
      No. 2--01--0301
________________________________________________________________

      IN THE

      APPELLATE COURT OF ILLINOIS

      SECOND DISTRICT
________________________________________________________________

THE PEOPLE OF THE STATE      )    Appeal from the Circuit Court
OF ILLINOIS,     )     of Du Page County.
            )
      Plaintiff-Appellee,    )
      )
v.    )     No. 00--DT--5690
      )
CRAIG M. McKENNA,      )     Honorable
      )     Joseph S. Bongiorno,
      Defendant-Appellant.   )    Judge, Presiding.
________________________________________________________________

      JUSTICE McLAREN delivered the opinion of the court:
      Defendant, Craig M. McKenna, appeals from an order of the circuit
court of Du Page County denying his petition to rescind the statutory
summary suspension of his driving privileges under section 11--501.1 of the
Illinois Vehicle Code (Code) (625 ILCS 5/11--501.1 (West 2000)).  Defendant
argues that the trial court erred in sustaining the suspension based on the
criteria of section 11--501.8 of the Code (625 ILCS 5/11--501.8 (West
2000)).  We reverse and remand.
      On December 23, 2000, defendant was arrested for driving under the
influence (DUI) (625 ILCS 5/11--501(a)(2) (West 2000)) after he was
observed operating a vehicle in an erratic manner at a stop sign.
Defendant was 19 years old at the time of his arrest.  He was also charged
with unlawful possession of fraudulent identification (235 ILCS 5/6--16(a)
(West 2000)), unlawful use of license or permit (625 ILCS 5/6--301(a)(3)
(West 2000)), unlawful possession of alcohol by a minor (235 ILCS 5/616(a)
(West 2000)), having no front registration plate (625 ILCS 5/3--413(a)
(West 2000)), and having only one red tail lamp (625 ILCS 5/12--201(b)
(West 2000)).
      The arresting officer submitted a sworn report to the circuit court
and the Secretary of State pursuant to section 11--501.1(d) of the Code
(625 ILCS 5/11--501.1(d) (West 2000)) stating that (1) the officer
requested that defendant submit to chemical testing to determine the
alcohol content of defendant's blood and warned defendant of the applicable
consequences under section 11--501.1; and (2) defendant refused or failed
to complete the requested chemical testing.  Defendant was warned by means
of a preprinted form providing, in pertinent part:
      "[Y]ou are warned:
        1.             If you refuse or fail to complete all chemical tests
           requested and:
                       If you are a first offender, your driving  privileges
                 will be suspended for a minimum of 6 months; or
                       If  you  are  not  a  first  offender,  your  driving
                 privileges will be suspended for a minimum of 3 years.
        2.             If you submit to a chemical  test(s)  disclosing  an
           alcohol concentration of 0.08 or more *** and:
                       If you are a first offender, your driving  privileges
                 will be suspended for a minimum of 3 months; or
                       If  you  are  not  a  first  offender,  your  driving
                 privileges will be suspended for a minimum of one year.
      MOTORIST UNDER AGE 21
            You are further warned that as a motorist under age  21  if  you
      submit to chemical test(s) disclosing an alcohol concentration greater
      than 0.00 and less than 0.08 your driving privileges will be suspended
      as provided under Sections 6--208.2  and  11--501.8  of  the  Illinois
      Vehicle Code.
            As provided in Section 6--208.2, you are a first offender unless
      you have had a previous suspension under Section 11--501.8 ***.
                     !             If you are a first offender, your driving
                       privileges will be  suspended  for  a  minimum  of  3
                       months; or
                     !             If you are not  a  first  offender,  your
                       driving privileges will be suspended for a minimum of
                       one year."
      The Secretary of  State  mailed  defendant  a  notice  confirming  the
statutory summary suspension of his driving privileges pursuant  to  section
11--501.1 of the Code, commonly known as the "implied consent  law,"  for  a
six-month  period  beginning  February  7,  2001.   On  January  25,   2001,
defendant filed a  petition  and  request  for  a  hearing  to  rescind  the
suspension.  At  the  hearing,  the  arresting  officer  testified  that  he
observed defendant stopped at a stop sign on Chestnut  Street  in  Hinsdale.
Defendant began to make a left turn onto Monroe Street and then  stopped  to
allow traffic on  Monroe  to  pass,  at  which  point  the  officer  stopped
defendant.  The officer testified that he detected the odor of alcohol  when
defendant first rolled down his window.  The officer further testified  that
defendant's speech was slurred and he failed various field  sobriety  tests.
