{ "id": 291572, "name": "THE CITY OF HIGHLAND PARK, Plaintiff-Appellee, v. YEVGENIY DIDENKO, Defendant-Appellant", "name_abbreviation": "City of Highland Park v. Didenko", "decision_date": "1995-08-04", "docket_number": "No. 2\u201494\u20141354", "first_page": "24", "last_page": "28", "citations": [ { "type": "official", "cite": "274 Ill. App. 3d 24" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "242 Ill. App. 3d 418", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5118427 ], "weight": 2, "pin_cites": [ { "page": "422" }, { "page": "422" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/242/0418-01" ] }, { "cite": "164 Ill. App. 3d 53", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3583373 ], "pin_cites": [ { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/164/0053-01" ] }, { "cite": "152 Ill. 2d 418", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5603087 ], "weight": 2, "pin_cites": [ { "page": "424" }, { "page": "425" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/152/0418-01" ] }, { "cite": "237 Ill. App. 3d 304", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5164345 ], "weight": 4, "pin_cites": [ { "page": "306" }, { "page": "309" }, { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/237/0304-01" ] }, { "cite": "225 Ill. App. 3d 550", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5247537 ], "pin_cites": [ { "page": "556" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/225/0550-01" ] }, { "cite": "234 Ill. App. 3d 497", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5187153 ], "pin_cites": [ { "page": "503" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/234/0497-01" ] }, { "cite": "124 Ill. 2d 326", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3218359 ], "year": 1992, "pin_cites": [ { "page": "338" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/124/0326-01" ] }, { "cite": "237 Ill. App. 3d 304", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5164345 ], "weight": 2, "pin_cites": [ { "page": "306" }, { "page": "309" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/237/0304-01" ] } ], "analysis": { "cardinality": 510, "char_count": 9705, "ocr_confidence": 0.726, "pagerank": { "raw": 9.711010244011708e-08, "percentile": 0.530065652476264 }, "sha256": "c124c18db176fc4b3e1f3faebccbe3790a907be66b3f00cb71f1e9cd17bc3cb1", "simhash": "1:07a889967fcd9525", "word_count": 1582 }, "last_updated": "2023-07-14T20:31:30.839378+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE CITY OF HIGHLAND PARK, Plaintiff-Appellee, v. YEVGENIY DIDENKO, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE COLWELL\ndelivered the opinion of the court:\nDefendant, Yevgeniy Didenko, appeals the trial court\u2019s order denying his petition to rescind the summary suspension of his driver\u2019s license (see 625 ILCS 5/2 \u2014 118.1(b) (West 1994)). The question for review is whether the trial court erred in ruling that the arresting officer\u2019s failure to give the required warning about refusal to submit to breath testing was excused by defendant\u2019s combativeness. We reverse.\nBecause there is no bystander\u2019s report or transcript of the testimony from the summary suspension hearing, we derive the facts from the trial court\u2019s findings set forth in a written order, the traffic citation, and the facts as agreed upon by trial counsel. Defendant was driving 81 miles per hour in a 50-mile-per-hour zone. When the police officer attempted to pull defendant over, defendant increased Ms speed to 108 miles per hour. Defendant was forced to stop when semi-tractor trailers barricaded his vehicle. Defendant refused to exit Ms vehicle and did not respond to the officer\u2019s requests. Instead, defendant wrapped his arms around the steering wheel. The officer had to turn off the ignition and remove the key. The officer also pried defendant\u2019s hands and arms from the steering wheel and physically removed him from the car. Defendant and the officers struggled, falling onto the trunk of the car. Defendant kicked at the officers. The arresting officer noticed a strong odor of alcohol on defendant\u2019s breath. He was handcuffed, physically placed in the back of the squad car, and taken to the police station. The officers read the Miranda rights to defendant, but he refused to listen and was loud and abusive.