NO. 4-08-0027

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

 Plaintiff-Appellee,

 v.

VERNON J. FONNER,

 Defendant-Appellant.

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 Appeal from

 Circuit Court of 

 Champaign County

 No. 06DT799

 Honorable

 Richard P. Klaus,

 Judge Presiding.

_________________________________________________________________

MODIFIED UPON DENIAL OF REHEARING 

JUSTICE TURNER delivered the opinion of the court:

In November 2006, defendant, Vernon J. Fonner, was

arrested for and charged by citation with driving under the

influence (DUI) (625 ILCS 5/11-501(a)(2) (West 2006) (as amended

by Pub. Acts 94-329, §5, eff. January 1, 2006 (2005 Ill. Legis.

Serv. 2181, 2181 (West)), and 94-963, §5, eff. June 28, 2006

(2006 Ill. Legis. Serv. 2172, 2199-2200 (West)))). After he was

taken to jail, defendant refused to submit to a Breathalyzer

test. In December 2006, the Secretary of State's office sent

defendant a notice, indicating the summary suspension of defendant's driving privileges for three years, effective January 4,

2007. That same month, defendant filed a petition to rescind the

statutory summary suspension. After a hearing, the trial court

denied defendant's petition in December 2007.

Defendant appeals pro se, contending the trial court
- 2 -

erred by denying his petition to rescind his statutory summary

suspension because (1) the arresting officer lacked reasonable

grounds to believe defendant was driving or in actual physical

control of his motor vehicle on the morning in question and (2)

defendant did not refuse chemical testing. We affirm.

I. BACKGROUND

The November 19, 2006, DUI citation stated defendant

unlawfully operated a 1995 Green Cadillac Eldorado on Country

Fair Road and Springfield Avenue in Champaign, Illinois. Police

officer Eric Hart issued the citation and, after defendant

refused the breath test, prepared a sworn report indicating

defendant's refusal to submit to a chemical test as required by

section 11-501.1(d) of the Illinois Vehicle Code (625 ILCS 5/11-

501.1(d) (West 2006)). In December 2006, the Secretary of

State's office notified defendant of his three-year summary

suspension.

On December 29, 2006, defendant filed a petition to

rescind his statutory summary suspension based on the following

grounds: (1) the arresting officer did not have reasonable

grounds to believe he was driving or in actual physical control

of a motor vehicle, (2) he was not properly warned by the arresting officer as required by section 11-501.1(c) of the Illinois

Vehicle Code (625 ILCS 5/11-501.1(c) (West 2006)), and (3) he did

not refuse to submit to and/or complete the required chemical
- 3 -

test requested by the arresting officer. 

On May 11, 2007, the State made a motion to dismiss the

DUI charge in the criminal matter, which the trial court granted. 

The court also commenced the hearing on defendant's petition to

rescind. Defendant testified on his own behalf and presented the

testimony of Rick Boley, defendant's friend; and Vernon Bruce

Fonner, defendant's father. The State presented the testimony of

Officer Hart and Officer Christina Benton.

Officer Hart testified that, in the early morning hours

of November 19, 2006, he was on patrol with Officer Benton, who

was his field training officer. At approximately 2:58 a.m., he

was driving eastbound on Springfield Avenue and approached the

stoplight at the intersection of Springfield Avenue and Country

Fair Road. Officer Hart turned right onto southbound Country

Fair Road to follow a dark green Cadillac that had proceeded

through the intersection without an operable rear registration

light, which is a violation of the Illinois Vehicle Code (see 625

ILCS 5/12-201(c) (West 2006)). The vehicle stopped halfway down

the block across from D.R. Diggers, a bar. When the vehicle

pulled over to stop, it did not use its right turn signal.

Officer Hart drove past the vehicle, went down the rest of the

block, and made a U-turn. 

