next day. He did not need to take the

muscle relaxants he had been sent home with. Odom denied that he had any severely

bleeding wounds, any distorted extremities, or any injuries that required he be carried from

the scene.

       Deputy Donald W esley Harbison testified that he responded to the accident scene.

Harbison testified that Odom told him he was okay but that he was "humped over" and could

not get out of the car. It appeared to Harbison that Odom was "pushed forward" and

physically could not get over the passenger seat to get out of the car. Harbison did not

observe any injuries to Odom other than blood from a superficial cut, but he testified that he

was moaning and groaning when ambulance personnel started to move him. Harbison was

not aware of any severely bleeding wounds or distorted extremities on Odom. Harbison

believed that Odom's injuries did require him to be carried from the scene because when the

ambulance personnel put the cervical collar on him, Odom was moaning and groaning and

he never told them he was not injured. This moaning increased at the hospital. Harbison

testified that on the traffic accident report he indicated that Odom had an incapacitating

injury; the actual report shows a type B injury, which is a nonincapacitating injury. Based

on his observations, it was Harbison's opinion that Odom's injuries required that he be carried

from the scene in an ambulance. Harbison stated that based on the way Odom was sitting

in the vehicle and acting, he would not have been able to walk away from the accident and

be okay.

       Odom testified that he does not remember moaning or groaning at the scene of the

accident or in the ambulance. He testified that he might have moaned at the hospital when


                                              5
blood was being drawn because he does not like that procedure. The report of the ambulance

personnel did not report any moaning or groaning, nor did hospital records. Odom was only

at the hospital for about one hour, and he walked out under his own power and went to work

the next day.

       The traffic accident report submitted by Deputy Harbison indicates a type B injury.

Harbison's narrative report indicates that upon his arrival at the scene, Odom told him that

he was not injured but could not get out of the vehicle. It further indicated that Odom was

transported to the hospital via ambulance.

       The Secretary denied Odom's petition to rescind his suspension, holding, "The fact

that [Odom] was carried from the scene by ambulance to a local hospital at the discretion of

ambulance personnel is sufficient evidence for a reasonable police officer to conclude that

a Type A injury was sustained."

       Appellant Jason H. Janes was driving a motor vehicle that was involved in an accident

on August 30, 2007, in which his passenger was injured. According to Janes, the passenger

only had a small cut above his right eye. Nevertheless, he was taken by ambulance from the

scene to the hospital.   The passenger was not given any choice whether to go in the

ambulance; he was told he was going. Janes could remember his passenger stating that he

did not want to go in the ambulance but that he was told he must. The passenger stated that

he was okay and did not need or want to go in the ambulance, but he was forced to go. The

passenger was released from the hospital that night with only a bandage. Janes did not see

any severely bleeding wounds or distorted extremities on his passenger, who was able to

walk. The passenger did not appear to have any injuries that would have prevented him from

continuing his normal activities.

       Sheriff's deputy Jeff Moore testified that he responded to the accident in which the

passenger had been injured. Moore did not know the extent of the injuries suffered. He


                                             6
could not tell if the passenger had any severely bleeding wounds or any distorted extremities.

Moore did not know of any other injuries. The ambulance was already on the scene when

Moore arrived. Moore simply saw the passenger on a stretcher being loaded into the

ambulance. Moore completed the traffic accident report and admitted that it did not indicate

any injuries as a result of the accident, much less a type A injury. Moore also admitted that

the report did not even contain the correct name of the passenger. He stated that these were

his mistakes.   Moore did observe the passenger on a stretcher being loaded into an

ambulance.

       Sheriff's deputy James Webb testified that he also responded to the scene of the

accident. He observed the passenger lying on an ambulance cot receiving treatment. He was

transported from the scene in the ambulance. Webb completed a narrative supplement to the

traffic accident report completed by Moore. Both he and Moore testified that this was a part

of the official traffic accident report. In his narrative report, Webb indicated that the

passenger was injured and was carried from the scene in an ambulance. The report did not

refer to the injury as a type A injury or an incapacitating injury. Webb was not aware of any

severely bleeding wounds or any distorted extremities on the passenger. Webb did not see

the passenger object to going in the ambulance.

       The traffic accident report form prepared by Deputy Moore indicates no injuries. The

narrative portion of the report prepared by Deputy Webb states only that the passenger was

on an ambulance cot when Webb arrived and was later transported to the hospital. It says

nothing about the passenger's injuries.

       The Secretary denied Janes's petition to rescind the suspension of his driving

privileges, holding that the fact that the passenger was carried from the scene by ambulance

fulfills the statutory requirement of a type A injury. According to the Secretary, that the

passenger was carried from the scene by an ambulance is indicated in the narrative


                                              7
supplement to the traffic accident report, and this is sufficient even if the appropriate box is

not marked on the form portion of the report.

       On appeal, we must first determine the appropriate standard of review. The historical

facts of the cases are essentially undisputed, as set forth above. Neither party argues that the

Secretary's findings of fact are contrary to the manifest weight of the evidence. The parties

dispute only whether these facts establish the existence of type A injuries within the

definition of the statute.

