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People v. Kallem

OPINION FILED MARCH 2, 1979.

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

v.

CLARION KALLEM, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES L. GRIFFIN, Judge, presiding. MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Following a hearing in the Circuit Court of Cook County, the court found that the requirements of the implied consent act of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 11-501.1) were met when defendant was placed under arrest, the arresting officer had probable cause to believe defendant was intoxicated, and after a request by the officer, defendant refused to take the test given to determine intoxication. The trial court accordingly recommended that defendant's driving privileges be suspended. On appeal, defendant contends that the State failed to prove all of the required elements of the implied consent act, and that the trial court's findings should therefore be reversed.

At the hearing below, the following pertinent evidence was adduced.

For the State

Bruce Frisbie, LaGrange Police Officer

On January 7, 1977, at approximately 1:40 a.m., he observed defendant's vehicle going eastbound on Ogden Avenue. He followed the vehicle for six or eight blocks and observed that it was weaving from the center lane to the curb lane and occasionally striking the curb. He then activated the red lights of his squad car and initiated a traffic stop. The vehicle pulled up partially over the curb and partially on the road, and stopped. As he approached it, defendant emerged from the vehicle. He noticed that defendant's eyes were bloodshot and that he seemed to be having problems keeping his balance. He asked defendant for his driver's license. When defendant handed it to him, he noticed the odor of intoxicating liquor on defendant's breath. He also noticed that defendant's speech was "thick-tongued." Defendant told him that he had been at the Lilac Lounge and was on his way home. After he saw that defendant was unable to walk in a straight line on the street without stumbling, he asked defendant to come to the police station and take a sobriety test. At the police station, which was about three or four blocks away, he observed that defendant was again unable to walk a straight line without staggering or stumbling, and was unable to touch the tip of his nose with his right or left index finger. He read defendant his rights under the implied consent act, and defendant refused to take the breath test. He also read defendant his "Miranda" rights, which defendant said he understood, and asked defendant a number of questions concerning his earlier activities. Defendant admitted that he drank two glasses of vermouth between 11:30 p.m. and 1:30 a.m. Defendant also gave a handwriting specimen. Officer Frisbie testified that he had made between 250 and 300 arrests for driving under the influence of alcoholic beverages and had seen people who were under such influence hundreds of times. It was his opinion that at the time in question, defendant was under the influence of intoxicating liquor.

On cross-examination he conceded that defendant's vehicle weaved within the eastbound lanes and did not go into the westbound lanes. He acknowledged that he was following five or six car lengths behind defendant's vehicle, but stated that his view was unobstructed. He acknowledged that 1:40 a.m., which is the time written on the ticket he gave defendant, was the time that he made the traffic stop. He further acknowledged that his request of defendant to take the breath test and defendant's refusal occurred at 1:55 a.m.

For the Defense

Robert Dykes

On January 6, 1977, he met with defendant at the Sheraton Oak Brook Hotel from 11:30 p.m. to 1:30 a.m. Defendant had "two vermouths on the rocks." In his opinion, having previously observed people who were under the influence of intoxicating beverages, defendant was not intoxicated when he left him.

On cross-examination he conceded that he did not arrive at the hotel with defendant.

Defendant Clarion Kallem on his own behalf

On January 6, 1977, he woke up between 6 and 6:30 a.m. and went to a job he had in Iowa. He returned home between 9 and 9:30 p.m., and agreed to an urgent meeting with Robert Dykes. He corroborated Dykes' account of their meeting and testified that the two glasses of vermouth he had then were the only intoxicating drinks he had that day. He substantially corroborated Officer Frisbie's account of the stop of his car. After he walked along a line on the street, Officer Frisbie told him, "You come with me." He went with Officer Frisbie to the police station, where he successfully performed certain tests. Frisbie gave him "Miranda" warnings, interviewed him, and took a handwriting specimen.

OPINION

On appeal, defendant attempts to substantively attack the trial court's findings by arguing that all of the requirements of the implied consent act were not met. The State argues, however, that we lack jurisdiction to hear this appeal because the findings and recommendation appealed from are not final orders, but are ...


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