*1 283 there no order respondent, support valid to be modified the cir- 8, 1983, cuit pursuant petitioner’s petition. court November For that alone, 13, 1984, reason do December so must judgment purporting be reversed. 13, 1984, error,
The void, was in if not judgment December 1983, 40, another reason. 511(a) Section IMDMA Rev. Stat. par. 511(a)) requires petition notice to a to a party respondent a marital modify judgment given mailing must be either (1) by address, spondent’s last or (2) known summons. The notice only given here towas respondent’s (See then of record. attorney Siegel Siegel Ill. (1979), 80 400 grounds N.E.2d on other modified Ill. 84 417 The N.E.2d only appearance made respondent was special appеarance. on and limited impropriety the notice was not waived.
Consideration of the other issues raised is neither nor necessary proper. we Accordingly, 13, 1984, reverse the December appeal has been taken.
Reversed.
WEBBER HORTELANO, JJ., concur. ILLINOIS, THE PEOPLE THE Plaintiff-Appellant, OF STATE OF COFER, C. Defendant-Appellee. GARY Third District No. 3 — 84—0706 26, 1985. Opinion July filed *2 WOMBACHER, J., dissenting. Black, Attorney, (John Gary Pekin X.
Bruce W. State’s of Breslin and F. Gnidovec, Commission, of coun- Attorneys Appellate both of State’s Service sel), the People. for appellee.
No brief filed the JUSTICE SCOTT delivered the court: opinion an trial court ruled that Following implied hearing, consent the defendant, Cofer, the Gary complete the C. did nоt refuse test. of the court’s portion chemical The State quested appeals order, the and the incorrectly applied court arguing misinterpreted Rev. Stat. (hereinafter statute) (Ill. consent statute the implied 95½, 501.1), agree. to the instant circumstances. We par. ch. 11— report proceed Since the failed to include a verbatim appellant our certified in the record on we base review the ings appeal, 87 Ill. 2d R. proceedings. 323(c). report However, to file a where failed brief. defendant-appellee decided with easily record is and the claimed error can be simple brief, merits of court decide thе appellee’s reviewing may out an fact, prima demonstrates appellant’s In brief appeal. facie record, trial supported error reversible Talandis Corp. v. Capitol Mortgage be reversed. First may court 493. Ill. 2d Corp. (1976), 63 Construction estab- hearing at consent The evidence the defendant’s 5, 1984, Betty 8:35 on September approximately p.m. lished at the defend- home, exited her and observed a crash. She Drahеr heard fence, her had struck wooden a red which emerge ant Corvette walking She then noticed the fence, and a tree. a chainlink the middle of the street. down at the arrived thereafter, Long J. police Pеkin
Shortly on motorcycle saw the defendant seated his defendant’s residence and headlight and the activated. The defendant engine running engine turned off the and dismounted. Based on the defendant’s ad car, strong mission that hе abandoned his alcoholic odor of the breath, difficulty, Long defendant’s and his balance Officer arrested (hereinafter DUI) defendant for under the influence driving 95½, par. 501). Long Rev. Stat. Officer transported 11— police dеfendant to the station where defendant submitted breath test. Both chambers of the machine” filled and the “intoxilyzer cylinder second registered .22%, clicked shut. The machine digitally but failed to print results. Officer Long explained malfunction to the defendant and tested the machine. The defendant then refused submit another breath test.
The defendant admitted that he had drinking been and he could not read the test results on the digital screen was facing him. defendant,
In for the ruling the court found that the defendant DUI; arrested for that the grounds officer had to be- reasonable DUI; lieve the defendant was the defendant indicated an un- derstanding of the implied warning. The court also found that the defendant completed the initial breath test though even ma- *3 chine did not produce printout a written of the .22% blood-alcohol result. the Finally, court ruled that the defendant’s refusal to submit to the second test was not a warranting refusal suspension. license 311, 1, Public Act 1982, effective January portion deleted the 82— of the prior implied consent statute that stated a test breath consisted of two analyses breath taken not less than 15 minutеs apart Rev. 1979, 95½, Stat. ch. 501.1), added the par. language and 11— provides, in part, any that drives a motor on person who vehicle Illi nois highways is deemed to consented “to a have chemical test or blood, breath, tеsts of or urine” determine the to alcohol level of his blood. “The test or shall at tests be administered the direction of the *** arresting person officer. such to refused submit and [W]hether the test or tests complete request the the law enforcement officer” is at civil hearing. resolved the Ill. Rev. Stat. 1983, 95½, 11-501.1. par.
The statute must to give be construed effect to the in legislative tent conformity general (Balmes statute’s v. purpose. Hiab-Foco, 572, 482.) A.B. 105 (1982), App. Ill. 3d 434 N.E.2d implied consent law was to from drinking enacted deter drivers compelling them to submit to chemical tests to obtain evi objective (People 70, dence of (1984), App. intoxication v. 127 Ill. 3d 468 Naseef 286 Kiss rights. Peoplе due v. their 466), preserving process
N.E.2d
while
1056,
(1984),
App.