Defendant contradicted portions of the officer's  testimony  concerning  the
field sobriety tests and other details of the traffic  stop.   The  roadside
encounter was videotaped, and  the  tape  was  played  at  the  hearing  and
admitted into evidence.  However, the tape has  not  been  included  in  the
record on appeal.
      At the close of defendant's evidence, the State moved  for  the  trial
court to find in its favor under  section  2--1110  of  the  Code  of  Civil
Procedure (735 ILCS 5/2--1110 (West 2000)).  The State argued,  inter  alia,
that the arresting officer had probable cause to arrest  defendant  for  the
consumption of alcohol by a minor.  The  trial  court  granted  the  State's
motion and denied defendant's petition.  The court made no  finding  whether
the arresting officer had probable cause to believe that defendant had  been
driving under the influence of alcohol.  Defendant moved to reconsider.   In
denying the motion, the trial court explained  that  because  defendant  was
under the age of 21, his  driving  privileges  were  subject  to  suspension
under section 11--501.8 of the Code  (625  ILCS  5/11--501.8  (West  2000)),
commonly known as the "zero tolerance law," which  only  requires  that  the
arresting officer have  probable  cause  to  believe  that  the  driver  has
consumed any amount of an alcoholic beverage.
      Defendant argues that because the  arresting  officer  warned  him  in
accordance  with  the  implied  consent  law  and  the  Secretary  of  State
confirmed the suspension of his driving privileges on that basis, the  trial
court erred in sustaining the  suspension  under  the  zero  tolerance  law.
Defendant contends that in reviewing the suspension the trial  court  should
have considered not merely whether there was probable cause to believe  that
defendant had consumed alcohol but  whether  there  was  probable  cause  to
believe that he was driving under the influence of alcohol.
      The implied consent law provides in pertinent part:
            "Any person who drives or is in actual  physical  control  of  a
      motor vehicle *** shall be deemed to  have  given  consent  ***  to  a
      chemical test or tests of blood, breath, or urine for the  purpose  of
      determining  the  content  of  alcohol,  other  drug  or   drugs,   or
      intoxicating compound or compounds or any combination thereof  in  the
      person's blood if arrested, as evidenced by the issuance of a  Uniform
      Traffic Ticket, for [DUI]."  625 ILCS 5/11--501.1(a) (West 2000).
      A person requested to submit to testing must be  warned,  inter  alia,
that if he refuses  to  submit  to  testing,  or  submits  to  testing  that
discloses an alcohol concentration of 0.08 or greater, a  statutory  summary
suspension of his driving privileges  will  be  imposed.   625  ILCS  5/11--
501.1(c) (West 2000).  If  the  person  refuses  to  submit  to  testing  or
submits to testing that discloses an alcohol concentration above  the  legal
limit, the officer shall immediately submit a sworn report to the  Secretary
of State, and upon receipt of the  sworn  report,  the  Secretary  of  State
shall enter the statutory summary  suspension  and  confirm  it  by  mailing
notice  to  the  driver  and  to  the  court  of  venue.   625  ILCS  5/11--
501.1(d),(e),(h) (West 2000).  In addition, the  officer  who  requests  the
test must serve immediate notice of the statutory summary suspension on  the
driver; the suspension takes effect on  the  46th  day  following  the  date
notice was given.  625 ILCS 5/11--501.1(f),(g) (West 2000).  The  length  of
the statutory summary suspension depends on whether the driver is  a  "first
offender" as defined in section 11--500 of the Code (see 625 ILCS  5/11--500
(West 2000)) and whether he or she submitted to testing.  See 625 ILCS 5/6--
208.1(a) (West 2000).
      A broader suspension scheme applies to drivers under  the  age  of  21
who are suspected of  having  consumed  alcohol.   The  zero  tolerance  law
provides that a driver under the age of 21 is deemed to consent to  chemical
testing of blood alcohol content if arrested for any violation of  the  Code
or a similar provision of  a  local  ordinance  and  if,  in  addition,  the
arresting officer  has  probable  cause  to  believe  that  the  driver  has
consumed any amount of  an  alcoholic  beverage.   625  ILCS  5/11--501.8(a)
(West 2000).  Suspensions are imposed on those who  refuse  testing  or  who
submit to testing that  discloses  an  alcohol  concentration  greater  than
0.00.  625 ILCS 5/11--501.8(a) (West 2000).  The length  of  the  suspension
depends on whether the driver submits to testing and whether he or  she  has
previously been suspended under the zero  tolerance  law.   625  ILCS  5/6--
208.2(a) (West 2000).
