                                                           NO. 5-09-0174
                        N O T IC E

 Decision filed 04/16/10. The text of
                                                              IN THE
 this dec ision m ay b e changed or

 corrected prior to the              filing of a
                                                   APPELLATE COURT OF ILLINOIS
 P e t i ti o n   for     Re hea ring   or   the

 disposition of the same.
                             FIFTH DISTRICT
__________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
                                        ) Circuit Court of
      Plaintiff-Appellant,              ) St. Clair County.
                                        )
v.                                      ) No. 09-DT-167
                                        )
KAREN KEITHLEY,                         ) Honorable
                                        ) Zina R. Cruse,
      Defendant-Appellee.               ) Judge, presiding.
__________________________________________________________________________

                  JUSTICE WELCH delivered the opinion of the court:

                  The People of the State of Illinois appeal the order entered by the circuit court of St.

Clair County rescinding the summary suspension of the driving privileges of the defendant,

Karen Keithley. For the reasons that follow, we reverse.

                  On February 1, 2009, the defendant was charged by complaint with improper lane

usage (625 ILCS 5/11-709(a) (West 2008)), following too closely (625 ILCS 5/11-710 (West

2008)), and driving under the influence (625 ILCS 5/11-501(a) (West 2008)). On February

13, 2009, the defendant filed a motion to rescind her statutory summary suspension.

                  A hearing on the defendant's motion to rescind the statutory summary suspension was

held on March 24, 2009. Sergeant Joshua Donovan testified that he had been a patrol

sergeant with the Shiloh police department for more than nine years. Over his career, he had

arrested a little more than 200 people for driving under the influence. Accordingly, he was

familiar with the DUI laws in Illinois. He is also a certified Breathalyzer operator and a

field-training officer.

                  On the night of the incident, he observed a large-cab pickup truck swerve across the


                                                                1
centerline and follow too closely to a vehicle in front of it. He effectuated a traffic stop and

approached the vehicle. The defendant was in the vehicle with her husband. Sergeant

Donovan observed that the defendant's eyes were red and glassy. He also observed a strong

alcohol odor. The defendant said that she had swerved because she had been eating White

Castle food. He asked her if she had consumed any alcoholic beverages, and she responded

that she had not. At that point, Sergeant Donovan obtained her driver's license and insurance

and took it to his patrol car. When he returned to the defendant's vehicle, he asked again

whether she had consumed any alcoholic beverages, and she replied that she had not. He

advised her that he could smell alcohol from her breath. He then asked her if she would

submit to a field sobriety test. The defendant responded that she did not feel that she had

done anything wrong and refused. He then asked her to step out of her vehicle and step to

the back of the vehicle. The defendant told him that he "might as well take her to jail."

Sergeant Donovan placed the defendant under arrest based on the strong odor of alcohol,

slurred speech, and red glassy eyes.

       At the police station, the defendant advised Sergeant Donovan that she needed to use

the restroom, and he allowed her to do so. When she returned, she was placed in the holding

room. Sergeant Donovan read the warnings to the defendant at 10:38 p.m. The defendant

was adamant about her refusal to submit to a Breathalyzer test. The defendant remained in

the holding room while Sergeant Donovan finished the requisite paperwork in the booking

room. Sergeant Donovan admitted that he did not observe the defendant for 20 minutes prior

to asking her to submit to testing and reading the warning-to-motorist form to her.

       The defendant testified that she had told Sergeant Donovan that she had been reaching

for a White Castle cheeseburger and that is why she had swerved. She recalled telling

Sergeant Donovan that she would not submit to a sobriety test. She also testified that

Sergeant Donovan did not observe her for 20 minutes prior to requesting that she submit to


                                               2
a Breathalyzer test.

       The court granted the defendant's motion to rescind the summary suspension on March

25, 2009, finding that there had been "no 20[-]minute observation before logging the

defendant's refusal." The State filed a timely notice of appeal on April 17, 2009.

       Generally, this court will not reverse a trial court's judgment on a motion to rescind

a statutory summary suspension unless it is against the manifest weight of the evidence.

People v. Ewing, 377 Ill. App. 3d 585, 597 (2007). Initially, the defendant has the burden

of proof to demonstrate by a preponderance of the evidence a prima facie case for a

rescission. People v. Ehley, 381 Ill. App. 3d 937, 943 (2008). If the defendant establishes

a prima facie case, the burden then shifts to the State to present evidence justifying the

suspension. Ehley, 381 Ill. App. 3d at 943. However, where the issue is one of statutory

construction, this court will apply a de novo standard of review. People v. Howard, 228 Ill.

2d 428, 432 (2008). In the present case, because no issues of fact are presented, the issue is

one of statutory construction that we will review de novo. The appellee did not file a brief

in this matter, but since the appellant's brief and the record are sufficient to resolve this issue,

we will consider this appeal pursuant to First Capitol M ortgage Corp. v. Talandis

Construction Corp., 63 Ill. 2d 128 (1976).

