ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Farris, 2012 IL App (3d) 100199

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.

JACQUELINE FARRIS, Defendant-Appellee.

 District & No. Third District

Docket Nos. 3-10-0199, 3-10-0220 cons.

Filed April 10, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

An order suppressing the results of a blood alcohol test based on blood

drawn by force from defendant by hospital personnel pursuant to a police

officer’s instructions was affirmed, since the officer lacked the statutory

authority to use force in taking a sample from defendant.

Decision Under 

Review

Appeal from the Circuit Court of Kankakee County, Nos. 09-DT-135A,

09-DT-135; the Hon. Kenneth A. Leshen and the Hon. Susan Tungate,

Judges, presiding.

Judgment Affirmed.
Counsel on

Appeal

John J. Boyd, State’s Attorney, of Kankakee (Terry A. Mertel and

Thomas D. Arado (argued), both of State’s Attorneys Appellate

Prosecutor’s Office, of counsel), for the People.

Leonard Sacks (argued), of Sacks, Gubbins & Regas, of Kankakee, for

appellee.

Panel JUSTICE HOLDRIDGE delivered the judgment of the court, with

opinion.

Justice O’Brien concurred in the judgment and opinion.

Justice Wright concurred in part and dissented in part, with opinion.

OPINION

¶ 1 This matter is on consolidated appeals filed by the State. In case number 3-10-0199, the

State appeals from the granting of the defendant’s petition to rescind a statutory summary

suspension. In case number 3-10-0220, the State appeals from an order of the circuit court

granting the defendant’s motion to suppress evidence from a blood alcohol test using blood

forcibly drawn from the defendant by hospital personnel at the instruction of a police officer.

The State filed a certificate of impairment and a timely notice of appeal.

¶ 2 FACTS

¶ 3 On May 12, 2009, the defendant was arrested for driving under the influence of alcohol

(DUI). 625 ILCS 5/11-501(a)(2) (West 2008). The DUI ticket was docketed as No. 09-DT135. Following notification of defendant’s arrest, the Illinois Secretary of State issued a

notice to the defendant indicating that she would receive a 12-month statutory summary

suspension of her driver’s license. The defendant filed a petition to rescind the statutory

summary suspension alleging that: (1) she was not properly placed under an arrest for DUI;

(2) the arresting officer did not have reasonable grounds to believe that she was driving or

in actual physical control of a motor vehicle while under the influence of alcohol; and (3) she

was not properly warned by the arresting officer as provided in section 11-501.1 of the

Vehicle Code. 625 ILCS 5/11-501.1 (West 2008). The petition to rescind the statutory

summary suspension was docketed as No. 09-DT-135A. The defendant had previously filed

a motion in limine to suppress evidence of the results of blood testing done without her

consent in the DUI proceeding. By agreement of the parties, a single evidentiary hearing was

held on the motion to suppress evidence and the petition to rescind the statutory summary

suspension, with the court’s ruling on the admissibility of the blood test results to apply to

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both proceedings.

¶ 4 Officer Kevin Orms of the Bradley, Illinois, police department testified that, on May 12,

2009, at approximately 10:30 p.m., he was called to the scene of an accident at the corner of

Schuyler Avenue and Brookmont Boulevard. Upon his arrival at the scene, he encountered

the defendant sitting in her vehicle. The defendant told him that she had hit her lip on the

dashboard and that her head was hurting. Orms testified that he immediately noted the odor

of an alcoholic beverage coming from the defendant’s breath. Orms called an ambulance,

which transported the defendant to Riverside Hospital in Kankakee, Illinois. Orms followed

the ambulance in his squad car. Orms accompanied the defendant into the emergency

treatment area. According to Orms’s testimony, the defendant was verbally abusive and

belligerent toward him and toward the emergency department staff attending the defendant.

Orms testified that the defendant repeatedly stated “take me to fucking jail.”

