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People v. Wierman





APPEAL from the Circuit Court of Coles County; the Hon. LOREN J. KABBES, Judge, presiding.


Rehearing denied July 12, 1982.

Defendant was ticketed for driving under the influence of intoxicating liquor on August 6, 1981. The arresting officer filed an affidavit and report with the circuit clerk on August 7, 1981, detailing defendant's refusal to submit to a breath test. Defendant filed a petition for a hearing, as allowed by statute.

The hearing was held on October 26, 1981. The only witness called by either party was the arresting officer, Mark Finley. A summary of Officer Finley's testimony is presented below.

On August 6, 1981, at approximately 12 a.m., Officer Finley was on patrol on Lincoln Avenue at Fourth Street in Charleston. He was stopped at a stoplight, facing east. The light for westbound traffic turned green. Finley observed a black Buick begin to go forward, stop and then turn north onto Fourth Street. Finley made a left turn and followed the Buick at a speed of 20 to 25 miles per hour.

The Buick continued north on Fourth Street. The car was weaving back and forth in its lane, but did not cross the yellow center line. Finley followed the Buick to Fourth and Polk, where the driver waited at a four-way intersection. The driver of the Buick stopped for several seconds and then proceeded north. As the Buick went through the intersection, it crossed over into the southbound lane and then came back into the correct lane. The vehicle continued heading north to a point just beyond Tyler Avenue where it went into a gutter on the right side of the street. The driver jerked the car out of the gutter and crossed the center line again. Officer Finley turned on his flashers and stopped the car.

Finley identified the defendant as the driver of the vehicle. After Finley examined defendant's driver's license, defendant told Finley that he was looking for E.L. Kracker's, a bar located on Fourth Street. E.L. Kracker's is located about six blocks south of the point at which defendant was stopped by Officer Finley. Defendant told Finley that he had not been drinking.

Officer Finley had the defendant get out of his car. Defendant had to lean against the car to support himself. Finley had the defendant perform the finger-to-nose field sobriety test. Defendant was unable to complete this test. Finley noticed a faint odor of alcohol on defendant's breath. Defendant was also unable to walk a straight line. Officer Finley then informed the defendant that he was under arrest for driving while under the influence of intoxicating liquor.

After his arrival at the police station with the defendant, Finley first filled out a citation for driving while under the influence. He then filled out two copies of the "request to submit to test of breath" form. Finley handed one copy to the defendant and began reading the "nine points" contained on the form. Defendant continued to talk and demanded to make a phone call. Finley told him that he would be allowed to make a phone call after Finley had finished reading the form to him. After Finley finished reading the contents of the request form to the defendant, he allowed the defendant to make a phone call.

When defendant finished his phone call, Finley asked him if he would take the test. Defendant said he would but refused to sign the request form. Finley explained to him that a refusal to sign the form is deemed a refusal to submit to the test itself. Defendant stated, "I'm not signing nothing." Finley marked the request "refused" at 12:36 a.m.

Several minutes later, a man and a woman arrived at the police station and spoke with the defendant. The defendant then told Finley that he wanted to sign the form and take the test. Finley told him that he had already refused and that Finley "wasn't going to play around with it all night long."

On cross-examination, Finley stated that he had not delivered a copy of the ticket to the defendant before reading the request form to him. Finley stated that the defendant did request to call a lawyer during the time in which Finley read the request form to the defendant. Defendant was given his Miranda rights at approximately 12:40 a.m.

Defendant moved for judgment in his favor. The trial court granted the motion on the ground that defendant had not been issued a Uniform Traffic Ticket before he was requested to submit to the breath test. The State appeals from this ruling of the trial court.

Both parties agree that the central issue on appeal is whether the trial judge erred in finding for the defendant due to the arresting officer's failure to issue a Uniform Traffic Ticket to the defendant ...

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