Opinion filed August 27, 2019 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2019

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 14th Judicial Circuit, ) Whiteside County, Illinois. Plaintiff-Appellant, ) ) Appeal No. 3-18-0360 v. ) Circuit No. 17-TR-2144 ) JEFFREY A. WUNDERLICH, ) ) Honorable Theodore G. Kutsunis, Defendant-Appellee. ) Judge, Presiding. ____________________________________________________________________________

PRESIDING JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justice O’Brien concurred in the judgment and opinion. Justice McDade concurred in part and dissented in part, with opinion.

OPINION

¶1 The State charged defendant, Jeffrey A. Wunderlich, a Whiteside County sheriff’s

deputy, under the Illinois Vehicle Code with failure to yield while turning left (625 ILCS 5/11-

902 (West 2016)), driving in the wrong direction (id. § 11-708), and improper lane usage (id.

§ 11-709(a)), following an accident involving defendant and a motorcycle. Defendant filed a

motion to dismiss the charges, which the trial court granted. The State appeals. We affirm.

¶2 I. FACTS

¶3 An accident occurred while defendant, who was off duty but in his marked squad car,

responded to a call for officers to assist in looking for a patient that had gone missing from a nearby mental health facility. After receiving the call, defendant performed a left turn. The road

he was turning onto was a one-way street meant for traffic traveling in the opposite direction.

While executing the turn, defendant collided with a motorcycle.

¶4 The State filed multiple petty traffic offenses against the defendant. Defendant responded

by filing a motion to dismiss the charges pursuant to section 114-1(a)(3) of the Code of Criminal

Procedure of 1963 (725 ILCS 5/114-1(a)(3) (West 2016)). Defendant asserted he was entitled to

unqualified immunity from prosecution of violations of regulations governing direction of

movement or turning in specified directions pursuant to section 11-205(c)(4) of the Vehicle Code

(625 ILCS 5/11-205(c)(4) (West 2016)). His argument was based on the fact that he was the

driver of an authorized emergency vehicle responding to an emergency call.

¶5 The trial court held a hearing on defendant’s motion to dismiss. Lieutenant John Booker

of the Whiteside County Sheriff’s Department was the only witness who testified at the hearing.

Booker stated that on the evening in question, the Whiteside County Sheriff’s Department

responded to a call for assistance regarding a missing person. A mentally ill patient from a

mental health facility had escaped. Multiple law enforcement agencies responded to the call and

began to setup a perimeter. Once Booker arrived on the scene, he assumed control of the search.

As part of his command, he ordered all available sheriff’s deputies to join the search. This

included off-duty deputies. Booker testified that the call was an emergency and required an

immediate law enforcement response. Booker also inquired as to whether an airplane was

available to aid in the search for the missing patient. He further stated that defendant was driving

a fully marked squad car and was responding to the emergency call when the collision with the

motorcycle occurred.

-2- ¶6 The trial court found that defendant was the driver of an authorized emergency vehicle

and was responding to an emergency call when the commission of the acts charged occurred. In

granting defendant’s motion to dismiss, the trial court stated:

“The Court finds that *** the situation [defendant] faced in the

search and rescue was properly characterized as an emergency

situation. The Court also finds the charges brought against

Defendant are those which regulate the movement or turning of

traffic and that the Defendant was responding to an emergency at

the time of his accident thereby invoking the protection of 11-

205(c)(4) for the Defendant.”

¶7 II. ANALYSIS

¶8 On appeal, the State argues that the trial court erred in granting defendant’s motion to

dismiss. The State attempts to support this contention by stating that section 11-205 of the

Vehicle Code does not confer absolute authority to disregard regulations governing direction of

movement or turning. See id. § 11-205. Additionally, the State argues that the defendant’s

actions constituted a reckless disregard for the safety of others. Alternatively, the State asserts

that the trial court erred in finding that defendant was responding to an emergency situation at

the time of the accident.

