People v. Rolfingsmeyer

• Decision Date: 01 February 1984
• Docket Number: No. 58659,58659
• Citation: People v. Rolfingsmeyer, 461 N.E.2d 410, 101 Ill.2d 137, 77 Ill.Dec. 787 (Ill. 1984)
• Parties: , 77 Ill.Dec. 787 The PEOPLE of the State of Illinois, Appellant, v. Gary G. ROLFINGSMEYER, Appellee.
• Court: Illinois Supreme Court

Page 410

461 N.E.2d 410

101 Ill.2d 137, 77 Ill.Dec. 787

The PEOPLE of the State of Illinois, Appellant, v. Gary G. ROLFINGSMEYER, Appellee.

No. 58659.

Supreme Court of Illinois.

Feb. 1, 1984.

Rehearing Denied March 30, 1984.

R. Edward Veltman, Jr., Crain, Hall & Cooksey, Ltd., Centralia, for appellee; Michael E. Reed, Centralia, of counsel.

Phillip McQuillan, State's Atty., Carlyle, Neil F. Hartigan, Atty. Gen., Michael B. Weinstein, Asst. Atty. Gen., Chicago, Stephen E. Norris, Deputy Director, Raymond F. Buckley, Jr., Staff Atty., State's Attorneys Appellate Service Commission, Mount Vernon, for appellant.

WARD, Justice:

On November 14, 1982, defendant, Gary Rolfingsmeyer, was arrested and charged with driving under the influence of alcohol (Ill.Rev.Stat., 1982 Supp., ch. 95 1/2, par. 11-501(a)(2)). At the police station, the "Implied Consent Warning" (Ill.Rev.Stat., 1982 Supp., ch. 95 1/2, par. 11-501.1(c)), which warns a driver that a refusal to submit to a so-called breath test will result in a six-month suspension of his motor vehicle driver's license, was read to him. The police officer then asked him to take the test, and he refused.

On December 8, 1982, the defendant filed a motion attacking the constitutionality of sections 11-501.1 and 11-501.2(c) of the Illinois Vehicle Code (Ill.Rev.Stat., 1982 Supp., ch. 95 1/2, par. 11-501.1; Ill.Rev.Stat.1981, ch. 95 1/2, par. 11-501.2(c)). Previously section 11-501.1 had provided a driver with the right to consult an attorney prior to deciding whether to take a breath test (Ill.Rev.Stat.1981, ch. 95 1/2, par. 11-501.1(a)(3)), but this provision had been eliminated from the section (Ill.Rev.Stat., 1982 Supp., ch. 95 1/2, par. 11-501.1(a)). Section 11-501.2(c) provides that evidence of a defendant's refusal to submit to a breath test "shall be admissible" at the defendant's civil or criminal trial. Ill.Rev.Stat. 1981, ch. 95 1/2, par. 11-501.2(c).

On December 13, 1982, the circuit court of Clinton County entered a judgment captioned "Order Striking Certain Portion of Ch. 95 1/2, par. 11-501.2(c)." The order read:

"This cause coming on to be heard, the Court strikes the words 'or criminal action' from Chapter 92 1/2 Section 11-501.2(c) finding that portion unconstitutional."

It did not state the ground of unconstitutionality. A direct appeal was taken by the People under Supreme Court Rule 302(a) (87 Ill.2d R. 302(a)).

Our State, as most States have done, has adopted an "implied consent" statute to assist in determining whether motor vehicle drivers suspected of intoxication are in fact under the influence of alcohol. Section 11-501.1 of the Illinois Vehicle Code, in the part pertinent here, provides:

"(a) Any person who drives or is in actual physical control of a motor vehicle upon the public highways of this State shall be deemed to have given consent, subject to the provisions of Section 11-501.2, 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's blood if arrested, as evidenced by the issuance of a Uniform Traffic Ticket, for any offense as defined in Section 11-501 or a similar provision of a local ordinance. * * * " (Ill.Rev.Stat.1981, ch. 95 1/2, par. 11-501.1(a).)

Section 11-501.2(c) further provides:

"(c) If a person under arrest refuses to submit to a chemical test under the provisions of Section 11-501.1, evidence of refusal shall be admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person under the influence of alcohol, or other drugs, or combination of both was driving or in actual physical control of a motor vehicle." (Ill.Rev.Stat.1981, ch. 95 1/2, par. 11-501.2(c).)

The defendant states that the trial court's judgment was correct because (1) section 501.2(c) is contrary to the separation-of-powers provision of the Constitution of Illinois and (2) the section violates an accused's privilege against self-incrimination under the constitutions of the United States and Illinois.

