                             ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           People v. Arrendondo, 2012 IL App (3d) 110223




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



District & No.               Third District
                             Docket No. 3-11-0223


Filed                        March 9, 2012


Held                         The trial court’s judgment granting defendant’s petition to rescind the
(Note: This syllabus         statutory summary suspension of his driver’s license was reversed,
constitutes no part of       notwithstanding the fact that just before his arrest, there was nothing
the opinion of the court     unusual about the speed of his car or the way in which he was operating
but has been prepared        the vehicle, since the evidence at the hearing on defendant’s petition
by the Reporter of           established that he was arrested for an offense as defined in section 11-
Decisions for the            501 of the Illinois Vehicle Code, the arresting officer had reasonable
convenience of the           grounds to believe defendant was driving under the influence of cannabis,
reader.)
                             defendant refused to submit to chemical testing, and defendant failed to
                             present any evidence that he was not properly advised that his license
                             would be suspended if he refused testing.


Decision Under               Appeal from the Circuit Court of Will County, No. 10-DT-1590; the Hon.
Review                       Robert Livas, 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 appellant.

                           No brief filed for appellee.


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



                                              OPINION

¶1          Defendant, Eric Arrendondo, was charged by uniform traffic citation with driving under
        the influence (625 ILCS 5/11-501(a)(4) (West 2010)). Following a hearing, the trial court
        granted defendant’s motion to rescind his statutory summary suspension. We reverse and
        remand.

¶2                                              FACTS
¶3          Defendant was charged with driving under the influence (625 ILCS 5/11-501(a)(4) (West
        2010)). Defendant refused to submit to chemical testing, and a statutory summary suspension
        was imposed. Defendant filed a petition to rescind the statutory summary suspension of his
        driver’s license. The following evidence was adduced at the hearing on defendant’s petition.
¶4          The only person to testify was Russell Prucnicki. Prucnicki was employed as a police
        officer with the Village of Plainfield (the Village). Prucnicki had been trained at Triton
        College, where he had been instructed in the identification of cannabis. He was later trained
        to identify cannabis in both its burnt and unburnt forms at a training run by the Village.
        Prucnicki has encountered both forms of cannabis many times in his career as a police
        officer. Based upon his training and experience as a police officer, Prucnicki could identify
        the smell of unburnt cannabis and the smell of burnt cannabis (two distinctly different
        smells), and he learned that glossy, bloodshot eyes were a possible indicator that a person had
        been smoking cannabis.
¶5          Prucnicki testified that he was on patrol duty when he noticed a motor vehicle being
        driven in front of him that did not have the rear registration plate light illuminated and had
        some objects hanging from the rearview mirror, which obstructed the view of the driver.
¶6          Prucnicki followed the vehicle for about half a mile before initiating a traffic stop. There
        was nothing unusual about the vehicle’s speed or the manner in which it was being driven.
        The only traffic violations Prucnicki witnessed before stopping the vehicle were the
        obstructed view and lack of a registration light. The driver of the vehicle turned into a

