Appeal from the Circuit Court of Du Page County; the Hon.
Duane Walter, Judge, presiding.
JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
The State appeals from the finding by the circuit court of Du Page County of no probable cause after an implied-consent hearing requested by defendant, Walter J. Babych.
Defendant was arrested on November 22, 1981, for the offenses of driving while under the influence of intoxicating liquor (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-501(a)) and improper lane usage (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-709). He was taken to the police station in the village of Itasca where he refused to take a breathalyzer test when requested by the officer under the provisions of section 11-501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-501.1). On April 26, 1982, a bench trial was held of the traffic offenses immediately following which the trial court conducted the implied-consent hearing requested by defendant (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-501.1(d)). By stipulation of the parties, the evidence presented at the trial was considered in the hearing. Further evidence was submitted by the State in the implied-consent hearing that defendant was given a traffic citation for driving while under the influence of intoxicating liquor, that he was advised of the "nine points" regarding his rights required by section 11-501.1(a) of the Code, and that defendant refused to submit to a breathalyzer test.
The trial court found defendant not guilty of driving while under the influence of intoxicating liquor and guilty of improper lane usage, imposing a fine of $25 and costs for the latter offense. After the implied-consent proceeding, the court referred to the four issues to which that hearing is limited by section 11-501.1(d) of the Code, stating it found that each of these elements had been proved. The court also found, however, that the sworn statement of the arresting officer required under section 11-501.1(d) of the Code insufficiently alleged defendant was driving while intoxicated. The court stated:
"The only problem I have with this case is with the Affidavit. That states at the time I had, at the time of the arrest, to believe the person was driving a motor vehicle in the State while under the influence, that the subject was weaving, stumbling, with a strong odor of alcoholic beverage on his breath. It sounds like he was out of the car.
I can't connect the Affidavit with the car.
The opinion of the Court is that the Affidavit is not sufficient in this case. Ordinarily, I would hold the Defendant — a finding of guilty on the implied consent, but you have to put him in the car in the Affidavit. The car was going from lane to lane, and when the Defendant got out, he was stumbling. The subject can't be weaving and driving the car at the same time.
There will be a finding of no probable cause on the implied consent."
The State contends in this appeal that the trial court erred in concluding the officer's affidavit was insufficient and in premising its finding of no probable cause on that basis. Defendant argues first that the order of the trial court is not appealable and, alternatively, that the finding of no probable cause by the trial court was correct, even though predicated upon the wrong reason, as the arresting officer lacked reasonable grounds to request defendant to take a breathalyzer test.
We consider defendant's jurisdictional argument first and determine it is without merit. Our supreme court and this court have held that the findings entered by the circuit court in an implied-consent hearing are final and appealable. People v. Malloy (1979), 76 Ill.2d 513, 395 N.E.2d 381; City of Rockford v. Badell (1975), 33 Ill. App.3d 427, 337 N.E.2d 200.
The implied-consent statute provides that after an arrest for driving while under the influence of intoxicating liquor, a defendant is advised of the provisions of the implied-consent statute (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-501(a)) and requested to take a breathalyzer test. If he refuses to do so, the arresting officer files a sworn statement with the clerk of the circuit court describing the circumstances and it must include, inter alia, the statement that the "arresting officer had reasonable cause to believe the person was driving the motor vehicle within this State while under the influence of intoxicating liquor" (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-501.1(d)). Defendant is then notified by the clerk that unless he requests a hearing within 28 days, his driving privilege will be suspended; if he desires a hearing, defendant must then file a complaint in the circuit court. The statute also provides that the scope of the implied consent hearing is limited to whether defendant was arrested for driving while under the influence of intoxicating liquor; whether the officer had reasonable grounds to believe defendant was driving while under the influence; whether defendant was informed, pursuant to the statute, that his driving privilege would be suspended if he refused the test; and, whether defendant refused the test. Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-501.1(d); People v. Malloy (1979), 76 Ill.2d 513, 395 N.E.2d 381.
In this case, after the implied-consent hearing, the trial court found that each of the requisite elements was established by the evidence, including that the officer had reasonable grounds to believe defendant was driving while under the influence of intoxicating liquor. Clearly, the court should then have entered an order finding that the requirements of the implied-consent statute had been met. Instead, and without defendant having raised the question, the judge apparently determined the affidavit failed to sufficiently allege defendant was driving while intoxicated. The arresting officer's sworn statement was as follows:
"REPORT AND AFFIDAVIT OF ARRESTING OFFICER
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: subject ...