                                         2015 IL App (3d) 140194

                                 Opinion filed July 20, 2015
     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                A.D., 2015

     THE PEOPLE OF THE STATE OF             )     Appeal from the Circuit Court
     ILLINOIS,                              )     of the 12th Judicial Circuit,
                                            )     Will County, Illinois,
           Plaintiff-Appellee,              )
                                            )     Appeal No. 3-14-0194
           v.                               )     Circuit Nos. 13-DT-1749 and
                                            )     13-TR-106788
                                            )
     ENRIQUE GUTIERREZ, JR.,                )     Honorable
                                            )     Bennett J. Braun,
           Defendant-Appellant.             )     Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE HOLDRIDGE delivered the judgment of the court, with Opinion.
           Justices Carter and Wright concurred in the judgment ad Opinion.
     _____________________________________________________________________________

                                                 OPINION

¶1          Defendant, Enrique Gutierrez, Jr., was an Aurora police officer involved in a traffic

     accident while off duty. Aurora police suspected defendant of driving under the influence and

     instructed a state trooper to administer a preliminary breath test (PBT). Defendant took the PBT,

     which returned a 0.249 blood alcohol content (BAC). Defendant was arrested for driving under

     the influence and refused further chemical testing. His driver's license was summarily

     suspended. Defendant filed a petition to rescind the summary suspension. He also filed a

     motion in limine seeking to preclude introduction of the PBT results at the hearing on his petition
     to rescind. The court denied both the motion in limine and the petition to rescind. Defendant

     appeals. We affirm.

¶2                                                FACTS

¶3          The following facts were gleaned from the report of proceedings of the hearing on

     defendant's motion in limine, the hearing on defendant's motion to rescind his statutory

     suspension, and the common law record.

¶4          Defendant was a police officer with the Aurora police department. On December 24,

     2013, defendant was off duty, driving in his personal vehicle, when he rear-ended another

     vehicle at an intersection within the jurisdiction of the Aurora police department. The other

     driver called the police. After waiting approximately 30 minutes to one hour without police

     arriving, defendant and the other driver exchanged information, and defendant left the scene of

     the accident and drove home.

¶5          After arriving home, defendant received a phone call from Sergeant Weber of the Aurora

     police department, requesting that defendant return to the scene of the accident. Defendant drove

     back to the scene. Illinois State Trooper David DeGraff administered to defendant a PBT. The

     result of the PBT was a 0.249 BAC. Defendant was arrested for driving under the influence of

     alcohol (625 ILCS 5/11-501 (West 2012)).

¶6          Defendant refused further chemical testing, and his driver's license was suspended.

     Defendant filed a petition to rescind the suspension. The petition requested a hearing pursuant to

     section 2-118 of the Illinois Vehicle Code (Code) (625 ILCS 5/2-118 (West 2012)).

¶7          Defendant filed a motion in limine seeking to exclude the PBT results from being

     admitted at the hearing on the petition to rescind. The motion alleged that the PBT was

     administered "for the purposes of an Aurora Police Department administrative employee

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     disciplinary investigation" and was therefore not consensual, as required by section 11-501.5(a)

     of the Code (PBT statute) (625 ILCS 5/11-501.5(a) (West 2012)). In addition, the motion

     claimed that the results of the PBT were compelled testimony in violation of the fifth amendment

     (U.S. Const., amend. V). Furthermore, the motion argued that the results of the PBT were not

     reliable.

¶8           At a hearing on the motion in limine, defendant argued that the PBT was an

     "administrative blow," and therefore admission of the PBT at trial would violate defendant's fifth

     amendment right against self-incrimination. Defendant testified that when he arrived on the

     scene, Sergeant Bodman told him that he was required to take the PBT test as an administrative

     blow. DeGraff administered the PBT using a device that belonged to the Aurora police

     department. According to defendant, DeGraff seemed unaware of how to properly operate the

     device. He twice administered the test unsuccessfully before obtaining a reading on the third try.

     Defendant testified that he did not consent to taking the PBT but that DeGraff never told him that

     he was required to take it.

¶9           DeGraff testified that he was a friend and neighbor of defendant's. He was called to the

     scene to help investigate because the Aurora police who responded were concerned that they had

     a conflict of interest in investigating a fellow Aurora police officer. When defendant arrived

     back on the scene, DeGraff detected an odor of alcohol on defendant's breath. DeGraff stated

     that he was "slightly unfamiliar" with the PBT device he used because it was a different model

     than the device he typically used. Bodman requested that DeGraff administer the PBT as an

     administrative blow. DeGraff could not remember whether he told defendant that the PBT test

     was mandatory.




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¶ 10          The court denied the motion in limine. It found that the PBT was an administrative

       search, and therefore the results were admissible so long as the PBT was not merely a subterfuge

       for discovering criminal activity. The court found that the PBT was not a subterfuge.

¶ 11          The cause proceeded to a hearing on defendant's petition to rescind. The issue before the

       court was whether there were reasonable grounds for officers to believe that defendant was under

       the influence of alcohol. 625 ILCS 5/2-118.1(b)(2) (West 2012). The court said, "Frankly,

       without the portable breath test, the Court would not find that there was reasonable grounds for

       the defendant to be arrested, so really this whole motion hinges on the admissibility of the

       portable breath test." The court found that the combination of the PBT results, the odor of

       alcohol emitting from defendant, and the collision established reasonable grounds for officers to

       arrest defendant. The court denied the petition to rescind.

¶ 12                                              ANALYSIS

¶ 13          On appeal, defendant argues that the court should have granted his motion in limine and

       excluded evidence of the PBT results from the hearing on his petition to rescind. He further

       argues that, without admission of the PBT results, the court would have granted his petition to

       rescind. He therefore asks us to reverse the court's decision denying the petition.