                                                  -2-
       parking lot and pulled into a parking spot. Prucnicki identified defendant as the driver of the
       vehicle.
¶7          Prucnicki approached the vehicle. As Prucnicki approached, defendant rolled down the
       car window and Prucnicki smelled a strong odor of unburnt cannabis. Prucnicki requested
       defendant’s driver’s license and insurance information. Defendant seemed nervous, slightly
       agitated, and his hands were trembling a little bit, which Prucnicki found significant.
       Prucnicki informed defendant of the reasons for the stop and asked where he was coming
       from. Defendant said he was coming from a tavern in town and that he had consumed two
       beers over the course of about two hours.
¶8          As Prucnicki was speaking to defendant, Prucnicki could smell burnt cannabis on
       defendant’s breath. Prucnicki could tell from the odor of cannabis on defendant’s breath that
       there was some amount of cannabis in defendant’s system, although he could not tell exactly
       how much cannabis.
¶9          Prucnicki then asked defendant if he had any drugs in the car. Defendant told Prucnicki
       that he had some weed, and defendant retrieved a one-hitter from his pocket and handed it
       to Prucnicki. A one-hitter is a small pipe used for smoking cannabis. The one-hitter
       contained a green, leafy substance along with some tar-like residue.
¶ 10        After receiving the one-hitter from defendant, Prucnicki returned to his squad car, called
       for backup, and ran defendant’s license, which came up as suspended. Upon the arrival of
       another officer, Prucnicki approached the vehicle again. Prucnicki had defendant exit the
       vehicle and step to the rear of the vehicle, at which time he asked defendant if he had any
       other drugs on him. Defendant said he had some weed and handed Prucnicki a translucent
       bag containing about a gram of cannabis. Prucnicki smelled the contents of the bag, which
       smelled like cannabis. He ran a field test on the contents, which indicated it was cannabis.
¶ 11        Defendant told Prucnicki that he had just packed the one-hitter with cannabis and was
       about to smoke it when he saw Prucnicki. Defendant admitted that he had smoked cannabis
       earlier that night. Prucnicki observed that defendant’s eyes were glossy and bloodshot, and
       Prucnicki continued to smell the odor of burnt cannabis coming from defendant’s breath.
       Defendant’s speech was not slurred, he had not made any unusual physical movements, and
       his mental faculties appeared intact.
¶ 12        Based upon the smell of burnt cannabis emitting from defendant’s breath, his glossy and
       bloodshot eyes, his admission to smoking cannabis and possession of cannabis, Prucnicki
       believed defendant had been driving under the influence of cannabis. Prucnicki did not
       believe defendant could operate a motor vehicle. Defendant refused to submit to chemical
       testing. Prucnicki placed defendant under arrest for driving under the influence and issued
       defendant a citation for driving under the influence (625 ILCS 5/11-501(a)(4) (West 2010)).
¶ 13        Following Prucnicki’s testimony, defendant rested and the State moved for a directed
       finding. In denying the State’s motion, the trial court found that the State needed to prove
       that defendant was driving unsafely in order for the statutory summary suspension to be
       proper because defendant had been charged under subsection (a)(4) of section 11-501 of the
       Illinois Vehicle Code (Code) (625 ILCS 5/11-501(a)(4) (West 2010)). The trial court stated:
                “The issue still becomes this. The officer’s observations indicated based on what he

                                                -3-
           thought. And I agree that he had smoked marijuana.
               The problem becomes, did that render him incapable of safely driving? No.”
¶ 14       On January 21, 2011, the trial court granted defendant’s petition to rescind on the basis
       that defendant had not been observed driving improperly. Specifically, the court stated:
           “[I]f it is not improper driving, but there is a smell of marijuana, I don’t know what they
           do with this guy or any defendant. If he had been seen to commit any traffic violation in
           the way he was handling the vehicle, okay, but he didn’t. So how do we get from that to
           the point where he’s driving under the influence? I don’t know.”

¶ 15                                         ANALYSIS
¶ 16        At the outset, we note that defendant has failed to file a brief on appeal. “ ‘A reviewing
       court is not compelled to serve as an advocate for the appellee and is not required to search
       the record for the purpose of sustaining the trial court’s judgment.’ ” Frank v. Hawkins, 383
       Ill. App. 3d 799, 808 (2008) (quoting Benjamin v. McKinnon, 379 Ill. App. 3d 1013, 1019
       (2008)). Thus, if the appellant’s brief demonstrates prima facie reversible error and the
       contentions in the brief find support in the record, the trial court’s judgment may be reversed.
       First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976). We
       reverse the trial court’s judgment because the State has made a prima facie case of reversible
       error.
¶ 17        The sole issue before us is whether the trial court erred in granting defendant’s petition
       to rescind the statutory summary suspension of his driver’s license. “The [defendant] carries
       the burden of providing a prima facie case for rescission at a hearing on a petition for
       rescission of a statutory summary suspension of a driver’s license.” People v. Kavanaugh,
       362 Ill. App. 3d 690, 695 (2005). The burden of presenting evidence justifying the
       suspension then shifts to the State. Kavanaugh, 362 Ill. App. 3d at 695. The trial court’s
       decision on a petition to rescind will not be reversed unless it is against the manifest weight
       of the evidence. Kavanaugh, 362 Ill. App. 3d at 695.
¶ 18        Because: (1) defendant was placed under arrest for an offense as defined in section 11-
       501 of the Code (625 ILCS 5/11-501 (West 2010)), (2) Prucnicki had reasonable grounds to
       believe that defendant was driving while under the influence of cannabis; and (3) defendant,
       after apparently being advised of the potential consequences of his decision, refused to
       submit to chemical testing, we find the trial court’s judgment granting defendant’s petition
       to rescind was against the manifest weight of the evidence. It is important to note that the
       matter before us arises from a civil summary suspension hearing and not a criminal
       prosecution for driving under the influence. While the fact that defendant was charged with
       driving under the influence in violation of subsection (a)(4) of section 11-501 (625 ILCS
       5/11-501(a)(4) (West 2010)) is relevant to any subsequent criminal proceedings against
       defendant, it is not relevant at the civil summary suspension stage, as subsection (b) of
       section 2-118.1 of the Code (625 ILCS 5/2-118.1(b) (West 2010)) merely provides that
       defendant be placed under arrest for an offense as defined in section 11-501.
¶ 19        Section 2-118.1 is entitled: “Opportunity for hearing; statutory summary alcohol or other
       drug related suspension or revocation pursuant to Section 11-501.1.” Subsection (b) of

