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Docket Number

No. 3-88-0474

Advocates

Louis E. Olivero Associates, of Peru (Douglas Olivero, of counsel), for appellant. Norman K. Rafferty, State's Attorney, of Hennepin (Walter P. Hehner, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

Judges

PRESIDING JUSTICE WOMBACHER delivered the opinion of the court:

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Smart Summary

Summary of Opinion: The People of the State of Illinois v. Craig J. Znaniecki, No. 3-88-0474 (Ill. App. Ct., 3d Dist., Apr. 5, 1989)

Appellate Court of Illinois, Third District — Opinion delivered by Presiding Justice Wombacher. Judgment: reversed.

Factual and Procedural Background

On May 7, 1988, Craig J. Znaniecki was charged with driving under the influence (DUI) and was notified of the statutory suspension of his driving privileges. The arresting officer reported that the vehicle driven by the defendant had run into a tree. There were two passengers in the vehicle and a cooler containing five empty beer cans was observed.

At the hospital the defendant admitted to earlier drinking beer; the officer observed that the defendant's speech was coherent and that he responded appropriately to questions, but that he smelled of alcohol. The officer requested a blood test, arrested the defendant for DUI, and read the defendant the department's standard "Implied Consent Warnings" from a card issued to him. That card was admitted into evidence at the summary suspension hearing, and the defendant indicated he understood the warnings.

The defendant petitioned the trial court to rescind his statutory summary suspension. The trial court denied the petition, and the defendant appealed the denial to the Appellate Court.

Legal Issues Presented

Whether, under section 11-501.1(c) of the Illinois Vehicle Code, the arresting officer properly warned the defendant that submitting to a chemical test which disclosed an alcohol concentration (BAC) of 0.10 or greater would result in a statutory summary suspension of the defendant's driving privileges.
Whether the absence of such a warning (if established) required reversal of the trial court's denial of the defendant's petition to rescind the statutory summary suspension.

Arguments of the Parties

Appellant's Arguments

The defendant (appellant) contended that he was not properly warned by the arresting officer that submitting to the requested blood test and a resulting BAC of 0.10 or greater would itself lead to a statutory summary suspension of his driving privileges. Because that specific warning was not given, his ability to make an intelligent, knowing, and informed decision was impaired, and the statutory summary suspension should be rescinded.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Andrews v. Foxworthy, 71 Ill.2d 13, 373 N.E.2d 1332 (1978)	General principle that the word "shall" is mandatory.	The court invoked Andrews to support the conclusion that the statutory warning requirement in section 11-501.1(c) is mandatory (due to the statute's use of "shall"), reinforcing that the officer's omission of a particular warning cannot be treated as permissive or discretionary.

Court's Reasoning and Analysis

The court began by identifying a "rudimentary issue" at a summary suspension hearing under the Illinois Vehicle Code: whether the defendant was properly advised by the arresting officer that his privilege to operate a motor vehicle would be suspended if he refused the requested tests or if he submitted to tests and they disclosed a BAC of 0.10 or more (citing Ill. Rev. Stat. 1987, ch. 95 1/2, par. 2-118.1 and quoting section 11-501.1(c)).

The court quoted the statutory language of section 11-501.1(c), emphasizing the dual mandatory warnings that must be given: (1) that refusal to submit to the test will result in statutory summary suspension, and (2) that submission to the test which discloses a BAC of 0.10 or greater will likewise result in statutory summary suspension. The court stressed that the statute uses the word "shall," which it treated as a mandatory requirement, relying on Andrews v. Foxworthy for the proposition that "shall" is mandatory.

The court examined the warning actually given by the arresting officer (the department's standard implied consent card). That card informed the defendant only of the suspension consequences for refusal to submit to the test (six months for a first refusal, twelve months for a subsequent refusal) but did not inform the defendant that submitting to the test and receiving a BAC of 0.10 or greater would also result in statutory summary suspension.

Based on the statutory text and the mandatory nature of the warning requirement, the court concluded the warning provided was incomplete because it omitted the statutorily required advice about the consequences of submitting to a test that discloses a BAC of 0.10 or greater. The court held that the absence of that specific warning prevented the defendant from making an "intelligent, knowing, and informed decision" regarding whether to submit to the blood test.

Holding and Implications

Holding: The appellate court reversed the decision of the circuit court denying the defendant's petition to rescind the statutory summary suspension. In other words, the court ordered that the statutory summary suspension be rescinded due to the officer's failure to give the complete statutorily required warning.

Core ruling: The trial court's denial of defendant's petition to rescind the summary suspension is REVERSED.