      Here, the record establishes  that  the  arresting  officer  read  the
applicable warnings under the implied consent law to  defendant.   Defendant
contends that these warnings did not fully conform to the warnings  required
under the zero tolerance  law,  and,  accordingly,  the  suspension  of  his
driving  privileges  cannot  be  upheld  under  that  enactment.   We  note,
however, that in People v.  Johnson,  197  Ill.  2d  478,  489  (2001),  our
supreme court held that, in reviewing a petition  for  rescission  based  on
inaccurate warnings, courts must determine whether the motorist is a  member
of the group affected by the inaccuracy.  Johnson held  that  an  inaccurate
warning concerning the  length  of  the  statutory  summary  suspension  for
nonfirst offenders was not a  basis  for  rescinding  the  suspension  of  a
motorist who was a first offender.
      Defendant was warned that if he was a first offender  and  he  refused
to submit to chemical testing, his driving  privileges  would  be  summarily
suspended under the  implied  consent  law  for  a  period  of  six  months.
Although he was not specifically warned  of  the  consequences  of  refusing
testing under the zero tolerance law, the  consequences  are  identical  for
motorists whose driving privileges have not previously been suspended  under
the zero tolerance law.  Because it is  undisputed  that  defendant  had  no
previous suspensions under the zero tolerance law, he was accurately  warned
of the consequences that he personally  faced.   Furthermore,  the  warnings
under  the  implied  consent  law  include  an  admonition  concerning   the
consequences  of  submitting  to  testing  under  the  zero  tolerance  law.
Accordingly, defendant was warned about every aspect of the  zero  tolerance
law except  the  length  of  the  suspension  for  motorists  whose  driving
privileges have previously been suspended under the zero tolerance  law  and
who refuse testing.  Defendant is not a member of this class  of  motorists,
so  under  Johnson  the  warnings   given   to   defendant   were   adequate
notwithstanding this omission.
      Although the warnings defendant received were  sufficient  under   the
zero tolerance law, we agree with defendant  that  the  trial  court  should
have confined its inquiry to the criteria governing  suspensions  under  the
implied consent law.  The officer who arrested defendant submitted  a  sworn
report pursuant to the implied  consent  law  and  the  Secretary  of  State
confirmed the suspension under the implied consent law.  The  State  argues,
without citation of authority, that defendant had "no vested right  to  have
the hearing proceed under one particular provision over the  other."   While
we express no view on whether the right at issue is "vested,"  we  otherwise
disagree with this proposition.
      The State envisions the rescission hearing as a plenary proceeding  to
determine whether there is  any  basis  to  suspend  a  defendant's  driving
privileges.  However, the implied consent law and  the  zero  tolerance  law
are  independent  statutory  schemes  with   distinct   hearing   provisions
involving different issues raised in different  forums.   Both  the  implied
consent law and the zero tolerance law afford the affected driver the  right
to request a hearing to review the  suspension.   The  implied  consent  law
provides for a judicial hearing, ordinarily limited to specified issues,  in
the circuit court  of  venue.   625  ILCS  5/2--118.1(b)  (West  2000).   In
contrast, however, the zero tolerance law  provides  that  "[a]  driver  may
contest this driver's  license  sanction  by  requesting  an  administrative
hearing with the Secretary of State."  625 ILCS 5/11--501.8(e) (West  2000).
 The action of the Secretary of State in  suspending  a  license  under  the
zero tolerance law is subject to judicial review  under  the  Administrative
Review Law (735 ILCS 5/3--101 et seq. (West 2000)), but only in the  circuit
courts of Sangamon County and Cook County.  625  ILCS  5/11--501.8(h)  (West
2000).  Moreover, suspensions under the implied consent  law  and  the  zero
tolerance law are  not  mutually  exclusive.   We  have  recognized  that  a
driver's  privileges  may  be  suspended  under  both  schemes.   People  v.
Delcorse, 305 Ill. App. 3d 76, 79 (1999).  Assuming, arguendo, that that  is
what occurred here (see Delcorse, 305 Ill. App. 3d  at  79),  each  form  of
suspension must still be reviewed independently in the proper forum.
      The  trial  court  had  the  statutory  authority  only  to  review  a
suspension arising from the implied consent  law.   625  ILCS  5/2--118.1(b)
(West 2000).  The scope of a judicial hearing under the implied consent  law
is primarily limited to the four issues set forth in section 2--118.1(b)  of
the Code: (1) whether the person  was  placed  under  arrest  for  DUI;  (2)
whether the arresting officer had probable cause to believe that the  person
was driving while under the influence; (3) whether  the  person  refused  to
take a chemical test; and (4) whether the person  failed  a  test  to  which
that person submitted.  625 ILCS 5/2--118.1(b) (West 2000);  see  People  v.
