No. 2--07--0220 Filed: 2-6-08

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court

OF ILLINOIS, ) of Carroll County.

)

Plaintiff-Appellant, )

)

v. ) Nos. 06--DT--52

) 06--TR--812

) 06--TR--813

) 06--CM--161

)

)

COREY A. PIEPER, ) Honorable

) John F. Joyce,

Defendant-Appellee. ) Judge, Presiding.

______________________________________________________________________________

JUSTICE O'MALLEY delivered the opinion of the court:

The State appeals from an order granting the motion in limine of defendant, Corey A. Pieper,

to exclude the result of a blood alcohol content (BAC) test administered to him after the Mt. Carroll

police arrested him for driving under the influence (DUI) (625 ILCS 5/11--501(a)(2) (West 2006)).

Citing section 11--501.8(f) of the Illinois Vehicle Code (Code) (625 ILCS 5/11--501.8(f) (West

2006)), defendant asserted that, because the police reported his BAC result to the Secretary of State

under the provisions of the Code creating a summary driver's license suspension for any driver under

age 21 with a BAC over 0.00 (see 625 ILCS 5/6--208.2, 11--501.8 (West 2006) (the zero-tolerance

provisions)), the State was precluded from using the BAC result in a criminal prosecution. The court

agreed and excluded the result. We hold that the reporting of a zero-tolerance violation is not
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relevant to whether BAC testing has been done pursuant to section 11--501.1(a) (625 ILCS

5/11--501.1(a) (West 2006) (the general implied consent provision)) or section 11--501.8(a) and that

section 11--501.8(f) works to exclude BAC results only when testing is done exclusively pursuant

to section 11--501.8(a). As defendant did not show that his testing was under section 11--501.8(a),

the exclusion was improper, and we therefore reverse the exclusion order and remand the cause.

Officer Dennis Asay of the Mt. Carroll police department arrested defendant for DUI on

August 13, 2006. Defendant was under 21 at the time. Asay also ticketed defendant for illegal

transportation of alcohol. The State later charged defendant with underage drinking (235 ILCS

5/6--20 (West 2006)).

In the resulting proceedings, defendant filed a motion in limine seeking to exclude under

section 11--501.8(f) the result of the BAC test administered after his arrest. In the motion, defendant

admitted that Asay had read him both the zero-tolerance (625 ILCS 5/11--501.8(c) (West 2006)) and

general implied consent (625 ILCS 5/11--501.1(c) (West 2006)) warnings. He noted that the police

had reported his BAC result to the Secretary of State as a zero-tolerance violation. He asserted that

this reporting showed that his testing was pursuant to section 11--501.8(a) and that, under section

11--501.8(f), BAC results obtained under section 11--501.8(a) are inadmissible in criminal

proceedings. At the hearing on the motion, the State was prepared to submit evidence of Asay's

intent in giving the test, but the court decided that it could rule without hearing that evidence.

The trial court held that, by submitting a report to the Secretary of State under the zerotolerance provisions, Asay had effectively elected to test defendant under section 11--501.8(a), and

the inadmissibility rule of section 11--501.8(f) therefore applied. Its oral comments suggest that it

believed that a BAC test reported under the zero-tolerance provisions necessarily must have been
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conducted under section 11--501.8(a) rather than section 11--501.1(a). The State filed a certificate

of impairment and appealed under Supreme Court Rule 604(a)(1) (210 Ill. 2d R. 604(a)(1)). It now

argues that the trial court misinterpreted section 11--501.8. Defendant contends that the court's

interpretation was correct, but also argues that this appeal is not proper under Rule 604(a)(1). We

consider first why the appeal is proper and then explain why section 11--501.8(f) did not make

defendant's BAC result inadmissible.

Defendant claims that this appeal is not proper under Rule 604(a)(1) because the ruling at

issue here was a simple evidentiary ruling, rather than one suppressing evidence, and because the

evidence was not necessary for the State's case. He is wrong on both points. First, although Rule

604(a)(1) provides for "appeal *** from an order or judgment the substantive effect of which results

in *** suppressing evidence" (210 Ill. 2d R. 604(a)(1)), the supreme court has held that, "[f]or the

purposes *** of Rule 604(a)(1), there is no substantive distinction between evidence that is 'excluded'

and evidence that is 'suppressed.' " People v. Drum, 194 Ill. 2d 485, 491 (2000). The court thus

permitted the State's appeal under Rule 604(a)(1) of an order excluding certain evidence as not falling

within the residual hearsay exception. Drum, 194 Ill. 2d at 491-92. Under the rule in Drum, the

order here was appealable regardless of whether it was a suppression order or merely evidentiary.

