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People v. Ash

JANUARY 10, 1974.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

MARVIN E. ASH, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Du Page County; the Hon. GEORGE VAN VLECK, Judge, presiding.

MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Defendant was convicted after a jury trial of driving while under the influence of intoxicating liquor (Ill. Rev. Stat. 1971, ch. 95 1/2, par. 11-501(a)). He appeals from the judgment and the fine imposed in the amount of $150. The admission of an audio-video tape, a portion of which had been erased after a preliminary viewing by the court, out of the jury's presence, is urged as a basis for outright reversal. Defendant also argues that the instruction defining intoxication was erroneous and justifies a new trial.

At trial the arresting officer testified that he observed defendant's car approaching in the opposite lane, then crossing the center line with all four wheels, forcing the officer's patrol car off the road and continuing in the wrong lane for one-eighth to one-quarter of a block. The officer then made a U-turn and pursued defendant, activating an audio-video camera installed in his car. Defendant made a left turn onto an intersecting road, narrowly missing a telephone pole approximately twenty feet from the roadway. Defendant's vehicle then returned to the road and stopped some seventy-five or eighty-five feet from the intersection.

The officer further testified that when defendant got out of his car he smelled the strong odor of alcohol on defendant's breath. Defendant took one-half step toward him and fell back against the car. Subsequently defendant was placed under arrest for driving in the wrong lane and informed that he would be taken to the station for further investigation.

When a second patrol car arrived to take him to the station, defendant weaved and swayed as he walked to the patrol car and was helped into the car by two officers. The arresting officer also went to the station and continued to tape the proceedings with the same unit after removing it from his vehicle. In his opinion, defendant was intoxicated.

Prior to its admission at trial the video tape was first viewed in its entirety by the court and both counsel out of the presence of the jury, and the court ordered the deletion of the audio portion of the station house taping concerning defendant's refusal to take a breathalyzer test in compliance with Ill. Rev. Stat. 1971, ch. 95 1/2, par. 11-501(h).

However, the entire portion of the station house proceedings including the preliminary occurrences to the performance test was erased by the State.

As a result defense counsel objected to showing the tape to the jury and moved for a mistrial. The court overruled the objection and denied the motion but permitted defendant to cross-examine the officers concerning what happened during the portion of the tape which was erased.

In addition, the court recalled for the record his observations of the portion of the tape which had been erased:

"At the time the police officer asked the defendant to take the performance tests, he also asked the defendant if he was willing to take a Breathalyzer test. At that time the defendant said he did not wish to take any tests. He would not take a Breathalyzer test. He would not cooperate in any way. Would not answer any questions or cooperate in any way.

Now, he later changed his mind. The police went back to the question of taking tests a couple of more times. I do not believe, and I so ruled that they did not use any undue duress. He never changed his mind on the Breathalyzer test.

He did change his mind on the performance tests. He said, `All right. If this is what you want me to do, I will do it.' Or words to that effect. And he did it. He did take the performance tests as could be seen from the tape."

On cross-examination, relating to the erased portion of the tape, the arresting officer testified that he became "emotionally upset with the defendant" in response to defendant's statement that he was a good person and never hurt anybody. He told defendant that he was lucky he did not hurt anybody because he was on the wrong side of the road. He testified that defendant said "No argument there" when he was asked whether he remembered almost hitting the officer head-on and almost hitting the telephone pole.

Defendant testified in his own behalf that he drank a small amount of beer prior to the arrest; and that his car crossed the center line when he took his eyes off the road to light a cigarette. He claimed he did not know that a squad car was pursuing him until the blinking lights came on shortly before he stopped. He stated that ...


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