The opinion
ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Davis, 2012 IL App (2d) 110581
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption APRYLA DAVIS, Defendant-Appellant.
District & No. Second District
Docket No. 2-11-0581
Filed June 27, 2012
Held Substantial compliance with the regulations regarding the taking of urine
(Note: This syllabus samples in relation to a statutory suspension of one’s driver’s license for
constitutes no part of driving under the influence of cannabis was sufficient where there was no
the opinion of the court female officer available to take the sample from a female driver, and
but has been prepared service of the notice of summary suspension was sufficient with the
by the Reporter of officer’s mailing of the notice to the address shown on the traffic ticket,
Decisions for the notwithstanding the fact that the notice was returned as undeliverable.
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Du Page County, No. 10-DT-4336; the
Review Hon. Cary B. Pierce, Judge, presiding.
Judgment Affirmed.
Counsel on Stephen J. Klein, of Ramsell & Associates, LLC, of Wheaton, for
Appeal appellant.
Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman,
Assistant State’s Attorney, and Lawrence M. Bauer and Victoria E. Jozef,
both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for
the People.
Panel JUSTICE HUTCHINSON delivered the judgment of the court, with
opinion.
Justices Zenoff and Burke concurred in the judgment and opinion.
OPINION
¶1 On November 12, 2010, the State charged defendant, Apryla Davis, by citation with
driving under the influence (DUI) (625 ILCS 5/11-501(a) (West 2010)), possession of less
than 2.5 grams of cannabis (720 ILCS 550/4(a) (West 2010)), and failure to dim headlights
(625 ILCS 5/12-210 (West 2010)). Thereafter, defendant filed a petition to rescind the
statutory summary suspension of her driving privileges, which the trial court dismissed
without prejudice. After receiving the results of defendant’s urine test, the State mailed
defendant the law enforcement sworn report on February 14, 2011. The report, however, was
returned to the State as undeliverable. On February 28, 2011, the State charged defendant by
information with DUI and mailed her confirmation of the statutory summary suspension. On
April 1, 2011, defendant filed a motion to reinstate her petition to rescind the statutory
summary suspension. The trial court granted the motion but denied the petition and
defendant now appeals, contending that the trial court erred in denying the petition, because
(1) the State failed to provide defendant with a hearing within 30 days of February 14, 2011,
the day the notice of the summary suspension was mailed; (2) she was not served with the
notice of the summary suspension; (3) the arresting officer, a male, violated Illinois law by
administering the urine test to her and did not properly authenticate the sample; and (4) the
State lacked probable cause to arrest her for DUI. We affirm.
¶2 I. Background
¶3 On November 12, 2012, while patrolling Route 34 near Eola Road, Officer Nathan
Schramka observed that the headlights on defendant’s vehicle appeared brighter than other
headlights on the road. Defendant’s vehicle was traveling behind Schramka’s vehicle and she
failed to dim her headlights. Schramka slowed his vehicle, allowing defendant to pull in front
of him, and initiated a traffic stop. When Schramka explained the reason for the stop,
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defendant told him that a friend incorrectly installed her headlights.
¶4 As Schramka spoke with defendant, he smelled a strong odor of cannabis coming from
her vehicle. After being asked whether anyone smoked in the vehicle, defendant admitted
that she smoked cannabis the previous day. Schramka asked defendant if there were any
items in the vehicle, and defendant responded that rolling papers were located on the
vehicle’s floorboard. Schramka asked defendant if there was any cannabis in the vehicle,
defendant acknowledged there was, and she retrieved marijuana from the car’s center
console. Schramka searched defendant and the other occupants of the vehicle, but found no
other contraband.
¶5 Schramka arrested defendant for possession of cannabis. Defendant admitted that the
marijuana belonged to her, and after first stating that she had not smoked cannabis since the
prior day, she admitted that she smoked cannabis at approximately noon that day. Because
Schramka believed that defendant was under the influence of drugs, he arrested her for DUI.
¶6 After arresting defendant, Schramka transported her to the Aurora police department and
issued a citation for DUI. Thereafter, Schramka requested a urine sample, which defendant
agreed to provide. Because there were no female officers present, Schramka placed defendant
in a cell with a steel door and a small window. The cell contained a toilet located behind a
five-foot-high brick wall. Schramka closed the cell door, but did not lock it, and stood
approximately 10 to 15 feet away. Defendant came out of the cell and handed the sample to
Schramka, who sealed and initialed the sample. Schramka transported the sample to the State
Police regional headquarters.
