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People v. Walker

OPINION FILED SEPTEMBER 8, 1977.

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

v.

ROBERT WALKER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Kendall County; the Hon. REX MEILINGER, Judge, presiding. MR. JUSTICE BOYLE DELIVERED THE OPINION OF THE COURT:

Robert Walker, defendant-appellant, hereinafter referred to as the "defendant," was convicted by a Kendall County jury of driving while under the influence of intoxicating liquor in violation of section 11-501(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 11-501(a)). Defendant was fined $200. He has appealed.

On appeal, defendant makes five contentions: (1) That the traffic citation he was given did not charge him with an offense; (2) That he was denied equal protection of the law by the State's failure to properly admonish him concerning a request that he take a breathalizer test; (3) That the trial court improperly denied the defendant's motions for a mistrial; (4) That the jury was improperly instructed; and (5) That the defendant was not proved guilty beyond a reasonable doubt.

After reviewing the record and weighing the arguments presented, we have concluded that defendant's contentions are without merit, and we therefore affirm the judgment of the trial court.

The principal witness for the State was Officer Patrick Pierce of the Kendall County sheriff's department. At trial, Officer Pierce testified that at approximately 4 a.m. on July 13, 1975, he was on patrol in a marked squad car with Officer Richard Schredder of the Kendall County sheriff's office. At that time they were on Route 47 approximately 1 1/2 miles north of the intersection of Routes 47 and 34 in Kendall County, when they came upon a parked car. The car was partially on the road, and the officers stopped to investigate. Officer Pierce testified that he got out of the squad car and approached the parked car. As he did so, he noticed that the car's engine was running and that the car was covered with dew except for the hood, which was dry. Officer Pierce further testified that when he reached the driver's window, he attempted to question the defendant, who was seated behind the steering wheel. However, he could not hear the defendant's response to his questions over the noise of the engine, so he (Officer Pierce) reached inside the car and turned off the ignition. When reaching into the car to turn off the ignition, Officer Pierce testified that he noticed a strong alcoholic odor on the defendant's breath. Officer Pierce's testimony continued to the effect that he requested the defendant to step out of his car and attempt to walk a straight line. When the defendant failed to perform this test to Officer Pierce's satisfaction, the defendant was placed under arrest.

Officer Schredder also testified. His testimony was largely consistent with that of Officer Pierce. While there were some discrepancies between the testimony of the two officers, we find those discrepancies to be minute in nature and insufficient to materially detract from Officer Pierce's testimony.

The defendant testified that he had been at a birthday party earlier that evening. At the party he had had only three beers and left at approximately 1 a.m. On his way home he became drowsy, so he pulled off the road to take a nap. Defendant's testimony continues to the effect that he was awakened by the flashing lights of the squad car. He asserts that he was able to walk the white line when Officer Pierce requested that he do so, and finally he asserts that he was not intoxicated.

We deal first with the defendant's contention that the traffic citation he was given did not charge him with an offense. The traffic citation the defendant was given charged him with "operating a motor vehicle while under the influence of intoxication [sic] beverage in violation of Illinois Vehicle Code 11. Section No. 501." We hold that the above traffic citation sufficiently charged defendant with an offense.

• 1 A charge is sufficient if it states the elements of an offense with sufficient particularity to inform the defendant of the charge against him, enables the defendant to prepare a defense and permits a conviction or acquittal to act as a bar to further prosecution for the same offense. (People v. Mahle (1974), 57 Ill.2d 279, 312 N.E.2d 267; People v. Grieco (1970), 44 Ill.2d 407, 255 N.E.2d 897, cert. denied (1970), 400 U.S. 825, 27 L.Ed.2d 54, 91 S.Ct. 49.) The traffic citation in the case at hand meets these criteria.

Defendant argues that the words "intoxication beverage" do not inform him as to whether he is charged with driving while under the influence of intoxicating liquors in violation of section 11-501(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 11-501(a)) or with driving while under the influence of a narcotic drug in violation of section 11-501(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 11-501(b)). We must disagree.

• 2, 3 Citations charging a defendant with driving while under the influence of intoxicating beverages have repeatedly been upheld. (People v. Sirinsky (1970), 47 Ill.2d 183, 265 N.E.2d 505; People v. Casa (1969), 113 Ill. App.2d 1, 251 N.E.2d 290.) Therefore it is clear that the word "beverage" is an acceptable substitute for the word "liquor." The grammatical error in using the word "intoxication" instead of "intoxicating" was harmless in that both words connote being under the influence of alcohol or drugs. Therefore, the phrase "intoxication beverage" was sufficient to inform the defendant that he was being charged with driving under the influence of intoxicating liquor in violation of section 11-501(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 11-501(a)) and not with driving while under the influence of a narcotic drug in violation of section 11-501(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 11-501(b)).

The fact that the traffic citation sufficiently informed the defendant of the charge against him is further indicated by the fact that defense counsel was satisfied with the State's response to his motion for a bill of particulars.

• 4 The defendant's second contention is that he was deprived of equal protection of the law by the State's failure to give him a breathalizer test. The defendant reasons that the State's failure to give him the test denied him the opportunity to gather evidence in his own behalf. We find this contention to be without merit.

It is clear from the record before us that the defendant was asked to submit to a breathalizer test, although the admonishments required by section 11-501.1(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95 1/2 par. 11-501.1) were not given to the defendant. The failure to properly admonish the defendant did not constitute a deprivation of the equal protection of the law, but merely precluded the State from automatically suspending the defendant's driver's license under section 11-501.1(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 11-501.1(a)).

• 5 While the State may not suppress evidence, it is under no obligation to gather evidence for the defendant. (People v. Mankowski (1975), 28 Ill. App.3d 641, 329 N.E.2d 266.) By refusing to take the breathalizer test, the defendant relieved the State of any obligation to perform any additional tests as required by section 11-501.1(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 11-501.1(a)), since that section only requires the State to have the additional tests performed ...


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