¶ 14          A hearing on a petition to rescind a summary suspension of driving privileges is a civil

       proceeding. People v. Davis, 2012 IL App (2d) 110581, ¶ 47. The defendant bears the burden of

       providing a prima facie case for rescission. People v. Smith, 172 Ill. 2d 289, 294-95 (1996). If

       the defendant meets that burden, the burden shifts to the State to provide evidence justifying the

       suspension. Id. at 295.

¶ 15          We agree with the trial court that in the present case the decision on the petition to

       rescind turned on the admissibility of the PBT results. Therefore, we restrict our analysis to the


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       trial court's decision on defendant's motion in limine seeking to preclude the PBT results. A

       court's decision on a motion in limine is reviewed for an abuse of discretion. People v.

       Robinson, 368 Ill. App. 3d 963, 974 (2006).

¶ 16              Defendant first argues that the PBT results were inadmissible under the fifth

       amendment's protection against self-incrimination. U.S. Const., amend. V. Defendant cites to

       Garrity v. New Jersey, 385 U.S. 493 (1967), and its progeny for the proposition that the potential

       employment disciplinary consequences for refusing the PBT compelled him to take the PBT, in

       violation of the fifth amendment. See, e.g., People v. Smith, 399 Ill. App. 3d 534, 541 (2010)

       (holding that statements made under threat of employment termination could not be used to

       incriminate defendant at a criminal proceeding).

¶ 17              Defendant's argument fails on two levels. First, the fifth amendment protects against the

       use of testimonial evidence, not physical evidence such as the PBT results. See Schmerber v.

       California, 384 U.S. 757, 764-65 (1966) (fifth amendment did not bar blood-alcohol analysis

       results, as results were not testimonial). Second, the fifth amendment prevents the introduction

       of compelled testimony at criminal proceedings rather than civil proceedings, such as summary

       suspension proceedings. U.S. Const., amend. V ("nor shall be compelled in any criminal case to

       be a witness against himself"); People v. Hall, 378 Ill. App. 3d 666, 670 (2007). The fifth

       amendment and the holding of Garrity, 385 U.S. 493, did not preclude the admission of the PBT

       results.

¶ 18              Defendant next argues that the PBT results should have been excluded because the PBT

       statute (625 ILCS 5/11-501.5 (West 2012)) requires consent, and defendant did not consent to

       the PBT in the present case. The PBT statute provides that when an investigating officer has

       reasonable suspicion to believe that a person is driving under the influence, the officer "may


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       request the person to provide a sample of his or her breath" through a PBT. 625 ILCS 5/11-

       501.5(a) (West 2012). However, "[t]he person may refuse the test." Id. Defendant, citing

       People v. Rozela, 345 Ill. App. 3d 217 (2003), argues that the statutory language creates a

       requirement that the person must affirmatively consent to the PBT.

¶ 19           In Rozela, PBT results were introduced at a hearing on the defendant's petition to rescind

       her summary suspension. The court relied on the PBT results in denying the defendant's petition.

       Rozela, 345 Ill. App. 3d at 221. On appeal, the defendant argued that the PBT results should

       have been excluded for three reasons: (1) the PBT statute was unconstitutional because it

       allowed a PBT to be conducted absent probable cause; (2) the PBT was not supported by

       reasonable suspicion; and (3) PBT results are generally inadmissible at summary suspension

       proceedings. This court denied all three of the defendant's arguments and affirmed the trial

       court's decision to deny the petition to rescind. Although unnecessary to its decision, the Rozela

       court, in its discussion of the PBT statute, stated that the statute requires that the "suspect

       consent[] to the test." Id. at 224.

¶ 20           We disagree with defendant that the PBT statute requires affirmative consent. Rozela's

       statement that the statute requires consent was dicta and was reached without an explicit analysis

       of the statutory language. Rozela, 345 Ill. App. 3d at 224. We decline to adopt Rozela's

       characterization of the PBT statute. The statutory language states that, upon reasonable

       suspicion, an officer "may request" a suspect to take a PBT, and the suspect "may refuse" that

       request. 625 ILCS 5/11-501.5 (West 20120). The statutory language does not require the officer

       to explain the suspect's right to refuse, nor does it require that the suspect "consent" to the PBT.

       Rather, the "may request" language indicates that the officer cannot command a suspect to take a




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       PBT. The "may refuse" language evidences that there is no penalty for a suspect refusing to take

       the test.

¶ 21           If the legislature had intended for the suspect to be informed of his or her right to refuse,

       such language could have been included in the statute. During debate on the bill that added the

       "may refuse" language, a senator questioned whether the statute mandated that the officer

       explain that the suspect was not required to take the test. 91st Ill. Gen. Assem., Senate

       Proceedings, February 25, 2000, at 62. The bill's sponsor confirmed that the suspect may refuse

       the test and added that the statute does not require the officer to inform the suspect of his or her

       ability to refuse. Id. The legislature's decision not to add such language evidences its intent that

       a PBT does not require the informed consent of the suspect.

¶ 22           In the present case, defendant testified that DeGraff did not tell defendant that he was

       required to take the PBT. DeGraff was not required to inform defendant of his right to refuse.

       Defendant did not exercise his right to refuse the PBT. The PBT results were acquired in

       compliance with the dictates of the PBT statute (625 ILCS 5/11-501.5(a) (West 2012)).

¶ 23           We conclude that the trial court did not abuse its discretion in admitting the PBT results.

       As a result, the court's decision denying defendant's petition to rescind his summary suspension

       is affirmed.

¶ 24                                             CONCLUSION

¶ 25           The judgment of the circuit court of Will County is affirmed.

¶ 26           Affirmed.




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