¶7 On November 23, 2010, defendant filed a petition to rescind the summary suspension.
Defendant acknowledged in her petition that she was not served with the notice of summary
suspension form. The trial court dismissed the petition without prejudice on December 3,
2010.
¶8 The lab results for the sample were returned on February 14, 2011, and indicated the
presence of tetrahydrocannabinol (THC), or cannabis. Schramka completed a law
enforcement sworn report. On February 14, 2011, Schramka handwrote an envelope with the
address defendant provided, inserted the sworn report, sealed the envelope, and mailed the
sworn report to her by United States mail.
¶9 On February 25, 2011, Schramka noticed that the envelope addressed to defendant was
returned as undeliverable. Schramka checked defendant’s address on the Illinois Secretary
of State’s database, which indicated that her address was the same as the one he wrote on the
envelope. Schramka did not attempt to resend the report to defendant. On February 28, 2011,
defendant was charged by information with DUI and was sent a confirmation of her statutory
summary suspension, scheduled to commence on April 1, 2011.
¶ 10 On April 1, 2011, defendant filed a motion to reinstate her petition to rescind and a
motion to rescind the summary suspension because of the lack of a timely hearing. The trial
court noted that it had dismissed defendant’s November 23, 2010, petition because the file
did not contain the notice of summary suspension. Defendant maintained that the “30-day
clock” began running on February 14, 2011, the date that Schramka mailed the sworn report,
because defendant had already filed a petition to rescind. The State countered that
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defendant’s November petition was premature because the sworn report had yet to be issued.
According to the State, defendant had the opportunity to file a petition to rescind after the
sworn report was served. The trial court, with a different presiding judge, disagreed with the
dismissal of the November petition, but did not find error “because there was no sworn
report.” The trial court granted defendant’s motion to reinstate her petition, but considered
the petition filed on April 1, 2011. The trial court denied the motion to rescind.
¶ 11 On April 15, 2011, the trial court heard arguments on whether defendant’s summary
suspension should be rescinded because Schramka did not properly place her under arrest;
he lacked reasonable grounds to believe that she was driving under the influence; he did not
properly recite the warning to motorist; she did not test positive for illegal drugs; and she was
not served with the notice of the summary suspension.
¶ 12 Defendant called Schramka to testify. Schramka testified that he initiated a traffic stop
after defendant failed to dim her headlights. Schramka testified that he smelled a “strong
odor of cannabis” coming from the car. Schramka testified that he asked defendant when was
the last time someone smoked in the vehicle, and she responded that someone smoked in the
vehicle the prior afternoon. Schramka asked defendant if “there was anything in the car [he]
should know about,” and defendant responded that there were rolling papers in the car.
Schramka testified that he asked defendant if there was any “weed” in the car, and she
responded “yes.” Schramka testified that defendant retrieved marijuana from the vehicle’s
center console and that he placed her under arrest. Schramka testified that defendant admitted
that she “smoked weed” earlier that day.
¶ 13 Defendant testified. Defendant testified that she agreed to submit to a urine test at the
Aurora police department. Defendant testified that there were no female officers present
when she submitted to the urine test. Defendant testified that she lived at 2428 Geneva Lane
in Montgomery in February 2011. During that time, she did not receive a notice of summary
suspension. On cross-examination, defendant acknowledged that she moved to her
neighbor’s house at 2436 Geneva Lane in the “middle of March” and did not update her
address with the Secretary of State. On redirect examination, defendant testified that she
checked her mail at her old address while she lived with her neighbor and moved back to her
old house at the end of March.
¶ 14 Defendant’s mother, Jola Davis, testified. Davis testified that she had lived at 2428
Geneva Lane continuously for the last eight years. Davis testified that she did not have
difficulty receiving mail. Davis testified that she did not see the envelope containing the
notice of summary suspension before the time of the hearing.
¶ 15 The trial court denied defendant’s petition to rescind the summary suspension. The trial
court concluded that Schramka substantially complied with the regulations for taking
defendant’s urine sample, preserved her dignity, and maintained the integrity of the sample.
The trial court further found that Schramka was not required to take additional steps in
mailing the sworn report. Specifically, the trial court concluded:
“I can’t blame the U.S. Postal Service and grant a rescission based upon that. I think that
there might have been other avenues, one more step might have been made by the
arresting officer, but I don’t think he’s obligated to. *** He testified that he *** checked
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[with] the Secretary of State again to see if there was any change of address and it was
still the same address ***.”
¶ 16 After the trial court denied her motion to reconsider, defendant timely appealed.
