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People v. Vega

OPINION FILED AUGUST 4, 1986.

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

v.

DONNA L. VEGA, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Vermilion County; the Hon. Rita B. Garman, Judge, presiding.

JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Defendant was charged in the circuit court of Vermilion County by means of traffic citations with the offenses of improper-lane usage and driving under the influence of alcohol in contravention of sections 11-709 and 11-501(a)(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95 1/2, pars. 11-709, 11-501(a)(2)). On July 27, 1985, a jury found defendant guilty of the latter offense. The record contains no indication of the disposition of the former. Thereafter, the trial court sentenced her to 12 months' probation and a fine of $100. This appeal ensued.

The principal controversy on appeal concerns the admission into evidence of the results of a field-sobriety test called the "horizontal gaze nystagmus" test.

The State's sole witness was Illinois state trooper Stanley Hardy. He testified that during the early morning hours of December 3, 1984, he observed a car driving slowly and doing "some weaving." He followed the car and during a short interval saw it drift off the right side of the road twice and cross the center line once. He then stopped the vehicle, and as he approached it noticed a strong odor of alcohol emanating from its interior. The driver was defendant, and there were two male passengers. Hardy requested defendant to get out of the auto and perform some sobriety tests. She complied, although stating that she was not intoxicated.

Hardy caused defendant to perform four tests. The first was the horizontal-gaze-nystagmus test, more of which later. Hardy stated that she failed this test.

The second was a "walk the line" test. She attempted this twice. The first attempt was bad, but defendant claimed she was having difficulty with her shoes, so she tried the test a second time after removing the shoes. On the second attempt she made six of nine possible errors.

The third test was the "one leg stand." In this test one must stand on one leg, holding the other up and in front and counting to 30. Defendant stated, without assigning any reason, that she could not perform this test. Hardy stated that some persons with physical problems cannot pass either the "walk the line" or the "one leg stand" tests, but defendant made no mention to him of any physical infirmities which she may have had.

The fourth test was the "finger to nose." Defendant also failed this test, being able to touch the tip of her nose only twice in six attempts, although she reached the area of her nose five times.

Hardy further testified that defendant's breath had the odor of alcohol, her speech was somewhat slurred and slow, she was upset, profane, and talkative. Her manner toward Hardy was, in his words, "insulting" but there was no evidence of resistance to arrest.

After being transported to the public safety building, defendant underwent a breathalyzer test which showed a blood alcohol content of .09.

Defendant presented the testimony of a podiatrist who had treated her in 1973, 1980, and 1983, for painful callouses on the plantar surface of her foot. He described the condition as "intractable plantar keratosis" and stated that it would hamper her ability to walk in a heel-to-toe fashion and to stand on one leg.

She next presented the bartender from the tavern where she had stayed from 5 to 5:30 p.m. to 10 to 10:30 p.m. on the evening of December 2, prior to her arrest early on December 3. He stated that she had consumed a maximum of four beers, one hot dog, one Pepsi, and one or two glasses of nonalcoholic tomato juice. He left with defendant and another male acquaintance who was intoxicated about 10:30. The three went to another tavern to celebrate a birthday. They stayed there until about 2 a.m. during which time defendant consumed one-half of a beer. The bartender, Williams, offered the opinion that defendant was not intoxicated and that there was nothing unusual about her driving. Williams later supplied bail for defendant. He also stated that he did not want to see her convicted but would never commit perjury for her.

Defendant testified in her own behalf and offered testimony which was generally exculpatory. She claimed to suffer from emphysema, ulcers, and a bad back. She stated that she had ceased treatment with the podiatrist because of the expense, but that her left foot hurt her "all the time." She largely corroborated Williams' testimony about her whereabouts during the night hours of December 2 and the early morning hours of December 3 and the amount of alcohol which she had ingested. She denied cursing the trooper and claimed that she raised her voice to him only in retaliation of the fact that he "hollered and yelled" at her. She claimed to have informed Hardy of her foot problems and said that she could not pass the "walk the line" test because the ground was cold and the line was uneven, cracked and under repair. She characterized Hardy's behavior as "rude and ill-mannered." She stated that she was not intoxicated and her only problem was an upset stomach.

In rebuttal Hardy testified that he informed defendant that she could use either leg for the "one leg stand" test and that she could take off her shoes. He also stated that her passengers appeared to be intoxicated, one more so ...


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