¶ 5 Orms testified that the defendant continued to swear and act belligerent while he read the

statutory “Warning to Motorists” to the defendant. In accordance with the warning, Orms

sought consent from the defendant for a blood draw. The defendant refused consent. Orms

then contacted his commanding officer, who instructed him to take a blood sample. Orms

then instructed a nurse to take a sample of the defendant’s blood. Orms and another officer

stood by while a doctor, a nurse, and another emergency department staff member held the

defendant down and forcibly drew blood. One person was on either side of the defendant,

each holding a wrist and shoulder, while another person held her legs as the nurse drew blood

from one of the defendant’s arms inside of the elbow. The entire process took approximately

four minutes.

¶ 6 Orms issued a “Law Enforcement Sworn Report” which indicated that the defendant

voluntarily submitted to chemical testing which disclosed an alcohol concentration of 0.285.

¶ 7 The defendant testified that, on May 12, 2009, she was involved in an automobile

accident in which her car hit another car. She testified that she never lost consciousness and

had only minor injuries, including a cut to her lip from hitting the dashboard. She stated that,

as soon as she arrived at the hospital, demands were made that she consent to a blood draw.

She refused, stating that she did not believe a blood test was necessary. She was then forcibly

held down and blood was extracted from her right arm. On cross-examination, the defendant

admitted to consuming approximately three alcoholic beverages in the three hours prior to

the accident. She also admitted to physically resisting the blood draw, including squirming

her arms back and forth and kicking her legs.

¶ 8 Following the hearing, the trial court issued a written order granting the defendant’s

motion in limine barring the State from using the blood test results in the proceeding

regarding the statutory summary suspension. Shortly thereafter, the State filed a motion to

amend the sworn report, seeking to remove the check mark from the box on the report

indicating that the defendant had submitted to chemical testing, and, instead, to check the

box indicating “because you refused to submit to or failed to complete testing, your driver’s

license and/or privileges will be suspended for a minimum of 12 months.” Following

argument of counsel on the motion, the circuit court granted the motion to amend the sworn

report. Approximately a week later, however, the court reversed its prior ruling and denied

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the State’s motion to amend the officer’s sworn report. The docket entry stated as follows:

“The Court has again reviewed the cases provided by counsel and notes that each of

the cases is fact specific. In the instant case, the proposed amendment completely

changes the predicate for the suspension as well as the duration of the suspension.

Consequently the court hereby reverses itself and denies the State’s motion.”

¶ 9 The defendant was allowed to amend her petition to rescind the statutory summary

suspension to allege, as a basis for rescission, an allegation that “the police physically forced

me to give blood and that result was barred by the court and therefore I was not properly

tested and did not test over .08.” The trial court granted the amended petition to rescind the

statutory summary suspension. The State filed a timely notice of appeal.

¶ 10 Thereafter, the trial court issued a written order in the DUI proceedings granting the

defendant’s motion to suppress evidence, holding that law enforcement officials maynot use

force to obtain a blood sample. In reaching its conclusion, the trial court relied upon People

v. Jones, 214 Ill. 2d 187, 199-200 (2005). The State filed a timely certificate of impairment

and notice of appeal.

¶ 11 ANALYSIS

¶ 12 1. Suppression of Blood Test Results

¶ 13 The State maintains that the trial court erred in granting the defendant’s motion to

suppress the blood test results based upon a conclusion that law enforcement is not permitted

to use force to extract a blood sample. The trial court held that a law enforcement officer

lacks the statutory authority to forcibly extract blood in instances where the defendant has

refused consent. Questions of statutory interpretation are reviewed de novo. Jones, 214 Ill.

2d at 193.

¶ 14 Section 11-501.2(c)(2) of the Vehicle Code allows chemical testing without consent

where a police officer has probable cause to believe that a vehicle driven by an individual

under the influence has caused the death or personal injury of another. 625 ILCS 5/11-

501.2(c)(2) (West 2008) (“[I]f a law enforcement officer has probable cause to believe that

a motor vehicle driven by or in actual physical control of a person under the influence of

alcohol, other drug or drugs, or intoxicating compound or compounds *** has caused the

death or personal injury to another, that person shall submit, upon the request of a law

enforcement officer, to a chemical test or tests of his or her blood, breath or urine ***.”). The

statute is silent, however, on whether testing without consent is authorized in situations not

involving death or personal injury to another. See Jones, 214 Ill. 2d at 194.

