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Village of Park Forest v. Angel

OPINION FILED APRIL 1, 1976.

THE VILLAGE OF PARK FOREST, PLAINTIFF-APPELLANT,

v.

ALICE J. ANGEL, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. DWIGHT McKAY, Judge, presiding.

MR. PRESIDING JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Alice J. Angel, defendant, was arrested on May 7, 1973, for driving while under the influence of intoxicating liquor, in violation of an ordinance of the Village of Park Forest. She was taken to the police station where she refused to submit to a breath analysis. Upon a hearing without a jury as to whether defendant's driving privileges should be suspended because of the refusal, the trial court found for defendant. Plaintiff appeals from that decision and the denial of its petition for rehearing. The issues presented on appeal are:

(1) whether a written petition is required for a hearing;

(2) who has the burden of proof in the hearing before the trial court;

(3) whether the statute requires that the time and place of refusal be recorded;

(4) did the trial court err in finding that the arresting officer did not have reasonable grounds to believe that defendant was driving while under the influence of intoxicating liquor.

The pertinent facts follow.

On July 29, 1973, both parties appeared in court with counsel. When the case was called the attorney for plaintiff answered ready to proceed on the implied consent "motion." Defendant objected and demanded trial on the ordinance violation as well as the implied consent hearing, without a severance. The court ruled that the first hearing was to be on the implied consent, then stated: "And for the record, this matter is the hearing on the report of refusal to submit to a breath test where a demand for hearing was timely made, and this is the first time the matter is on for hearing." Plaintiff's attorney added: "This is the case of Village of Park Forest vs. Alice Angel." Defendant's attorney then proceeded with the testimony.

Officer Theodore J. Peck was called by defendant, and upon direct examination testified. On May 7, 1973, at approximately 4:30 a.m., he observed defendant's vehicle traveling south on Western Avenue in the Village of Park Forest, weaving along the thoroughfare. He followed the car for about three-quarters of a mile, then stopped it; defendant presented her driver's license when requested and remained in the car. Officer Peck advised her that she had been "using lanes improperly." He detected the odor of alcohol on her breath and requested that she get out of the car and perform a few basic physical tests. She performed the "standard walking-combination-turning test" on the roadway along the curb of Western Avenue. He then told her she was under arrest for driving while under the influence of intoxicating liquor and took her to the Park Forest Police Station where she was advised of her rights under the Illinois implied consent law. Officer Peck identified the Notice of Request to Submit to Test of Breath to Determine Intoxication, Notice to Driver of Right for a Hearing, and Report of Refusal to Submit to Breath Test (hereinafter referred to as Notice of Request, Notice to Driver, and Report of Refusal, respectively), each of which was processed by him and received in evidence.

On cross-examination by plaintiff's attorney, Officer Peck testified that upon advising defendant of her right to refuse the breath analysis and the possible consequences of refusal provided by statute, defendant verbally refused to take the test. He made the request again about 15 minutes prior to the expiration of the statutory 90-minute period, and defendant again refused. Ninety minutes after the first request, Officer Peck printed "refused" on the Notice of Request form, both across its face and at the place for driver's signature. The date, time and place of request — "5-7-73 4:35 A.M. PF.P.D." were entered on the form. The form did not provide for date, time or place of refusal. Officer Peck then completed and filed the Report of Refusal form, which also provided a date and time of request but not of refusal, and added an affidavit of the arresting officer which provided in part:

"I hereby certify that I have placed the above named person under arrest, and that I had at the time of arrest reasonable grounds to believe that said person was driving a motor vehicle in this state while under the influence of intoxicating liquor in that: Def. was weaving from lane to lane S/B on Western Ave."

The first portion of the affidavit was preprinted on the Report of Refusal form; the words "Def. was weaving from lane to lane S/B on Western Ave" were written by Officer Peck. Neither on direct or cross-examination did Officer Peck testify as to the results of the physical tests or his observations of defendant while performing the tests.

Defendant's testimony was brief. She admitted that she was arrested by Officer Peck for drunken driving and that she refused the breath analysis test at the police station.

Although no evidence was presented that the Clerk of the Court mailed the Notice to Driver which was received in evidence, the form complies with section 11-501.1(d) of the Motor Vehicle Code (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 11-501.1(d)) and specifically sets forth the issues to be determined upon the hearing. The Notice to Driver provides in relevant part:

"NOTICE

A sworn statement has been filed with the ...


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