{
  "id": 3582188,
  "name": "In re SUMMARY SUSPENSION OF DRIVER'S LICENSE OF TAYLOR VAUGHN (The People of the State of Illinois, Plaintiff-Appellee, v. Taylor Vaughn, Defendant-Appellant)",
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    "judges": [],
    "parties": [
      "In re SUMMARY SUSPENSION OF DRIVER\u2019S LICENSE OF TAYLOR VAUGHN (The People of the State of Illinois, Plaintiff-Appellee, v. Taylor Vaughn, Defendant-Appellant)."
    ],
    "opinions": [
      {
        "text": "JUSTICE LUND\ndelivered the opinion of the court:\nOn June 2, 1987, the circuit court of Logan County entered an order denying the petition of defendant Taylor Vaughn requesting rescission of his statutory summary suspension for refusing to take the chemical tests required by section 11 \u2014 501.1 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1985, ch. 95V2, par. 11 \u2014 501.1). Defendant appeals alleging the court\u2019s decision was against the manifest weight of the evidence, and the officer did not sufficiently request defendant to take the required tests.\nOn March 22, 1987, defendant was placed under arrest for driving under the influence of intoxicating liquor in violation of section 11\u2014 501 of the Code (Ill. Rev. Stat. 1985, ch. 951k, par. 11 \u2014 501). At the same time, defendant was served notice that he would receive a statutory summary suspension of his driver\u2019s license for six months for refusing to take the required tests pursuant to section 11 \u2014 501.1 of the Code (Ill. Rev. Stat. 1985, ch. 95V2, par. 11 \u2014 501.1). On May 6, 1987, defendant requested a hearing pursuant to section 2 \u2014 118.1 of the Code (Ill. Rev. Stat. 1985, ch. 951h, par. 2 \u2014 118.1) for the purpose of asking the court to rescind his statutory summary suspension. On June 2, 1987, the hearing was conducted.\nThe State proceeded first and introduced into evidence the written report of Trooper J. M. Erickson, the arresting officer. The report states that Erickson observed defendant\u2019s vehicle on 1-55 swerving in its lane of traffic. Upon stopping the vehicle, she smelled a strong odor of alcohol coming from defendant\u2019s breath, and his eyes were bloodshot. At the time, she requested he perform various field sobriety tests, which the report explains in detail and which he failed. She then placed him under arrest for driving under the influence of intoxicating liquor (DUI) and issued him his tickets. She advised him of the required implied-consent warnings while he read along on his copy. He stated he understood these rights, and defendant refused to take the test.\nDefendant testified he was returning from his father\u2019s funeral, where he had some drinks several hours earlier. At the time he was stopped, he was not weaving in his lane. His eyes were red because he had been crying at his father\u2019s funeral. After placing him under arrest for DUI, the trooper asked, \u201cDo you want to take the test?\u201d He responded, \u201cNo, I don\u2019t want to take the test.\u201d\nOn cross-examination, defendant admitted that he was warned that if he took the test and his blood-alcohol count was .10 or more, he would have his driver\u2019s license suspended for three months, and if he refused to take a requested test, his license would be suspended for six months. He acknowledged he understood this at the time it was given.\nTrooper Erickson was called by the defense but did not testify concerning any of the particulars in her report. Both sides rested, and the court denied defendant\u2019s request for rescission of the statutory summary suspension. This appeal followed.\nDefendant contends the court\u2019s decision is erroneous. However, this allegation is based in part on an incorrect interpretation of our recent case In re Summary Suspension of Driver\u2019s License of Trainor (1987), 156 Ill. App. 3d 918, 510 N.E.2d 614.\nIn People v. Blythe (1987), 153 Ill. App. 3d 292, 505 N.E.2d 402, this court held that the burden of proof, in a hearing where the defendant requests a rescission of suspension, is on the defendant. In Trainor, we reasserted that holding. However, the rescission hearing in that case was conducted before the Blythe decision, and the State had proceeded with the burden of proof. In reaffirming Blythe and also explaining the circuit court\u2019s procedure in Trainor, we stated that \u201c[w]hile the burden of proceeding and the burden of proof is on the defendant (People v. Blythe (1987), 153 Ill. App. 3d 292, 505 N.E.2d 402), in this case, the State accepted the burden of going forward.