122 Ill.
3d
Under at of the enforcement requested alcohol test the discretion law to to one a agency. any statutory Refusal submit test constitutes 1056, (1984), fusal. v. Kiss 122 Ill. 3d (People App. ultimately whether the with complied
We must decide
yielded
and
a
that
completed
officer’s instructions
test
blood-alcohol
468
readings
(1984),
App.
Ill.
3d
N.E.2d
(People Naseef
466),
statutory rеquire
or whether the defendant circumvented
People
ment
to obtain test results.
v. Schu
refusing
cooperate
to
berth
115 Ill.
Officer test, of the the blood-alcohol results first printing requested a second that the legisla- defendant submit to breath test. We believe to de- arresting ture this situation anticipated by directing administering chemical test or termine the blood-alcohol level “а breath, statute, blood, tests of ***.” In compliance urine with to administer a test and when that test Long Officer chose breath intoxication, failed under produce objective justifiably, evidence circumstances, requеsted these defendant submit a second are suggest multiple analyses always breath We neither analysis. encourage attempts away nor do we to whittle appropriate, arbitrary rights. However, due officer’s рrocess disapprove defendant’s statutory actions allow the defendant circumvent the above would purpose.
Therefore,
ruling
we find that the trial court’s
defend
man
against
under the statute was
ant’s refusal was not
refusal
115 Ill.
People
ifest
evidence.
Schuberth
weight
Reversed and remanded.
STOUDER, J., concurs. WOMBACHER, dissenting:
JUSTICE to submit to refusal The trial court found that thе defendant’s test, me- take breathalyzer that he a second request officer’s test, first during the failure of the mechanism printing chanical 501.1(c). not a refusal as defined section 11— agree and, therefore, I with that dissent. resрectfully statement made the first test printer The State claims failure test” I not to so. On “not a valid and “worthless.” do believe this be us, air, breathalyzer chambers of the filled with record before both cylinder shut, digital registered the second clicked and the readout .22%. The was the mecha- only thing operate printing did not therefore, machine, nism. The State claims that malfunctioned. Only printer did. The rest of the machine properly. worked that, work,
Tо say because the did not therefore the printer invalid, is breathalyzer defective and the test is a non sequitur. has do printer nothing analysis an printer air. The is inhibits, added or facility way convenience that no or oth- enhаnces erwise affects the intended function of the machine. To hold otherwise saying would be tantamount that the machine not air analyze could without in the An paper printer! analogy everyday usage is calсu- lator with a printing function. The calculator can still even if calculate printer Likewise, its is broken. still breathalyzer can analyze breath without a printer.
We must decide whether the defendant ultimately with complied thе officer’s instructions yielded blood alcohol readings (People (1984), 127 Ill. App. 466), 468 N.E.2d whether or Naseef circumvented statutory requirement refusing to co operate obtain test results. (People Schuberth 115 Ill. This is the test the has majority put forth, and I wholeheartedly agree.
The test that defendant submitted to yielded blood alcohol read- ings. The machine’s digital readout registered Objective .22%. evi- dence was provided. trial, Given a proper foundation at there is no reason why officer’s report reading digital read- out would Nothing not be admissible. in the statute nor in- case law printed. sists that the readout be Just an officer’s of a report read- as gun admissiblе, out from a radar is digital readout from the breathalyzer should also be. While a printout would it helpful, be would not This necessary. be defendant was too apparently drunk to That, itself, read the readout. digital in and does not render the readout inadmissible. I do
Finally, interpret my not the statute as I brothers do. do not think, state, they as the legislature anticipated that machines test, would malfunction the results printing of the first plural therefore used the of “test” to require two more tests of kind, one it plural, demanded. While in the it is speaks speak- also *5 blood, breath, driving or urine tests. Section 11—501 ing proscribes of alcohol, stat- drugs, under influence or both. The offenses, is to for the but does provide prosecution ute evidence those than require not more one of each test. He driving erratically.
For assume an saw someone example, drugs of either suspected then was under influеnce driver alcohol, require not The officer could first but could determine which. or urine require test for alcohol. The officer could also blood breath it speaks sense I the statute when drugs. test for It is this believe uses the term “tests.” extreme, the of “tests” to the interpretation
To carry majority’s defendants to submit to tests under constantly request police could result. until obtained desired they of mechanical malfunction guise not reсognize danger not so drunk he could This defendant was he “flunked” the tests, already even he did realize had repeated test! reduced the number helpful legislature recently
I also it find (Pub. two one. Act. 82— of results from a breath tеst from required also and urine tests. sec. This amendment allowed blood is con- Thus, only is that one of each test inescapable conclusion the statute. sented under reasons, of Taze- I affirm the circuit court foregoing
For would and, therefore, dissent. County, well al., Trustee, et PLAINES, Plain BANK OF DES
THE FIRST NATIONAL MAGNETRONICS, INC., Defendant-Appellee. tiffs-Appellants, v. SHAPE Division) No. (2nd 84 — 1851 First District 23, 1985. July filed Opinion