¶9 Before engaging the merits of the State’s arguments, we note that the parties disagree on

the standard of review to be applied. The State argues for a de novo standard because the facts

are not disputed and the question presented is one of statutory construction. Defendant maintains

that the trial court’s ruling was based on both a finding of fact and the interpretation of a

statutory section necessitating a bifurcated standard of review. We agree with defendant. “The

-3- trial judge based his decision on both a finding of fact and a legal ruling. We review the legal

ruling de novo, and we review the finding of fact to determine whether it is against the manifest

weight of the evidence.” People v. Marion,

(citing People v.

Sorenson,

(2001)).

¶ 10 A. Emergency

¶ 11 We first address the State’s alternative argument. The State takes issue with the trial

court’s factual finding that defendant was responding to an emergency. We review a trial court’s

findings of fact under a manifest weight of the evidence standard. People v. Richardson,

(2009). Under this standard, a reviewing court is required to give great deference to

the trial court’s findings of fact and credibility determinations. People v. Guerrero,

; see also People v. Deleon,

(2008) (“[W]e give deference to the

trial court as the finder of fact because it is in the best position to observe the conduct and

demeanor of the parties and witnesses.”). 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, arbitrary, or not based on the evidence presented.”

¶ 12 In order for the defendant to be entitled to the immunity afforded by the statute, he would

need to be responding to an “emergency call.” See 625 ILCS 11-205(b) (West 2016). However,

the Vehicle Code does not define what constitutes an “emergency” or an “emergency call.” “In

determining the plain, ordinary, and popularly understood meaning of a term, it is entirely

appropriate to look to the dictionary for a definition.” People v. Bingham,

.

Merriam-Webster’s Online Dictionary defines “emergency” as “1: an unforeseen combination of

circumstances or the resulting state that calls for immediate action” and “2: an urgent need for

-4- assistance or relief.” Merriam-Webster’s Online Dictionary, https://www.merriam-

webster.com/dictionary/emergency (last visited Aug. 22, 2019) [https://perma.cc/Y6NQ-JLVE].

¶ 13 Having reviewed the transcripts from the hearing and evidence of record, the trial court’s

factual determination that defendant was responding to an emergency call was not against the

manifest weight of the evidence. The unrebutted testimony of Lieutenant Booker established that

law enforcement was contacted to assist in locating a person missing from a mental health

facility. Booker described what he believed to be the definition of an “emergency” as “[w]here

assistance is required immediately to control a situation.” Upon arriving on the scene and

assuming control of the situation, Booker requested off-duty deputies to respond because the

situation required immediate assistance. He even inquired into whether an airplane was available

to aid in the search. In addition to the Whiteside County Sheriff’s Department, two other police

departments, assisted by the local fire department, and a private citizen using a drone participated

in the search. Defendant being an off-duty deputy at the time was contacted by dispatch and, in

turn, responded to the call. The evidence supports the trial court’s finding of fact. However, even

if the State was correct and the standard of review was de novo, we would affirm.

¶ 14 B. Immunity While Responding to Emergency

¶ 15 Next, the State asserts that the trial court erred in interpreting section 11-205 of the

Vehicle Code (625 ILCS 5/11-205 (West 2016)). Specifically, that the court’s interpretation of

section 11-205(c)(4) renders subsection (e) superfluous.

¶ 16 “The cardinal rule of statutory interpretation, to which all other rules are subordinate, is

to ascertain and give effect to the intent of the legislature.” People v. Maggette,

(2001). “That inquiry appropriately begins with the language of the statute.” People v.

Campa,

(2005). “We afford the language of the statute its plain and ordinary

-5- meaning [citations] and construe the statute as a whole [citations].”

“It is an elementary

principle of statutory interpretation that no statute should be construed in a manner which will

lead to consequences which are absurd, inconvenient, or unjust.” People v. Partee,

(1988). Further, a court should avoid an interpretation of a statute that would render any

portion thereof meaningless or superfluous. People v. Jones,

(2006). We

review a decision regarding the construction of a statute de novo. Campa,

.

¶ 17 The pertinent part of section 11-205 of the Vehicle Code provides:

“(b) The driver of an authorized emergency vehicle, when

responding to an emergency call or when in the pursuit of an

actual or suspected violator of the law or when responding to but

not upon returning from a fire alarm, may exercise the privileges

set forth in this Section, but subject to the conditions herein stated.