Second, contrary to what defendant suggests, this court cannot second-guess the State's certificate

of impairment by considering whether excluded evidence was necessary to the State's case. People

v. Young, 82 Ill. 2d 234, 247 (1980). The State's certificate here is thus sufficient to establish the

impairment of its case, despite the possibility that other evidence could substitute for the BAC result.

Before turning to the substance of this case, we consider the applicable standard of review.

The State asserts that the issue is one of statutory interpretation and that we therefore review the
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matter de novo. Defendant asserts that, as this was an evidentiary ruling by the trial court, we can

reverse only if the trial court abused its discretion. "The determination of whether evidence is

relevant and admissible is a matter within the discretion of the trial court, and we will not reverse such

a determination unless the trial court abuses that discretion." People v. Turner, 373 Ill. App. 3d 121,

124 (2007). "However, ' "[a trial] court *** abuses its discretion when it makes an error of law." ' "

Turner, 373 Ill. App. 3d at 124, quoting Najas Cortés v. Orion Securities, Inc., 362 Ill. App. 3d 1043,

1047 (2005), quoting Koon v. United States, 518 U.S. 81, 100, 135 L. Ed. 2d 392, 414, 116 S. Ct.

2035, 2047 (1996). Here, whether the court was correct to exclude the BAC result depends entirely

on whether it understood the law, and in particular section 11--501.8, correctly. This is a question

of the correctness of the court's statutory interpretation, a matter that we review de novo, as the State

correctly asserts. See People v. Resnick, 373 Ill. App. 3d 163, 164 (2007).

We now review the relevant statutory provisions as a preface to our consideration of the

admissibility of defendant's BAC result. In summary, section 11--501.8(f) is silent as to the

admissibility of BAC results obtained under section 11--501.1(a) (the general implied consent

provision), but reported as zero-tolerance violations per the mandate of section 11--501.8(d).

However, section 11--501.1(c) makes such results admissible.

Section 11--501.8(a) provides for the implied consent to BAC testing of a driver under 21

arrested for any Code offense if the arresting officer has probable cause to believe that the driver has

been drinking:

"A person who is less than 21 years of age and 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 to a chemical test or tests of blood, breath, or urine for the purpose of
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determining the alcohol content of the person's blood if arrested, as evidenced by the issuance

of a Uniform Traffic Ticket for any violation of the Illinois Vehicle Code or a similar

provision of a local ordinance, if a police officer has probable cause to believe that the driver

has consumed any amount of an alcoholic beverage based upon evidence of the driver's

physical condition or other first hand knowledge of the police officer." (Emphasis added.)

625 ILCS 5/11--501.8(a) (West 2006).

Section 11--501.8(f) limits the admissibility of results of BAC testing done pursuant to section

11--501.8(a):

"The results of any chemical testing performed in accordance with subsection (a) of

this Section are not admissible in any civil or criminal proceeding, except that the results of

the testing may be considered at a hearing held under Section 2--118 of this Code [concerning

rescission of the summary suspension]. However, the results of the testing may not be used

to impose driver's license sanctions under Section 11--501.1 of this Code [the general implied

consent provision]. A law enforcement officer may, however, pursue a statutory summary

suspension of driving privileges under Section 11--501.1 of this Code if other physical

evidence or first hand knowledge forms the basis of that suspension." 625 ILCS

5/11--501.8(f) (West 2006).

The last relevant portion of section 11--501.8 is section 11--501.8(d), which mandates

disclosure of BAC results over 0.00 of drivers under 21, while recognizing that some drivers under

21 may have been tested under section 11--501.1(a):

"If the person refuses testing or submits to a test that discloses an alcohol

concentration of more than 0.00, the law enforcement officer shall immediately submit a
No. 2--07--0220

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sworn report to the Secretary of State on a form prescribed by the Secretary of State,

certifying that the test or tests were requested under subsection (a) and the person refused to

submit to a test or tests or submitted to testing which disclosed an alcohol concentration of

more than 0.00. The law enforcement officer shall submit the same sworn report when a

person under the age of 21 submits to testing under Section 11--501.1 of this Code and the

testing discloses an alcohol concentration of more than 0.00 and less than 0.08.

Upon receipt of the sworn report of a law enforcement officer, the Secretary of State

shall enter the driver's license sanction on the individual's driving record and the sanctions

shall be effective on the 46th day following the date notice of the sanction was given to the

person." (Emphasis added.) 625 ILCS 5/11--501.8(d) (West 2006).