\nOn arrival at the station, defendant remained uncooperative and physically combative. His driver\u2019s license had to be forcibly taken from Mm. At some point, defendant stated that he refused to do anything without a Russian lawyer. Defendant\u2019s responses to any verbal requests were obscenities. He refused to answer questions and was physically aggressive. Because defendant was \"extremely combative,\u201d for the personal safety of the police officers, defendant was placed in a holding cell. Although the arresting officer attempted to read the Miranda warnings again to defendant, he decided that it was futile to attempt to read the \"Warning to Motorist\u201d to defendant. The officer wrote on the \"Warning to Motorist\u201d form that the warning was \"not given as subject was placed into lockup, combative,\u201d and the printed phrase \"Time of Warning\u201d was crossed out.\nThe court found that every effort the officer made to comply with the statute was \"completely thwarted\u201d by defendant\u2019s refusal to cooperate and his physical aggression; that defendant\u2019s actions interfered with the officer\u2019s efforts to provide the warnings about refusal to submit to testing and to request that defendant submit; and that reading the \"Warning to Motorist\u201d to defendant would have been futile because defendant \"made every effort to prevent the officer from arresting and processing\u201d him. The court concluded that defendant\u2019s conduct was a constructive refusal and, therefore, the officer did not need to provide the warning or request defendant to submit to testing.\nIn a summary suspension rescission proceeding, the motorist has the burden of proving one or more of the statutory grounds for rescission. (People v. Orth (1988), 124 Ill. 2d 326, 338.) We will not reverse the trial court\u2019s decision unless it is against the manifest weight of the evidence. People v. Graney (1992), 234 Ill. App. 3d 497, 503.\nAny person who drives on a public highway and is arrested for driving under the influence of alcohol is deemed to have given implied consent to a test to determine whether he or she is under the influence of alcohol. (625 ILCS 5/11 \u2014 501.1(a) (West 1994).) Before administering the test, the arresting officer is required to warn the motorist that refusal to take the test or failure to pass the test will result in the suspension of driving privileges. (625 ILCS 5/11 \u2014 501.1(c) (West 1994).) The officer\u2019s failure to give the required warnings is a ground for the rescission of the suspension. People v. Engelbrecht (1992), 225 Ill. App. 3d 550, 556.\nThe trial court relied on People v. Aultman (1992), 237 Ill. App. 3d 304, when it concluded that it would have been futile for the officer to have read the \"Warning to Motorist.\u201d However, Aultman is distinguishable because in that case the officer twice attempted to read the warning over the defendant\u2019s screaming. (Aultman, 237 Ill. App. 3d at 306.) By contrast, here the officer never attempted to read the warning. Although defendant was combative, he was in a holding cell, where he could not harm the officer. As such, defendant\u2019s combativeness did not prevent the officer from attempting to read the warning. As the court in Aultman explained, \"[i]n all but the most egregious circumstances, an arresting officer should provide the statutory warnings.\u201d (Aultman, 237 Ill. App. 3d at 309.) Exceptions to the statute should not be engrafted lightly. Aultman, 237 Ill. App. 3d at 309.\nThe futility of reading the warning does not excuse the officer\u2019s duty to attempt to do so. (See People v. Wegielnik (1992), 152 Ill. 2d 418, 424 (the officer must read the warning even if the suspect would not understand it).) If the person is conscious and present, the officer must make an effort to read the warning. (Cf. People v. Doty (1987), 164 Ill. App. 3d 53, 57 (defendant\u2019s fleeing from the scene before officer had opportunity to read warning constituted constructive refusal).) While it is likely that defendant would have refused to cooperate even had the officer read the warning, we believe the officer has the obligation to do so and may not ignore the statutory requirement based on that officer\u2019s subjective determination that a suspect will refuse to cooperate. The purpose of the warning is to \"motivate[ ] drivers to take the test, thereby allowing the State to obtain objective evidence of intoxication.