2015 IL App (3d) 140194

Opinion filed July 20, 2015 

_____________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2015 

THE PEOPLE OF THE STATE OF )

ILLINOIS, ) 

 ) 

Plaintiff-Appellee, ) 

 ) 

 v. ) 

 ) 

 ) 

ENRIQUE GUTIERREZ, JR., ) 

 ) 

Defendant-Appellant. )

Appeal from the Circuit Court

of the 12th Judicial Circuit, 

Will County, Illinois, 

Appeal No. 3-14-0194 

Circuit Nos. 13-DT-1749 and 

13-TR-106788 

Honorable 

Bennett J. Braun, 

Judge, Presiding.

_____________________________________________________________________________

JUSTICE HOLDRIDGE delivered the judgment of the court, with Opinion. 

Justices Carter and Wright concurred in the judgment ad Opinion. 

_____________________________________________________________________________

OPINION

¶ 1 Defendant, Enrique Gutierrez, Jr., was an Aurora police officer involved in a traffic 

accident while off duty. Aurora police suspected defendant of driving under the influence and 

instructed a state trooper to administer a preliminary breath test (PBT). Defendant took the PBT, 

which returned a 0.249 blood alcohol content (BAC). Defendant was arrested for driving under 

the influence and refused further chemical testing. His driver's license was summarily 

suspended. Defendant filed a petition to rescind the summary suspension. He also filed a 

motion in limine seeking to preclude introduction of the PBT results at the hearing on his petition 
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to rescind. The court denied both the motion in limine and the petition to rescind. Defendant 

appeals. We affirm.

¶ 2 FACTS

¶ 3 The following facts were gleaned from the report of proceedings of the hearing on 

defendant's motion in limine, the hearing on defendant's motion to rescind his statutory 

suspension, and the common law record. 

¶ 4 Defendant was a police officer with the Aurora police department. On December 24, 

2013, defendant was off duty, driving in his personal vehicle, when he rear-ended another 

vehicle at an intersection within the jurisdiction of the Aurora police department. The other 

driver called the police. After waiting approximately 30 minutes to one hour without police 

arriving, defendant and the other driver exchanged information, and defendant left the scene of 

the accident and drove home.

¶ 5 After arriving home, defendant received a phone call from Sergeant Weber of the Aurora 

police department, requesting that defendant return to the scene of the accident. Defendant drove 

back to the scene. Illinois State Trooper David DeGraff administered to defendant a PBT. The 

result of the PBT was a 0.249 BAC. Defendant was arrested for driving under the influence of 

alcohol (625 ILCS 5/11-501 (West 2012)). 

¶ 6 Defendant refused further chemical testing, and his driver's license was suspended. 

Defendant filed a petition to rescind the suspension. The petition requested a hearing pursuant to 

section 2-118 of the Illinois Vehicle Code (Code) (625 ILCS 5/2-118 (West 2012)). 

¶ 7 Defendant filed a motion in limine seeking to exclude the PBT results from being 

admitted at the hearing on the petition to rescind. The motion alleged that the PBT was 

administered "for the purposes of an Aurora Police Department administrative employee 
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disciplinary investigation" and was therefore not consensual, as required by section 11-501.5(a) 

of the Code (PBT statute) (625 ILCS 5/11-501.5(a) (West 2012)). In addition, the motion 

claimed that the results of the PBT were compelled testimony in violation of the fifth amendment 

(U.S. Const., amend. V). Furthermore, the motion argued that the results of the PBT were not 

reliable.

¶ 8 At a hearing on the motion in limine, defendant argued that the PBT was an 

"administrative blow," and therefore admission of the PBT at trial would violate defendant's fifth 

amendment right against self-incrimination. Defendant testified that when he arrived on the 

scene, Sergeant Bodman told him that he was required to take the PBT test as an administrative 

blow. DeGraff administered the PBT using a device that belonged to the Aurora police 

department. According to defendant, DeGraff seemed unaware of how to properly operate the 

device. He twice administered the test unsuccessfully before obtaining a reading on the third try. 

Defendant testified that he did not consent to taking the PBT but that DeGraff never told him that 

he was required to take it.

¶ 9 DeGraff testified that he was a friend and neighbor of defendant's. He was called to the 

scene to help investigate because the Aurora police who responded were concerned that they had 

a conflict of interest in investigating a fellow Aurora police officer. When defendant arrived 

back on the scene, DeGraff detected an odor of alcohol on defendant's breath. DeGraff stated 

that he was "slightly unfamiliar" with the PBT device he used because it was a different model 

than the device he typically used. Bodman requested that DeGraff administer the PBT as an 

administrative blow. DeGraff could not remember whether he told defendant that the PBT test 

was mandatory.
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¶ 10 The court denied the motion in limine. It found that the PBT was an administrative 

search, and therefore the results were admissible so long as the PBT was not merely a subterfuge 

for discovering criminal activity. The court found that the PBT was not a subterfuge. 

¶ 11 The cause proceeded to a hearing on defendant's petition to rescind. The issue before the 

court was whether there were reasonable grounds for officers to believe that defendant was under 

the influence of alcohol. 625 ILCS 5/2-118.1(b)(2) (West 2012). The court said, "Frankly, 

without the portable breath test, the Court would not find that there was reasonable grounds for 

the defendant to be arrested, so really this whole motion hinges on the admissibility of the 

portable breath test." The court found that the combination of the PBT results, the odor of 

alcohol emitting from defendant, and the collision established reasonable grounds for officers to 

arrest defendant. The court denied the petition to rescind. 

¶ 12 ANALYSIS

¶ 13 On appeal, defendant argues that the court should have granted his motion in limine and 

excluded evidence of the PBT results from the hearing on his petition to rescind. He further 

argues that, without admission of the PBT results, the court would have granted his petition to 

rescind. He therefore asks us to reverse the court's decision denying the petition. 