Dvorak, 276 Ill. App. 3d  544,  552  (1995).   The  driver  may  also  raise
another issue "if  it  concerns  a  mandatory  provision  that  the  summary
suspension is predicated upon."  (Emphasis  added.)   People  v.  Tomlinson,
295 Ill. App. 3d 193, 197 (1998).  For example, a driver may  challenge  the
validity of chemical test results (People v. Hamilton, 118 Ill. 2d 153,  160
(1987)), but may not raise a law  enforcement  agency's  failure  to  comply
with the implied consent law's directive to designate the type  of  test  to
be administered (Tomlinson, 295 Ill. App. 3d at 197-98).
      The evenhanded application of the  statute  dictates  that,  like  the
driver, the State should not be permitted to inject other  issues  into  the
hearing.  There is no provision in section 2--118.1 permitting  the  circuit
court to consider whether the defendant's driving privileges are subject  to
suspension under the  zero  tolerance  law.   Similarly,  by  definition,  a
hearing under section  2--118.1  concerns  a  statutory  summary  suspension
predicated  upon  the  implied  consent  law;  therefore  the   hypothetical
applicability of the zero tolerance law is not an  issue  that  "concerns  a
mandatory  provision  that  the  summary  suspension  is  predicated  upon."
(Emphasis added.)  Tomlinson, 295 Ill. App. 3d at 197.
      The State notes that the  zero  tolerance  law  sets  forth  different
issues to be determined in a hearing to review a suspension.   Those  issues
are whether the arresting officer had probable cause to believe that one  in
actual physical control of a motor vehicle violated  any  provision  of  the
Code or a similar provision of a local ordinance; whether a Uniform  Traffic
Ticket was issued; whether the officer had probable cause  to  believe  that
the driver had consumed any amount of an alcoholic beverage; whether,  after
being properly warned, the driver refused to submit to or  complete  testing
to determine alcohol concentration, or submitted to  testing  disclosing  an
alcohol concentration of more than 0.00; and whether a test  result  showing
an alcohol concentration of  more  than  0.00  was  based  on  the  person's
consumption of alcohol in connection with a religious  service  or  ceremony
or through the ingestion of a prescribed or recommended dosage of  medicine.
  625  ILCS  5/11--501.8(e)  (West  2000).   As  previously  noted  however,
hearings  concerning  zero  tolerance  suspensions  take  place  before  the
Secretary of State, not the circuit court.   Thus  the  zero  tolerance  law
does not expand the scope of the issues  properly  before  the  court  in  a
judicial rescission hearing pursuant to the implied consent law.
      The  trial  court's  "mix  and  match"  approach  is  also  unfair  to
defendant  because  suspensions  under  the   implied   consent   law   have
potentially harsher consequences than those under the  zero  tolerance  law.
Nonfirst offenders under the implied consent  law  face  longer  suspensions
than first offenders.  First offender status is determined,  in  part,  with
reference to previous suspensions under the implied consent  law.   See  625
ILCS 5/11--500 (West 2000) (" 'first offender' shall  mean  ***  any  person
who has not had a driver's license suspension  for  violating  Section  11--
501.1 within 5  years  prior  to  the  date  of  the  current  offense")  In
contrast, suspensions under the zero tolerance  law  affect  the  length  of
future suspensions under that statute (625 ILCS 5/6--208.2(a) (West  2000)),
but do not affect the driver's status as a first offender  for  purposes  of
the implied consent law.
      Here, the trial court erred by  applying  the  criteria  of  the  zero
tolerance law in granting the State's motion under section  2--1110  of  the
Code of Civil Procedure (735 ILCS 5/2-1110 (West  2000)).   Accordingly,  we
reverse the judgment of the circuit court of Du Page County and  remand  the
cause for further proceedings.  On remand, the circuit court is directed  to
reconsider the State's section 2--1110  motion  in  light  of  the  criteria
under the implied consent law set forth in section 2--118.1(b) of  the  Code
(625 ILCS 5/2--118.1(b) (West 2000)).
      For the foregoing reasons, the judgment of the  circuit  court  of  Du
Page County is reversed, and the cause is remanded for  further  proceedings
consistent with this opinion.
      Reversed and remanded with directions.
      BOWMAN and BYRNE, JJ., concur.