¶ 15 The issue of whether testing without consent in the absence of death or personal injury

is permitted under the Vehicle Code was first addressed by our supreme court in Jones,

which held that testing without consent in situations lacking death or personal injury to

another was permitted despite the statutory language that seemed to limit testing to those

situations. Jones, 214 Ill. 2d at 199-200. The Jones court held that testing without consent

did not violate constitutional protections against unreasonable search and seizure where there

was probable cause to believe the defendant was intoxicated and the delay caused by

obtaining a search warrant might result in loss of evidence of intoxication, given the natural

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dissipation of the alcohol in the defendant’s blood. Jones, 214 Ill. 2d at 200 (citing

Schmerber v. California, 384 U.S. 757, 768-72 (1966)). The Jones court also held that the

statutory language of section 11-501.2(c)(2), which expressly provided for testing without

consent in situations involving death or personal injury to another, did not implicitly outlaw

such testing where death or personal injury to another had not occurred. Finding the statute

to be ambiguous, the court, relying in part on legislative history, noted that no statutory right

to refuse testing existed prior to enactment of section 11-501.2(c)(2). The court stated that

it was “unwilling to construe the language of section 11-501.2(c)(2) as creating a right to

refuse chemical testing.” Jones, 214 Ill. 2d at 199-200. While the Jones court conclusively

held that a defendant did not have a constitutional or statutory right to refuse a request for

chemical testing, regardless of the lack of death or personal injury to another, the court did

not state whether physical force could be used to collect a sample for testing.

¶ 16 On the question of force, the Jones court issued a “clarification” as follows:

“For purposes of clarification, our holding in this case does not give law enforcement

officers unbridled authority to order and conduct chemical tests. We do not suggest that

a DUI arrestee’s lack of a right to refuse chemical testing under section 11-501.2(c)(2)

permits law enforcement officers to use physical force in obtaining blood, urine, and

breath samples.TheVehicle Code alreadyeliminates anyadvantage a DUI arresteemight

hope to gain from refusing chemical testing.” Jones, 214 Ill. 2d at 201.

¶ 17 In the instant matter, the trial court relied upon this discussion in Jones to find that

nothing in the Vehicle Code permits law enforcement officers to use physical force in

obtaining blood, urine, or breath samples. On appeal, the defendant-appellee suggests that

the circuit court was correct in reading Jonesto indicate our supreme court’s rejection of the

use of force to collect samples where the defendant does not have a right to refuse a request

to submit a sample for testing. The State argues that the supreme court’s statement that law

enforcement officers did not have “unbridled authority” to order and conduct chemical tests

did not mean that an officer could not use reasonable force to obtain a sample.

¶ 18 The State maintains that the VehicleCode implicitlyauthorizes an arresting officer to use

“reasonable force” to obtain a sample if the defendant refuses to cooperate in the extraction

of a sample of his or her bodily fluid. The State cites State v. Krause, 484 N.W.2d 347 (Wis.

Ct. App. 1992), where the Wisconsin appellate court upheld a DUI conviction of a defendant

who had been hog-tied and held down by his feet with a pillowcase placed over his head

while a lab technician drew blood. The court held that, as long as the extraction of fluids

passed federal constitutional muster under Schmerber v. California, 384 U.S. 757 (1966), the

law of Wisconsin did not prohibit the forced collection methods employed by the arresting

officer. Krause, 484 N.W.2d at 348. The Krause court then noted that, under Schmerber, a

forcible blood draw will not violate the fourth amendment if the blood draw is reasonable,

i.e., (1) drawn incident to an arrest; (2) with a “clear indication,” rather than “mere chance”

that the desired evidence will be found in the blood sample; and (3) exigent circumstances

exist. Krause, 484 N.W.2d at 350 (citing Schmerber, 384 U.S. at 769-71). The Krause court

determined that all three criteria for reasonableness were present. The Krause court also

determined that the degree of force necessary to obtain the sample was subject to a further

constitutional test of reasonableness which required a balancing of the defendant’s fourth

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amendment right to be free from “unreasonable” search and seizure with the legitimate

governmental interest of law enforcement. Krause, 484 N.W.2d at 351. According to the

Krause court, an officer’s level of force used was “objectively reasonable” where several

factors balanced in favor of the force used: (1) the environment where the test was

conducted; (2) the severity of the crime at issue; (3) whether the defendant posed an

immediate threat to the safety of officers or others; (4) whether the defendant was actively

resisting; (5) whether the police refused a reasonable request for an alternative test; and (6)

the degree of the State’s need for the test. Krause, 484 N.W.2d at 352.

