Appeal from the Circuit Court of Cook County; the Hon. Jack G.
Stein, Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
David Jacquith, defendant, was charged by complaint with driving under the combined influence of alcohol and drugs (Ill. Rev. Stat. 1982, ch. 95 1/2, par. 11-501(a)(4)), improper display of a license plate, improper lane change and disorderly conduct. During a jury trial, at the close of the State's case in chief, the trial court directed a finding of not guilty of disorderly conduct. The jury found defendant guilty of the remaining charges. Defendant was fined $550. Following sentencing, the trial court entered a finding of probable cause on the State's affidavit in which it was alleged that defendant refused to take a breathalyzer test. (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-501.1(c).) Defendant appeals his conviction for driving under the combined influence of alcohol and drugs, *fn1 contending (1) that the State failed to prove beyond a reasonable doubt that defendant was guilty of driving while under the combined influence of alcohol and drugs; (2) that the defendant was denied a fair trial by (a) the admission of speculative evidence regarding drugs and their effects; (b) testimony implying that he chose to remain silent following his arrest; (c) the trial court's restricting evidence intended to show bias on the part of the arresting officer; and (d) the trial court's restrictions concerning evidence of blood and urine tests performed at Lutheran General Hospital after defendant left the police station following his arrest. Defendant further contends on appeal that the trial court erred in entering a finding of "probable cause."
Prior to trial, the State offered two motions in limine. The first requested the trial court to preclude defendant from introducing evidence of a pending Federal civil rights suit filed by defendant and Val G. Jacquith, defendant's father, against certain officers of the Glenview police department, unless it was first established that the officers involved in defendant's arrest had prior knowledge of the civil rights suit and of defendant's involvement in that suit. The second motion in limine requested the trial court to preclude defendant from introducing evidence of blood tests performed by private physicians subsequent to defendant's arrest. The trial court reserved ruling on the motions.
At trial, during opening statements to the jury, defense counsel referred to "a previous lawsuit" as well as to a "complete blood test" taken at "Lutheran General Hospital." Objections to both remarks were sustained.
Glenview police officer William Golden testified: on March 13, 1983, at approximately 3:45 p.m., a Corvette with a "novelty license plate" passed his police car and made four subsequent lane changes. Officer Golden curbed the Corvette and requested defendant's driver's license. He had a conversation with defendant and instructed him to remain in his car. While sitting in his squad car, writing a ticket, Golden saw defendant "stumble" out of the Corvette and approach the squad car. Golden smelled alcohol on defendant's breath and, noticing defendant's slurred speech, asked him to perform balance, walking, and finger-to-nose tests. Golden had been trained at the police academy in "recognizing drunk drivers" and in administering standard performance tests. Golden described the defendant as unable to balance, staggering, and unable to touch his right finger to his nose. Office Golden arrested defendant, read him his Miranda rights and his "breathalyzer rights." Defendant stated he would not take any tests.
On direct examination, Officer Golden stated that when he asked defendant if he was under the influence of alcoholic beverages, the defendant "used his right to remain silent." Defense counsel's objection was sustained and the jury instructed to disregard the testimony. On cross-examination, Officer Golden clarified his previous testimony, relating that when he asked the defendant if he was under the influence of alcoholic beverages the defendant replied, "No comment."
Officer Golden had been a police officer for 3 1/2 years, and, on the basis of defendant's hyperactivity, his general appearance, and his speech, Golden concluded that defendant was under the influence of "something" in addition to alcohol. Because of this, Golden requested that defendant submit to a blood analysis which, according to Golden, defendant refused.
Village of Golf police officer Joseph Gilbrick testified cto the following: at the time of defendant's arrest, Gilbrick was driving in his private automobile with a friend, Melissa Stahl, when he saw Officer Golden stop defendant. At the time, defendant was out of his car, waving his arms frantically. When Golden "flagged him down" Gilbrick pulled in behind Golden's squad car to assist with the arrest. Defendant's shirt was hanging out, he appeared "messy," and had a "strong odor of alcohol on his breath." When Gilbrick asked defendant if he had had any alcoholic beverages, the defendant replied, "a couple." Defendant made several comments with reference to an alleged Federal court order "prohibiting his arrest." It was Gilbrick's opinion, based on his training at the police academy in the areas of drug and alcohol abuse, as well as in making over 100 arrests for "driving under the influence," that the defendant was under the influence of both alcohol and drugs at the time of his arrest.