When he first passed the vehicle heading southbound, he

only observed one occupant. Officer Hart acknowledged he had
- 4 -

told defense counsel he did not know whether the vehicle had one

or two occupants but at that time he had not reviewed his reports. The squad car's headlights were sufficient to illuminate

the Cadillac as he drove by it. Further, as he drove by the

vehicle, Officer Benton pointed out she knew defendant. Officer

Hart then drove back and parked on the north side of D.R. Diggers. Officer Hart did not lose sight of the vehicle from the

time he first observed it until he made the U-turn. After the

turn, he observed defendant, who was wearing an unusual hat,

walking across Country Fair. However, Officer Hart did not see

defendant drive or exit the vehicle. Additionally, Officer Hart

acknowledged he could have pulled up behind the Cadillac, approached the vehicle, and pointed out the violations to the

driver. 

After he parked the squad car, Officer Hart headed to

D.R. Diggers because his reasons for turning around were (1) to

investigate whether D.R. Diggers was serving alcohol after 2 a.m.

and (2) to find the location of the driver of the Cadillac. As

he was approached the bar, Officer Benton informed him of defendant's location. When he and Officer Benton approached defendant, defendant was talking on a cellular telephone. When

defendant saw the officers, he threw his keys behind him and

stated he was not driving a vehicle. Defendant repeatedly stated

he was not driving a vehicle and was trying to call a cab. 
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Officer Hart did not know to whom defendant was talking on the

cellular telephone. No sobriety tests were performed on defendant because he would not allow them. Based on his prior lawenforcement experience, Officer Hart noted defendant appeared in

"an extreme and obvious manner" to be impaired by something. 

Officer Benton made the decision to arrest defendant for DUI, and

Officer Hart put him in custody. While en route to the jail,

defendant continued to state he was not driving the vehicle. 

Defendant indicated a friend was driving his vehicle, dropped

defendant off, left the vehicle, and headed southbound. Officer

Hart did not make any effort to determine the friend's identity

because Officer Benton had seen defendant driving. Officer Hart

was unaware of Officer Benton's history with defendant's family. 

Further, Officer Hart did not believe defendant's statement he

was not driving due to the manner in which defendant reacted to

seeing the officers and the fact he did not see anyone else

around the area besides defendant. 

Officer Hart further testified he was probably in the

squad car when he read verbatim to defendant the warning-tomotorist form. The form indicated Officer Hart read the warning

at 3:36 a.m., and Officer Hart indicated that time was accurate. 

Later, either he or Officer Benton asked defendant to submit to a

breath test, and defendant replied, "f--k no." Officer Hart did

not recall what time the request was made. Officer Hart also
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explained a 20-minute observation period must take place before

the breath test can be administered, and if the person being

observed regurgitates or vomits, the person must be allowed to

rinse his or her oral cavity and the 20-minute period starts

anew. Officer Hart was not present during the entire observation

period but did recall defendant belching and making noises. 

Officer Hart did not personally offer to let defendant rinse out

his mouth. 

Officer Hart also testified that, on November 19, 2006,

he was in his probationary period with the Champaign city police

department and had two years of prior experience with Zion city

police department. Officer Hart received criticism of his job

performance during the probationary period and ended up leaving

the Champaign police department in December 2006. While he did

not have a lot of experience with DUIs, DUI enforcement was not

one of his noted deficiencies.

Boley testified he was a 51-year-old maintenance worker

for Barr Real Estate and had met defendant almost 10 years

earlier through defendant's father. He and defendant had a

social relationship in which they would play cards and pool. 

Boley had started the night at D.R. Diggers and had four beers

there. Boley felt he could not drive due to the amount of

alcohol he had consumed and got a ride to Chief's bar, where he

arrived at around 11 p.m. Between 12 and 12:30 a.m., Boley saw
- 7 -

defendant at Chief's. When they were able to get a table, he and

defendant played pool together. Boley observed defendant drinking both beer and hard liquor. They stayed at Chief's until

after "last call." Before leaving, they talked about maybe going

and playing some poker or something. Defendant indicated he had

too much to drink and could not drive. Boyle stated he could

drive them over to D.R. Diggers, drop off defendant's car, and

then go out in his truck.

Defendant gave Boyle the keys to his vehicle. Boyle is

6 feet 3 inches tall and considerably taller than defendant. 