Section 11-501.2(c) offends the separation-of-powers clause of our constitution because, the defendant contends, the legislature improperly invaded the judicial authority by providing that evidence of a refusal of a breath test shall be admitted at a trial. This contention fails, for it is clear that "the legislature of a State has the power to prescribe new and alter existing rules of evidence or to prescribe methods of proof." (People v. Wells (1942), 380 Ill. 347, 354, 44 N.E.2d 32. See also People v. Youngbey (1980), 82 Ill.2d 556, 560, 45 Ill.Dec. 938, 413 N.E.2d 416; People v. Buford (1982), 110 Ill.App.3d 46, 53, 65 Ill.Dec. 721, 441 N.E.2d 1235.) Examples of this are section 115-5 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1981, ch. 38, par. 115-5 (business records)), section 115-5.1 of that code (Ill.Rev.Stat.1981, ch. 38, par. 115-5.1 (coroner's records)), section 115-7 of that code (Ill.Rev.Stat.1981, ch. 38, par. 115-7 (evidence of rape victims' prior sexual conduct)), and section 8-1901 of the Code of Civil Procedure (Ill.Rev.Stat.1981, ch. 110, par. 8-1901 (evidence of defendant's payment of plaintiff's medical expenses)).

Section 11-501.2(c) of the Illinois Vehicle Code simply provides that an accused's refusal to submit to a breath test shall be admissible as evidence at his trial, and it is not violative of the separation-of-powers clause.

The second contention of the defendant is that section 11-501.2(c) violates his privilege against self-incrimination under article I, section 10, of the Constitution of Illinois. The defendant maintains that he has the right to remain silent, and that the statute allows the State to use his silence against him.

The defendant misstates the question involved. The Supreme Court addressed what the question is in South Dakota v. Neville (1983), 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748. There, the court considered an implied-consent statute very similar to our statute. The court, in upholding the legislation, relied upon its decision in Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. There the court declared constitutional the use of a State-compelled blood test to detect alcohol, holding that a blood test was physical evidence and not communicative evidence that could violate an accused's right to remain silent. The court in Neville held that, under Schmerber, a driver has no constitutional right to refuse a breath test, and the State could have compelled drivers to submit to the test. The court held that because a driver has no right to refuse, evidence of his conduct in refusing can properly be admitted at his trial.

Neville is applicable here. Section 11-501.2(c) simply provides a statutory consequence of a driver's refusal to agree to a breath test. The Supreme Court has pointed out that the right to remain silent does not mean that a driver has a right to refuse a breath test. Consequently, evidence of a refusal is not constitutionally protected. The court in Neville observed, too, that the basis of an implied-consent statute is that by using the public highways, the scene of millions of deaths and injuries, a driver has implicitly consented for reasons of public safety to submit to a breath test. Section 11-501.2(c) does not offend the fifth amendment.

Nor does it offend our own constitution. There is nothing in the proceedings of the constitutional convention to indicate an intention to provide, in article I, section 10, protections against self-incrimination broader than those of the Constitution of the United States. (See 3 Record of Proceedings, Sixth Illinois Constitutional Convention 1376-80.) The record of proceedings reflects a general recognition and acceptance of interpretations by the United States Supreme Court. There had been proposals to alter the language of the section that were "designed primarily to have the language of the self-incrimination clause perhaps reflect the substance of some court decisions on this subject," but the bill of rights committee, speaking through Delegate Bernard Weisberg, decided that "whichever phrasing were to be put into * * * section 10, that the existing state of the law would remain unchanged." 3 Proceedings 1376-77.

We need not consider the additional claim of the defendant that he had a right to be advised by the police that he had a right to consult with an attorney on whether he should take the test. That question is, of course, outside the scope of the trial court's judgment and is not before us. The trial court held simply that section 11-501.2(c), which concerns only the admissibility of a defendant's refusal to submit to a breath test, was unconstitutional. In any event, the defendant refused to take the test, and it is difficult to ascertain the pertinency here of the right-to-counsel question.

For the reasons given, the judgment of the circuit court of Clinton County is reversed, and the cause is remanded to that court for further proceedings.

Reversed and remanded.

SIMON, Justice, specially concurring:

Although I agree with the court's conclusion as well as with much of what is said in the majority opinion, I do not agree with the majority's statement that in interpreting the self-incrimination clause contained in article I, section 10, of our State Constitution, we are bound to automatically follow the decisions of the United States Supreme Court interpreting the comparable provision contained in the fifth amendment of the Federal Constitution. As justices of the highest court of the State of Illinois we take an oath of office to faithfully uphold the provisions of the State Constitution. We cannot delegate that duty to anyone--not to the legislature, nor the Governor, nor to any Federal court.

The majority assumes that a guarantee in the bill of rights of our State Constitution has the same content as the...