{ "id": 3507962, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. THOMAS R. KLYCZEK, Defendant-Appellee", "name_abbreviation": "People v. Klyczek", "decision_date": "1987-11-18", "docket_number": "No. 2-87-0023", "first_page": "557", "last_page": "562", "citations": [ { "type": "official", "cite": "162 Ill. App. 3d 557" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "528 A.2d 1090", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 1362093 ], "weight": 2, "pin_cites": [ { "page": "1092" } ], "opinion_index": 0, "case_paths": [ "/pa-commw/108/0172-01" ] }, { "cite": "75 Pa. Cons. Stat. \u00a71547", "category": "laws:leg_statute", "reporter": "Pa. Cons. Stat.", "weight": 2, "year": 1982, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "514 Pa. 411", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1804535 ], "weight": 2, "pin_cites": [ { "page": "417-18" }, { "page": "1188" } ], "opinion_index": 0, "case_paths": [ "/pa/514/0411-01" ] }, { "cite": "135 Ill. App. 3d 283", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3599761 ], "weight": 5, "pin_cites": [ { "page": "286" }, { "page": "286" }, { "page": "286" }, { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/135/0283-01" ] }, { "cite": "122 Ill. App. 3d 1056", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3524067 ], "weight": 2, "pin_cites": [ { "page": "1059" }, { "page": "1059" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/122/1056-01" ] }, { "cite": "129 Ill. App. 3d 849", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3490085 ], "year": 1984, "pin_cites": [ { "page": "852" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/129/0849-01" ] }, { "cite": "144 Ill. App. 3d 281", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3499316 ], "pin_cites": [ { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/144/0281-01" ] }, { "cite": "63 Ill. 2d 128", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5426498 ], "pin_cites": [ { "page": "133" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0128-01" ] } ], "analysis": { "cardinality": 528, "char_count": 11401, "ocr_confidence": 0.76, "pagerank": { "raw": 1.7157770595091962e-07, "percentile": 0.7030863575443974 }, "sha256": "ec305b43350e3a86b38b805a6b5a2c5db146dc397ed9d3656c69aabc3df58f43", "simhash": "1:8e32a6d7af10ac05", "word_count": 1852 }, "last_updated": "2023-07-14T21:56:31.562358+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. THOMAS R. KLYCZEK, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE UNVERZAGT\ndelivered the opinion of the court:\nThe State appeals from the trial court\u2019s order which rescinded the summary suspension of the driver\u2019s license of the defendant, Thomas Klyczek. The trial court determined that defendant\u2019s consent to the breathalyzer testing and subsequent refusal to undergo additional testing did not warrant summary suspension under section 11 \u2014 501.1 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1985, ch. 95\u00bd, par. 11 \u2014 501.1). On appeal, the State contends that the plain language of the Code reveals that refusal of any chemical testing warrants suspension of driving privileges;\nInitially, we note that the defendant has not provided the court with a brief on appeal. Nevertheless, we will address the issue set out by the State in accordance with First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133.\nThe evidence at defendant\u2019s implied consent hearing on November 1, 1986, established that Officer Summerville arrested defendant for transportation of open alcohol (Ill. Rev. Stat. 1985, ch. 95\u00bd, par. 11\u2014 502), invalid registration (Ill. Rev. Stat. 1985, ch. 95\u00bd, par. 3 \u2014 701), improper lane usage (Ill. Rev. Stat. 1985, ch. 95\u00bd, par. 11 \u2014 709), and driving under the influence of alcohol and/or drugs (Ill. Rev. Stat. 1985, ch. 95\u00bd, par. 11 \u2014 501). The record indicated that defendant\u2019s vehicle was observed weaving from the left lane to the curb, and defendant had a strong odor of alcohol on his breath and was unable to perform field sobriety tests. After the officer advised defendant that \u201crefusal or failure to complete all chemical tests requested will result in suspension of your driving privileges for a minimum of six months\u201d and issued other warnings, defendant submitted to breathalyzer testing.\nThe State stipulated at the hearing that defendant had agreed to breathalyzer testing. The breathalyzer test revealed an alcohol concentration of .05, which was below the legal limit of .10. The officer testified that the breathalyzer reading was accurate and conclusive. Nevertheless, the officer requested defendant to undergo a blood or urine test, and defendant refused. Defendant\u2019s refusal constituted the basis of the summary suspension of his driving privileges.