Because section 11--501.8 refers to section 11--501.1, the terms of that section are also

plainly relevant to our analysis. The whole of section 11--501.1 applies to all drivers arrested for

DUI:

"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 content of alcohol, other drug or drugs, or intoxicating compound or

compounds or any combination thereof in the person's blood if arrested, as evidenced by the

issuance of a Uniform Traffic Ticket, for any offense as defined in Section 11--501 [the

section creating the offense of DUI] or a similar provision of a local ordinance, or if arrested

for violating Section 11--401 [concerning motor vehicle accidents involving death or personal

injury]." (Emphasis added.) 625 ILCS 5/11--501.1(a) (West 2006).
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Section 11--501.1(c) explicitly recognizes that drivers under 21 may be subject to section 11--

501.1(a), and it further provides that BAC test results of drivers under 21 tested under section 11--

501.1(a) are admissible in related criminal prosecutions:

"A person who is under the age of 21 at the time the person is requested to submit to

a test as provided above shall, in addition to the warnings provided for in this Section, be

further warned by the law enforcement officer requesting the test that if the person submits

to the test or tests provided in paragraph (a) of this Section and the alcohol concentration in

the person's blood or breath is greater than 0.00 and less than 0.08, a suspension of the

person's privilege to operate a motor vehicle, as provided under Sections 6--208.2 [setting

the zero-tolerance periods of driver's license suspensions] and 11--501.8 of this Code, will

be imposed. The results of this test shall be admissible in a civil or criminal action or

proceeding arising from an arrest for an offense as defined in Section 11--501 of this Code

or a similar provision of a local ordinance or pursuant to Section 11--501.4 in prosecutions

for reckless homicide brought under the Criminal Code of 1961. These test results, however,

shall be admissible only in actions or proceedings directly related to the incident upon which

the test request was made." 625 ILCS 5/11--501.1(c) (West 2006).

Sections 11--501.1(d) and (e) provide for the summary suspension of the driver's license of

anyone who refuses testing under section 11--501.1(a) or who, after allowing testing under that

section, shows a BAC of at least 0.08. 625 ILCS 5/11--501.1(d), (e) (West 2006).

With these provisions as background, we can follow what happens when a driver under 21

is arrested for DUI and has a BAC over 0.00 and less than 0.08. Section 11--501.1(a) makes no age

distinctions in who must submit to testing; a driver under 21 can be tested under that section.
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1This discussion assumes that the evidence suggests that the intoxicant involved in the offense

is alcohol.

-8-

Pursuant to section 11--501.1(c), before a driver under 21 is tested under section 11--501.1(a), he

or she must be warned of the possibility of both the general summary suspension and the zerotolerance summary suspension. Section 11--501.1(c) specifically states that, for a test under section

11--501.1(a), a BAC result between 0.00 and 0.08 of a driver under 21 can be used "in actions or

proceedings directly related to the incident upon which the test request was made." 625 ILCS

5/11--501.1(c) (West 2006). Finally, section 11--501.8(d) mandates that a BAC result between 0.00

and 0.08 of a driver under 21 be reported to the Secretary of State for a zero-tolerance summary

suspension, whatever the section under which the driver was tested. To be sure, when a driver under

21 is arrested for DUI, he or she is also subject to testing under section 11--501.8(a); if probable

cause exists for a DUI arrest, then the arresting officer must also have probable cause to believe that

the driver has been drinking.1 However, we cannot see any reason that, on a proper DUI arrest, an

officer would choose to test under section 11--501.8(a).

When a driver under 21 is arrested for any Code offense, and probable cause exists to think

that he or she has been drinking, then he or she is subject to testing under section 11--501.8(a).

Pursuant to section 11--501.8(c), before he or she is tested under section 11--501.8(a), he or she

must be warned that a BAC over 0.00 will result in a zero-tolerance driver's license suspension.

Pursuant to section 11--501.8(f), BAC results obtained under section 11--501.8(a) are inadmissible

in any proceedings other than summary suspension rescission hearings. Just as BAC results between

0.00 and 0.08 of under-21 drivers tested under section 11--501.1(a) must be reported to the Secretary
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of State pursuant to section 11--501.8(d), over-0.00 results of drivers tested under section

11--501.8(a) must be reported to the Secretary of State pursuant to section 11--501.8(d).

As this summary shows, the admissibility of a BAC result depends on whether the test was

conducted under section 11--501.1(a) or section 11--501.8(a). The trial court apparently concluded

that it could decide which section the police applied by noting whether the police reported the result

to the Secretary of State as a zero-tolerance violation. That was an error. Nothing in either section

suggests that reporting determines the section under which testing was done. Indeed, section

11--501.8(d) mandates that the police report the result as a zero-tolerance violation, regardless of

whether the testing was done under section 11--501.1(a) or section 11--501.8(a). Using reporting

to trigger inadmissibility under section 11--501.8(f) would thus nullify the part of section 11--501.1(c)

that makes BAC results between 0.00 and 0.08 of drivers under 21 admissible when obtained under

section 11--501.1(a).