¶ 17 II. Discussion
¶ 18 A. Timeliness of Hearing
¶ 19 Defendant’s first contention on appeal is that the trial court erred by not rescinding her
summary suspension because the State failed to provide her with a hearing within 30 days
after the notice of the summary suspension was mailed. Defendant emphasizes that she
properly filed a petition to rescind on November 23, 2010, which the trial court dismissed
without prejudice on December 3, 2011. Defendant maintains that, because she filed a
petition to rescind on November 23, 2010, that petition caused the 30-day period to run as
soon as Schramka mailed her the sworn report on February 14, 2011. The State counters that,
because defendant’s original petition to rescind was both filed and dismissed before the
notice of summary suspension was served on defendant, the 30-day period did not begin to
run until April 1, 2011, when defendant filed a timely petition to rescind.
¶ 20 Determining how to compute the 30-day period for holding a hearing on a petition to
rescind a statutory summary suspension presents a question of law subject to de novo review.
People v. Riffice, 392 Ill. App. 3d 961, 963 (2009). Section 2-118.1(b) of the Illinois Vehicle
Code (the Vehicle Code) provides:
“Within 90 days after the notice of statutory summary suspension or revocation served
under Section 11-501.1, the person may make a written request for a judicial hearing in
the circuit court of venue. *** Within 30 days after receipt of the written request ***, the
hearing shall be conducted by the circuit court having jurisdiction. *** The hearing[ ]
shall proceed in the court in the same manner as in other civil proceedings.” 625 ILCS
5/2-118.1(b) (West 2010).
“In interpreting section 2-118.1(b) of the Vehicle Code, we must ascertain and give effect
to the legislature’s intent.” People v. Moreland, 2011 IL App (2d) 100699, ¶ 7. “The best
indication of the legislature’s intent is the language used in the statute, which must be given
its plain and ordinary meaning.” Id. (citing People v. McClure, 218 Ill. 2d 375, 382 (2006)).
When statutory language is unambiguous, the statute must be applied as written without
resorting to other aids of construction. People v. Bywater, 223 Ill. 2d 477, 481 (2006). Courts
must construe the statute as a whole, bearing in mind both the subject the statute addresses
and the legislature’s objective in enacting it. Moreland, 2011 IL App (2d) 100699, ¶ 7. In
doing so, however, a court “should not read into the statute exceptions, limitations, or
conditions that the legislature did not provide.” Id. (citing McClure, 218 Ill. 2d at 382).
¶ 21 In the current matter, the plain language of section 2-118.1(b) of the Vehicle Code
unambiguously provides that a person may make a written request for a judicial hearing to
rescind the summary suspension “[w]ithin 90 days after the notice of statutory summary
suspension or revocation served under section 11-501.1.” (Emphasis added.) 625 ILCS 5/2-
118.1(b) (West 2010). Pursuant to the statute’s plain language, by qualifying that a petition
may be brought only “after” the notice of summary suspension is served, the legislature
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clearly intended that such a petition may not be brought “before” the State serves the
defendant with notice of the summary suspension. See Webster’s Ninth New Collegiate
Dictionary 62 (1990) (defining “after” as “following in time or place *** subsequent to in
time or order”). To hold otherwise would be tantamount to reading into section 2-118.1(b)
a condition that the legislature did not provide. See McClure, 218 Ill. 2d at 382.
¶ 22 Having determined that section 2-118.1(b) of the Vehicle Code permits a petition to
rescind a summary suspension to be properly brought only after the State has served notice
of the suspension, the remaining question is when defendant properly brought her petition.
Pursuant to section 2-118.1(b), a defendant may bring a petition within 90 days after being
served notice pursuant to section 11-501.1 of the Vehicle Code. 625 ILCS 5/2-118.1(b)
(West 2010). Section 11-501.1(d) of the Vehicle Code provides in pertinent part:
“If the person *** submits to a test that discloses *** any amount of a drug, substance,
or intoxicating compound in the person’s breath, blood, or urine resulting from the
unlawful use or consumption of cannabis ***, the law enforcement officer shall
immediately submit a sworn report to the circuit court of venue and the Secretary of State
***.” 625 ILCS 5/11-501.1(d) (West 2010).
Further, subsection (f) provides:
“The law enforcement officer submitting the sworn report under paragraph (d) shall serve
immediate notice of the statutory summary suspension or revocation on the person and
the suspension or revocation and disqualification shall be effective as provided in
paragraph (g). In cases where *** any amount of a drug, substance, or compound
resulting from the unlawful use or consumption of cannabis *** is established by a
subsequent analysis of blood or urine collected at the time of arrest, the arresting officer
*** shall give notice as provided in this [s]ection or by deposit in the United States mail
of the notice in an envelope with postage prepaid and addressed to the person at his
address as shown on the Uniform Traffic Ticket ***.” 625 ILCS 5/11-501.1(f) (West
2010).