¶ 19 The State suggests that this court undertake the same analysis of reasonableness that was

undertaken by the Krause court. It further suggests that, if this court were to do so, it would

determine that the blood draw in the instant case passed constitutional muster, i.e., (1) the

blood was drawn incident to an arrest; (2) the officer’s observations of an odor of an

alcoholic beverage on the defendant’s breath and the defendant’s belligerent attitude gave

a clear indication rather than a mere chance that the blood would register over the legal limit;

and (3) exigent circumstances existed in the need to obtain the sample before the alcohol

level in the blood dissipated.

¶ 20 Likewise, the State suggests that the force was objectively reasonable in the instant

matter because: (1) the test was conducted in an appropriate environment, i.e., a hospital; (2)

DUI is a severe crime for which a forced blood draw is necessary; (3) the defendant’s

belligerent attitude posed a threat to the safety of the officers and the hospital personnel; (4)

the defendant was activelyresisting the forced blood draw; (5) the defendant made no request

of an alternative means of testing; and (6) the State’s need for the blood sample was great

since scientific test results are much better evidence of DUI than the arresting officer’s

observations and the inference of guilt that can be drawn from her refusal to submit to

testing.

¶ 21 In addition to Krause and Schmerber, the State cites to several cases which stand for the

proposition that forced blood draws are objectively reasonable and can pass constitutional

muster under the fourth amendment. See State v. Clary, 2 P.3d 1255, 1256 (Ariz. Ct. App.

2000); Carleton v. Superior Court, 216 Cal. Rptr. 890 (Cal. Ct. App. 1985); State v.

Worthington, 65 P.3d 211 (Idaho Ct. App. 2002); State v. Lanier, 452 N.W.2d 144 (S.D.

1990). However, we find each of these cases to be irrelevant to the question before us, which

is whether the trial court correctly held that a forced blood draw was not permitted under the

Vehicle Code. The trial court, relying upon our supreme court’s holding in Jones, held that

force is not permitted under the statute. Specifically, the trial court relied upon the Jones

court’s “clarification” that it was “not suggest[ing] that a DUI arrestee’s lack of a right to

refuse chemical testing under section 11-501.2(c)(2) permits law enforcement officers to use

physical force in obtaining blood, urine, and breath samples.” Jones, 214 Ill. 2d at 201.

¶ 22 Reviewing the trial court’s holding de novo, we hold that the trial court was correct in

its analysis of the supreme court’s holding. The court clearly wanted to “clarify” that,

although it was holding in Jones that a defendant did not have a statutory right to refuse to

complywith a request for a blood sample, law enforcement had no statutory right to use force

to extract said sample if the defendant refused to cooperate. That is a clear and unambiguous

interpretation of the court’s holding. That our supreme court did not see a need for forced

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sample collection is made even more clear by its observation that taking a blood sample by

force served no legitimate law enforcement purpose. As the Jones court noted, the

defendant’s refusal to comply with the request for a sample, in and of itself, is sufficient to

justify a statutory summary suspension of the defendant’s driver’s license, the purpose of

which is to protect the public from intoxicated motorists.

¶ 23 Moreover, in Jones our supreme court was quite clear that there is no practical need for

physical force in obtaining bodily fluid samples since the Vehicle Code eliminates any

advantage a DUI arrestee might hope to gain from refusing chemical testing:

“Under section 11-501.2(c)(2), if a DUI arrestee refuses to submit to chemical testing,

evidence of the refusal is admissible in the arrestee’s DUI prosecution. 625 ILCS 5/11-

501.2(c)(1) (West 2002); see also People v. Edwards, 241 Ill. App. 3d 839, 843 (1993)