The State's final witness, Melissa Stahl, described defendant's actions and stated, in contradiction to the police officers, that both officers had to assist defendant in getting out of his car. Initially she denied knowing Officer Golden. On cross-examination, however, she stated she had attended Golden's wedding.
Defendant testified to the following: no tests were offered to him at the police station following his arrest, he did not refuse the breathalyzer test, and he, in fact, requested any tests which would prove he was not under the influence of alcohol or drugs at the time of his arrest.
Defendant had not consumed any alcoholic beverages or used any drugs on the day of his arrest. He had brunch with his parents at a restaurant called "Great Godfrey Daniel's" on March 13, 1983, and then visited "his father's office." Later he had lunch with his parents at a restaurant called "Hasty Tasty," after which they visited "Computer Land." At approximately 3:15 p.m. he left home and picked up his friend Craig Mirsky.
Defendant stated that at the time of his traffic stop his car displayed a University of Kentucky license plate, but that he had his Illinois license plate inside his front windshield. It was his opinion that he performed the field tests without any difficulty. He stated that he had an ulcer and consequently did not drink alcoholic beverages. *fn2
Craig Mirsky testified as follows: he was with defendant at the time of his arrest. Defendant had picked him up at his home to go shopping for shoes. Defendant was not under the influence of alcohol or drugs. Defendant had no problem accomplishing the performance of field tests. He heard Officer Golden ask defendant, "Do you think you're so rich you can sue everybody?"
Defendant's parents testified as follows: They had gone to brunch with the defendant on the day in question and were with defendant all that day until he left to pick up Craig Mirsky. Defendant was not under the influence of alcohol or drugs. Mrs. Jacquith testified that the defendant did not drink alcoholic beverages because he had an ulcer. Mr. Jacquith stated that while at the police station his son requested to take "any and all" alcohol-related tests.
Defendant further testified that after leaving the police station with his parents he went directly to Lutheran General Hospital in Park Ridge to have blood and urine tests. Although defendant was not allowed to introduce the tests themselves into evidence, Dr. Paul Bolton testified that he worked in the hospital emergency room on March 13, 1983, when he met defendant at approximately 7:30 p.m. In his opinion, defendant was not drunk or under the influence of drugs at that time. He drew blood and took a urine sample from defendant. The trial court sustained the State's objection to Dr. Bolton's testimony regarding the result of tests performed by other hospital personnel. Bolton testified that he had training both in medical school and during his hospital residency on the effects of drugs in the human body. In explaining his conclusion that defendant was not under the influence of drugs when he observed him at the hospital, Dr. Bolton described the effects of marijuana, amphetamines and valium. He also discussed the various tests used to detect the presence of drugs in the body.
Dr. Bernard Block testified as follows: He was the defendant's physician. He had reviewed the pathology reports of blood and urine tests performed on defendant at Lutheran General Hospital on March 13, 1983. It was Dr. Block's opinion that the defendant was not under the influence of drugs when the tests were performed. He read a list of drugs for which the defendant had been tested: amobarbital, aphrobarbital, barbital, butabarbital, diazepam, and escolorinnol. On cross-examination, Dr. Block testified that phenobarbital and valium are sometimes prescribed for ulcers. Although defendant suffered an ulcer condition about one year earlier, Dr. Block did not recall if he had ever prescribed any medication for defendant's ulcer.
In rebuttal, the State called Dr. Joerg N. Pirl, a toxicologist employed by the Illinois Department of Health, who testified regarding the tests which could be performed in order to detect the presence of alcohol or drugs in a person's blood or urine. In Dr. Pirl's opinion, the tests performed on defendant at Lutheran General were "incomplete." Over the objection of defense counsel, Dr. Pirl answered several hypothetical questions by the State regarding the effects on an individual of combinations of alcohol and barbiturates.
Following closing arguments, the jury found defendant guilty of driving under the influence of alcohol and drugs, improper lane change and improper display of a license plate. On July 22, 1983, defendant was fined $500 for driving under the influence of alcohol and drugs, and $25 each for improper display of a license plate and improper lane change. At the same hearing, the trial court entered a finding of "probable cause" with regard to the State's affidavit that defendant had refused to take a breathalyzer test. Defendant's motion for a new trial was ...