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02/13/87 the People of the State of v. Ramon Montelongo

February 13, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

RAMON MONTELONGO, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

504 N.E.2d 936, 152 Ill. App. 3d 518, 105 Ill. Dec. 651 1987.IL.169

Appeal from the Circuit Court of Cook County; the Hon. Cyril J. Watson, Judge, presiding.

APPELLATE Judges:

JUSTICE PINCHAM delivered the opinion of the court. LORENZ and MURRAY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM

Defendant was arrested and charged with driving while under the influence of alcohol after he backed up and hit another car in a private parking lot. At his request, a hearing on the issue of implied consent was conducted in the circuit court of Cook County. In that proceeding the court determined that the area where the incident occurred was encompassed within the terms of the implied-consent statute, then entered a finding of probable cause, which subjected defendant to the suspension of his driving privileges. (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501(c).) Following that determination, a stipulated bench trial was held on the charge of driving while under the influence of alcohol; defendant was found guilty of that offense, placed on court supervision for one year, and fined $300.

Defendant filed a notice of appeal from both judgments; however, he has confined his argument in this court to the order entered in the implied-consent proceeding. We therefore consider only whether the trial court erred in its application of the implied-consent statute here, where the offensive driving took place in a private parking lot.

The evidence adduced at the hearing shows that the incident giving rise to the charges against defendant occurred about 4 a.m. on July 6, 1985, in the parking lot of "Tootie Toots," a restaurant and bar located at 6500 West North Avenue in Chicago. Terese Delorsinee testified that she and her friends were preparing to leave the parking lot about that time, and as she waited in the driver's seat of her car for her friend to move, defendant backed up his station wagon and hit the front end of her car. She immediately confronted him with the situation, but he refused to cooperate and one of her friends called the police.

Officer Antonucci responded to the call, and when he arrived in the lot, he met both parties to the accident and observed the damage to their automobiles. He also noticed that there was a strong odor of alcohol on defendant's breath, that his eyes were bloodshot, that his clothes were in disarray, and that he needed help to stand up. After making these observations, the officer advised defendant that he was under arrest for driving under the influence of alcohol and issued him a citation for that offense as well as for backing up without due caution.

The officer then informed defendant of his rights under the implied-consent provision of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501.1) and asked him to take a breathalyzer test. When defendant refused to submit to the test, the officer informed him of the consequences; defendant persisted in his refusal, and the officer helped him to the station. Based on his professional and personal experience and the observations he made of defendant that morning, it was the officer's opinion that defendant was driving his motor vehicle while under the extreme influence of alcohol. On cross-examination he acknowledged that the parking lot was provided for the patrons of the establishment and that he did not observe defendant's vehicle leave the lot.

At this point in the proceedings, defense counsel moved for a directed finding arguing that the implied-consent statute is applicable only to activity upon the "public highways" of Illinois and has no bearing on situations such as the one at bar, where the offensive driving took place in a private parking lot. The court noted that the lot was accessible to the public highways, expressed its belief that the area was encompassed within the spirit of the law, then denied defendant's motion.

The defense called Officer Antonucci, and he testified that he had never seen any governmental agencies on the property or such entities maintaining the lot. Defendant testified that the parking lot was fenced and that he had observed a sign there which indicated that the lot was private and was provided for the patrons of the establishment. Ms. Delorsinee indicated that although the lot was open to the public, she believed it was provided solely for the use of the patrons of the bar and further stated that she had never observed any governmental agencies repairing it.

At the close of evidence and argument, the trial court found that the State had met its burden on the issues involved in the implied-consent proceeding and entered a finding of probable cause. Later that same day trial commenced on the criminal charge of driving while under the influence. Defendant stipulated to the facts presented at the implied-consent hearing, and the court found him guilty as charged and sentenced him as indicated above. In this appeal defendant contends that the order entered in the implied-consent proceeding should be reversed because the act of driving ascribed to him took place in a private parking lot where the provisions of the implied consent have no operative effect.

Illinois, as most other States, has adopted an implied-consent statute to assist in determining whether motor vehicle drivers suspected of intoxication are, in fact, under the influence of alcohol. (People v. Rolfingsmeyer (1984), 101 Ill. 2d 137, 461 N.E.2d 410.) In its present ...


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