¶ 23 Here, the record clearly reflects that the State had yet to serve defendant with notice of
the summary suspension when she filed her November 23, 2010, petition to rescind. At that
time, Schramka’s sworn report was not completed, because he was waiting for the results of
defendant’s urine test. Further, defendant acknowledged in her petition that she “was not
served with the [n]otice of [s]ummary [s]uspension form.” After Schramka mailed defendant
the sworn report and defendant received confirmation of the summary suspension, defendant
filed a motion to reinstate her petition. Therefore, defendant properly filed her petition on
April 1, 2011, and was afforded a hearing within 30 days of that date.
¶ 24 Defendant cites Moreland, People v. Fitterer, 322 Ill. App. 3d 820 (2001), and People
v. Madden, 273 Ill. App. 3d 114 (1995), as “controlling precedent” for the proposition that
the State failed to provide her with a hearing within 30 days of her properly filed petition to
rescind. In Moreland, the defendant was pulled over for driving erratically, and a
Breathalyzer confirmed that he was driving under the influence. Moreland, 2011 IL App (2d)
100699, ¶ 2. The arresting officer immediately served the defendant with a sworn report
advising the defendant that his driving privileges would be suspended in 46 days and that he
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had a right to a hearing. Id. On May 4, 2010, the defendant filed a petition to rescind. Id. ¶ 3.
At the first court hearing, the defendant pointed out that he did not have a confirmation of
the suspension. Id. Over the defendant’s objection, the trial court continued the matter,
advising the defendant that the 30 days in which he was entitled to a hearing would not be
tolled. Id. Thereafter, the Secretary of State filed the confirmation of the suspension with the
trial court, and on June 4, 2010–31 days after the defendant filed his petition–the defendant
moved to rescind the suspension on the basis that he was not afforded a hearing within 30
days. Id. ¶ 4. The trial court granted the defendant’s petition to rescind (id.), and we affirmed
after concluding that the 30-day period in which the defendant was entitled to a hearing
began to run before the Secretary of State confirmed the suspension. Id. ¶ 11.
¶ 25 In Fitterer, the defendant was arrested for DUI on August 14, 1999, and given notice of
a summary suspension. Fitterer, 322 Ill. App. 3d at 821-22. The defendant filed a petition
to rescind on September 22, 1999. During the initial court hearing, the trial court found that
the record indicated no pending suspension and, therefore, struck the petition while granting
the defendant leave to reinstate it. Id. at 822. Thereafter, the defendant reinstated his petition,
which the trial court granted after concluding that the defendant had been entitled to a
hearing within 30 days of the date he originally filed his petition. Id. We affirmed,
concluding:
“After he received the valid August 14 notice, [the] defendant promptly filed his petition
to rescind. The 30-day period began, entitling [the] defendant to a hearing by October 22.
No such hearing occurred, however, because the record did not timely reflect a pending
suspension. The delay was attributable to the arresting officer, not the Secretary, but the
crucial point is that it was not occasioned by [the] defendant.” Id. at 824.
¶ 26 In Madden, the defendant was arrested for DUI on September 3, 1994, and the arresting
officer served him with notice of a summary suspension. Madden, 273 Ill. App. 3d at 114.
The defendant filed a petition to rescind the summary suspension on September 30, 1994.
Id. At the initial court hearing, the parties advised the trial court that the defendant’s abstract
did not indicate that a summary suspension was pending, and the trial court dismissed the
petition as unripe, with leave to reinstate. Id. at 114-15. On November 18, 1994, the
defendant reinstated the petition and the trial court denied it. Id. at 115. The reviewing court
reversed, noting that the Secretary of State had not confirmed the suspension within 30 days
of the filing of the petition. Id. at 116. The reviewing court emphasized that ripeness would
not have been an issue at the initial hearing, and a timely hearing would have occurred, if the
confirmation of the suspension had been sent out in a more seasonable manner. Id. Because
the delay in holding the hearing was attributable to the State, the reviewing court concluded,
the defendant’s summary suspension must be rescinded. Id.