Boyle had to move the driver's seat of defendant car back to get

into it. Defendant sat in the passenger seat. Boyle could not

recall how defendant was sitting in the seat. In returning to

D.R. Diggers, Boyle headed southbound on Country Fair Road and

passed through the intersection with Springfield Avenue. He did

not notice any police vehicles on Springfield Avenue at the

intersection. A bank was located at the intersection, and Boyle

observed the bank sign displayed a time of 2:39 a.m. Defendant

asked Boyle to park on the west side of the road across from D.R.

Diggers because defendant was concerned about his car being

towed. After parking the car, Boyle got out of the car and

walked across the street toward his truck, and defendant followed. Boyle did not see any police vehicles as he crossed the

street. 
- 8 -

Once they were both inside Boyle's truck, Boyle gave

defendant the keys to defendant's vehicle. Defendant made

several telephone calls looking for a card game but could not

come up with anything. Boyle decided to go home, and defendant

exited Boyle's truck. Boyle saw defendant walking away from the

truck with a cellular telephone on his ear. Boyle lived about 10

minutes from D.R. Diggers, and it was a few minutes after 3 a.m.

when he got home. Boyle did not know what defendant did after

Boyle left D.R. Diggers' parking lot.

Defendant's father testified he was familiar with

Officer Benton. In October 2005, defendant's father had a

confrontation with her in the emergency room where defendant was

being treated. Officer Benton wanted to question defendant, and

defendant's father had refused her request. She was authoritative and direct. The conversation got heated. Defendant's

father did not like the way she was asking him to do things. 

Defendant's father was aware of other interactions between

defendant and Officer Benton based on what defendant had told

him.

Defendant's father further testified he received a call

from defendant at 3:03 a.m. on November 19, 2006. Defendant

indicated he was in the parking lot of D.R. Diggers and was

having a problem with the police. Defendant's father could hear

Officer Benton's voice in the background. Defendant's father
- 9 -

told defendant he would come to the parking lot. The telephone

call lasted around three minutes. Defendant's father arrived at

D.R. Diggers about five minutes after the end of the call but did

not see defendant. He did observe the vehicle defendant usually

drove parked on the west side of Country Fair. 

Defendant's father received another call from defendant

at 3:38 a.m. Defendant indicated he was in the county jail. 

Defendant's father could hear other voices but did not hear the

warning to motorists being read. The call ended at about 3:46

a.m. with the telephone just hanging up. Defendant's father

picked up defendant from jail at around 5 a.m., and defendant had

paperwork with him. However, defendant did not have a copy of

the warning to motorists. Defendant's father further testified

that, a couple of months after November 19, 2006, he checked

defendant's vehicle's rear registration light and found it was

working properly. He did not repair the light and did not know

of anyone else replacing the light. Moreover, defendant's father

did not get into the vehicle at the towing company when he and

defendant went to pick up the car.

Defendant testified he was drinking beer, wine, and

shots of tequila on the night in question and had a lot to drink. 

His testimony regarding the time he spent with Boyle that night

was similar to Boyle's. Defendant also testified he liked to

ride with the seat up close and reclined. According to defen-
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dant, he was not observable from outside of the vehicle that

morning. Like Boyle, defendant did not observe any police

vehicles at the intersection of Springfield Avenue and Country

Fair Road. Defendant also testified he exited his car 30 seconds

to a minute after Boyle left the vehicle. When he was standing

in front of his vehicle, he observed the back of a police vehicle

heading southbound on Country Fair Road. Defendant crossed the

street and went to Boyle's truck, which was more than half of a

football field away. 

After he exited Boyle's truck, defendant started to

make some telephone calls looking for an after-hours party. At

2:57 and 2:59 a.m., defendant made calls to directory assistance

to get telephone numbers for cab companies. He stated he could

not have been at the intersection as Officer Hart testified

because he was sitting in D.R. Diggers' parking lot, making the

telephone calls. When defendant was placing the call to his

father at 3:03 a.m., Officers Benton and Hart approached him and

said, "hey." Defendant recognized Officer Benton, and as soon as

she saw him, her demeanor was aggressive. Before the officers

arrived, defendant had been swinging his car keys around his

finger and talking on his cellular telephone. When Officer

Benton said "hey," the keys slid off his finger and landed next

to his shoes. He told Officer Benton he was not driving because

he assumed the officers were checking on people to see who was
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intoxicated. Defendant testified it was Officer Benton who

arrested him.

