People v. Rozela

• Decision Date: 30 December 2003
• Docket Number: No. 2-02-1282.,2-02-1282.
• Citation: 345 Ill. App.3d 217,280 Ill.Dec. 447,802 N.E.2d 372
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Tracy E. ROZELA, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

802 N.E.2d 372

345 Ill. App.3d 217

280 Ill.Dec. 447

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Tracy E. ROZELA, Defendant-Appellant.

No. 2-02-1282.

Appellate Court of Illinois, Second District.

December 30, 2003.

Steven D. Armamentos, Ramsell & Associates, Wheaton, for Tracy E. Rozela.

Joseph E. Birkett, DuPage County State's Attorney, Wheaton, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Stephen E. Norris, Deputy Director, Kevin D. Sweeney, State's Attorneys Appellate Prosecutor, Mt. Vernon, for the People.

Justice BYRNE delivered the opinion of the court:

Defendant, Tracy E. Rozela, appeals from an order of the circuit court of Du Page County denying her petition to rescind the statutory summary suspension of her driver's license, pursuant to section 11-501.1 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501.1 (West 2002)), for driving under the influence of alcohol. We affirm.

FACTS

Only Sergeant Kevin Driscoll of the Naperville police department testified at the hearing on defendant's petition to rescind the statutory summary suspension. Driscoll had been a police officer for 19 years and was trained in the use of field tests for intoxication and in the use of portable breath tests (PBTs). Driscoll had been trained as an instructor in the use of field sobriety tests and was certified as a breathalyzer operator.

At 12:54 a.m. on September 12, 2002, Driscoll was in his squad car at a gas station in Naperville. Defendant's car drove past him, and Driscoll estimated that her speed exceeded the 25-mile-per-hour limit. Driscoll activated his radar, which disclosed that defendant was traveling at 37 miles per hour. Driscoll followed defendant's car and activated his emergency lights after observing it weave twice across the lane dividing line. Defendant turned right onto a street that ran one way in the opposite direction. After defendant curbed her car, Driscoll approached and saw that defendant's eyes were glassy and bloodshot. Driscoll smelled a strong odor of alcohol on defendant's breath. Defendant explained that she drove erratically because she was unfamiliar with the area and she was upset by a recent argument with her boyfriend. She admitted drinking a couple of beers at a local tavern that evening.

Driscoll administered the horizontal gaze nystagmus test. The test involves evaluating six points, and defendant failed at every point. However, defendant passed three other field sobriety tests: the one-leg stand test, the walk-and-turn test, and the recite-part-of-the-alphabet test. Defendant's successful completion of the three tests did not affect Driscoll's opinion that she was under the influence of alcohol. He believed that a failure of a sobriety test proves a person's intoxication but successful completion of a test proves nothing.

On direct examination, defense counsel asked Driscoll whether he asked defendant to submit to a PBT. Driscoll testified that he had done so and that defendant complied. There was no evidence that defendant's submission to the test was involuntary. On cross-examination, Driscoll testified that he used a calibrated, certified Intoximeter Alcosensor III, which reported a blood-alcohol concentration of.126. Defense counsel objected to the admission of the test results, and the court overruled the objection.

Driscoll testified that he arrested defendant for driving under the influence (DUI) and transported her to the police station, where a breathalyzer test reported a blood-alcohol concentration of .109. The Secretary of State suspended defendant's driving privileges for three months.

The trial court found Driscoll's testimony credible and concluded that defendant had not established a prima facie case for rescission of the suspension of her driving privileges. Emphasizing that defendant had a right to refuse to take the PBT without penalty, the court stated that Driscoll was authorized to use the test as a tool to further investigate his reasonable suspicion that defendant had operated a vehicle while under the influence of alcohol. The court denied the petition to rescind the suspension but issued a judicial driving permit for defendant to travel to work and school. Defendant's timely appeal followed.

ANALYSIS

In her brief, defendant mistakenly states that this court has jurisdiction to consider her appeal under Supreme Court Rule 604(a)(1) (188 Ill.2d R. 604(a)(1)). Rule 604(a)(1) applies only to appeals filed by the State. However, a trial court's decision to grant or deny a petition to rescind a summary suspension is treated as a final order in a civil matter, which is appealable under Supreme Court Rule 303 (155 Ill.2d R. 303). People v. O'Connor, 313 Ill.App.3d 134, 136, 245 Ill.Dec. 818, 728 N.E.2d 1175 (2000). Therefore, we have jurisdiction to review the denial of the petition to rescind. On appeal, defendant argues that (1) section 11-501.5(a) of the Vehicle Code (625 ILCS 5/11-501.5(a) (West 2002)), which authorizes PBTs is unconstitutional; (2) Officer Driscoll lacked reasonable suspicion to ask defendant to submit to the PBT; and (3) the results of the test were inadmissible because the State failed to establish an adequate foundation. Defendant based her petition to rescind on the assertion that there were no reasonable grounds to arrest her for DUI. See 625 ILCS 5/2-118.1(b) (West 2002). We initially note that an arrest requires "reasonable grounds" or "probable cause," but a traffic stop requires only "reasonable suspicion," which is a distinctly different term. People v. Rush, 319 Ill.App.3d 34, 39, 253 Ill.Dec. 383, 745 N.E.2d 157 (2001).