¶ 27 Moreland, Fitterer, and Madden are not applicable to the present matter. In each of those
cases, the defendant properly filed a petition to rescind after having been served with notice
of a summary suspension. Conversely, here, as defendant acknowledged in her November
23, 2010, petition, she had not yet been served with notice of a summary suspension. As
noted above, the plain and unambiguous language of section 2-118.1(b) provides that a
person may request a judicial hearing after notice of a summary suspension is served. 625
ILCS 5/2-118.1(b) (West 2010). Thus, the simple point escaping defendant is that, to adopt
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her position and conclude that her November 23, 2010, petition was properly before the trial
court–even though she had yet to be served with notice of a summary suspension–would
require us to disregard clear statutory intent by reading into the statute a condition where
none exists.
¶ 28 Accordingly, defendant was properly afforded a hearing within 30 days of her timely filed
petition to rescind her summary suspension, as mandated by section 2-118.1(b) of the
Vehicle Code.
¶ 29 B. Service of Summary Suspension Notice
¶ 30 Defendant next contends that the trial court erred in not rescinding her statutory summary
suspension because the State failed to properly serve her with notice of the summary
suspension. Defendant argues that section 11-501.1(f) of the Vehicle Code provides that the
law enforcement officer submitting the sworn report “shall” serve immediate notice of the
summary suspension. According to defendant, the State failed to comply with section 11-
501.1(f) because the addressed envelope containing the notice was returned to Schramka as
undeliverable. The State argues that it complied with section 11-501.1(f) because Schramka
placed the notice in the United States mail in an envelope addressed to defendant, at the
address she provided, with prepaid postage.
¶ 31 Whether the State properly served defendant pursuant to section 11-501.1(f) presents an
issue of statutory construction subject to de novo review. People v. Collins, 214 Ill. 2d 206,
214 (2005). As noted above, the primary objective of statutory interpretation is to ascertain
the legislative intent. People v. Kohl, 364 Ill. App. 3d 495, 499 (2006). The plain language
of a statute is the best indication of legislative intent. Collins, 214 Ill. 2d at 214. A court
should not depart from plain statutory language by reading into the statute exceptions,
limitations, or conditions that conflict with the legislative intent, nor is a court permitted to
inject provisions that are not found in the statute. People v. Roberts, 214 Ill. 2d 106, 116
(2005). “[W]hen the language of a statute or rule is unambiguous, the only legitimate
function of courts is to enforce the law as written.” Id. at 120-21.
¶ 32 The plain and unambiguous language of section 11-501.1(f) of the Vehicle Code reflects
that the legislature intended for service of the notice of summary suspension to be satisfied
by mailing with prepaid postage the notice to the defendant’s address as shown on the traffic
ticket. Specifically, that section provides that, when a drug concentration is determined by
an analysis of blood or urine, the arresting officer can give notice by depositing in the United
States mail the notice in an envelope, postage prepaid, addressed to the person as shown on
the traffic ticket. 625 ILCS 5/11-501.1(f) (West 2010). If the legislature had intended to
require a law enforcement officer to ensure receipt of the notice, for example, it could have
required that service of the notice conform with section 2-203 of the Code of Civil Procedure
(the Code) (735 ILCS 5/2-203 (West 2010)), governing service on individuals when
commencing a civil action. Section 2-203 provides that service may be made upon an
individual by leaving a copy of the summons with the individual personally or by leaving a
copy at the individual’s “usual place of abode,” with a person residing there who is at least
13 years old, provided that the summons is also mailed to that address in a sealed envelope
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with prepaid postage. 735 ILCS 5/2-203 (West 2010). Therefore, our legislature’s use of
statutory language in section 11-501.1(f) permitting a law enforcement officer to serve the
notice of summary suspension by United States mail, provided that certain conditions are
followed, but declining to require the State to physically leave a copy of the notice with the
defendant or at the defendant’s usual place of abode, reflects its clear intent that the State is
not required to take additional steps to ensure that the defendant receives the notice. See
People v. Spencer, 408 Ill. App. 3d 1, 8 (2011) (“The maxim expressio unius est exclusio
alterius is an aid of statutory construction that means ‘the expression of one thing is the
exclusion of another.’ [Citation.] This maxim is based in logic and common sense and
dictates that where a statute or regulation lists the things to which it refers, it may be inferred
that all omissions therefrom should be understood as exclusions.”).
¶ 33 Here, the record unequivocally reflects, and defendant concedes, that Schramka placed
the notice of summary suspension in a sealed envelope, postage prepaid, addressed to
defendant at the address shown on the ticket. Therefore, the State complied with the notice
requirements pursuant to section 11-501.1(f) of the Vehicle Code.
