People v. Kern

• Decision Date: 28 April 1989
• Docket Number: No. 3-88-0465,3-88-0465
• Citation: People v. Kern, 538 N.E.2d 184, 182 Ill.App.3d 414 (Ill. App. 1989)
• Parties: , 130 Ill.Dec. 973 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Frank Winston KERN, Sr., Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 184

538 N.E.2d 184

182 Ill.App.3d 414, 130 Ill.Dec. 973

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Frank Winston KERN, Sr., Defendant-Appellant.

No. 3-88-0465.

Appellate Court of Illinois Third District.

April 28, 1989.

Douglas C. Scovil (argued), Ruud & Scovil, Rock Island, for Frank Winston Kern, Sr.

Gary F. Gnidovec (argued), States' Attys. Appellate Prosecutor, Ottawa, James T. Teros, State's Atty., Rock Island, for the People.

Justice STOUDER delivered the opinion of the court:

Frank Kern appeals from the judgment of the circuit court of Rock Island County, denying his petition to rescind the statutory summary suspension of his driver's license. Kern raises three issues in this appeal, arguing first that the circuit court erred in concluding that the arresting officer had reasonable grounds to believe that Kern was driving on a highway while under the influence of alcohol, second that the circuit court erred in concluding that Kern refused to submit to or complete a test to determine his blood-alcohol concentration, and finally that the circuit court erred in denying his motion for judgment on the pleadings. Because we conclude that the circuit court's judgment that Kern refused to submit to the test is against the manifest weight of the evidence, we confine our discussion to that issue.

Following his arrest for DUI, Kern was taken to the Moline Police Department. Lieutenant Brockway, the breathalyzer operator, testified that at approximately 2:01 a.m. he began the 20 minute observation period necessary for the administration of the breath test. He stated that, as a matter of course, he permits any person who wishes to speak with an attorney the opportunity to consult legal counsel, so he told Kern that he could contact his lawyer. Kern then called an Iowa attorney who told Kern that he was unfamiliar with Illinois law and advised him to call an Illinois lawyer. After the call Kern was asked to take the test, but Kern said that he needed to talk to another attorney since the Iowa attorney was not familiar with Illinois law. Lieutenant Brockway told Kern that he could not permit him to make a second call as it was time to take the test. Kern then repeated his request to talk to an Illinois attorney. Though the officer said that Kern would have to take the test first, he permitted Kern to call an Illinois attorney. After the call, Kern told Lieutenant Brockway that he would take the test. Brockway advised Kern that it was too late because the time for taking the test had elapsed.

At the conclusion of the hearing, the circuit court found that there was probable cause for the stop, that the "Warning to Motorist" was read to Kern, that Kern was issued a traffic citation for DUI, that the officer had probable cause to believe that Kern was DUI, that Kern was requested to submit to a breath test, and that Kern refused to submit to the test. The court therefore sustained the summary suspension of Kern's driver's license. Kern then brought this appeal.

A defendant is considered to have refused to submit to or complete a blood-alcohol concentration test where "after a clear warning of the ramifications resulting from a refusal * * *, an officer explicitly asks a defendant whether he, or she,...