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People v. Frye

OPINION FILED APRIL 5, 1983.

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

v.

BOBBY FRYE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Logan County; the Hon. Robert L. Thornton, Judge, presiding.

PRESIDING JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Defendant was arrested for driving under the influence of intoxicating liquor in violation of section 11-501(a) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-501(a)). He was appropriately admonished but refused to take a breath analysis test, and upon notification by the Logan County circuit clerk, he requested a hearing on the matter pursuant to the provisions of section 11-501.1(d) of the Code (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-501.1(d)). An implied consent hearing was held in the circuit court of Logan County. The court made the requisite findings which were adverse to the defendant, and the Secretary of State, upon being notified thereof, pursuant to the Code suspended defendant's license. Defendant appeals.

• 1, 2 Issues raised on appeal are: (1) whether the arresting officer had reasonable grounds to believe that defendant was driving or in physical control of the vehicle at the time of the incident; (2) whether the State established that defendant had ever driven a vehicle in Illinois so as to trigger the implied consent law; (3) whether the two versions of section 11-501.1 of the Code, passed the same day by the legislature, are so irreconcilable as to be fatally defective; and (4) whether the sworn statement of the arresting officer contained insufficient facts to sustain his conclusion that the defendant was operating a vehicle in violation of the statute.

The evidence at the hearing consisted solely of the testimony of a State trooper. He testified that he was dispatched to an accident scene at about 7 a.m. on March 1, 1982. On arrival he found a vehicle wrecked and lying in a ditch, but there was no one near it. Over hearsay objection, the trooper stated that a farmer came upon the scene and stated that at about 4:45 a.m. that morning a man had come to his house and asked to be admitted; the farmer refused permission for him to stay but did allow him to use the telephone; the man was unable to complete three different calls and was wobbling back and forth; the farmer learned that the man's name was Bobby Frye and took him to a cafe in Emden.

After taking some measurements at the scene, the trooper went to the cafe and found an individual seated at the counter. He asked if his name were Frye and received an affirmative answer. The trooper asked him to come outside to the squad car; Frye complied, and as they approached the squad car he stated without prompting, "I wasn't driving that car." The trooper noticed a moderate odor of alcohol.

They returned to the accident scene and the trooper learned that Frye's license had been suspended for driving under the influence of intoxicants. Frye stated to him that someone named "Junior" had been driving the car and that after the accident Junior had departed on foot. The trooper then arrested Frye and admonished him concerning the breath analysis test. Frye refused to take the test. The trooper stated as his opinion that Frye was under the influence of alcohol.

The trooper also testified as to a conversation with a Mrs. Near at the cafe. Hearsay objection to the conversation was overruled by the court. The record is not clear as to when this conversation took place, whether before or after defendant was arrested. Mrs. Near stated, according to the witness, that Frye came into the cafe, threw some money on the counter, and stated that he was in trouble because he had just wrecked his car.

The evidence of the trooper also established that the car was registered to Frye's son who was in the service at the time; that the precise time of the accident was unknown; and that no one had in fact seen Frye driving the car.

The trial court at the conclusion of the hearing made the requisite findings that the trooper had reasonable grounds to believe that the defendant was driving under the influence of intoxicating liquor, that he had properly admonished the defendant concerning the breath analysis test, and that defendant had refused to take the test.

The issues raised concerning driving, as indicated above, are two-fold: (1) whether defendant had even driven in Illinois, and (2) whether he was driving at the time of the incident in question. It is beyond dispute that driving in this State is the predicate for the application of either version of section 11-501.1 of the Code. Both begin by stating that any person who drives a motor vehicle in this State consents to take a breath analysis test. Minor variations in language exist, but the gist is the same. Defendant argues that there was no evidence presented by the State that he had ever driven in Illinois so as to consent to the test. We disagree. The evidence was uncontroverted that he had at one time possessed a driver's license and that at the time of the incident here it had been suspended. Possession of a valid license at any time is prima facie proof that the holder must have driven upon the highways of the State. It defies common sense to say that one walked to the Secretary of State's testing station, obtained a license without a road test, and then kept the license as a souvenir. Proceedings under section 11-501.1 are civil in nature (compare People v. Malloy (1979), 76 Ill.2d 513, 395 N.E.2d 381); after the existence of a license has been established, the burden then shifts to the defendant to prove that he never exercised his driving privileges in this State. That was not done here; the defendant presented no evidence except cross-examination of the trooper; and this phase of his argument has no merit.

The second aspect of defendant's argument relates to driving at the time of the incident. He points out correctly that the implied consent under the statute must be incident to a lawful arrest for driving under the influence of intoxicating liquor, and claims that the manifest weight of the evidence here is against any such lawful arrest. He maintains that no one saw him driving, that the trooper's conclusions were based upon hearsay, and that his conclusions were purely subjective in nature.

• 3 It has long been established in this State that "[o]bservation of the defendant in the act of driving is not an indispensable prerequisite to conviction of driving while intoxicated, provided the act of driving while intoxicated is established by other credible and substantial evidence, either direct or circumstantial." People v. Toler (1975), 32 Ill. App.3d 793, 799, 336 N.E.2d 270, 275; see also People v. Younge (1980), 83 Ill. App.3d 305, 404 N.E.2d 415; People v. Garnier (1959), 20 Ill. App.2d 492, 156 N.E.2d 613.

It is noteworthy that each of these cases, Toler, Younge and Garnier, involved questions of reasonable doubt. The instant case involves only a question of manifest weight, a much lighter standard.

The issue, framed in the words of the statute, is: "whether the arresting officer had reasonable grounds to believe that such person was driving or in actual physical control of a motor vehicle while under the influence of ...


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