¶ 34 In support of her contention, defendant cites People v. Osborn, 184 Ill. App. 3d 728
(1989). In Osborn, the State appealed a judgment from the trial court granting the
defendant’s petition to rescind the statutory summary suspension because the defendant was
not served with notice of the suspension, as required by statute. Id. at 728-29. The State
argued that, because the defendant availed himself of his right to a hearing, he was not
prejudiced by the lack of statutory notice. Id.
¶ 35 This court rejected the State’s argument on the basis that the State had failed to raise it
before the trial court and thus had forfeited it. Id. at 729. The reviewing court further noted
in dicta that the argument would not be persuasive, even if it were properly before the court,
because due process required that a defendant be given notice “as required by statute.” Id.
at 730. Therefore, the reviewing court concluded, until the State served the defendant with
notice of a summary suspension, there could be no suspension to be confirmed or rescinded.
Id.
¶ 36 Defendant’s reliance on Osborn is misplaced. Defendant emphasizes that “it was
undisputed that the defendant was never served the notice of the sworn report.” However,
here, there is a dispute as to whether Schramka’s mailing defendant the sworn report satisfied
the statute’s service requirements. Specifically, the court in Osborn was silent as to whether
the State made any effort to comply with the statute’s service requirements or made any other
attempt to serve the defendant with notice of the summary suspension. Conversely, in this
case, the record unequivocally reflects that Schramka placed the sworn report in a sealed
envelope, postage prepaid, and addressed the envelope to defendant as shown on the ticket.
When the package was returned, Schramka undertook the additional step of double-checking
defendant’s address on the Secretary of State’s database. As discussed above, those steps
were sufficient to comply with the service requirements put forth in section 11-501.1(f) of
the Vehicle Code. Therefore, because Osborn primarily concerned forfeiture and was silent
as to the State’s compliance with the statute’s service requirements, we find its holding
irrelevant here.
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¶ 37 C. Urine Test
¶ 38 Defendant’s third contention is that Schramka improperly administered the urine test and
failed to properly authenticate the sample. Specifically, defendant argues that the State failed
to comply with section 1286.330 of title 20 of the Illinois Administrative Code (the
Administrative Code), which requires a police officer, agency, employee, or nurse to be of
the same gender as the person undergoing the test. 20 Ill. Adm. Code 1286.330 (2012).
Defendant also argues that Schramka could not authenticate the sample, because he did not
watch her urinate while she provided the sample. The State responds that it complied with
section 1286.330 because Schramka, as the arresting officer, was authorized to collect the
sample. The State maintains that, even if the Administrative Code requires the person
administering the test to be of the same gender as the defendant, the State substantially
complied with it.
¶ 39 Section 11-501.2(a) of the Vehicle Code provides that evidence of a drug concentration
in a person’s blood, as determined by that person’s blood, urine, breath, or other bodily
substance, is admissible. 625 ILCS 5/11-501.2(a) (West 2010). Section 11-501.2(a)(1)
further provides that a chemical analysis of a person’s blood, urine, breath, or other bodily
substance shall be performed according to standards promulgated by the Department of State
Police (State Police). 625 ILCS 5/11-501.2(a)(1) (West 2010). The Vehicle Code specifically
references part 1286 of title 20 of the Administrative Code. See People v. Henry, 398 Ill.
App. 3d 1019, 1022 (2010). Section 1286.330 provides in relevant part:
“The following procedures shall be used to obtain a urine sample from a subject to
determine the presence of alcohol, other drugs or intoxicating compounds:
(a) A sample of urine shall be collected in a manner to preserve the dignity of the
individual and to ensure the integrity of the sample.
(b) A urine sample may be collected by the arresting officer, another law
enforcement officer, an agency employee, or a hospital nurse who can authenticate
the sample. The officer, agency employee, or nurse shall be of the same sex as the
subject undergoing the testing.” 20 Ill. Adm. Code 1286.330 (2012).
¶ 40 In this case, Schramka substantially complied with section 1286.330 in collecting
defendant’s urine. We find support for our finding in People v. Bishop, 354 Ill. App. 3d 549
(2004). In Bishop, the defendant was convicted of DUI resulting in an automobile accident.