According to defendant, the officers did not take his

cellular telephone away until he reached the Breathalyzer room at

the jail. Before he was taken into the Breathalyzer room, he

called his father at 3:38 a.m. to let him know what was taking

place. He talked to his father for eight minutes and neither

Officer Hart nor Officer Benton was present during the conversation. When the call ended at 3:46 a.m., both officers had

returned and immediately took defendant to the Breathalyzer room. 

Defendant stated neither officer read the warning to motorists to

him. He also testified that, while he was in the Breathalyzer

room, he was burping and belching, which brought "stuff" back up

into his mouth. The belching lasted for about three to four

minutes, which left a strong taste of alcohol in his mouth. The

officers asked him to stop belching because it was disgusting. 

Defendant also indicated he was aware of the 20-minute observation period and knew 20 minutes had not passed when Officer

Benton asked him to submit to a Breathalyzer test. He was also

aware the absence of regurgitation in his mouth was required for

a valid breath test. Defendant stated he refused to submit to

the breath test because he was not driving. He also believed

Officer Benton was trying to obtain a false result because she

did not like him. 
- 12 -

After his arrest, defendant's vehicle was towed to a

towing company. Defendant and his father later went to the

towing company to pick up the vehicle. Defendant got into the

driver's side of the vehicle and had to move the seat up so he

could reach the pedals. Defendant is 5 feet 10 or 11 inches

tall. Moreover, subsequent to his arrest, defendant checked the

rear registration light and found it operable. 

Defendant also testified about his prior contacts with

Officer Benton. In October 2004 or 2005, he was in the emergency

room because he had been assaulted. Despite being the victim,

defendant did not want to talk to Officer Benton before talking

to a lawyer. He testified Officer Benton was pretty mad and

frustrated she could not talk with defendant. His next encounter

was four to five months later at Bar Fly. A bar fight had broken

out, and one of the bartenders had been assaulted. Officer

Benton got mad at defendant and accused him of being involved in

the incident. Defendant asked if he could wash blood off himself, and she said he could. After he cleaned himself, he took a

cab home because he believed Officer Benton said he could leave. 

However, she had blocked his car off with a squad car and a few

days later confronted him about leaving Bar Fly by putting him up

against her car and yelling at him. He also indicated she

handcuffed him but never arrested him. In August 2006, defendant

was in line at Soma's when Officer Benton pointed him out to
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another officer. The other officer pulled defendant out of line

and started asking him questions about a sexual assault, of which

defendant had no knowledge. Defendant described Officer Benton's

attitude toward him over the past 2 1/2 years as "[h]orrible." 

Defendant was not surprised Officer Benton could recognize his

car because it was a unique two-door Cadillac coupe and the dark

green paint had gold speckles in it.

Defendant submitted a copy of his cellular-telephone

bill that showed the calls he placed on November 19, 2006. The

trial court admitted the document into evidence without objection.

Officer Benton testified she had been a police officer

for around 8 1/2 years, with the last five being in Champaign. 

She is a certified breath-test operator and had been involved in

more than 25 DUI arrests. She first had contact with defendant

when he was the victim of a battery that occurred on her beat. 

She took his information and photographs of his injuries. Both

of defendant's parents were present, and his father gave her some

information about the incident. She also had some other noncriminal contacts with defendant at bar closings on her beat. He was

listed as a suspect in a sexual-assault report she took, but she

denied physically pointing out defendant to another officer. 

Officer Benton also denied ever threatening to arrest defendant

and having any personal animus toward him.
- 14 -

As to November 19, 2006, Officer Benton testified she

was training Officer Hart about probable cause to stop a vehicle. 

