APPEAL from the Circuit Court of Cook County; the Hon. JOHN J.
LIMPERIS, Judge, presiding.
MR. PRESIDING JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
After a bench trial, defendant Aleksander Mankowski was found guilty of driving a motor vehicle under the influence of intoxicating liquor in violation of section 11-501 of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 11-501), and was fined $105. At the same bench trial, the trial court found that defendant wilfully refused to take a breathalyzer test and, in accordance with the implied consent statute, section 11-501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 11-501.1), ordered that it was his decision that defendant's driving privileges be suspended.
Defendant now appeals his conviction for driving a motor vehicle under the influence of intoxicating liquor (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 11-501) and, contending that he was substantially denied due process of law, asks this court to reverse his conviction outright.
Bruce Batka, a police officer for the Village of Wheeling, testified that on May 21, 1973, at approximately 2:03 A.M., he observed the defendant driving a motor vehicle southbound on Route 83. Officer Batka observed defendant's car cross over the double yellow line in the street. Defendant's vehicle then went entirely into the opposite northbound lane. Thereafter defendant drove his vehicle off the right shoulder of the roadway. Officer Batka then put on his Mars light, stopped defendant's vehicle and, detecting a strong odor of alcohol on defendant's breath, asked defendant to walk a white line alongside the highway. Defendant swayed and staggered as he attempted to walk the line. Officer Batka then informed defendant that he was under arrest and transported him to the Wheeling Police Station. At the station, Officer Batka conducted certain performance tests. On the finger to nose test the defendant completely missed his nose with his right hand and was very hesitant with his left hand. In the picking up the coin test defendant picked up the coins very slowly and swayed while attempting the test. Defendant's clothes were in a state of disarray and his shirt was hanging out. At the station the defendant was very talkative, used profanity, was insulting and argumentative. Defendant's balance was asway and his walk was staggering.
Officer Batka further testified that at approximately 2:15 A.M., he presented the defendant with a copy of the implied consent form and read the form to the defendant. Defendant asked Officer Batka the meaning of 0.10% and Officer Batka explained that the figure represented the percentage of "blood in the alcohol" after which a person is considered legally under the influence of intoxicating liquor. Defendant asked several other questions pertaining to the form. As Officer Batka would attempt to answer them, the defendant would interrupt and argue with him. Officer Batka asked defendant to submit to a breathalyzer test. Defendant at that time, wanted time to think about it. During the 90-minute period provided in the implied consent statute (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 11-501.1(a)(9)), defendant failed to submit to the test. Approximately 15 minutes after the 90 minutes had expired, defendant agreed to submit to a breathalyzer test. Officer Batka felt that defendant's consent came too late and the test was not administered.
Defendant testified that he is an engineer having studied both in Poland and in the United States. During the afternoon of May 20, 1973, he and his wife were at a party at Przbylo's Restaurant. There he consumed two bottles of beer. Defendant and his wife then went to the home of a friend where defendant consumed two highballs. Defendant testified that he left the friend's house to go home at approximately 11 P.M. and was lost when he was arrested by Officer Batka. Defendant stated that after he was stopped by Officer Batka and asked to walk a white line along side the road, he might have stumbled because his foot had fallen asleep while driving. He was then placed under arrest, given his Miranda warnings and transported to the Wheeling Police Station. Defendant testified that at the station he did not consent to the breathalyzer test because he did not understand the form he was given. Defendant denied that his clothing was in a state of disarray. He testified that he had no difficulty in performing the tests administered by the officer and that he was able to walk a straight line, touch his nose and pick up all the coins without difficulty.
Birbara Mankowski, the defendant's wife, testified that she was with her husband when he was placed under arrest by Officer Batka. She stated that she was also present in the police station when the officer administered certain performance tests. According to her testimony, defendant was able to walk without staggering and had no difficulty in touching his nose or in picking up the coins.
Casey Aheinsky testified that he was with the defendant on May 20, 1973, at the party at Przbylo's Restaurant. After this party, he went with the defendant to the home of a friend. Aheinsky further testified that the defendant left the friend's home at approximately 11 P.M. and that at that time defendant had no difficulty walking.
Defendant in his notice of appeal and in the conclusion of his brief asks for relief only from his conviction of driving under the influence of alcoholic liquor. (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 11-501.) Consequently, the implied consent proceedings (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 11-501.1) are not before this court for review.
• 1 Before considering the issues that defendant raises in his brief, it is necessary to consider an essential point not raised in either brief. It is abundantly clear from the record that evidence of defendant's failure to take the breathalyzer test within the 90 minute statutory period was received in evidence before the trial court ruled that defendant was guilty of driving a motor vehicle under the influence of intoxicating liquor in violation of section 11-501 of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 11-501). Both sections 11-501 and 11-501.1 of the Illinois Vehicle Code clearly state that evidence of a refusal to take a breathalyzer test is not admissible in proceedings under section 11-501 of the Illinois Vehicle Code. (See Ill. Rev. Stat. 1973, ch. 95 1/2, pars. 11-501(h) and 11-501.1(c).) Although defendant did not object to the admissibility of such evidence at trial, we may consider this error on appeal. As provided in Supreme Court Rule 615 (Ill. Rev. Stat. 1973, ch. 110A, par. 615(a)), "* * * [p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court."
• 2 While it is true that in a bench trial of a criminal case, the trial judge will be presumed to have considered only competent evidence in arriving at the judgment (People v. Robinson (1964), 30 Ill.2d 437, 197 N.E.2d 45), this presumption is overcome if it affirmatively appears from the record that the evidence was considered by the court. People v. Grodkiewicz (1959), 16 Ill.2d 192, 157 N.E.2d 16; People v. Ford (1974), 21 Ill. App.3d 242, 315 N.E.2d 87; People v. Smith (1965), 55 Ill. App.2d 480, 204 N.E.2d 577.
The record clearly reflects that there was only one hearing and that at this hearing the trial court considered together the issue of implied consent refusal and the charge of driving under the influence of intoxicating liquor. Testimony concerning defendant's failure to take a breathalyzer was introduced by the State's attorney at the initial stages of the hearing and occupied a significant portion of the record. Never was any objection made to the admissibility of such evidence, and it is clear from the record that the trial court considered such evidence in finding the defendant guilty of driving under the influence of intoxicating liquors. In fact, it was immediately after stating that the defendant wilfully refused to take the test, that the trial court found defendant guilty of driving under the influence of intoxicating liquors.
• 3, 4 It is our conclusion that the trial court in finding defendant guilty of driving under the influence of intoxicating liquor committed reversible error in considering evidence of defendant's refusal to take a breathalyzer test. Consequently, the cause should be remanded for a new trial on the charge against defendant of driving under the influence of ...