(indicating that a defendant’s refusal to submit to blood testing has ‘some tendency to

indicate a consciousness of guilt’ and is thus relevant and admissible in a DUI

prosecution). In addition, refusal to submit will result in the summary suspension of the

arrestee’s driving privileges. This penalty is the same as that imposed where tests are

conducted and the results indicate a blood-alcohol concentration over the legal limit. See

625 ILCS 5/11-501.1(c) (West 2002).” Jones, 214 Ill. 2d at 201-02.

Thus, the inference of guilt from a defendant’s refusal to comply with a request for testing

is sufficient to protect the public interest in the prosecution of DUI tickets, and the use of

force to secure bodily fluid samples adds nothing to the protection of the public. Jones, 214

Ill. 2d at 202.

¶ 24 The State’s argument that the forced taking of a blood sample does not violate the

defendant’s fourth amendment right to be free from unreasonable search and seizure fails to

address the trial court’s finding that the arresting officer lacked statutory authority to use

force to obtain a blood sample. We affirm the trial court’s holding that police officers lack

the statutory authority to use force in taking samples of bodily fluids under section 11-

501.2(c)(2) of the Vehicle Code.

¶ 25 2. Motion to Amend Sworn Report

¶ 26 An officer’s sworn report may be amended at the hearing on the petition to rescind the

statutory summary suspension. People v. Badoud, 122 Ill. 2d 50 (1988). The State suggests

that the standard of review is de novo since the matter involves a matter of statutory

construction and there is no issue of witness credibility. See Village of Mundelein v.

Thompson, 341 Ill. App. 3d 842 (2003). The defendant suggests that the standard of review

is abuse of discretion since the court has the discretion to allow a motion to amend a

pleading. See People v. Wyzgowski, 323 Ill. App. 3d 604, 605-06 (2001). In a proceeding to

rescind a statutory summary suspension, the officer’s sworn report serves a function

analogous to a complaint in a civil proceeding. Badoud, 122 Ill. 2d at 54. As such, the

officer’s sworn report plays a unique role in a statutorysummarysuspension hearing because,

like a complaint in a civil case, it is the jurisdictional step that starts the proceeding. People

v. Palacios, 226 Ill. App. 3d 341 (1994). Given the fact that the sworn report stands as the

complaint, we will review the trial court’s denial of the State’s motion to amend the sworn

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report for an abuse of discretion. An abuse of discretion occurs where no reasonable person

would agree with the position adopted by the trial court. Schwartz v. Cortelloni, 177 Ill. 2d

166, 176 (1997). Thus, a trial court cannot be said to have abused its discretion if reasonable

persons could differ as to its decision. In re Adoption of D., 317 Ill. App. 3d 155, 160 (2000).

¶ 27 In order to determine whether the trial court has abused its discretion in denying an

amended complaint, courts generally look to four factors: (1) whether the proposed

amendment would cure the defective pleading; (2) whether the other parties would sustain

prejudice or surprise by virtue of the proposed amendment; (3) whether the proposed

amendment is timely; and (4) whether previous opportunities to amend the complaint could

be identified. Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 273 (1992).

¶ 28 Here, the trial court denied the motion to amend the officer’s sworn report because the

“proposed amendment completely changes the predicate for the suspension as well as the

duration of the suspension.” While the court did not articulate its ruling in terms of prejudice

and surprise, it would not be unreasonable to agree with the position adopted by the trial

court. To have allowed the officer’s sworn report to be amended certainly would have

prejudiced the defendant and likely introduced an element of surprise. Additionally, the

timing of the motion to amend could be called into question, as well as whether there were

previous opportunities to amend the sworn report. Given the record, we cannot say that the

trial court abused its discretion in denying the motion to amend the officer’s sworn report.

¶ 29 3. Statutory Summary Suspension

¶ 30 The State lastly maintains that the trial court erred in granting the defendant’s petition

to rescind her statutory summary suspension. The State suggests that the standard of review

is de novo. Village of Mundelein, 341 Ill. App. 3d at 848. Here, given the fact that the trial

court properly suppressed the results of the blood alcohol test, and given the fact that the

sworn officer’s report did not indicate that the defendant refused a request for testing, we find

that the trial court was correct in granting the petition to rescind the statutory summary

suspension.