She pointed out a vehicle that appeared to not have a rear

registration light and instructed Officer Hart to follow it. She

did not recognize the car as defendant's. After following the

vehicle for a half a block, the car did a quick slowdown and

pulled over without signaling. Officer Benton pointed out the

lack of a signal to Officer Hart. Officer Hart drove past the

vehicle at 10 miles per hour, and Officer Benton had at least

five seconds to observe the driver, whom she recognized as

defendant. Officer Benton stated defendant was wearing a very

particular kind of hat that he usually wears, and she recognized

his face as well. Defendant was sitting in the vehicle and

looked right at Officer Benton. She was positive only one person

was in the car. In the rearview mirror, she observed defendant

walk across the street. At that point, she advised Officer Hart

to turn around because the businesses in the area were closed and

D.R. Diggers should have been closed as well.

When they approached defendant in front of a nearby

business, defendant was talking on his cellular telephone. They

had not yet said anything when defendant threw his hands in the

air, threw his keys on the ground, and stated the following: "'I

wasn't driving. My friend dropped me off here. I'm waiting for

a cab. You didn't see me driving. You can't prove s--t.'"
- 15 -

In arresting defendant, Officer Hart placed the handcuffs on him while they both detained him. When they arrived at

the jail, defendant went to the booking area where he had his

property taken from him. He was then taken to the Intoxilyzer

room. There, she witnessed Officer Hart read the warning to

motorists to defendant. She also conducted a 20-minute observation period. During the period, defendant was belligerent and

burping. Defendant did not vomit or regurgitate during the 20-

minute period. He also did not request to go to the bathroom or

spit anything out into a garbage can. Officer Benton also did

not see anything in his mouth when defendant belched. When it

came time to do the breath test, a little confrontation took

place in getting defendant to walk to the machine. Defendant

complied with her second request to walk to the machine. At the

machine, Officer Benton asked defendant to take a breath test,

and he refused. From the time defendant arrived at the jail

until he refused the breath test, he was in Officer Benton's

presence. She did not recall if he used his cellular telephone

at the jail. 

On December 4, 2007, the trial court entered a docket

entry denying defendant's petition to rescind. The entry noted

the court had questions about the witnesses' credibility but

found Officer Hart's testimony credible. The court also noted

the burden of proof was on defendant. 
- 16 -

On January 2, 2008, defendant filed a notice of appeal

from the trial court's December 4, 2007, ruling in accordance

with Supreme Court Rules 301 and 303 (155 Ill. 2d R. 301; 210

Ill. 2d R. 303). See People v. Smith, 172 Ill. 2d 289, 294-95,

665 N.E.2d 1215, 1217 (1996) (noting "a hearing on a petition to

rescind the statutory summary suspension of driving privileges is

a civil proceeding").

II. ANALYSIS

Defendant contends the trial court erred by denying his

petition to rescind his statutory summary suspension. 

In a hearing on a petition to rescind a statutory

summary suspension, the defendant-motorist has the burden of

proof to demonstrate by a preponderance of the evidence a prima

facie case for rescission. People v. Ehley, 381 Ill. App. 3d

937, 943, 887 N.E.2d 772, 777-78 (2008). If the defendant

establishes a prima facie case, the burden shifts to the State to

present evidence justifying the suspension. Ehley, 381 Ill. App.

3d at 943, 887 N.E.2d at 778. Generally, this court will not

reverse a trial court's judgment on a petition to rescind a

statutory summary suspension unless it is against the manifest

weight of the evidence. People v. Ewing, 377 Ill. App. 3d 585,

597, 880 N.E.2d 587, 598 (2007). "A finding is against the

manifest weight of the evidence only if the opposite conclusion

is clearly evident or if the finding itself is unreasonable,
- 17 -

arbitrary, or not based on the evidence presented." People v.

Deleon, 227 Ill. 2d 322, 332, 882 N.E.2d 999, 1005 (2008). 

Section 2-118.1(b) of the Illinois Vehicle Code (625

ILCS 5/2-118.1(b) (West 2006)) limits the grounds upon which a

petition to rescind a statutory summary suspension may be based

to four. Ehley, 381 Ill. App. 3d at 942, 887 N.E.2d at 777. On

appeal, defendant argues the trial court erred by denying his

petition to rescind because two of the four grounds exist in his

case. 