                                                 -4-
       section 2-118.1 provides, in pertinent part:
               (b) Within 90 days after the notice of statutory summary suspension or revocation
           served under Section 11-501.1, the person may make a written request for a judicial
           hearing in the circuit court of venue. The request to the circuit court shall state the
           grounds upon which the person seeks to have the statutory summary suspension or
           revocation rescinded. ***
               ***
               The scope of the [summary suspension] hearing shall be limited to the issues of:
                   1. Whether the person was placed under arrest for an offense as defined in
               Section 11-501, or a similar provision of a local ordinance, as evidenced by the
               issuance of a Uniform Traffic Ticket, or issued a Uniform Traffic Ticket out of state
               as provided in subsection (a) of Section 11-501.1; and
                   2. Whether the officer had reasonable grounds to believe that the person was
               driving or in actual physical control of 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 or revoked if the person refused to
               submit to and complete the test or tests, did refuse to submit to or complete the test
               or tests to determine the person’s alcohol or drug concentration[.]” (Emphasis
               added.) 625 ILCS 5/2-118.1(b) (West 2010).
¶ 20       Our examination of the record reveals evidence establishing all three factors discussed
       in subsection (b) of section 2-118.1. See 625 ILCS 5/2-118.1(b) (West 2010). First,
       defendant was placed under arrest for an offense as defined in section 11-501 (625 ILCS
       5/11-501 (West 2010)), specifically, 11-501(a)(4).
¶ 21       Second, Prucnicki had reasonable grounds to believe that defendant was driving his
       vehicle under the influence of cannabis. Specifically, Prucnicki smelled a strong odor of
       unburnt cannabis emanating from defendant’s vehicle and burnt cannabis on defendant’s
       breath. Defendant was nervous and slightly agitated. Defendant’s eyes were glossy and
       bloodshot. Defendant admitted he had smoked cannabis on the night in question.1 He also
       admitted that he was in possession of cannabis. Defendant handed Prucnicki a one-hitter
       packed with cannabis as well as a translucent bag containing cannabis.
¶ 22       Finally, defendant, after apparently being advised of the potential consequences of his
       decision, refused to submit to chemical testing. In coming to this conclusion, we note that
       the record contains a sworn document signed by Prucnicki stating that he “issued” a
       “warning” to defendant that if he refused testing his license would be suspended. While the
       document provides the time and date of the warning, it does not disclose the manner in which
       the warning was given (was the document merely given to defendant or was he orally advised


               1
                 The trial court expressly found that defendant “had smoked marijuana.” We give deference
       to the factual findings of the trial court, and we will reject those findings only if they are against the
       manifest weight of the evidence. People v. Cosby, 231 Ill. 2d 262, 271 (2008).