       We conclude that the Secretary's decisions are ones involving a mixed question of law

and fact, and our standard of review is to determine whether the decisions are clearly

erroneous. A mixed question of law and fact is one involving an examination of the legal

effect of a given set of facts. AFM Messenger Service, Inc. v. Department of Employment

Security, 198 Ill. 2d 380, 391 (2001). Stated another way, a mixed question is one in which

the historical facts are admitted or established, the rule of law is undisputed, and the issue

is whether the facts satisfy the statutory standard or whether the rule of law as applied to the

established facts is or is not violated. AFM Messenger Service, Inc., 198 Ill. 2d at 391. The

Secretary examined the facts to decide whether those facts established injuries that met the

statutory definition of a type A injury sufficient to confer implied consent for a blood-alcohol

test. Our standard of review for this decision is whether it is clearly erroneous. A decision

is clearly erroneous only when the reviewing court, on the entire record, is left with the

definite and firm conviction that a mistake has been committed. AFM Messenger Service,

Inc., 198 Ill. 2d at 395.

       We reverse the decisions of the Secretary because the Secretary's findings that the

mere fact that an injured party was carried from the scene by ambulance is sufficient to

establish a type A injury are clearly erroneous. The plain language of the statute requires not

only that the injured party be carried from the scene but that they have injuries which require


                                               8
that they be carried from the scene. The Secretary's decisions completely ignore and obviate

this key element of the statutory definition.

       In the instant cases, the law enforcement officers involved admitted that they had no

knowledge concerning the injuries of the individuals carried away by ambulance. Although

they did not see any severely bleeding w ounds or any distorted extremities, they had no

knowledge of whether or not the individuals had other injuries which required that they be

carried from the scene by ambulance. The evidence in the records with respect to their

injuries does not indicate that they had injuries which required that they be carried from the

scene by ambulance. Indeed, the evidence in the records indicates the contrary. The law

enforcement officers simply knew that the injured persons were carried away by ambulance.

By finding that this was sufficient to establish a type A injury within the definition of the

statute, the Secretary ignored a key element of that definition: that the person have injuries

that require that they be carried from the scene. The Secretary cannot simply and willfully

ignore a key element of the statutory definition of the type of injury required to confer

implied consent to a blood-alcohol test.

       In Fink, 174 Ill. 2d at 311, this implied-consent statute was held constitutional because

it was narrowly drawn to apply only to drivers involved in more serious accidents, in which

the expectation of privacy is diminished and the administration of the blood-alcohol test is

minimally intrusive. By his rulings in the case at bar, the Secretary has expanded the statute

to include accidents which may be of a less serious nature, where the injuries are not so

severe that they require that a person be carried from the scene by ambulance, but where a

person is carried from the scene by ambulance regardless of the severity of the injuries. That

expansion of the statute is contrary to the holding of Fink and contrary to the plain language

of the statute. Indeed, that expansion of the implied-consent statute to accidents of a less

serious nature may render its application unconstitutional. See Fink, 174 Ill. 2d at 309-12.


                                                9
We are left with the definite and firm conviction that, in so holding, the Secretary has

committed a mistake. See AFM Messenger Service, Inc., 198 Ill. 2d at 395.

       Where the evidence is insufficient to establish that the appellant drivers were involved

in motor vehicle accidents which resulted in death or personal injuries within the meaning

of the statute, they should not have been subjected to blood-alcohol tests and their driving

privileges should not have been suspended. Accordingly, we reverse the decisions of the

Secretary in the cases at bar and the decisions of the circuit court of Jefferson County that

affirmed those decisions.



       Reversed.




                                              10
                                         NO. 5-09-0631

                                      IN THE
                           APPELLATE COURT OF ILLINOIS
                                  FIFTH DISTRICT
______________________________________________________________________________

      JOSHUA ANDREW ODOM,                         )     Appeal from the
                                                  )     Circuit Court of
           Plaintiff-Appellant,                   )     Jefferson County.
                                                  )
      v.                                          )     No. 09-MR-2
                                                  )
      JESSE WHITE, Illinois Secretary of State,   )     Honorable
                                                  )     Joe Harrison,
           Defendant-Appellee.                    )     Judge, presiding.
______________________________________________________________________________

                                         NO. 5-10-0139

                                       IN THE
                           APPELLATE COURT OF ILLINOIS
                                  FIFTH DISTRICT
______________________________________________________________________________

      JASON H. JANES,                             )     Appeal from the
                                                  )     Circuit Court of
           Plaintiff-Appellant,                   )     Jefferson County.
                                                  )
      v.                                          )     No. 09-MR-27
                                                  )
      JESSE WHITE, Illinois Secretary of State,   )     Honorable
                                                  )     Terry H. Gamber,
           Defendant-Appellee.                    )     Judge, presiding.
______________________________________________________________________________

Opinion Filed:         March 30, 2011
_______________________________________________________________________________

Justices:          Honorable Thomas M. Welch, J.

                 Honorable Melissa A. Chapman, P.J., and
                 Honorable James K. Donovan, J.,
                 Concur
_______________________________________________________________________________

Attorney         J. Israel Slone
for              P.O. Box 306
Appellants       O'Fallon, IL 62269
_______________________________________________________________________________

Attorneys        Lisa Madigan, Attorney General, State of Illinois, Michael A. Scodro,
for              Solicitor General, Janon E. Fabiano, Assistant Attorney General, 100 W est
Appellee         Randolph Street, 12th Floor, Chicago, IL 60601
________________________________________________________________________________