A. Reasonable Grounds for Arrest

Defendant first alleges the arresting officer lacked

reasonable grounds to believe he was driving or in actual physical control of his motor vehicle on the morning in question. See

625 ILCS 5/2-118.1(b)(2) (West 2006). 

In a driving-under-the-influence situation,

"'[r]easonable grounds' is synonymous with 'probable cause.'" 

People v. Fortney, 297 Ill. App. 3d 79, 87, 697 N.E.2d 1, 7

(1998). In reviewing probable-cause determinations, this court

has adopted the two-part standard of review established by the

United States Supreme Court in Ornelas v. United States, 517 U.S.

690, 699, 134 L. Ed. 2d 911, 920, 116 S. Ct. 1657, 1663 (1996). 

People v. Wear, 371 Ill. App. 3d 517, 529-30, 867 N.E.2d 1027,

1038-39 (2007). Under that standard, a reviewing court gives

deference to the trial court's findings of historical fact but
- 18 -

prescribes a de novo standard of review for the ultimate determination of probable cause. Wear, 371 Ill. App. 3d at 529, 867

N.E.2d at 1038.

To determine whether reasonable grounds and/or probable

cause existed for a defendant's arrest, a court "must determine

whether a reasonable and prudent person, having the knowledge

possessed by the officer at the time of the arrest, would believe

the defendant committed the offense." Fortney, 297 Ill. App. 3d

at 87, 697 N.E.2d at 7. That standard requires the officer to

have "more than a mere suspicion, but does not require the

officer to have evidence sufficient to convict." People v. Long,

351 Ill. App. 3d 821, 825, 815 N.E.2d 72, 76-77 (2004). In

analyzing probable cause, we utilize an objective inquiry into

the police officer's conduct. People v. Lindmark, 381 Ill. App.

3d 638, 658, 887 N.E.2d 606, 623 (2008). Moreover, we note

"probable cause is a fluid concept[,] turning on the assessment

of probabilities in particular factual contexts." Illinois v.

Gates, 462 U.S. 213, 232, 76 L. Ed. 2d 527, 544, 103 S. Ct. 2317,

2329 (1983). Thus, a probable-cause determination is a "practical, common-sense decision" that requires the consideration of

the totality of the circumstances. Gates, 462 U.S. at 238, 76 L.

Ed. 2d at 548, 103 S. Ct. at 2332.

Contrary to defendant's assertion, Officer Hart's

testimony alone is sufficient to show he had probable cause to
- 19 -

arrest defendant for DUI. While Officer Hart neither saw defendant drive the vehicle nor exit the vehicle, Officer Hart only

observed one person in the vehicle, kept sight of the vehicle

except for a U-turn, and then saw defendant walking eastbound

across the street. He did not see anyone else in the area of the

vehicle. The fact Officer Hart could not identify defendant as

the driver does not negate a reasonable inference from the

totality of the circumstances that defendant was the driver of

the vehicle. As Officer Hart explained, one of the reasons he

did not believe defendant's claims a friend had been driving was

because the officer had not observed anyone else in the vicinity. 

Further, when he and Officer Benton approached defendant, defendant threw down his car keys and claimed he had not been driving. 

Additionally, as they drove by the vehicle, Officer Benton

indicated she knew defendant and saw him driving the vehicle. 

When officers are working together, "the knowledge of each is the

knowledge of all," and the arresting officer has the right to

rely on the knowledge of the officer that gave the command to

arrest together with his own personal knowledge. People v. Peak,

29 Ill. 2d 343, 349, 194 N.E.2d 322, 326 (1963). Thus, Officer

Hart could rely on Officer Benton's recognition of defendant as

the vehicle driver in forming probable cause to arrest defendant

for DUI.

Accordingly, we find defendant failed to prove by a
- 20 -

preponderance of the evidence a reasonable and prudent person,

having the knowledge possessed by Officer Hart at the time he

arrested defendant, would have believed defendant was not the

driver of the vehicle. 