We note that section 11--501.1(c) does not nullify section 11--501.8(f), even on the

assumption that police will always test under section 11--501.1(a) when possible. Sections

11--501.1(a) and 11--501.8(a) apply in different, albeit overlapping, situations. Section 11--501.1(a)

applies only when a driver has been arrested for a section 11--501 offense (DUI) or a section 11--401

offense (a motor vehicle accident involving death or personal injury). Section 11--501.8(a) applies

when a driver is under 21, the driver has been arrested for any offense under the Code, and the

arresting officer has probable cause to believe that the driver has been drinking. The circumstances

in which section 11--501.8 alone applies are thus limited, but real. For example, a driver under 21

could show no sign of intoxication when arrested for a traffic offense, but be in possession of an
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open, half-empty, can of beer. Such a driver would be subject to testing under section 11--501.8(a)

only, and the exclusions of section 11--501.8(f) would apply to the driver's BAC result.

Defendant argues that section 11--501.8(c) is ambiguous and that we should therefore apply

the rule of lenity to interpret the statute in his favor. He also argues that, because sections 11--501.1

and 11--501.8 are separate enactments, we should not read them together. As we now discuss, (1)

the rule of lenity is inapplicable here, and (2) the relevant portions of the provisions are part of the

same enactment and thus should be read together.

The rule of lenity is a canon of statutory construction that requires that "penal statutes, where

ambiguous, *** be construed to afford lenity to the accused." People v. Hicks, 164 Ill. 2d 218, 222

(1995). The rule is inapplicable here because section 11--501.8 is not ambiguous. Section

11--501.8(f) bars most uses of BAC results when testing is under section 11--501.8(a), but it does

not specify the allowed uses of BAC results when drivers under 21 are tested under section

11--501.1(a) and the results are between 0.00 and 0.08. That omission is no ambiguity. Nothing in

the section can be reasonably read to suggest that a section 11--501.1(a) test result becomes a section

11--501.8(a) test result because the driver is a person subject to zero tolerance. Section 11--501.8

provides no rule about the admissibility of BAC results obtained under section 11--501.1(a). For

such a rule, one needs to read section 11--501.1(c).

Defendant argues that we should not construe sections 11--501.1 and 11--501.8 together

because they are separate enactments on separate subjects. As we have just discussed, we do not

need section 11--501.1 to conclude that the exclusion created by section 11--501.8(f) is inapplicable

to BAC results obtained under section 11--501.1(a). However, we note that defendant is wrong

about the relationship between the sections. Section 11--501.8, including section 11--501.8(f), was
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created by Public Act 88--588 (Pub. Act 88--588, §5, eff. January 1, 1995). The portion of section

11--501.1(c) that deals with the admissibility of BAC results between 0.00 and 0.08 of drivers under

21 was created by the same act. Pub. Act 88--588, §5, eff. January 1, 1995. The legislature, in

assembling the act, thus saw that section 11--501.8(f) had left open the question of the admissibility

of BAC results between 0.00 and 0.08 of drivers under 21 obtained under section 11--501.1(a), and

answered that question in the amended section 11--501.1(c).

We hold, therefore, that the reporting of a zero-tolerance violation is irrelevant to whether

the BAC testing was done pursuant to section 11--501.1(a) and thus to whether the test result is

admissible in a DUI prosecution by force of section 11--501.1(c). If the test was connected to an

arrest for DUI and the arrestee was warned in accordance with section 11--501.1(c), then the test will

be deemed administered under section 11--501.1(a), even if the arrestee was also eligible for testing

under section 11--501.8(a). In those situations where sections 11--501.1(a) and 11--501.8(a)

overlap, testing may be conducted under both provisions, but, pursuant to section 11--501.1(c), the

result is admissible in a prosecution for DUI.

Defendant was subject to testing under section 11--501.1(a) as a DUI arrestee, and he admits

the police gave him the warnings required by section 11--501.1(c) as a driver under 21. He thus met

the statutory requirements for testing under section 11--501.1(a). The only evidence he claimed for

the police having tested him under section 11--501.8(a) was the reporting of his BAC result as a zerotolerance violation. But, as we have seen, because section 11--501.8(d) mandates reporting of results

under both sections 11--501.1(a) and 11--501.8(a), reporting is not an indication of testing under

section 11--501.8(a). The trial court's grant of defendant's motion to exclude was thus improper.
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For the reasons given, we reverse the order of the circuit court of Carroll County, and we

remand the cause.

Reversed and remanded.

BYRNE, P.J., and GROMETER, J., concur.