Appeal from the Circuit Court of Du Page County; the Hon. C.
Andrew Hayton and the Hon. Duane Walter, Judges, presiding.
JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
In these cases, which we have consolidated for opinion, the State appeals, contending that the circuit court's findings in implied consent hearings that the arresting officer had no reasonable grounds to believe the defendant was driving a motor vehicle while under the influence of intoxicating liquor were against the manifest weight of the evidence.
Defendants Andrzej Bafia, Donald J. Lee, David Holleb and Donald I. Weidel have not responded in this court with a brief and we will consider the issues under the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493.
In each case defendant was arrested in Du Page County for driving under the influence of intoxicating liquor in violation of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-501(a)). Defendants each thereafter refused to submit to a breath analysis after being advised, pursuant to the Code, that a refusal may result in the suspension of his privilege to operate a motor vehicle (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-501.1(a)(2)). Also in each case, pursuant to the Code, the arresting officer filed with the clerk of the circuit court a notice of the refusal to submit to breath analysis and the clerk thereupon notified each defendant his driving privileges would be suspended unless a hearing was requested (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-501.1(d)). Each defendant did request a hearing before the trial court and the State appeals from the orders in these cases, finding the officers had no reasonable cause to believe each defendant was driving while under the influence of intoxicating liquor. See People v. Malloy (1979), 76 Ill.2d 513, 395 N.E.2d 381.
In these cases we consider whether the judgments of the trial court were contrary to the manifest weight of the evidence presented at the implied consent hearings. A court of review will not disturb the judgment below unless it is palpably against the weight of the evidence (Village of Park Forest v. Angel (1976), 37 Ill. App.3d 746, 756, 347 N.E.2d 278, appeal denied (1976), 63 Ill.2d 564), and a judicial finding is not against the manifest weight of the evidence unless from the record an opposite conclusion is clearly evident. (Matloob v. Village of Cahokia (1980), 84 Ill. App.3d 319, 322, 405 N.E.2d 396, appeal denied (1980), 81 Ill.2d 593.) We necessarily review separately the evidence presented at each hearing.
On December 28, 1981, defendant was arrested for driving while under the influence of intoxicating liquor (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 501(a)), to which he subsequently entered a plea of guilty and was placed on court supervision and fined $750. On April 12, 1982, an implied consent hearing was held before Associate Judge C. Andrew Hayton. Officer Thomas Stuckey of the Du Page County Sheriff's Department testified he had responded to an accident call at 6:25 p.m. on the date of the offense at the intersection of Route 53 and 75th Street. The two vehicles involved were off the road and defendant identified himself to the officer as driver of one of them. Defendant told Officer Stuckey he could not stop in time and had run into the back of the other car. During the conversation defendant was leaning on his car and hanging on to its outside rear view mirror. The officer noticed a very strong odor of alcohol on defendant's breath, his eyes were glassy and bloodshot and he staggered when walking. The officer testified it was his opinion defendant was intoxicated and that he arrested and transported him to the police station. Defendant was then advised of his Miranda rights and of the "Nine Points" required under section 11-501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-501.1), and he thereafter refused to take a breathalyzer test when requested to do so. Defendant offered no evidence, but the trial court found the officer lacked reasonable grounds to believe defendant was driving while under the influence of intoxicating liquor, apparently on the grounds the officer had not seen defendant drive the automobile.
People v. Donald J. Weidel
Defendant was arrested on November 28, 1981, for driving while under the influence of intoxicating liquor (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-501). On May 3, 1982, he entered a plea of guilty to that offense and was placed on court supervision and fined $1,000. At the implied consent hearing held immediately thereafter before Associate Judge C. Andrew Hayton, Deputy Sheriff Arthur Weldon testified that he responded to an accident call at 10:08 p.m. on November 28, 1981, in Hinsdale. He there saw two automobiles in a parking lot driveway and noticed defendant walking towards a building. The officer told defendant to return and defendant staggered as he did so. Defendant told the officer he was the driver of one of the cars involved in the accident and said he was going north and must have dozed off. The officer noted the odor of alcohol on defendant's breath and that he spoke in a slurred manner and was unable to perform the finger to nose test. Defendant was arrested and taken to the Darien police station where he refused to take a breathalyzer test, stating to friends who were also present, "You know I'm drunk. I know I'm drunk. This is the best way."
Defendant also testified, stating his appearance and conduct may have resulted from his striking his head on the windshield in the accident. Defendant acknowledged, however, he had told the officer he had not been injured lately and was not ill. The trial court found the officer lacked reasonable grounds to believe defendant was driving while under the influence of intoxicating liquor, noting the odor of alcohol on defendant was moderate and defendant's testimony that he was injured in the accident.
Defendant Andrzej Bafia waived trial by jury for the offense of driving while under the influence of intoxicating liquor (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-501(a)), and in a bench trial before Associate Judge C. Andrew Hayton the following evidence relevant to the issues of this appeal was presented.
On October 15, 1981, at about 1 a.m. Officer Robert Pavelchick and Sergeant Thomas Burnett of the Darien police department, in separate squad cars, saw defendant driving on 75th Street at 10 to 15 miles per hour in a 45-mile-per-hour zone. When defendant went through a red light without stopping the officers halted him and asked to see his driver's license. Defendant had difficulty finding the license and first handed the officers a credit card. He had trouble standing and hung onto the car door, swayed unsteadily and was hesitant in performing the finger to nose test. The officers noticed defendant's hair was mussed, his nose red, eyes bloodshot and he appeared drowsy and confused. There was a strong odor of alcohol on defendant's breath and his speech was slurred. Defendant was then placed under arrest for driving while under the influence of intoxicating liquor and transported to the police station. He was there advised of his Miranda rights and questioned and the officers testified defendant was confused as to the street on which he had been driving and the day of the week; he also told the officers he had been drinking for the three hours prior to being stopped by them. The officers both testified it was their opinion defendant was intoxicated, based upon their police experience of 16 years and four years, respectively. Evidence was also presented that defendant was requested to take a breathalyzer test and after seeing the results of the first of the required two tests, he declined to complete it. Defendant did not testify, and the evidence presented by the State was uncontradicted.
The trial court granted defendant's motion for a directed verdict to the charge of driving while under the influence of liquor and, on stipulation of the parties, considered the same evidence for purposes of the implied consent hearing. It then found the arresting officers lacked probable cause to believe defendant drove while under the influence of ...