Id. at 551. On appeal, the defendant argued that the State failed to collect a sample of his
urine in compliance with section 1286.330(d) of title 20 of the Administrative Code, which
required that the “ ‘urine sample shall be collected from the subject’s first emptying of the
bladder in a clean, dry container.’ ” Id. at 555 (quoting 20 Ill. Adm. Code 1286.330(d)
(2002)). The defendant noted that the hospital drew the first urine sample and that the second
sample, drawn by police, was taken hours later; therefore, the second sample did not strictly
conform with section 1286.330(d). Id. The reviewing court rejected the defendant’s
argument, finding that substantial compliance was sufficient and that substantial compliance
was satisfied in that case. Id. at 556. The reviewing court noted that hospital procedure
prevented the State from taking a sample from the first emptying of the bladder. Id. The
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reviewing court further noted that, “if we were to agree that any deviation whatsoever from
the regulations rendered the results of a sample inadmissible, ‘we would be ignoring the fact
that strict compliance is not always realistically or humanly possible.’ ” Id. (quoting State v.
Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶ 34).
¶ 41 We find the reasoning in Bishop persuasive in the current matter. Schramka testified that
he brought defendant to the Aurora police department and asked if a female officer was
present to assist him in administering the urine test. The officers at the police department
responded that no female officers were present, so Schramka had defendant collect the urine
sample while she was in a cell, with the cell door closed, and behind a wall. We agree with
the court’s finding in Bishop that, because strict compliance with the regulations is not
always realistic, only substantial compliance is required. Thus, we hold that the slight
deviation here did not render the sample inadmissible.
¶ 42 In reaching our determination, we note that defendant’s dignity and the integrity of the
sample were preserved while she collected the sample, as required by section 1286.330(a).
Ill. Adm. Code 1286.330 (2012). With respect to defendant’s dignity, Schramka testified that
defendant went into a cell with a solid steel door and a small window. The cell contained a
toilet behind a brick wall that was five feet high. While defendant collected the sample, the
door to the cell was closed, but not locked, and Schramka stood 10 to 15 feet away.
Schramka testified that he could not see defendant. When finished, defendant advised
Schramka, and he testified that she was fully dressed. At that point, Schramka opened the
cell door and defendant handed him the sample. Defendant’s testimony regarding the urine
collection was consistent with Schramka’s testimony. Defendant acknowledged that she
collected the sample in a cell behind a brick wall. She admitted that she could not see
Schramka or any other officers while she collected the sample and that there were no other
people in the cell while she collected the sample.
¶ 43 Moreover, the integrity of the sample was also preserved. Schramka testified that, after
defendant handed him the sample, he sealed the container, initialed it, and transported it to
the State Police regional headquarters. Defendant admitted that, when she provided the
sample, there were no other substances in the cell and that she handed the sample directly to
Schramka after she provided it. The record is devoid of any indication that the sample was
compromised.
¶ 44 Based on the foregoing, we conclude that, consistent with the reviewing court’s holding
in Bishop, strict compliance with section 1286.330 was not required. In the present case, the
State substantially complied with section 1286.330 because defendant’s dignity and the
integrity of the sample were preserved.
¶ 45 D. Probable Cause to Arrest Defendant
¶ 46 Defendant’s final contention is that Schramka lacked probable cause to arrest her.
Defendant disputes “whether [Schramka] had the requisite knowledge to even formulate an
opinion that [she] was under the influence of cannabis.” The State counters that Schramka
had a sufficient knowledge base to believe that defendant was under the influence of
cannabis, noting that Schramka testified that he completed a 40-hour course in alcohol and
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drug DUI detection while in the police academy, followed by a “refresher course” in May
2009.
¶ 47 “A hearing on a petition to rescind a summary suspension of driving privileges is a civil
proceeding.” People v. Marsala, 376 Ill. App. 3d 1046, 1048 (2007). Where a defendant, as
here, alleges that the arresting officer did not have reasonable grounds to believe that she or
he was driving under the influence, the defendant bears the burden to produce prima facie
evidence that the officer lacked reasonable grounds. See People v. Stanton, 269 Ill. App. 3d
654, 656 (1995). Evidence may include the defendant’s testimony that she or he was driving
properly, exhibited no symptoms of drug or alcohol impairment, or was not driving. See
People v. Bavone, 394 Ill. App. 3d 374, 377 (2009). When the State moves for entry of
judgment at the close of the defendant’s evidence, the trial court must consider all evidence,
including evidence favorable to the State, and, in doing so, assess witness credibility, draw
all reasonable inferences from the testimony, and consider the weight and quality of the
evidence. Id. (citing People v. Tibbetts, 351 Ill. App. 3d 921, 927-28 (2004)).