\u201d (Trainor, 156 Ill. App. 3d at 921, 510 N.E.2d at 616.) Defendant has construed this to mean that in the cases where the State proceeds first, the State is assuming the burden of proof. This is incorrect. The law of this district concerning the burden of proof is Blythe. This is true regardless of the order in which evidence is presented. Therefore, the burden of proof in the current case is on defendant.\nDefendant contends the decision was incorrect since the State relied on the unsworn police report while he testified under oath. He believes his testimony is, therefore, sufficiently more reliable and requires a finding that the suspension should be rescinded. Section 2\u2014 118.1(b) specifically provides: \u201cThe hearing may be conducted upon a review of the law enforcement officer\u2019s own official reports.\u201d (Ill. Rev. Stat. 1985, ch. 95x/2, par. 2 \u2014 118.1(b).) Thus, the admission of the report into evidence was proper. The weight to be given to the evidence is up to the trier of fact, and its findings will not be overturned unless they are against the manifest weight of the evidence. (People v. Jacquith (1984), 129 Ill. App. 3d 107, 117, 472 N.E.2d 107, 114.) We also note the arresting officer was present in court and subject to examination on her report.\nWe have reviewed the evidence. The burden of proof is the civil standard of preponderance of the evidence (People v. Greenspon (1984), 129 Ill. App. 3d 849, 473 N.E.2d 331), and, as discussed, is the defendant\u2019s burden. We agree with the court that defendant did not meet it.\nDefendant next contends that the trooper\u2019s question, \u201cDo you want to take the test?\u201d and his answer, \u201cNo, I don\u2019t want to take the test,\u201d are not sufficient for a request and refusal to submit to the required tests. Defendant notes section 11 \u2014 501.1 of the Code continually refers to the defendant\u2019s being \u201crequested\u201d to perform the tests. He argues that the phrase \u201crequested\u201d is similar in meaning to \u201casked\u201d and is much more specific than a desire to take the test which is suggested by \u201cDo you want to take the test?\u201d Therefore, he urges, since the trooper did not specifically ask if he would take the test but only asked if he desired to do so, there was no \u201crequest\u201d as envisioned by statute, and, accordingly, no refusal.\nWhile we agree with defendant that there is clearer language which could have been used, we find that the language used was sufficiently clear. The evidence shows that at the time defendant was under arrest for DUI, he had been advised of the consequences of taking or refusing the breath test. He had a copy of the explanation in his hands, and he fully understood these rights. It was at this point he was asked, \u201cDo you want to take the test?\u201d This sufficiently communicated the necessary request to the defendant. To hold otherwise would defy common sense.\nFor the reasons stated above, the decision of the circuit court of Logan County is affirmed.\nAffirmed.\nKNECHT and SPITZ, JJ., concur.",
        "type": "majority",
        "author": "JUSTICE LUND"
      }
    ],
    "attorneys": [
      "Fellheimer, Travers & Luckman, Ltd., of Pontiac (Carey J. Luckman, of counsel), for appellant.",
      "Greg Roosevelt, State\u2019s Attorney, of Lincoln (Kenneth R. Boyle, Robert J. Biderman, and Perry Lee Miller, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "In re SUMMARY SUSPENSION OF DRIVER\u2019S LICENSE OF TAYLOR VAUGHN (The People of the State of Illinois, Plaintiff-Appellee, v. Taylor Vaughn, Defendant-Appellant).\nFourth District\nNo. 4\u201487\u20140447\nOpinion filed December 23, 1987.\nFellheimer, Travers & Luckman, Ltd., of Pontiac (Carey J. Luckman, of counsel), for appellant.\nGreg Roosevelt, State\u2019s Attorney, of Lincoln (Kenneth R. Boyle, Robert J. Biderman, and Perry Lee Miller, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
  },
  "file_name": "0049-01",
  "first_page_order": 71,
  "last_page_order": 75
}