Writ of Error to County Court of Stephenson county; the Hon.
WESLEY A. EBERLE, Judge, presiding. Reversed and remanded.
JUSTICE WRIGHT DELIVERED THE OPINION OF THE COURT.
Plaintiff in error, Albert Evan Knutson, hereinafter referred to as defendant, was found guilty of operating a motor vehicle while under the influence of intoxicating liquor, after a trial by jury in the County Court of Stephenson county, Illinois.
Judgment was entered on the verdict and defendant sentenced to pay a fine in the amount of $200 and costs. From this judgment the defendant prosecuted a writ of error to the Supreme Court. The case comes to us for decision by transfer from that court.
Defendant's contentions pertaining to due process of law as guaranteed to him by sections 2, 6, and 10, article II of the Constitution of the state of Illinois, cannot be passed upon by this court. We must assume that the Supreme Court by transferring the case to this court decided that these issues were not material to the ultimate decision of the appeal.
The defendant assigns as grounds for reversal the following errors: 1. Prejudicial remarks made by the State's Attorney in his opening statement. 2. The admission of improper evidence at the trial on behalf of the people. 3. The giving of people's instructions nos. 5, 9, 11, 15, 16 and 18. 4. The evidence is not sufficient to support a finding of guilty beyond a reasonable doubt.
The first and second points raised by the defendant, namely that the State's Attorney made prejudicial remarks to the jury in his opening statement, and that improper evidence was admitted at the trial will be considered together.
The State's Attorney in his opening statement, over the objection of the defendant, stated that the defendant upon being arrested was taken to the jail where he was asked routine questions by the arresting officers, and that he was then requested to take an intoximeter test which the defendant first agreed to do; that the intoximeter equipment was set up but before the test was completed it was abandoned because the defendant refused to proceed with the test. The defendant objected to these remarks made by the State's Attorney, and further objected to any evidence being offered with reference to the attempted intoximeter test.
Richard Cowan, one of the arresting officers, was called as a witness for the people and testified that the defendant after being arrested was taken to the booking room at the county jail and after being asked routine questions, which were answered by the defendant, the defendant was then asked to take an intoximeter test; that defendant made some effort to blow the balloon up but was unable to do so and then the defendant became unruly and refused to take the intoximeter test. Following that the defendant was placed in the county jail.
Willard Robbins, one of the arresting officers, was called as a witness for the people and testified that subsequent to the arrest of the defendant, he was taken to the booking room at the county jail. After answering routine questions, the defendant was asked by the officer if he would like to take an intoximeter test and that the defendant answered that he would take it, and that the apparatus for the giving of the test was set up and that he was told how to blow into the mouth piece in order to inflate the balloon; but that he did not do it right and finally told the officers present that he would not take the test or answer any other questions.
Alvin Stine, a Deputy Sheriff for Stephenson county, was called as a witness for the people and testified that he was present at the county jail when the defendant was brought in by the arresting officers, and was also present at the time the defendant refused to take or complete the intoximeter test.
Concerning the admissibility of evidence to show the results of an intoximeter test, voluntarily taken, the courts of the various jurisdictions are not in agreement. Some jurisdictions have held that the results of an intoximeter test are admissible in evidence as evidence of intoxication. For instance in the State of Texas, the Court of Criminal Appeals held in McKay v. State, 235 S.W.2d 173, that the evidence of the result of the Harger Drunkometer test was admissible. Whereas, in the State of Michigan, the Supreme Court in People v. Morse, 325 Mich. 270, 38 N.W.2d 322, held that it was reversible error to admit into evidence testimony concerning the results of the Harger Drunkometer test.
No case is cited in the briefs submitted in the instant case indicating that this question has been ruled on by the Supreme Court of our state, and this court has failed to find any case where our Supreme Court has passed upon this question. However, the Appellate Court, First District, in People v. Bobczyk, 343 Ill. App. 504, 99 N.E.2d 567, held that evidence of the result of the drunkometer test is admissible.
Without passing upon the admissibility in evidence of the results of an intoximeter test voluntarily taken by the defendant, we certainly do not believe that the results of such test, which a defendant is forced to take or is deceived into taking, would be admissible in evidence. It therefore follows that all of the evidence with reference to the attempted intoximeter test and the defendant's ultimate refusal to take the test was improper. Such evidence did not tend to prove any material issue in the case and could only have tended to prejudice the jury. This evidence could have prejudiced the jury by leaving the impression that the defendant was intoxicated, otherwise he would have consented to take and complete the test or that he was so under the influence of liquor that he was unable to complete the test.
The jury in passing upon a question of fact should only consider and be permitted to consider proper evidence, and if there are admitted into evidence matters which are improper, no one can say with certainty whether or not the jury took into consideration the improper evidence or improper matters ...