A hearing on a petition to rescind the statutory summary suspension of driving privileges is a civil proceeding. The petitioner has the burden of providing aprima facie case for the rescission. People v. Smith, 172 Ill.2d 289, 294-95, 216 Ill.Dec. 658, 665 N.E.2d 1215 (1996). The burden then shifts to the prosecution to present evidence justifying the suspension. Smith, 172 Ill.2d at 295, 216 Ill.Dec. 658, 665 N.E.2d 1215. In the fourth amendment context, a defendant may shift the burden to the prosecution by showing that "he was doing nothing unusual to justify the intrusion by the police at the time of the stop." People v. Drewes, 278 Ill. App.3d 786, 788, 215 Ill.Dec. 445, 663 N.E.2d 456 (1996). In weighing the evidence before it, the trial court is charged with passing on the credibility of the witnesses and the weight to be given to their testimony. Generally, the trial court's decision will not be disturbed unless the decision is against the manifest weight of the evidence. Smith, 172 Ill.2d at 295, 216 Ill.Dec. 658, 665 N.E.2d 1215. A finding is against the manifest weight of the evidence where an opposite conclusion is clearly evident from the record. People v. Hood, 265 Ill.App.3d 232, 241, 202 Ill.Dec. 618, 638 N.E.2d 264 (1994). However, when the trial court's determination is based on the review of written documents, and does not involve a determination of the credibility of witnesses, a reviewing court considers de novo all the issues that determine whether the defendant has met his burden of proof. See People v. Hockenberry, 316 Ill.App.3d 752, 755-56, 250 Ill. Dec. Ill, 737 N.E.2d 1088 (2000).

The State contends that, because the trial court assessed Driscoll's credibility before entering judgment, we should reverse the court's ruling only if it is against the manifest weight of the evidence. Defendant responds that a de novo standard of review applies. We defer to the trial court's findings of fact regarding Driscoll's credibility, and we will reverse those findings only if they are against the manifest weight of the evidence. See Rush, 319 Ill.App.3d at 38, 253 Ill.Dec. 383, 745 N.E.2d 157. To the extent that the trial court's ruling involves questions of law, we apply a de novo standard of review. See Rush, 319 Ill.App.3d at 38-39, 253 Ill.Dec. 383, 745 N.E.2d 157 ("we will review de novo the ultimate questions of whether reasonable suspicion justified the stop and whether probable cause (or `reasonable grounds') justified the arrest").

Defendant initially contends that section 11-501.5(a) of the Vehicle Code, which authorizes portable breath testing, is unconstitutional because it "allows police to obtain a breath sample without probable cause." The State argues that (1) the exclusionary rule of the fourth amendment does not apply to statutory summary suspension proceedings because they are civil rather than criminal and (2) defendant waived any fourth amendment claim when she consented to the PBT under the statute. Defendant responds that the State waived these defenses by failing to raise them in the trial court. The waiver rule is binding on the parties but not on this court (see People v. Hamilton, 179 Ill.2d 319, 323, 228 Ill.Dec. 189, 688 N.E.2d 1166 (1997)), and defendant has had the opportunity to answer the State's arguments. In the interest of justice, we decide the constitutional issue after considering each party's research and argument.

A statute is presumed constitutional. The party challenging the statute bears the burden of demonstrating its invalidity. People v. Malchow, 193 Ill.2d 413, 418, 250 Ill.Dec. 670, 739 N.E.2d 433 (2000). A court has a duty to construe a statute in a manner that upholds its constitutionality if it can reasonably be done, and any doubt must be resolved in favor of the statute's validity. Malchow, 193 Ill.2d at 418, 250 Ill.Dec. 670, 739 N.E.2d 433. The question of a statute's constitutionality is subject to de novo review. People v. Carney, 196 Ill.2d 518, 526, 256 Ill.Dec. 895, 752 N.E.2d 1137 (2001).

In People v. Krueger, 208 Ill.App.3d 897, 153 Ill.Dec. 759, 567 N.E.2d 717 (1991), this court reversed the denial of a petition to rescind the statutory summary suspension of the defendant's driver's license. As in this case, the petition raised the issue of "`[w]hether the...