       Section 11-501.1 of the Illinois Vehicle Code (the Code) (625 ILCS 5/11-501.1 (West

2008)) provides that any individual driving on an Illinois public highway who is arrested for

driving under the influence of alcohol is deemed to have consented to chemical testing of

blood, breath, or urine to determine the content of alcohol in his or her blood. A refusal to

submit to a breath test will result in the statutory suspension of the defendant's driving

privileges. 625 ILCS 5/11-501.1(c) (West 2008). Specifically, section 11-501.1 authorizes

the summary suspension of a defendant's driver's license when that individual has been

lawfully arrested for driving under the influence of alcohol and either (1) has refused to


                                                 3
submit to chemical testing to determine blood-alcohol content or (2) has submitted to and

failed that testing. People v. Hacker, 388 Ill. App. 3d 346, 350 (2009).

       The grounds upon which to rescind a statutory summary suspension are generally

limited to the following: (1) whether the motorist was arrested for DUI, (2) whether the

arresting officer had reasonable grounds to believe that the motorist was in physical control

of a vehicle upon a highway while under the influence of alcohol, drugs, or both, (3) whether

the motorist refused to submit to chemical testing after being advised that the refusal would

result in a statutory suspension of driving privileges, and (4) whether the motorist submitted

to chemical testing and had an alcohol concentration of 0.08 or more. 625 ILCS 5/2-118.1(b)

(West 2008). A rescission may also be granted where the motorist has consented to and has

taken a breath test but the breath test has not been performed in accordance with the

"standards promulgated by the Department of State Police by *** [an] individual possessing

a valid permit issued by that Department for this purpose." 625 ILCS 5/11-501.2(a)(1) (West

2008). The general sampling protocol promulgated by the Department of State Police (the

Department) provides in pertinent part as follows:

              "Section 1286.300 General Sampling Protocol

              The arresting officer has discretion to determine whether a subject will be

       required to submit a breath, blood, and/or urine sample for testing.

                     ***

                     b) The arresting officer or BAO shall deem a subject who fails to

              submit to a requested test or additional testing to have refused testing." 20 Ill.

              Adm. Code §1286.300(b), amended at 31 Ill. Reg. 7319, eff. May 1, 2007.

       The protocol for approved evidentiary instrument operation, promulgated by the

Department, provides in pertinent part as follows:

              "Section 1286.310 Approved Evidentiary Instrument Operation


                                              4
               The following procedures shall be used to obtain a breath sample to determine

       a subject's BrAC with an approved evidentiary instrument:

                      a) Prior to obtaining a breath[-]analysis reading from a subject, the

               BAO or another agency employee shall continuously observe the subject for

               at least 20 minutes.

                              1) During the 20[-]minute observation period the subject shall

                      be deprived of alcohol and foreign substances and shall not have

                      vomited.

                              2) If the subject vomits during the observation (deprivation)

                      period, the process shall be started over by having the individual rinse

                      the oral cavity with water.

                              3) If the individual continues to vomit, alternate testing shall be

                      considered." 20 Ill. Adm. Code §1286.310(a), amended at 28 Ill. Reg.

                      10038, eff. June 30, 2004.

       The primary rule in construing a statute is to ascertain and give effect to the

legislature's intent, which is best indicated by the statutory language itself. People v.

O'Connell, 227 Ill. 2d 31, 36 (2007). The construction of an administrative rule or regulation

also focuses on ascertaining and giving effect to the drafters' intent, which is determined by

the language used in the regulation, given its plain and ordinary meaning. People v. Oliver,

387 Ill. App. 3d 1162, 1167 (2009). "[A] clearly written administrative rule must be applied

'as written' " and "should not be interpreted in a manner that produces 'decidedly absurd

results' or attributes 'nonsensical intentions' to its drafters." Oliver, 387 Ill. App. 3d at 1167

(quoting People v. Wilhelm, 346 Ill. App. 3d 206, 208 (2004), and People v. Hanna, 207 Ill.

2d 486, 500-01 (2003)).

       According to the plain language of section 1286.300 of Title 20 of the Illinois


                                                5
Administrative Code, the arresting officer has the discretion to determine whether a person

will be required to submit to breath-testing and shall deem a subject who fails to submit to

a requested test to have refused testing. There is no requirement that an officer must wait any

period of time before determining that a subject has refused to submit to testing. While

section 1286.310 of Title 20 of the Illinois Administrative Code provides that a test cannot

actually be performed until after the expiration of a 20-minute observation period, there is

no requirement in that section that an officer must observe a subject for at least 20 minutes

prior to requesting that he or she submit to testing. No time limit should be read into the

regulations pertaining to when an officer may ask for consent for a breath test. Oliver, 387

Ill. App. 3d at 1167. This would lead to the absurd result that an officer must observe an

arrestee for at least a 20-minute time period before he even requests that the subject submit

to a breath test. This rationale would also lead to the absurd result that defendants would be

able to raise as a basis for a rescission the argument that a motorist may not be deemed to

have refused to submit to a breath test because the requested test does not comply with the

promulgations where there was no 20-minute observation period prior to the officer's request

for testing.

