*1 ILLINOIS, THE THE Plaintiff-Appellee, PEOPLE OF STATEOF GRIFFITH, Defendant-Appellant. BONNIE S.
Fifth District No. 5—85—0256 22, 1986.
Opinion May filed HARRISON,J., speciallyconcurring. Crain, Pursell, Ltd., Yeltman, Jr., Cooksey, Veltman &
R. Edward *2 Centraba, appellant. for Matoush, (Kenneth R. and Attorney, Boyle
Robert of Salem State’s Norris, Stephen Attorneys Appellate E. of State’s Service Commis- both sion, Jr., counsel), People. and R. for the Lyons, Terrence the court: delivered opinion
JUSTICE WELCH driving while Defendant Bonnie Griffith was with 501), the influence of alcohol The court found hearing. and trial she cause to defendant arresting officer had reasonable arrest the officer’s that defendant refused driving under and affirm. offer to take a test. Defendant appeals. breath Defendant first the circuit court’s the manifest of the evidence. contrary weight stated above were “tainted” after the State’s evidence was Defendant Blank, officer, Harold was Sergeant Illinois State Police arresting refused Blank first Sergeant a lie.” said “caught does test, silence. Impeachment breath then said her refusal was goes only testimony nugatory. Impeachment not render a witness’ Authority Chicago v. Transit (Hectus its weight. and credibility The witnesses’ 3 Ill. N.E.2d App. 2d Signatrol, (Schulenburg to decide. was for trial court credibility have exam 624, 626.) We Inc. Ill. N.E.2d (1967), 37 Blank’s, no we find and including Sergeant testimony of the ined all believing sergeant. criticize the circuit court cause to find in support evidence sufficiency As to find is whether the court, the of review standard ings of circuit of the evidence. ings weight to the manifest contrary were 878, 879.) Ser 710, 712, Bafia test under failed the nystagmus Blank that defendant geant testified Springfield. at at State Police Academy he learned standards traf its lane of outside vehicle was He also testified that defendant’s once struck curb. and almost fic in a short distance twice Ser- and water.” two drinks “V.O. having one beer admitted Blank bloodshot and she geant eyes also testified defendant’s contradicted, beverage, smelled of some alcoholic and while suf likely smell was view of what she admitted she drank. We find at the ficient evidence of under the influence time refusal, As to defendant admitted she was asked to take stop. the test at least three times and never assented. defend According ant, test, the first take Sergeant time Blank asked her to a breath she asked him he if He daughter. replied would advise she were time; that he her. could advise He asked her a second she asked for advice again said did not know what do. He asked her a third “I said, time. Her ‘I like reply: speak would with attor do,’ I ney said, advice. would like to what to and he ‘I’m know marking “refused”,’ I down and I told him did not refuse the test, that I like to to an just speak attorney.” She testified she she would he say Sergeant Blank testified asked her five or think six times. the court was correct in interpreting her lack of assent as refusal. See generally People Schuberth 459. she had the right to counsel when asked to sub test, to a mit breath under sections 103—3 and 103—4 of Code Criminal Procedure of 1963. Section 103—3 persons “who are arrested” shall have the to communicate with an attorney of *3 their choice or telephone (Ill. other reasonable by any manner. Rev. 38, 1983, Stat. par. 3.) any ch. Section 103—4 person 103— “committed, imprisoned or of liberty restrained cause whatever not and whether or such is person with an offense” shall be to 1983, allowed consult with an attorney. (Ill. Rev. Stat. ch. 38, par. 4.) The 1981 version of the implied-consent pro statute 103— vided the arrestee the to right consult with an or other attorney per son or in of phone person within 90 minutes to being requested a breathalyzer test, but also that failure to consult counsel not mitigate excuse or the effect of refusal to take (Ill. Rev. 1981, 95V2, 501.1(a).) Stat. ch. That the par. version of statute 11— However, does not in this case. the in apply legislature’s indicated that tent to be or predicated refusal take the examination cannot con ditioned on failure to (Village Cary consult counsel. of 341, (1984), 344, 651, 121 653.) Significantly, legislature’s the next of implied-consent version the statute did not grant arrestee opportunity to consult with counsel before Stat., 951/2, submitting (Ill. to Rev. ch. Supp., 501.1), and this is also true of the version under which defendant was (Ill. 1983, 501.1). tried par. 11— legislature’s dele proper interpretation
What from right to counsel section 11—501.1? provisions regarding tion intended that sections argument legislature Defendant’s of 1963 control 103—3 103—4 of the Code of Criminal Procedure counsel to take a breath right upon being an accused’s to intended, has vir legislature If is what the then accused this to the test under right attorney prior the same to consult tually version, despite as the 1981 the deletion statute ver counsel in section 11—501.1 after the 1981 right references to to to to skeptical sion. We this An amendment a interpretation. are (Peo to a in law. change statute is to intended effect presumed be 373, ex rel. v. Cannon 366, Ill. 2d ple Gibson 1180, do that 1183.) suggest person not intend to arrested entitled intoxicating liquor while under the influence of and 103—4 of the Code pursuant to consult counsel to sections 103—3 However, light of the substantial Procedure of 1963. Criminal concerning pretest right statute to changes implied-consent counsel, intend to continue legislature consult we conclude the right testing subsequent that statutory prior implied-consent statute. implied-consent 1981 version of had a the sixth amendment to take the breath test whether also under the Illinois Constitution United States Constitution and I, re 8). post-arrest Const. art. sec. confrontation” submit to a breath test was a “critical that she quest her at which she was entitled to against in the criminal prosecution United States v. Wade 388 U.S. presence (See of counsel. 226-27, Ed. 87 S. Ct. 18 L. charge against is not the question appeal alcohol, rather but while under cor the trial court after 150, 453 N.E.2d People Golden In
rect. they two defendants’ contentions rejected indigent this court implied- counsel at by court-appointed were entitled representation not a “critical reasoning that such a hearings, consent distinct but rather a separate in the criminal subsequent disposition held which even be proceeding *4 driv accused’s charge suspension criminal result under charge driving notwithstanding er’s dismissal license license is an administrative of the driver’s Suspension the influence. the influ function; is not part punishment Finley measure. merely regulatory ence but 229, 232.) being It well settled underlying in the a “critical influence, we must conclude prosecution also not a “critical the decision complete whether to more at- stage,” as its to the criminal relationship a sixth support tenuated. must reject arguments deciding amendment or constitutional Illinois whether to complete
Defendant contends the clause of the fourteenth process due amendment to the United States Constitution that she be required to call a to take the test. permitted lawyer before The due of a license. process applies deprivation clause driver’s (Mackey Montrym (1979), 61 L. Ed. 2d U.S. 2612, 2617.)
S. Ct. we think the presuspension this case was an for defendant “to adequate timely opportunity ***, errors, tell side of the correction of clerical story obtain [her] *** and to prompt seek resolution of factual disputes 1, 15, accuracy (443 officer’s of refusal.” U.S. 61 L. Ed. report 99 S. Ct. cannot conclude the procedure adopted in this case clause. process was violative due reasons,
For the foregoing order of circuit court of Marion is affirmed. County
Affirmed.
KARNS, J., concurs. HARRISON, concurring:
JUSTICE specially I concur in the set majority result reached the reasons forth Village Cary N.E.2d 651.