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People v. Bitterman

OPINION FILED APRIL 22, 1986.

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

v.

LAWRENCE BITTERMAN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Charles Loverde, Judge, presiding.

JUSTICE SCARIANO DELIVERED THE OPINION OF THE COURT:

Defendant-appellant, Lawrence Bitterman, was convicted following a bench trial of the offenses of speeding, improper lane usage and driving under the combined influence of alcohol and drugs. He received sentences of three months' supervision on the former two offenses, and one-year supervision on the latter conviction. Defendant has appealed from the latter judgment and sentence.

Defendant has raised only one issue in this forum. Specifically, defendant complains that his conviction cannot stand in the absence of expert or lay testimony or opinion that he was under the influence of drugs at the time of his arrest. He relies principally on this court's decision in People v. Jacquith (1984), 129 Ill. App.3d 107, 472 N.E.2d 107, wherein a conviction for the same offense was overturned based on just such an absence. The State disputes defendant's claim as to the adequacy of the proof, and alternatively argues that if there was insufficient proof of drug intoxication, defendant might still be convicted of the allegedly included offense of driving under the influence of alcohol alone.

The facts adduced at trial show that on December 21, 1984, at 3 a.m., Wilmette police officer Kasppar observed defendant speeding. When the officer followed the defendant's car, he noted that defendant twice swerved over double yellow lines. As a result, the officer pulled defendant over. When defendant exited his car, he staggered and needed to lean on his car to maintain his balance. Kasppar noticed a strong odor of alcohol on defendant's breath, and also observed that defendant's eyes were bloodshot and glassy. After defendant failed several field sobriety tests and admitted that he had been drinking at a party prior to the traffic stop, Kasppar placed defendant under arrest for driving under the influence of alcohol, and took defendant to the police station.

At the station, defendant submitted to a breathalyzer test, the result of which was a blood alcohol reading of .14%. Defendant stipulated to these results at trial. After being advised of his Miranda rights (Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602), defendant agreed to an interview. He again admitted to Kasppar that he had been drinking. Kasppar asked defendant "if he had anything in his possession that he might regret." Defendant then produced an envelope of a green leafy material that he identified as marijuana. Kasppar asked defendant if he had been smoking or under the influence of marijuana at that time, and defendant responded affirmatively. Defendant was then cited for possession of cannabis (although this charge was dropped at trial). At trial, Kasppar was permitted to state that defendant was under the influence of alcohol at the time of his arrest, but was not allowed to offer a similar opinion as to drug intoxication.

Defendant took the stand on his own behalf. He was unable to recall Kasppar either asking him about marijuana usage, or telling Kasppar that he had been smoking. Defendant denied at trial that he had been smoking. He did, however, admit giving Kasppar a packet of "some substance," but claimed to be unaware of its contents.

As noted, the trial court found defendant guilty of speeding, improper lane usage and driving under the combined influence of drugs and alcohol.

• 1 Defendant's contention is that the State failed to prove him guilty of the intoxication offense beyond a reasonable doubt, specifically challenging the evidence of drug usage. The Illinois Vehicle Code provides, in relevant part:

"Sec. 11-501. Driving while under the influence of alcohol, other drug, or combination thereof.

(a) A person shall not drive or be in actual physical control of any vehicle within this State while:

4. Under the combined influence of alcohol and any other drug or drugs to a degree which renders such person incapable of safely driving." (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501(a)(4).)

In People v. Jacquith (1984), 129 Ill. App.3d 107, 112-13, 472 N.E.2d 107, we held that in order to meet its burden on such a charge, the State is obligated to prove that the accused was under the effect of both alcohol and a drug or drugs at the time in question. The influence of a drug or drugs is an essential element of the charge. (See People v. Utt (1983), 122 Ill. App.3d 272, 461 N.E.2d 463 (the failure of a charging instrument to specify whether the accused was under the influence of alcohol, drugs or both was fatal to the sufficiency of the instrument, as there is no generic "driving under the influence" offense).) Defendant's argument herein must therefore rise or fall based on the allegation that there was not enough evidence of drug intoxication.

In Jacquith, this court noted the paucity of authority in Illinois concerning proof of drug intoxication. As a result, we resorted to case law from Texas and California in ascertaining what kind and quantum of proof would suffice to meet the State's burden. (People v. Jacquith (1985), 129 Ill. App.3d 107, 114-15, 472 N.E.2d 107.) The only evidence of drug intoxication adduced at trial in Jacquith was that of the arresting officers, who opined that the accused was under the influence of a drug or drugs when arrested. Agreeing with the California and Texas decisions, we concluded that the testimony of a police officer that the accused was under the influence of drugs would be sufficient, provided that the officer had the relevant skills, experience or training to render such an opinion. In other words, the officer had to be qualified by the court as an expert in order to reach such a conclusion. In Jacquith, the officers were not so qualified, and as a result we reversed the conviction for the combined-influence offense. People v. Jacquith (1985), 129 Ill. App.3d 107, 114-15, 472 N.E.2d 107.

There is nothing in the Jacquith opinion, however, which would indicate that opinion testimony by the arresting officer is the sole source of proof of drug intoxication or a necessary prerequisite to a conviction. Defendant's argument reads into that decision a burden ...


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