       In a similar case, People v. Fonner, 385 Ill. App. 3d 531 (2008), the defendant refused

to submit to a breath test and appealed the denial of his petition to rescind the summary

suspension. On appeal the defendant asserted that he did not refuse to submit to testing

because the test the police offered was not in compliance with the regulations promulgated

under section 11-501.2 of the Code (625 ILCS 5/11-501.2 (West 2006)) because there had

been no 20-minute observation period prior to the police officer requesting that he submit to

a breath test. The State argued in response that the defendant could not raise noncompliance

with the regulations applying to testing as a basis for a rescission because the defendant did

not submit to testing. Fonner, 385 Ill. App. 3d at 541. Treating the issue as a case of first


                                              6
impression, the appellate court held that in summary suspension proceedings, a defendant

cannot raise a chemical test's potential noncompliance with section 11-501.2 as a basis for

supporting his refusal to submit to testing. Fonner, 385 Ill. App. 3d at 544. Construing the

plain language of section 11-501.2, the appellate court found that the statute does not provide

that the admissibility of a refusal may be challenged on the basis that the defendant believed

the offered test would be noncompliant with the standards of section 11-501.2(a) of the Code

(625 ILCS 5/11-501.2(a) (W est 2006)). Fonner, 385 Ill. App. 3d at 543. The appellate court

further noted that the admissibility of test results is conditioned on compliance with section

11-501.2(a) and the regulations promulgated thereunder. Section 11-501.2(a) expressly

addresses the circumstances where a person has taken a test. Fonner, 385 Ill. App. 3d at 542-

43. Section 11-501.2(c) of the Code (625 ILCS 5/11-501.2(c) (West 2008)) addresses the

refusal to take a test and does not place any conditions on the admissibility of the refusal.

Fonner, 385 Ill. App. 3d at 543. A person is subject to a summary suspension if the person

refuses to submit to testing (625 ILCS 5/11-501.1(d) (West 2008)), and section 11-501.2(c)

does not place any conditions on the admissibility of the refusal. Fonner, 385 Ill. App. 3d

at 543. The appellate court concluded that even if the person who refused the test could

show that the proposed test would have been noncompliant if taken, the person has still

refused the test and any potential noncompliance would not nullify the basis for the summary

suspension. Fonner, 385 Ill. App. 3d at 543.

       In the instant case, it is undisputed that the defendant refused to submit to testing from

the outset. Therefore, section 11-501.2 does not even apply because there was no need for

a 20-minute observation period before testing. Had the defendant submitted to testing, at that

point a 20-minute observation period should have commenced prior to testing as promulgated

by the Department. However, because the defendant refused to submit to testing, there was

no requirement for a 20-minute observation period. The clear language of the promulgations


                                               7
does not require officers to observe a subject for at least 20 minutes prior to requesting that

the subject submit to testing, nor was that the intent of the drafters. The promulgations

provide that after the subject has consented to testing, an officer must observe the subject for

at least 20 minutes prior to obtaining the breath test, not prior to obtaining the subject's

consent to submit to testing.

       Accordingly, we reverse the judgment entered by the circuit court of St. Clair County

rescinding the defendant's statutory summary suspension.



       Reversed.



       SPOMER and STEWART, JJ., concur.




                                               8
                                           NO. 5-09-0174

                                              IN THE

                                APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
___________________________________________________________________________________

      THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
                                            ) Circuit Court of
           Plaintiff-Appellant,             ) St. Clair County.
                                            )
      v.                                    ) No. 09-DT-167
                                            )
      KAREN KEITHLEY,                       ) Honorable
                                            ) Zina R. Cruse,
           Defendant-Appellee.              ) Judge, presiding.
___________________________________________________________________________________

Opinion Filed:        April 16, 2010
___________________________________________________________________________________

Justices:           Honorable Thomas M. Welch, J.,

                 Honorable Stephen L. Spomer, J.,
                 Honorable Bruce D. Stewart, J.,
                 Concur
___________________________________________________________________________________

Attorneys        Hon. Robert Haida, State's Attorney, St. Clair County, 10 Public Square, Belleville,
for              IL 62220; Patrick Delfino, Director, Stephen E. Norris, Deputy Director, Rebecca
Appellant        E. McCormick, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor,
                 730 E. Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864
___________________________________________________________________________________

Attorney         Ronald R. Duebbert, Attorney at Law, 23 Public Square, Suite 415, Belleville, IL
for              62220 (no brief filed)
Appellee
___________________________________________________________________________________
