{ "id": 3523809, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RENEE BRENNAN, Defendant-Appellant", "name_abbreviation": "People v. Brennan", "decision_date": "1984-03-27", "docket_number": "No. 3\u201483\u20140526", "first_page": "602", "last_page": "604", "citations": [ { "type": "official", "cite": "122 Ill. App. 3d 602" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "83 Ill. App. 3d 344", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5555412 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/83/0344-01" ] } ], "analysis": { "cardinality": 349, "char_count": 6010, "ocr_confidence": 0.764, "pagerank": { "raw": 1.0326393611922347e-07, "percentile": 0.5486420250755932 }, "sha256": "91a2cb1111b738a22a2c070baef94cf7405801027afe17eebb7e7abd0a9c78e8", "simhash": "1:c927afbb055c9cc5", "word_count": 1006 }, "last_updated": "2023-07-14T18:37:51.597464+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RENEE BRENNAN, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HEIPLE\ndelivered the opinion of the court:\nIn accordance with section 11 \u2014 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95V2, par. 11 \u2014 501.1), the circuit court of La Salle County held a hearing to determine whether the defendant, Renee Brennan, refused to submit to a breathalyzer test. The trial court found the defendant refused to submit to the test. The defendant appeals that finding. We reverse.\nThe issue on appeal is whether the State proved by a preponderance of the evidence that the defendant refused the breathalyzer test. It is important to note, at the outset, that there is little authority concerning when a refusal may occur and what conduct constitutes a refusal under section 11 \u2014 501.1 of the Illinois Vehicle Code.\nSection 11 \u2014 501.1 sets out the procedures which must be followed by law enforcement officers when requesting a driver to submit to an intoxication test. The section also lists the penalties which may be imposed upon a driver for refusing, \u201cupon the request of the officer,\u201d to submit to a test. Logic, as well as the language of section 11 \u2014 501.1, suggests that there cannot be a refusal to take a test unless the driver is asked to take the test. Therefore, we find that a refusal occurs only where, after a clear warning of the ramifications resulting from a refusal (see People v. Malloy (1980), 83 Ill. App. 3d 344), an officer explicitly asks a defendant whether he, or she, will take the test, and the defendant, by word, act or omission, clearly refuses to take the test.\nIn the instant case, the uncontroverted facts are as follows. The defendant was stopped by Officer Vagasky in the early morning hours of January 15, 1983. Officer Vagasky believed the defendant was intoxicated and asked her to take a breathalyzer test. The defendant agreed and rode with Officer Vagasky to a nearby police station. Once at the station, the defendant received permission to phone home. After the phone call, Officer Vagasky drove the defendant to the county jail in Ottawa, where she remained until a family member transported her home. The breathalyzer test was never administered to the defendant. The next day, the officer submitted an affidavit of the defendant\u2019s refusal to take the test.\nAt the hearing on the question of refusal, Officer Vagasky testified the defendant refused the test. The defendant, on the other hand, stated that she did not refuse the test. The defendant\u2019s testimony was unequivocal. In addition to the above facts, she related that after arriving at the station, she briefly spoke with her mother on the phone. A policewoman then took the phone in order to give the defendant\u2019s mother directions to the station. At that time, Officer Vagasky said he wouldn\u2019t wait and that her mother should pick her up at the Ottawa County jail. Following the phone call, the defendant did not have any further conversation with Officer Vagasky. She also testified that following the initial roadside request to take the test, no one again asked her to take the test and she never refused to take the test.\nThe State, based upon the testimony of Officer Vagasky, contends that the defendant attempted to delay the administration of the test and that the defendant conditioned her participation upon the occurrence of certain events, namely an opportunity to speak with her father. The State argues that this \u201cconditional refusal\u201d by the defendant should be construed as a refusal under the Vehicle Code. We need not decide whether a conditional refusal can be a refusal under the Code.\nAn examination of the record reveals that Officer Vagasky\u2019s testimony concerning the fact of any sort of refusal, conditional or otherwise, was directly contradictory and without credibility. At one point, Officer Vagasky testified that \u201c[the defendant] didn\u2019t know if she should or shouldn\u2019t [take the test] *** she was confused *** After a certain period of time we took it as a refusal ***.\u201d A few moments later, Officer Vagasky then testified, \u201cShe said she\u2019s not going to take it.\u201d Yet, later still, the State asked Officer Vagasky, \u201cDid she ever say she wasn\u2019t going to [take the test]?\u201d The officer replied, \u201cNot directly, no.\u201d Yet, again, moments later he testified, \u201cI said, do you want to take the test? She said no ***.\u201d In light of the oscillation in Officer Vagasky\u2019s testimony, we believe he did not have a clear recollection of his conversations with the defendant. At most, we can only infer that he based his conclusion of a refusal upon his silent and subjective interpretation of the defendant\u2019s confusion and request to speak with a family member.\nAs noted above, the fact of a refusal must be based upon an objective review of the officer\u2019s question and the defendant\u2019s response. In the instant case, the defendant rode with Officer Vagasky to the police station, in the first place, because she agreed to his roadside request that she take the test. We find no credible evidence that, once at the station, the defendant was ever offered the test or asked, for a second time, whether she would take the test. Consequently her statements and conduct at the station cannot be interpreted as a refusal. There cannot be a refusal if there was neither a proper request nor an opportunity to take the test.\nTherefore, we hold that the trial court\u2019s finding of a refusal to take the breathalyzer test was against the manifest weight of the evidence. The State did not prove by a preponderance of the evidence that the defendant refused the administration of the test. The trial court is reversed.\nReversed.\nBARRY and STOUDER, JJ., concur.", "type": "majority", "author": "JUSTICE HEIPLE" } ], "attorneys": [ "Joseph A. Mueller, of White, Marsh & Mueller, of Ottawa, for appellant.", "Gary L. Peterlin, State\u2019s Attorney, of Ottawa (John X. Breslin and Gary F. Gnidovec, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RENEE BRENNAN, Defendant-Appellant.\nThird District\nNo. 3\u201483\u20140526\nOpinion filed March 27, 1984.\nJoseph A. Mueller, of White, Marsh & Mueller, of Ottawa, for appellant.\nGary L. Peterlin, State\u2019s Attorney, of Ottawa (John X. Breslin and Gary F. Gnidovec, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0602-01", "first_page_order": 624, "last_page_order": 626 }