                                                     -5-
       by Prucnicki) or the context in relation to when exactly defendant refused to submit to testing
       (was defendant advised prior to his refusal or after).2 While we find these unanswered
       questions troubling, we call attention to the fact that it was defendant’s burden at the hearing
       to prove a prima facie case for rescission. Defendant failed to present any evidence that he
       was not properly advised. We therefore accept Prucnicki’s signed document as evidence that
       defendant was properly advised.
¶ 23        Because the record reveals evidence establishing all three factors in the present case, we
       find the trial court’s judgment granting defendant’s petition to rescind was against the
       manifest weight of the evidence.
¶ 24        In coming to this conclusion, we reject the trial court’s reliance upon the fact that
       Prucnicki did not witness anything unusual about the vehicle’s speed or the manner in which
       defendant was operating the vehicle. We acknowledge that defendant was charged under
       subsection (a)(4) of section 11-501, which states that “[a] person shall not drive or be in
       actual physical control of any vehicle within this State while *** under the influence of any
       other drug or combination of drugs to a degree that renders the person incapable of safely
       driving.” 625 ILCS 5/11-501(a)(4) (West 2010).
¶ 25        The trial court seemed to believe that because defendant was charged under subsection
       (a)(4), the evidence at the summary suspension hearing needed to establish that defendant
       was incapable of safely driving the vehicle. Therefore, because Prucnicki testified that the
       only traffic violations he witnessed before stopping defendant’s vehicle were the obstructed
       view and lack of a registration light, the trial court believed that defendant was not
       improperly operating the vehicle and thus it was required to grant defendant’s petition to
       rescind. We note, however, that subsection (b) of section 2-118.1 merely provides that
       defendant be placed under arrest for an offense as defined in section 11-501 of the Code. See
       625 ILCS 5/2-118.1(b) (West 2010). It does not provide that the actual offense for which
       defendant was arrested be proven at the summary suspension hearing. In other words, the
       matter before the trial court was not defendant’s actual criminal trial where the State needed
       to establish the elements of subsection (a)(4) of section 11-501 beyond a reasonable doubt.
       Instead, it was merely a summary suspension hearing, governed by section 2-118.1, at which
       defendant was required to prove a prima facie case for rescission.
¶ 26        The supreme court has unequivocally stated that summary suspension hearings are “civil
       in nature.” People v. Moore, 138 Ill. 2d 162, 167 (1990). The court further explained that
       summary suspension hearings cannot be construed as part of a defendant’s criminal trial, as
       they are “merely an administrative device at the disposal of the defendant in which the
       defendant can halt the otherwise automatic suspension of his driving privileges.” Moore, 138
       Ill. 2d at 170. Here, the record reveals evidence establishing all three factors discussed in
       subsection (b) of section 2-118.1. Accordingly, defendant’s petition to rescind his summary
       suspension lacked merit and should not have been granted.
¶ 27        For the foregoing reasons, we reverse the judgment of the trial court and remand for


               2
               A review of Prucnicki’s testimony at the hearing does not answer these questions. Instead,
       Prucnicki merely testified that he arrested defendant for driving under the influence.

                                                  -6-
       further proceedings.

¶ 28       Reversed and remanded.

¶ 29        JUSTICE HOLDRIDGE, dissenting:
¶ 30        I would affirm the trial court. The defendant was placed under arrest and charged by
       uniform traffic citation with driving under the influence of any drug or combination of drugs
       to a degree that rendered him incapable of safely driving, an offense under section 11-501
       of the Illinois Vehicle Code (the Code). 625 ILCS 5/11-501(a)(4) (West 2010). At the
       hearing on the defendant’s petition to rescind the statutory summary suspension, the trial
       court granted the defendant’s petition based upon the complete lack of proof that the
       defendant was rendered incapable of driving safely. The majority finds that the trial court
       erred in requiring the State to establish reasonable grounds to believe that the defendant was
       incapable of safely driving his vehicle, as charged by the uniform traffic citation. The
       majority instead maintains that as long as the State can show that the defendant had been
       arrested for an offense and could establish reasonable grounds to believe that he was in
       violation of an offense, there is no requirement that the arrest which triggers the suspension
       and the reasonable grounds to establish the suspension must be based on the same offense.
       I cannot agree.
¶ 31        A valid arrest and service of a uniform traffic citation is a prerequisite for a statutory
       summary suspension under section 11-501.1(a) of the Code. People v. Mannon, 217 Ill. App.
       3d 381, 383 (1991) (“if a suspect has not been properly arrested for DUI by the service of a
       uniform citation, the statutory summary suspension shall not issue”).3 Morever, section 2-
       118.1(b) specifically references the uniform traffic citation as the basis for the suspension:
                “1. Whether the person was placed under arrest for an offense as defined in Section
            11-501, or a similar provision of a local ordinance, as evidenced by the issuance of a
            Uniform Traffic Ticket, or issued a Uniform Traffic Ticket out of state as provided in
            subsection (a) of Section 11-501.1; and
                2. Whether the officer had reasonable grounds to believe that the person was driving
            or in actual physical control of a motor vehicle upon a highway while under the influence
            of alcohol, other drug, or combination of both.” (Emphasis added.) 625 ILCS 5/2-
            118.1(b)(1), (b)(2) (West 2008).
¶ 32        There is ample authority for the conclusion that the “reasonable grounds” requirement
       in the second provision is linked to the issuance of a uniform traffic citation or ticket required
       in the first provision. In People v. Krueger, 208 Ill. App. 3d 897 (1991), the court was asked
       to determine whether the arrest required in the first provision of section 2-118.1(b) had to be
       a “lawful arrest.” The court held that the arrest and reasonable grounds requirements of