Implications: The direct effect of this decision is that, in this case, the statutory summary suspension was reversed because the arresting officer did not give the complete warning required by section 11-501.1(c). The opinion does not articulate or announce any broader rule beyond applying the statutory requirement to the facts before the court; it states no new precedent beyond enforcing the mandatory nature of the statutory warning requirement and its practical necessity to allow an informed choice by the arrestee.

Judges Stouder and Scott concurred.

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THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CRAIG J. ZNANIECKI, Defendant-Appellant.

PRESIDING JUSTICE WOMBACHER delivered the opinion of the court:

The defendant appeals the trial court's denial of his petition to rescind his summary suspension.

On May 7, 1988, the defendant was charged with driving under the influence of alcohol (DUI) and notified of the statutory suspension of his driving privileges. He petitioned the trial court to rescind the statutory summary suspension.

The arresting officer, Bouxsein, stated that the vehicle driven by the defendant ran into a tree. There were two other passengers in the defendant's vehicle as well as a cooler containing five empty beer cans.

At the hospital, the defendant admitted to earlier drinking beer. The officer noted the defendant's speech was coherent and he responded to questions appropriately; nevertheless, he smelled of alcohol. After requesting blood from the defendant, Bouxsein arrested the defendant for DUI. He read the defendant his rights from a card entitled "Implied Consent Warnings." This card was admitted as an exhibit during this hearing. The defendant indicated he understood the warnings.

Following this hearing, the trial judge denied the defendant's petition to rescind the statutory summary suspension and this appeal follows.

The defendant claims he was not properly warned by the arresting officer of the resulting consequences if he submitted to a blood test which revealed an alcohol concentration (BAC) of 0.10 or greater. We agree and reverse the statutory summary suspension.

According to the Illinois Vehicle Code, a rudimentary issue at a summary suspension hearing is whether the defendant was properly advised by the arresting officer that his privilege to operate a motor vehicle would be suspended if he refused to submit to and complete the test or tests requested or he submitted to a chemical test or tests, and such tests disclosed a BAC of 0.10 or more. Ill. Rev. Stat. 1987, ch. 95 1/2, par. 2-118.1.

Section 11-501.1(c) of the Illinois Vehicle Code provides in relevant part as follows:

"A person requested to submit to a test * * * shall be warned by the law enforcement officer requesting the test that a refusal to submit to the test will result in the statutory summary suspension of such person's privilege to operate a motor vehicle as provided in Section 6-208.1 of this Code. The person shall also be warned by the law enforcement officer that if the person submits to the test or tests * * * and the alcohol concentration in such person's blood or breath is 0.10 or greater, a statutory summary suspension of such person's privilege to operate a motor vehicle, as provided in Sections 6-208.1 and 11-501.1 of this Code, will be imposed." (Emphasis added.) Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501.1(c).

• 1 The requirement that a person be warned under section 11-501.1(c) of the Vehicle Code is a mandatory one as is evidenced by the word "shall." Courts generally hold that the word "shall" is mandatory. Andrews v. Foxworthy (1978), 71 Ill.2d 13, 373 N.E.2d 1332.

In this case, the arresting officer failed to warn the defendant that if he submitted to the blood test, and it revealed an alcohol concentration of 0.10 or more, a statutory summary suspension of his privilege to operate a motor vehicle would issue. The arresting officer testified that he read the defendant the standard implied consent warnings contained on the card he was issued by his department. The warning by the arresting officer read as follows:

"A refusal to submit to the test will result in suspension of a person's license to operate a motor vehicle for six months for the first such arrest and refusal and suspension for twelve months for the second and each subsequent such arrest and refusal within 5 years."

• 2 The evidence shows the defendant received a warning of the resulting consequences in the event he refused to submit to the blood test; however, the evidence does not show the defendant was warned of the resulting consequences if he submitted to the blood test and it disclosed a BAC of 0.10 or greater. Therefore, the warning provided the defendant was incomplete according to section 11-501.1(c) of the Vehicle Code. (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501.1(c).) The absence of this warning of the resulting consequences did not permit or allow the defendant to make an intelligent, knowing, and informed decision in this cause.

In order to properly warn a defendant who is arrested for DUI, he must be completely informed, meaning he should be warned of the consequences of his refusal to submit to the test or tests requested as well as the consequences of submitting to the test or tests requested which disclose a BAC of 0.10 or greater.

Based on the foregoing, the decision of the circuit court of Putnam County denying defendant's petition to rescind the summary suspension of his driving privileges is hereby reversed.

Reversed.

STOUDER and SCOTT, JJ., concur.

PEOPLE v. ZNANIECKI