(c) The driver of an authorized emergency vehicle may:

***

2. Proceed past a red or stop signal or stop sign, but

only after slowing down as may be required and necessary

for safe operation;

3. Exceed the maximum speed limits so long as he

does not endanger life or property;

4. Disregard regulations governing direction of

movement or turning in specified directions.

***

-6- (e) The foregoing provisions do not relieve the driver of an

authorized emergency vehicle from the duty of driving with due

regard for the safety of all persons, nor do such provisions protect

the driver from the consequences of his reckless disregard for the

safety of others.” (Emphases added.) 625 ILCS 5/11-205 (West

2016).

¶ 18 Section 11-205(c)(2) provides that the driver must slow down as necessary for safe

operation before proceeding through a red light or a stop sign, while section 11-205(c)(3)

provides that the driver may exceed the maximum speed limit only if one can do so without

endangering life or property. There are no limitations present in section 11-205(c)(4).

“Under our well-settled rules of statutory construction,

‘where the legislature includes particular language in one section

of a statute but omits it in another section of the same statute,

courts will presume that the legislature acted intentionally in the

exclusion or inclusion’ [citation] and that the legislature intended

different results [citation].” People v. Hunter,

(quoting People v. Smith,

).

If the legislature intended to impose limitations on section 11-205(c)(4), it would have done so

just as it did in the two sections preceding it.

¶ 19 Defendant asks us to declare that section 11-205(c)(4) immunizes individuals that fall

within the statute from all criminal prosecutions under the Vehicle Code. We need not do so to

dispose of the matter before us. In a civil context, our supreme court found that section 11-205(e)

imposes a duty on emergency drivers to refrain from negligence. See Harris v. Thompson, 2012

-7- IL 112525, ¶ 21. The petty offenses defendant is charged with are strict liability offenses relating

to direction of movement as well as turning in specified directions. See People v. Rodriguez,

(2009) (“The only intent necessary for a violation of the Vehicle Code is

commission of the prohibited act.”). A prosecution for failure to yield while turning left requires

a showing that a vehicle intending to turn to the left within an intersection or into an alley,

private road, or driveway failed to yield the right-of-way to any vehicle approaching from the

opposite direction that was so close as to constitute an immediate hazard. See 625 ILCS 5/11-902

(West 2016). Likewise, driving in the wrong direction requires a showing that a vehicle driving

upon a roadway so designated for one-way traffic was not driven in the direction indicated by

official traffic control devices. See

§ 11-708. A motorist is guilty of improper lane usage

when he “ ‘crosses over a lane line and is not driving as nearly as practicable within one lane.’ ”

People v. Leyendecker,

(2003) (quoting People v. Smith,

(1996)). No mental state need be proven.

¶ 20 While we need not go so far as to say section 11-205(c)(4) completely immunizes drivers

of authorized emergency vehicles from all criminal prosecutions under the Vehicle Code, it does

immunize them from prosecution of the petty offenses regarding direction of movement or

turning in specified directions. This interpretation does not “relieve the driver of an authorized

emergency vehicle from the duty of driving with due regard for the safety of all persons,” nor

does it “protect the driver from the consequences of his reckless disregard for the safety of

others.” 625 ILCS 5/11-205(e) (West 2016). The trial court’s interpretation did not render

section 11-205(e) superfluous. Recklessness is simply not an element of the charged offenses.

-8- ¶ 21 The State’s contention that defendant acted with reckless disregard for the safety of

others is irrelevant to the issues before us. The State did not charge defendant with driving in

such a manner. Had it done so, we would have a different case.

¶ 22 The trial court did not err in granting defendant’s motion to dismiss.

¶ 23 III. CONCLUSION

¶ 24 For the foregoing reasons, we affirm the judgment of the circuit court of Whiteside

County.

¶ 25 Affirmed.

¶ 26 JUSTICE McDADE, concurring in part and dissenting in part:

¶ 27 The majority has affirmed the trial court’s decision dismissing charges of three petty

traffic offenses against defendant, Jeffrey Wunderlich. In reaching its decision the majority

construed section 11-205 of the Illinois Vehicle Code (625 ILCS 5/11-205 (West 2016)), finding

that the statute insulated the defendant from prosecution because the violations occurred while he

was responding to a police emergency in an official police vehicle. I agree dismissal is proper for

count II, driving in the wrong direction (625 ILCS 5/11-708(b) (West 2016)), and count III,

improper lane use (625 ILCS 5/11-709(a) (West 2016)), and I concur as to those charges.