B. Refusal To Submit to Testing

Defendant also asserts he did not refuse to submit to

testing because the test the police offered was not in compliance

with the regulations promulgated under section 11-501.2 of the

Illinois Vehicle Code (625 ILCS 5/11-501.2 (West 2006)). Specifically, he asserts (1) the police did not observe him for 20

minutes before he was offered to take the Breathalyzer test and

(2) he regurgitated during the 20-minute observation period and

was not given the opportunity to rinse out his mouth. The State

essentially contends defendant cannot raise noncompliance with

the regulations because he did not submit to testing. The

State's contention is a matter of first impression in Illinois. 

Further, it presents a matter of statutory construction, which is

a question of law, and thus our standard of review is de novo. 

People v. Howard, 228 Ill. 2d 428, 432, 888 N.E.2d 85, 87 (2008).

The primary rule in construing a statute is to ascertain and give effect to the legislature's intent, which is best

indicated by the statutory language itself. People v. O'Connell,

227 Ill. 2d 31, 36, 879 N.E.2d 315, 318 (2007). Thus, we begin

our analysis by examining the relevant statutory provisions. 
- 21 -

Section 11-501.1(a) of the Illinois Vehicle Code (Ill.

Rev. Stat. 1985, ch. 95 1/2, par. 11-501.1(a) (now 625 ILCS 5/11-

501.1(a) (West 2006))) is "the implied-consent statute upon which

summary suspension is based." People v. Hamilton, 118 Ill. 2d

153, 158, 514 N.E.2d 965, 968 (1987). Section 11-501.1(a)

provides, in pertinent part, the following:

"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 [s]ection 11-501.2 [of the Illinois

Vehicle Code (625 ILCS 5/11-501.2 (West

2006))], 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 [s]ection 11-501

[of the Illinois Vehicle Code] ***." (Emphasis added.) 625 ILCS 5/11-501.1(a) (West

2006).

Section 11-501.2(a) then states, in pertinent part, the
- 22 -

following:

"Upon the trial of any civil or criminal

action *** or proceedings pursuant to

[s]ection 2-118.1 [of the Illinois Vehicle

Code], evidence of the concentration of alcohol, other drug or drugs, or intoxicating

compound or compounds, or any combination

thereof in a person's blood or breath at the

time alleged, as determined by analysis of

the person's blood, urine, breath[,] or other

bodily substance, shall be admissible. Where

such test is made the following provisions

shall apply:

1. Chemical analyses of the person's blood, urine, breath[,] or other

bodily substance to be considered valid

under the provisions of this [s]ection

shall have been performed according to

standards promulgated by the Department

of State Police by a licensed physician,

registered nurse, trained phlebotomist

acting under the direction of a licensed

physician, certified paramedic, or other

individual possessing a valid permit
- 23 -

issued by that [d]epartment for this

purpose. The Director of State Police

is authorized to approve satisfactory

techniques or methods, to ascertain the

qualifications and competence of individuals to conduct such analyses, to

issue permits which shall be subject to

termination or revocation at the discretion of that [d]epartment[,] and to

certify the accuracy of breath[-]testing

equipment. The Department of State

Police shall prescribe regulations as

necessary to implement this [s]ection." 

(Emphases added.) 625 ILCS

5/11-501.2(a) (West 2006).

Section 11-501.2(a) further lists four other provisions. See 625

ILCS 5/11-501.2(a)(2) through (a)(5) (West 2006). Section 11-

501.2(c)(1) addresses refusals to test and states the following: 

"If a person under arrest refuses to

submit to a chemical test under the provisions of [s]ection 11-501.1 [of the Illinois

Vehicle Code], evidence of refusal shall be

admissible in any civil or criminal action or

proceeding arising out of acts alleged to
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have been committed while the person under

the influence of alcohol, other drug or

drugs, or intoxicating compound or compounds,

or any combination thereof was driving or in

actual physical control of a motor vehicle." 

625 ILCS 5/11-501.2(c)(1) (West 2006).

A reading of the plain language of the aforementioned

statutory provisions indicates the testing standards of section

11-501.2(a) do apply to summary-suspension proceedings. See

Hamilton, 118 Ill. 2d at 161, 514 N.E.2d at 970. However,

section 11-501.2(a) expressly addresses the situation of when the

person has taken a test as it states "[w]here such test is made." 