¶ 48 When determining whether reasonable grounds existed for an arrest, courts employ the
probable cause analysis derived from the fourth amendment. People v. Wear, 229 Ill. 2d 545,
560-61 (2008). When using this test, we apply a two-part standard of review. Id. at 561
(citing People v. Luedemann, 222 Ill. 2d 530, 542 (2006)). “A reviewing court will uphold
findings of historical fact made by the circuit court unless such findings demonstrate clear
error, and a reviewing court must give due weight to any inferences drawn from those facts
by the fact finder.” Id. However, we review de novo the trial court’s ultimate legal ruling as
to whether a petition to rescind should be granted. Id. at 562.
¶ 49 In this case, Schramka had probable cause to arrest defendant. Schramka testified that he
had 40 hours of DUI drug and alcohol training at the police academy, followed by a one-day
“refresher course” in May 2009. Schramka further testified that he made seven or eight DUI
arrests relating to cannabis before arresting defendant.
¶ 50 Moreover, defendant’s emphasis on Schramka’s technical training with respect to
cannabis misconstrues the practical nature of probable cause. Probable cause is not guilt
beyond a reasonable doubt. People v. Jackson, 232 Ill. 2d 246, 275 (2009). Instead, as our
supreme court has emphasized, probable cause deals with probabilities and involves “factual
and practical considerations of everyday life on which reasonable and prudent men, not legal
technicians, act.” (Internal quotation marks omitted.) Id. As a result, “the existence of
probable cause depends upon the totality of the circumstances at the time of the arrest.”
Wear, 229 Ill. 2d at 564. Here, Schramka testified that there was an odor of cannabis coming
from defendant’s vehicle, that defendant admitted there were rolling papers in the car, and
that she admitted that she smoked cannabis earlier in the day. Based on the above testimony,
a reasonable and cautious person could have concluded that defendant was driving under the
influence of cannabis. See id. at 565. Therefore, probable cause existed to arrest defendant
for DUI.
¶ 51 We reject defendant’s argument that the evidence presented at the hearing was
insufficient to support a probable-cause finding. Section 11-501(a)(6) prohibits a person from
being in physical control of a vehicle if there is “any” amount of an unlawfully consumed
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substance in that person’s urine. 625 ILCS 5/11-501(a)(6) (West 2010). Schramka testified
that he smelled a strong odor of cannabis coming from defendant’s vehicle; defendant
retrieved marijuana from the vehicle’s center console and admitted to him that she smoked
marijuana earlier that day. Based on that evidence, Schramka could have reasonably
suspected that defendant was operating a vehicle with an unlawfully consumed substance in
her urine.
¶ 52 We find support for this finding in our recent decision in People v. Miranda, 2012 IL
App (2d) 100769. In Miranda, the defendant was indicted for driving while his urine
contained any amount of cannabis pursuant to section 11-501(a)(6). Id. ¶ 2. Noting that the
probable-cause test was “highly deferential,” we concluded that the arresting officer lacked
probable cause to collect a urine sample when his affidavit averred to finding physical
evidence of alcohol consumption but said “next to nothing about controlled substances, and
what scant mention it did make was unsupported by facts.” Id. ¶ 11. Specifically, the
affidavit referenced only beer bottles, that the officer smelled alcohol on the defendant’s
breath and learned from the defendant that he had consumed alcohol, and that the defendant
failed a field sobriety test. Id. The affidavit’s only reference to a controlled substance was the
officer’s “professional opinion that [the defendant was] under the influence of alcohol and/or
drugs.” Id. ¶ 12.
¶ 53 Although we reached the opposite conclusion in Miranda, i.e., that the officer did not
have sufficient evidence of substance use to amount to probable cause, its reasoning is
instructive here. Unlike in Miranda, Schramka testified that he smelled a strong odor of
cannabis coming from the car, defendant told him there were rolling papers in the car,
defendant retrieved marijuana from the vehicle’s center console, and defendant admitted to
him that she “smoked weed” earlier that day. Clearly, Schramka’s testimony regarding a
strong odor of cannabis, defendant’s retrieving marijuana from the vehicle, and defendant’s
acknowledgment that she smoked marijuana earlier that day was sufficient to satisfy the
“highly deferential” probable-cause test. Therefore, Schramka had probable cause to
conclude that defendant was operating her vehicle with an unlawfully consumed substance
in her urine.
¶ 54 III. Conclusion
¶ 55 For the foregoing reasons, we affirm the judgment of the circuit court of Du Page County.
¶ 56 Affirmed.
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