{
  "id": 3524067,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JERRY A. KISS, Defendant-Appellee",
  "name_abbreviation": "People v. Kiss",
  "decision_date": "1984-03-02",
  "docket_number": "No. 5\u201483\u20140246",
  "first_page": "1056",
  "last_page": "1060",
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    "name": "Illinois Appellate Court"
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  "last_updated": "2023-07-14T18:37:51.597464+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JERRY A. KISS, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "JUSTICE JONES\ndelivered the opinion of the court:\nThis case involves a State appeal following an implied consent hearing in which the trial court refused to suspend the defendant\u2019s driver\u2019s license for failure to submit to a breath test as requested. The basis of the trial court\u2019s ruling was that since the applicable statute (Ill. Rev. Stat. 1981, ch. 95\u00bd, par. 11 \u2014 501) permits the chemical analysis of both blood and urine, in addition to breath analysis, to determine a person\u2019s blood-alcohol content, a motorist arrested for driving while under the influence of alcohol must be allowed the opportunity to refuse each of these three types of tests before he can be said to have refused to submit to a test for purposes of the statute. Since, in the instant case, the defendant was offered and refused only the breath test, the trial court held that the requirements of the statute had not been met so as to warrant the suspension of the defendant\u2019s license. We reverse.\nThe defendant was arrested on December 24, 1982, for driving while under the influence of alcohol. The arresting officer subsequently filed an affidavit pursuant to statute (Ill. Rev. Stat. 1981, ch. 95\u00bd, par. 11 \u2014 501.1), stating that the defendant had refused \u201cto submit to the chemical test or tests requested in accordance with Section 11 \u2014 501.1 of the Illinois Vehicle Code, after being informed of the possible consequences of [his] refusal.\u201d The defendant filed a request for an implied consent hearing. On February 18, 1983, the defendant entered a plea of guilty to the offense of driving while under the influence of alcohol and was placed on supervision for a period of 12 months and ordered to pay a fine of $400.\nAt the implied consent hearing held on March 9, 1983, Trooper David Mileur testified that he had been called to the Jackson County Sheriff\u2019s Department on the date in question to administer a breathalyzer test to the defendant. Prior to administering the test Trooper Mileur read a card to the defendant advising him of the penalties for refusing to take the test. The defendant indicated that he did not wish to take the test, and none was given.\nOn cross-examination defense counsel asked Trooper Mileur if he had requested the defendant to submit to a blood or urine analysis, and Mileur replied that he had not. Mileur stated that \u201che [the defendant] wasn\u2019t going to take any test is the way he put it [sic].\u201d On redirect Trooper Mileur testified that the defendant had not requested any other tests.\nThe defendant presented no evidence, and, following argument by counsel, the trial court found (1) that the defendant was arrested for driving while under the influence of alcohol and (2) that there was probable cause for his arrest. The trial court additionally found that the defendant had refused to take a breath test. The court held, however, that this was not sufficient to warrant the suspension of the defendant\u2019s license, reasoning as follows:\n\u201c[P]rior to January 1, 1982, the statute [Ill. Rev. Stat. 1979, ch. 95\u00bd, par. 11 \u2014 501.1] specifically said that you impliedly consent to take a test of chemical analysis, analysis of breath only [sic]. The statute now reads, tests of blood, breath, or urine, and the way that is listed one, two, or [sic] indicates to me that they are in the alternative, one of the three, and I think there are three tests that you impliedly consent to. There is no question in my mind that [the defendant] refused to take a breath test, but the legislature said there are three. He was not asked to nor did he refuse to take either a blood test or a urinalysis, and based upon the statute as it now reads, this conviction was after January 1, 1982,1 am going to find that he did not refuse to take the test.\u201d\nOn appeal from the trial court\u2019s ruling, the State contends that the court\u2019s interpretation of the statute contradicts both the language and the purpose of the statute. The statute provides, in pertinent part:\n\u201cSuspension of drivers license \u2014 Implied consent, (a) Any person who drives or is in actual physical control of a motor vehicle upon the public highways of this State shall be deemed to have given consent, subject to the provisions of Section 11 \u2014 501.2, to a chemical test or tests of blood, breath, or urine for the. purpose of determining the alcohol, other drug, or combination thereof content of such person\u2019s blood if arrested, as evidenced by the issuance of a Uniform Traffic Ticket, for any offense as defined in Section 11-501 or a similar provision of a local ordinance. The test or tests shall be administered at the direction of the arresting officer. The law enforcement agency employing said officer shall designate which of the aforesaid tests shall be administered by their enforcement personnel.