\nThe State argued at the hearing that the officer had discretion to request further tests in order to determine any alcohol or drug concentration in defendant\u2019s blood. The State supported its contention by referring to the language of the statute which referred to \u201ctests\u201d in the plural. In ruling for the defendant, the court interpreted the statute as indicating that \u201ctests\u201d referred to the three types: blood, urine, or breath. Because defendant did not refuse to take the breathalyzer test, which was requested of him, the court rescinded the suspension of his driver\u2019s license.\nThe State\u2019s contention on appeal is that the Code empowers the police to request a motorist to perform any combination of the three tests: urine, blood, and breath. In the officer\u2019s discretion, according to the State, individuals could be requested to perform all three tests or face suspension of their driver\u2019s license. The trial court determined that defendant\u2019s failure to undergo additional testing did not constitute refusal warranting suspension under the Code. A finding for defendant in an implied consent proceeding will be reversed on review if it is contrary to the manifest weight of the evidence. People v. Elledge (1986), 144 Ill. App. 3d 281, 283.\nThe issue presented, whether the defendant\u2019s driver\u2019s license may be suspended summarily when he refuses to submit to a test to determine the drug content of his blood or urine after he had already successfully completed a breathalyzer test, appears to be a question of first impression in Illinois. In this appeal, we are asked to interpret section 11 \u2014 501.1 of the Code, which provides in relevant part:\n\u201c(a) Any person who drives *** shall be deemed to have given consent *** 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 ***. 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. * * *\n(c) *** The person shall also be warned by the law enforcement officer that if the person submits to the test or tests provided in paragraph (a) of this Section and the alcohol concentration in such person\u2019s blood or breath is 0.10 or greater, a statutory summary suspension of such person\u2019s privilege to operate a motor vehicle, as provided in Sections 6 \u2014 208.1 and 11 \u2014 501.1 of this Code, will be imposed.\n(d) If the person refuses testing or submits to a test which discloses an alcohol concentration of 0.10 or more, the law enforcement officer shall immediately submit a sworn report to the circuit court of venue and the Secretary of State, certifying that the test or tests was or were requested pursuant to paragraph (a) and the person refused to submit to a test, or tests, or submitted to testing which disclosed an alcohol concentration of 0.10 or more.\u201d (Emphasis added.) Ill. Rev. Stat. 1985, ch. 95\u00bd, pars. 11 \u2014 501.1(a), (c), (d).\nAs set forth above, section 11 \u2014 501.1 is not clear on its face, but susceptible to differing interpretations. The trial court, for instance, interpreted \u201ctests\u201d as referring to the different types available: breath, blood, or urine. This section could also mean that police are permitted to administer one blood, one urine, and one breath test, or that it may require a multiple number of blood, urine, or breath tests. While the courts have not decided the issue presented here, the court in People v. Greenspon (1984), 129 Ill. App. 3d 849, 852, relying on People v. Kiss (1984), 122 Ill. App. 3d 1056, 1059, indicated that under section 11 \u2014 501.1, \u201ca 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 refusal to submit to any one of these tests upon request constitutes a refusal for purposes of the statute.\u201d According to this analysis, the language of the statute \u2014 \u201ctest or tests\u201d \u2014 signifies that an officer may request more than one test from a motorist. This interpretation is also consistent with the statutory purpose of deterring drinkers from driving by compelling them to submit to chemical tests to obtain evidence of intoxication while preserving their due process rights. Kiss, 122 Ill. App. 3d at 1059.\nIn our opinion, multiple testing is not always proper. In People v. Cofer (1985), 135 Ill. App. 3d 283, a defendant consented to take a breathalyzer test but refused to repeat the test when the printer malfunctioned. In this circumstance, the court determined that the defendant\u2019s refusal to perform the test a second time warranted suspension of his license. The court interpreted section 11 \u2014 501.1 as contemplating retesting by its language, \u201ctest or tests.