               3
                  Mannon was subsequently criticized concerning the timing of the issuance of the uniform
       traffic citation. However, it remains good law for the proposition cited. See People v. Selby, 241 Ill.
       App. 3d 80, 83 (1993).

                                                    -7-
       section 2-118.1(b) were necessarily linked:
           “[E]ven barring constitutional problems, we are unwilling to conclude that the legislature
           intended to authorize the suspension of drivers’ licenses based on the fruits of illegal
           arrests. The requirements of an arrest and reasonable cause are for the purpose of
           protecting the motorist against unlawful searches and seizures. [Citation.] This purpose
           would be undercut if not frustrated by allowing the State to benefit from illegal or
           unauthorized arrests made by its agents. Furthermore, despite the State’s dire warning
           that such a legality requirement would necessitate a time-consuming hearing on ancillary
           issues and thus frustrate the legislative goal of an efficient, expedited proceeding, we
           note that in the vast majority of suspension cases the requirement of reasonable grounds
           [citation] operates as an exclusionary rule. As most DUI arrests are of motorists who
           have been driving or in control of vehicles on the highway, the necessary finding of
           reasonable cause will generally be tantamount to a finding that the arrest was legal, and
           a finding of no probable cause will necessitate rescission of the suspension even where
           the motorist failed or refused to take a blood-alcohol test.” (Emphasis added.) People v.
           Krueger, 208 Ill. App. 3d at 906.
¶ 33       The Krueger court then succinctly held that, under the Vehicle Code, the Secretary of
       State’s power to suspend a driver’s license is predicated upon the presence of a valid arrest,
       and the validity of that underlying arrest must be tested by the reasonable grounds
       requirement of section 2-118.1(b). Id. Clearly, then, the underlying arrest and the reasonable
       grounds determination are inexorably linked.4 Thus, while the statutory suspension may be
       predicated on an arrest, there must be reasonable grounds for that arrest in order for the
       Secretary of State to suspend a driver’s license.
¶ 34       I would find that the trial court correctly determined that the officer lacked reasonable
       grounds to believe that defendant was driving or in actual physical control of a motor vehicle
       upon a highway while under the influence of a drug, as evidenced by the issuance of the
       uniform traffic citation. I would, therefore, affirm the trial court’s rescission of the
       defendant’s driver’s license suspension. In doing so, I would point out that, had the uniform
       traffic citation been issued or amended to indicate a violation of section 11-501(a)(6) of the
       Code (625 ILCS 5/11-501(a)(6) (West 2010)), there would have been reasonable grounds to
       support the suspension of the defendant’s driver’s license. I am at a loss to explain why the
       uniform citation did not cite the proper statutory violation.




               4
                 The reported cases interpreting section 2-118.1(b) presume that the arrest evidenced by the
       uniform traffic ticket is the arrest that must be based upon reasonable grounds. While this
       presumption is unstated, there appears to be no question in these prior decisions that it is the arrest
       evidenced by the uniform traffic ticket that must be based upon reasonable grounds. See People v.
       Rush, 319 Ill. App. 3d 34 (2001); People v. Fortney, 297 Ill. App. 3d 79, 87 (1998); People v. White,
       167 Ill. App. 3d 439, 442 (1988).

                                                    -8-
