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People v. Mundorf

MAY 17, 1968.




Appeal from the Circuit Court of DuPage County, Eighteenth Judicial Circuit; the Hon. JACK T. PARISH, Judge, presiding. Judgments affirmed.


Rehearing denied and supplemental opinion September 12, 1968.

The defendant was charged with driving while under the influence of intoxicating liquor in violation of the Uniform Act Regulating Traffic on Highways (Ill Rev Stats 1965, c 95 1/2, par 144), and with operating a motor vehicle after suspension of license in violation of the Drivers License Act (Ill Rev Stats 1965, c 95 1/2, par 6-303). He was tried by a court without a jury, found guilty of both charges and was sentenced to serve 120 days at Vandalia State Farm for each offense, the sentences to run consecutively.

In this appeal, the defendant contends that the findings of guilty are contrary to the evidence, and that the State did not prove him guilty beyond a reasonable doubt on either charge. No other issues are raised.

The arresting officer, State Trooper Dixon, testified that he came upon the car in question on the East-West Tollway at about 3:15 a.m., on June 28, 1967; that it was raining hard; that the car was in the westbound outside lane with the headlights and brake lights on, the windshield wipers off, the ignition on but the motor not running, and in the driving gear; that the defendant was lying over the steering wheel with his foot on the brakes; and that no one else was in the car or in the vicinity.

The trooper testified that he shook the defendant a long time to awaken him; that he smelled alcohol; that the defendant's clothes were disarranged; that the defendant told him that he had not been driving, and that two other men, who had taken off through the field, had been driving; that later he stated his secretary had been with him; that the defendant cursed him and accused him of stealing his billfold, which was later found in his inside coat pocket; and that, upon learning the defendant's name, he called for help and pulled the car over on the shoulder.

Trooper Smith, who answered the call for help, aided the defendant in walking from the car in question to the police car. The two troopers took the defendant to the police maintenance building. They testified that the defendant refused to take a breathalyzer test or to perform tests requiring "the function of his body"; that he could barely walk, his face was flushed, his eyes bloodshot and his balance unstable; and that there was a strong odor of alcohol about him. Both troopers were of the opinion that the defendant was under the influence of intoxicating liquor.

The defendant testified that he had not driven the car that night; that he was angry and the flushed condition of his face was natural; that his right eye is glass and could not be bloodshot; and that he asked to take the various tests to establish that he was not intoxicated, but the troopers did not answer him.

He also testified that his wife had picked him up in Chicago early in the evening; that he had one bottle of beer at a bar sometime between 5:00 and 6:00 p.m.; that he and his wife had been at a friend's home until 1:00 or 1:30 a.m., where he was served some coffee and one beer; and that from there, his wife drove to a bar, which was closed. He stated that his wife then drove to the tollway to go home; that they had been arguing and she finally pulled off on the shoulder of the tollway and left him there; that he thought she was kidding and got out of the car to look for her, but could not find her; and that he then went back to the car and fell asleep. He also stated that he never sat on the driver's side of the car; that he turned the ignition on; and that the radio and parking lights were on.

The defendant's wife testified that she and her husband left their friend's house at about 2:00 a.m., and drove on the tollway; that she had not observed her husband drink any alcoholic beverage; that they had been arguing; that she drove the car on the shoulder and left her husband in it; that she left the keys in the car, the gear in park, and the parking lights on; and that she thought her husband was asleep. She stated that a man and woman who were strangers picked her up and took her home, where she arrived at approximately 3:00 a.m.

She further testified that she was wearing high-heeled shoes; that it was not raining when she left the car; and that she parked the car near the Wheaton-Naperville exit — approximately one or two miles from her home. She said that the car was at the same location when the State troopers took her back to it after the defendant had been arrested.

The defendant testified that it had drizzled occasionally that night, and placed the car at the same location as did his wife.

The troopers testified that it was raining heavily during the hours in question. Further, they both testified that the car was at milepost 10 on the tollway, and that the Naperville exit is at milepost 13 — approximately three miles further west.

The State and the defendant agree that to prove the corpus deliciti, the State must prove beyond a reasonable doubt both that the defendant drove the motor vehicle at the time and place in question, and that he was then and there under the influence of intoxicating ...

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