\n* * *\n(c) A person requested to submit to a test as provided above shall be warned by the law enforcement officer requesting the test that a refusal to submit to the test will result in suspension of such person\u2019s license to operate a motor vehicle for six (6) months for the first such arrest and refusal and a suspension of such privilege for 12 months for the second and each subsequent such arrest and refusal within 5 years. Following this warning, if a person under arrest refuses upon the request of a law enforcement officer to submit to a test designated by the law enforcement agency as provided in paragraph (a) of this Section, none shall be given, but the law enforcement officer shall file with the clerk of the circuit court for the county in which the arrest was made, a sworn statement naming the person refusing to take and complete the test or tests requested under the provisions of this Section.\u201d (Emphasis added.) Ill. Rev. Stat. 1981, ch. 95\u00bd, par. 11 \u2014 501.1.\nThe issue here presented of whether, under the implied consent statute as amended (Ill. Rev. Stat. 1981, ch. 95\u00bd, par. 11 \u2014 501.1), a motorist must be allowed to choose among the three specified types of blood-alcohol tests is, so far as we are aware, one of first impression in this State. In dealing with this issue, it is necessary to determine what constitutes a \u201crefusal\u201d for purposes of the statute.\nWhile, as the trial court noted, a motorist under the statute impliedly consents to all three types of blood-alcohol tests, it is faulty logic to conclude from this that the statute requires a refusal of each type of test. Rather, the statute explicitly states that a person requested to submit to \u201ca test\u201d authorized by statute shall be warned that \u201ca refusal to submit to the test\u201d will result in suspension of that person\u2019s driving privileges. Moreover, such a test is to be administered at the direction of the arresting officer, and the law enforcement agency employing that officer is to designate which of the enumerated tests shall be administered. It is the plain meaning of the statute, therefore, that a motorist is deemed to have consented to any or all of the tests which, in the discretion of the law enforcement agency, he is requested to take, and a refusal to submit to any one of these tests upon request constitutes a refusal for purposes of the statute.\nThis reading of the statute is not only evident from the language of the statute but is also consistent with the statutory purpose of enabling law enforcement officers to obtain objective evidence of an offender\u2019s blood-alcohol content while preserving his due process rights. (See People v. Malloy (1980), 83 Ill. App. 3d 344, 403 N.E.2d 1221.) The statutory amendment referred to by the trial court allowing blood and urine tests in addition to the breath test provided under the former statute (Ill. Rev. Stat. 1979, ch. 95\u00bd, par. 11 \u2014 501.1) was designed to facilitate enforcement of the Illinois law against driving while under the influence of alcohol (Ill. Rev. Stat. 1981, ch. 95\u00bd, par. 11 \u2014 501). (See Comment, Drunk Drivers Versus Implied Consent: A Sobering New Illinois Statute, 15 J. Mar. L. Rev. 479 (1982).)-Indeed, the addition of the new tests reflect the fact that intoxicated drivers often end up in a hospital, where blood and urine tests are more conveniently performed. Also, the provision authorizing blood tests was made necessary by another amendment that removed the ban against testing the blood-alcohol content of a dead or unconscious person (Ill. Rev. Stat. 1981, ch. 95\u00bd, par. 11 \u2014 501.1(b)).\nFrom an examination of the statute, we find no indication that the legislature\u2019s addition of permissible means of determining blood-alcohol content was meant to provide the offending motorist with a choice of the types of tests specified. Such an interpretation would actually enable an offender to defeat the purpose of the statute by demanding a test that was unavailable and would, at the same time, fail to advance the offender\u2019s due process rights. (A person tested may, under section 11 \u2014 501.2(a)(3) (Ill. Rev. Stat. 1981, ch; 95\u00bd, par. ll-501.2(a)(3)), secure an additional test or tests by a qualified person of his own choosing.) We hold, therefore, that the defendant\u2019s refusal in the instant case to submit to a breath test upon request by the officer in question was sufficient to constitute a refusal for purposes of the statute.\nFor the reasons stated in this opinion, we reverse the judgment of the circuit court of Jackson County and remand this cause with directions to make a finding that the defendant refused to submit to a test upon request and to enter a supplemental order reflecting this finding.\nReversed and remanded with directions.\nWELCH, P.J., and HARRISON, J., concur.",
        "type": "majority",
        "author": "JUSTICE JONES"
      }
    ],
    "attorneys": [
      "John R. Clemons, State\u2019s Attorney, of Murphysboro (Stephen E. Norris and Raymond F. Buckley, Jr., both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People.",
      "No brief filed for appellee."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JERRY A. KISS, Defendant-Appellee.\nFifth District\nNo. 5\u201483\u20140246\nOpinion filed March 2, 1984.\nJohn R. Clemons, State\u2019s Attorney, of Murphysboro (Stephen E. Norris and Raymond F. Buckley, Jr., both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People.\nNo brief filed for appellee."
  },
  "file_name": "1056-01",
  "first_page_order": 1078,
  "last_page_order": 1082
}