¶ 31 CONCLUSION

¶ 32 For the foregoing reasons, the judgment of the circuit court of Kankakee County is

affirmed.

¶ 33 Affirmed.

¶ 34 JUSTICE WRIGHT, concurring in part and dissenting in part:

¶ 35 The police officer cited defendant for driving under the influence of alcohol pursuant to

section 11-501(a)(2). The trial court granted defendant’s petition to rescind the statutory

summary suspension and motion in limine. This ruling on the motion in limine prevented the

State from introducing the blood test results on grounds that police obtained the blood

sample by force, contrary to our supreme court’s ruling in People v. Jones, 214 Ill. 2d 187

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(2005).

¶ 36 I agree Jones establishes that force cannot be used to compel the collection of a blood test

after the driver refuses to consent to the test when the DUI violation does not involve a death

or serious injuryto another person. Therefore, I concurwith the majority’s decision affirming

the trial court’s decision to exclude the blood test results because the facts of this DUI

violation fell under the provisions of section 11-501.2(c)(1), similar to the facts considered

by our supreme court in Jones (Jones, 214 Ill. 2d 187).

¶ 37 Jones did not involve an accident with injuries to another person. Thus, our supreme

court has not been called upon to specifically resolve whether a law enforcement officer

could use some reasonable amount of physical force when compelling the collection of a

required blood sample under section 11-501.2(c)(2). 625 ILCS5/11-501.2(c)(2) (West 2008).

Therefore, I dissent from that portion of the majority’s decision interpreting Jones to forbid

the use of force in all situations, including those circumstances where section 11-501.2(c)(2)

applies. Ifeel it is premature for the majority to interpret Jones, in this appeal, to clearly hold

that force may never be used to obtain a nonconsensual blood draw under any circumstances,

including those involving the serious injury or death of another pursuant to section 11-

501.2(c)(2).

¶ 38 In fact, Justice Kilbride distanced himself from the majority’s reasoning in Jones by

observing that the statutory language of section 11-501.2(c)(2) would be meaningless if a

police officer could not “compel” nonconsensual testing of a DUI defendant who killed or

caused serious injury to another. Jones, 214 Ill. 2d at 202-06 (Kilbride, J., dissenting). I

consider Justice Kilbride’s views to be persuasive.

¶ 39 In some situations, not presented by either the facts of Jones or the facts in the case at

bar, authorities should be allowed to compel the collection of a blood sample when the

suspected DUI driver causes death or serious harm to another, refuses to consent, and then

physically resists all reasonable efforts to compel the collection of a blood sample.

Obviously, the degree of force used by the authorities to compel compliance should not

exceed the amount of compulsion reasonably necessary to counteract the level of resistance

exerted by a combative driver who has been involved in the death of or great bodily harm to

another.

¶ 40 Additionally, I dissent from the majority’s holding to affirm the trial court’s decision

denying the State’s motion to amend the officer’s sworn report. An officer’s sworn report,

in a statutory summary suspension hearing, is analogous to a complaint or pleading in a civil

proceeding and the rules of civil procedure apply. People v. Badoud, 122 Ill. 2d 50, 54

(1988); 626 ILCS 5/2-118.1(b) (West 2008). Section 2-616(c) of the Code of Civil Procedure

provides a pleading may be amended “at any time, before or after judgment, to conform the

pleadings to the proofs.” 735 ILCS 5/2-616(c) (West 2008). In People v. Pollitt, the court

recognized that amendments to defects in an officer’s sworn report generally occur before

or at the suspension hearing, but held that sworn reports may be amended to conform to the

proofs after judgment as well. People v. Pollitt, 2011 IL App (2d) 091247,¶ 19; Mandel v.

Hernandez, 404 Ill. App. 3d 701, 707 (2010).

¶ 41 Accordingly, I believe that the trial court’s denial of the State’s motion to amend the

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officer’s sworn report after judgment, to include that defendant refused to submit to chemical

testing, constituted an abuse of discretion. Based on that refusal, I conclude that the trial court

erred by granting defendant’s petition to rescind the statutory summary suspension in this

case.

¶ 42 For these reasons, I respectfully concur in part and dissent in part.

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