\u201d (People v. Cofer (1985), 135 Ill. App. 3d 283, 286.) The court explained, however, that \u201c[w]e neither suggest that multiple analyses are always appropriate, nor do we encourage arbitrary attempts to whittle away a defendant\u2019s due process rights.\u201d People v. Cofer (1985), 135 Ill. App. 3d 283, 286.\nThe State relies on the dissenting opinion in People v. Cofer (1985), 135 Ill. App. 3d 283, 286 (Wombacher, J., dissenting). The dissent agreed with the majority\u2019s outcome but opined that the first test given was valid even though the printer was not working, as it showed an alcohol concentration of .22. According to the dissent, however, the words \u201ctest or tests\u201d did not encompass a retesting situation but meant a police officer could first require a breath test for alcohol and then require a blood or urine test for drugs. (People v. Cofer (1985), 135 Ill. App. 3d 283, 286.) We agree and conclude that under certain circumstances refusal to submit to multiple testing warrants suspension of a motorist\u2019s driver\u2019s license.\nSimilarly, our view is supported by the holding in Commonwealth v. McFarren (1987), 514 Pa. 411, 417-18, 525 A.2d 1185, 1188 (plurality opinion). In McFarren, the court interpreted its implied consent statute (75 Pa. Cons. Stat. \u00a71547(a) (1982)). Section 1547(a) of the Motor Vehicle Code stated in relevant part that \u201c[a]ny person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance.\u201d (75 Pa. Cons. Stat. \u00a71547(a) (1982).) While the court interpreted the statute as allowing multiple testing, the court held that a second chemical test of blood for alcohol may be proper if the first test was inconclusive due to faulty equipment or faulty performance by an individual, including the situation in which the individual fails to participate fully in a breathalyzer test. However, a police officer\u2019s request that a motorist submit to a second blood-alcohol test to substantiate the accuracy of the first test is unreasonable under the constitution, which prohibits unreasonable searches and seizures. Thus, a motorist who provided a first test could not be deemed to have refused to submit to testing, and his license could not be suspended on the basis of his refusal to submit to the second test. The same result occurred in Commonwealth v. Fellmeth (Pa. Commw. Ct. 1987), 528 A.2d 1090. In Fellmeth, where the first breathalyzer test was deemed valid, defendant\u2019s failure to submit to a second test was not in violation of Pennsylvania\u2019s implied consent statute. In order for a second test to be requested, the police officer must establish circumstances which support the reasonableness of his second search. Fellmeth, 528 A.2d at 1092.\nIn this case, the validity of the first test is not in question. The police officer testified that the test was accurate. The result of such test indicated that defendant was presumed not to be under the influence of alcohol. The officer then had to present reasonable evidence for requesting a second test. At the hearing, the State argued that the officer requested further testing to determine whether there was any drug concentration in defendant\u2019s blood. The test was not requested merely to confirm defendant\u2019s alcohol level. Therefore, the second test in this case was reasonable, and the defendant\u2019s refusal to perform that test warrants suspension of his driver\u2019s license.\nFor the foregoing reasons, we reverse the decision of the trial court to rescind the suspension of defendant\u2019s driver\u2019s license, and the cause is remanded for further proceedings consistent with this decision.\nReversed and remanded.\nNASH and INGLIS, JJ., concur.", "type": "majority", "author": "JUSTICE UNVERZAGT" } ], "attorneys": [ "James E. Ryan, State\u2019s Attorney, of Wheaton (Judith M. Pietrucha and Barbara A. Preiner, Assistant State\u2019s Attorneys, and William L. Browers, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.", "No brief filed for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. THOMAS R. KLYCZEK, Defendant-Appellee.\nSecond District\nNo. 2\u201487\u20140023\nOpinion filed November 18, 1987.\nJames E. Ryan, State\u2019s Attorney, of Wheaton (Judith M. Pietrucha and Barbara A. Preiner, Assistant State\u2019s Attorneys, and William L. Browers, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.\nNo brief filed for appellee." }, "file_name": "0557-01", "first_page_order": 579, "last_page_order": 584 }