\u201d (Wegielnik, 152 Ill. 2d at 425.) Consequently, it is in the State\u2019s interest to provide the warning. The suspect might decide to cooperate when threatened with the loss of his or her license.\nIn light of the statutory purpose, we conclude that an officer cannot make the subjective determination that a suspect is too uncooperative to even attempt to provide the warning. To allow the officer to make this determination would encourage litigation, and the court might disagree with the officer\u2019s inference that the suspect refused. (People v. Huisinga (1993), 242 Ill. App. 3d 418, 422.) As the court in Huisinga noted:\n\"Cases based solely on the failure of officers to ask defendants to submit to a breathalyzer test are a complete waste of judicial resources. Courts should not have to be making such determinations when the whole situation could be avoided by an officer simply asking the defendant a single question.\u201d Huisinga, 242 Ill. App. 3d at 422.\nWe conclude that the trial court\u2019s finding that defendant constructively refused to take the test was against the manifest weight of the evidence because defendant was never given the warning or asked to submit to testing. We are not condoning defendant\u2019s actions. Had the officer attempted to warn defendant of the consequences of refusal, we would have upheld the trial court\u2019s finding of a constructive refusal. What we cannot sanction is the officer making the subjective determination that compliance with the statutory mandate would be futile. We therefore reverse the order of the circuit court.\nThe order of the circuit court is reversed.\nReversed.\nRATHJE, J., concurs.", "type": "majority", "author": "JUSTICE COLWELL" }, { "text": "JUSTICE INGLIS,\ndissenting:\nI respectfully dissent. I agree with the trial court that defendant\u2019s combativeness and abusive behavior excused the arresting officer\u2019s failure to read the warning to motorist.\nThe majority seeks to distinguish Aultman on the basis that in that case the officer twice attempted to read the warning over the defendant\u2019s screaming. (Aultman, 237 Ill. App. 3d at 306.) As the majority notes, the court in Aultman urged that in all but the most egregious circumstances the officer should read the warnings. (Aultman, 237 Ill. App. 3d at 309.) I believe that the officer in the present case was confronted with just such egregious circumstances.\nDefendant fought, cursed, yelled, and refused to cooperate in every instance. He drove at speeds in excess of 100 miles per hour to avoid arrest. He had to be forcibly relieved of his driver\u2019s license and his keys. He kicked the officers and had to be pried and dragged from his vehicle. He answered every inquiry with verbal attacks and yelled throughout the reading of his Miranda warnings. Even after he arrived at the police station, defendant was violent and abusive and had to be restrained. Defendant never submitted to the officer\u2019s authority.\nAlthough defendant was confined in a holding cell and could no longer physically interfere with his arrest, he retained the ability to yell and thereby audibly prevent the reading of the warning to motorist just as he had prevented the reading of his Miranda, warnings. Under these circumstances, defendant, by his actions, waived the right to be read the warning to motorist.\nFor this reason, I would affirm the decision of the trial court.", "type": "dissent", "author": "JUSTICE INGLIS," } ], "attorneys": [ "J.D. Obenberger, of Chicago, for appellant.", "Suzanne A. Lindsay and Charles W. Smith, both of Rosing, Smith, Ericksen, Zeit & Stanczak, Ltd., of Waukegan, for appellee City of Highland Park." ], "corrections": "", "head_matter": "THE CITY OF HIGHLAND PARK, Plaintiff-Appellee, v. YEVGENIY DIDENKO, Defendant-Appellant.\nSecond District\nNo. 2\u201494\u20141354\nOpinion filed August 4, 1995.\nINGLIS, J., dissenting.\nJ.D. Obenberger, of Chicago, for appellant.\nSuzanne A. Lindsay and Charles W. Smith, both of Rosing, Smith, Ericksen, Zeit & Stanczak, Ltd., of Waukegan, for appellee City of Highland Park." }, "file_name": "0024-01", "first_page_order": 42, "last_page_order": 46 }