¶ 28 I believe count I, failure to yield turning left (625 ILCS 5/11-902 (West 2016)), is not

excused by any exception described in section 11-205 and should not have been dismissed. I,

therefore, respectfully dissent from that portion of the majority’s decision affirming the dismissal

of count I.

¶ 29 I agree with the majority’s statutory analysis, which I understand to conclude that

Wunderlich, as a police officer responding to a police emergency in an official police vehicle is

excused from compliance with specified types of traffic regulations and cannot, therefore, be

-9- criminally charged for violating them. If, however, he fails to exercise “due regard for the safety

of all persons,” he may be civilly liable in negligence for injury that he causes while otherwise

insulated from criminal penalty.

¶ 30 The basis for my dissent is that I do not agree that count I charges misconduct by

defendant that falls within the statutory exceptions set out in section 11-205(c). To reiterate the

applicable statutes, count I alleges a violation of section 11-902 (625 ILCS 5/11-902 (West

2016)), which provides:

“Vehicle turning left. The driver of a vehicle intending to turn to

the left within an intersection or into an alley, private road, or

driveway shall yield the right-of-way to any vehicle approaching

from the opposite direction which is so close as to constitute an

immediate hazard, but said driver, having so yielded may proceed

at such time as a safe interval occurs.”

The statute creating the exceptions provides in pertinent part:

“(b) The driver of an authorized emergency vehicle, when

responding to an emergency call or when in the pursuit of an actual

or suspected violator of the law or when responding to but not

upon returning from a fire alarm, may exercise the privileges set

forth in this Section, but subject to the conditions herein stated.

(c) The driver of the authorized emergency vehicle may:

1. Park or stand, irrespective of the provisions of

this Chapter;

- 10 - 2. Proceed past a red or stop signal or stop sign, but

only after slowing down as may be required and necessary

for safe operation;

3. Exceed the maximum speed limits so long as he

does not endanger life or property;

4. Disregard regulations governing direction of

movement or turning in specified directions.

***

(e) The foregoing provisions do not relieve the driver of an

authorized emergency vehicle from the duty of driving with due

regard for the safety of all persons, nor do such provisions protect

the driver from the consequences of his reckless disregard for the

safety of others.” 625 ILCS 5/11-205(b), (c), (e) (West 2016).

The only exception into which the offense charged in count I could even arguably fit is

subsection (c)(4), and a careful reading confirms that it does not actually fit there.

¶ 31 Count I does not charge defendant with making an illegal left turn. The gravamen of the

charged offense is not the direction per se but rather it is that the turn to the left causes him to

cross in front of vehicles approaching from the opposite direction, and he is liable for injury that

results from his failure to yield the right-of-way to an oncoming vehicle “which is so close as to

constitute an immediate hazard.” Not only does the plain language of the offense distinguish it

from the described exceptions, its inclusion within those exceptions would fly in the face of

section 11-205(e) by expressly excusing driving without due regard for the safety of others.

- 11 - ¶ 32 For these reasons, I am convinced that neither section 11-205(c)(4) nor any one of the

other subsections (c)(1-3) insulates this defendant from criminal liability for failure to yield

while turning left as charged in count I.

- 12 - No. 3-18-0360

Cite as: People v. Wunderlich,

Decision Under Review: Appeal from the Circuit Court of Whiteside County, No. 17-TR- 2144; the Hon. Theodore G. Kutsunis, Judge, presiding.

Attorneys Patrick Delfino, David J. Robinson, and Luke McNeill, of for State’s Attorneys Appellate Prosecutor’s Office, of Springfield, Appellant: for the People.

Attorneys James W. Mertes, James E. Fagerman, Gary L. Spencer, and for Cristina M. Buskohl, of Mertes & Mertes, P.C., of Sterling, for Appellee: appellee.

- 13 -