¶ 14 A hearing on a petition to rescind a summary suspension of driving privileges is a civil 

proceeding. People v. Davis, 2012 IL App (2d) 110581, ¶ 47. The defendant bears the burden of 

providing a prima facie case for rescission. People v. Smith, 172 Ill. 2d 289, 294-95 (1996). If 

the defendant meets that burden, the burden shifts to the State to provide evidence justifying the 

suspension. Id. at 295. 

¶ 15 We agree with the trial court that in the present case the decision on the petition to 

rescind turned on the admissibility of the PBT results. Therefore, we restrict our analysis to the 
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trial court's decision on defendant's motion in limine seeking to preclude the PBT results. A 

court's decision on a motion in limine is reviewed for an abuse of discretion. People v. 

Robinson, 368 Ill. App. 3d 963, 974 (2006). 

¶ 16 Defendant first argues that the PBT results were inadmissible under the fifth 

amendment's protection against self-incrimination. U.S. Const., amend. V. Defendant cites to 

Garrity v. New Jersey, 385 U.S. 493 (1967), and its progeny for the proposition that the potential 

employment disciplinary consequences for refusing the PBT compelled him to take the PBT, in 

violation of the fifth amendment. See, e.g., People v. Smith, 399 Ill. App. 3d 534, 541 (2010) 

(holding that statements made under threat of employment termination could not be used to 

incriminate defendant at a criminal proceeding).

¶ 17 Defendant's argument fails on two levels. First, the fifth amendment protects against the 

use of testimonial evidence, not physical evidence such as the PBT results. See Schmerber v. 

California, 384 U.S. 757, 764-65 (1966) (fifth amendment did not bar blood-alcohol analysis 

results, as results were not testimonial). Second, the fifth amendment prevents the introduction 

of compelled testimony at criminal proceedings rather than civil proceedings, such as summary 

suspension proceedings. U.S. Const., amend. V ("nor shall be compelled in any criminal case to 

be a witness against himself"); People v. Hall, 378 Ill. App. 3d 666, 670 (2007). The fifth 

amendment and the holding of Garrity, 385 U.S. 493, did not preclude the admission of the PBT 

results.

¶ 18 Defendant next argues that the PBT results should have been excluded because the PBT 

statute (625 ILCS 5/11-501.5 (West 2012)) requires consent, and defendant did not consent to 

the PBT in the present case. The PBT statute provides that when an investigating officer has 

reasonable suspicion to believe that a person is driving under the influence, the officer "may 
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request the person to provide a sample of his or her breath" through a PBT. 625 ILCS 5/11-

501.5(a) (West 2012). However, "[t]he person may refuse the test." Id. Defendant, citing 

People v. Rozela, 345 Ill. App. 3d 217 (2003), argues that the statutory language creates a 

requirement that the person must affirmatively consent to the PBT. 

¶ 19 In Rozela, PBT results were introduced at a hearing on the defendant's petition to rescind 

her summary suspension. The court relied on the PBT results in denying the defendant's petition. 

Rozela, 345 Ill. App. 3d at 221. On appeal, the defendant argued that the PBT results should 

have been excluded for three reasons: (1) the PBT statute was unconstitutional because it 

allowed a PBT to be conducted absent probable cause; (2) the PBT was not supported by 

reasonable suspicion; and (3) PBT results are generally inadmissible at summary suspension 

proceedings. This court denied all three of the defendant's arguments and affirmed the trial 

court's decision to deny the petition to rescind. Although unnecessary to its decision, the Rozela

court, in its discussion of the PBT statute, stated that the statute requires that the "suspect 

consent[] to the test." Id. at 224. 

¶ 20 We disagree with defendant that the PBT statute requires affirmative consent. Rozela's 

statement that the statute requires consent was dicta and was reached without an explicit analysis 

of the statutory language. Rozela, 345 Ill. App. 3d at 224. We decline to adopt Rozela's 

characterization of the PBT statute. The statutory language states that, upon reasonable 

suspicion, an officer "may request" a suspect to take a PBT, and the suspect "may refuse" that 

request. 625 ILCS 5/11-501.5 (West 20120). The statutory language does not require the officer 

to explain the suspect's right to refuse, nor does it require that the suspect "consent" to the PBT. 

Rather, the "may request" language indicates that the officer cannot command a suspect to take a 
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PBT. The "may refuse" language evidences that there is no penalty for a suspect refusing to take 

the test.

¶ 21 If the legislature had intended for the suspect to be informed of his or her right to refuse, 

such language could have been included in the statute. During debate on the bill that added the 

"may refuse" language, a senator questioned whether the statute mandated that the officer 

explain that the suspect was not required to take the test. 91st Ill. Gen. Assem., Senate 

Proceedings, February 25, 2000, at 62. The bill's sponsor confirmed that the suspect may refuse 

the test and added that the statute does not require the officer to inform the suspect of his or her 

ability to refuse. Id. The legislature's decision not to add such language evidences its intent that 

a PBT does not require the informed consent of the suspect. 

¶ 22 In the present case, defendant testified that DeGraff did not tell defendant that he was 

required to take the PBT. DeGraff was not required to inform defendant of his right to refuse. 

Defendant did not exercise his right to refuse the PBT. The PBT results were acquired in 

compliance with the dictates of the PBT statute (625 ILCS 5/11-501.5(a) (West 2012)). 

¶ 23 We conclude that the trial court did not abuse its discretion in admitting the PBT results. 

As a result, the court's decision denying defendant's petition to rescind his summary suspension 

is affirmed.

¶ 24 CONCLUSION

¶ 25 The judgment of the circuit court of Will County is affirmed. 

¶ 26 Affirmed.