625 ILCS 5/11-501.2(a) (West 2006). Thus, the admissibility of

test results is conditioned on compliance with section

11-501.2(a) and the regulations promulgated thereunder. See

People v. Larsen, 323 Ill. App. 3d 1022, 1026, 753 N.E.2d 378,

382 (2001). Section 11-501.2(c) addresses refusals to test and

does not place any conditions on the admissibility of the refusal. Thus, the plain language of the provisions does not

provide the admissibility of a refusal may be challenged on the

basis the defendant believed the offered test would be

noncompliant with section 11-501.2(a)'s standards. 

Moreover, a person is subject to a summary suspension

if "the person refuses testing or submits to a test that dis-
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closes an alcohol concentration of 0.08 or more" or the presence

of any other drug. 625 ILCS 5/11-501.1(d), (e) (West 2006). 

Thus, when a person has received a summary suspension due to a

test, a showing of the test's invalidity under section 11-

501.2(a) of the Illinois Vehicle Code (625 ILCS 5/11-501.2(a)

(West 2006)) would nullify the ground upon which the summary

suspension was based. However, if the person who refused the

test could show the proposed test would have been noncompliant if

taken, the person has still refused the test and any potential

noncompliance would not nullify the basis for the summary suspension.

In support of his argument, defendant cites Hamilton,

in which the supreme court addressed whether a defendant seeking

rescission of a summary suspension could raise the issue of

noncompliance with section 11-501.2 at a rescission hearing. 

Hamilton, 118 Ill. 2d at 160, 514 N.E.2d at 969. In analyzing

the issue, the court noted its decision in People v. Emrich, 113

Ill. 2d 343, 351, 498 N.E.2d 1140, 1143 (1986), in which it held

the failure to comply with section 11-501.2 and the regulations

promulgated under it rendered the results of the chemical test

inadmissible in a criminal DUI prosecution. The Hamilton court

extended its holding in Emrich to summary-suspension proceedings

and found "compliance with section 11-501.2 is mandatory for

summary[-]suspension purposes, [and] noncompliance will render
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test results invalid and inadmissible." Hamilton, 118 Ill. 2d at

160, 514 N.E.2d at 969. The Hamilton court concluded a defendant

must be permitted to raise the issue of noncompliance with

section 11-501.2 standards at a rescission hearing, and thus

challenges to the validity of the tests are permissible in such

proceedings. Hamilton, 118 Ill. 2d at 161, 514 N.E.2d at 970. 

Thus, the Hamilton case did not address a defendant's ability to

raise potential noncompliance with section 11-501.2 when challenging a refusal to submit to testing. 

Accordingly, we find that, in summary-suspension

proceedings, a defendant cannot raise a chemical test's potential

noncompliance with section 11-501.2 of the Illinois Vehicle Code

as a basis for supporting his or her refusal to submit to testing.

Defendant also challenges his refusal to test based on

Goss v. People, 272 Ill. App. 3d 498, 501, 650 N.E.2d 1078, 1080

(1995), where the First District concluded that, since the police

afforded the petitioner the additional right to consult with his

attorney, the petitioner's insistence on additional consulting

with his attorney should not have been considered a refusal to

submit to the Breathalyzer test. Defendant contends the extra

right afforded to him was "to present to him a test" that supposedly was in compliance with section 11-501.2's standards "prior

to asking [him] whether he would submit or refuse by requiring
- 27 -

him to stand before the machine." (Emphases in original.) 

Defendant's arguments in support of that contention are unclear. 

Our review of the record does not reveal Officer Benton conveyed

either verbally or nonverbally to defendant the test was a

compliant test. We note Officer Benton's intent to ask defendant

to take the test she prepared and believed was compliant with

applicable standards did not afford defendant any additional

rights.

Accordingly, we find the trial court's denial of

defendant's rescission petition was not against the manifest

weight of the evidence.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

denial of defendant's petition to rescind his statutory summary

suspension. 

Affirmed.

MYERSCOUGH and COOK, JJ., concur.