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04/09/87 the People of the State of v. Bruce Radcliff

April 9, 1987





506 N.E.2d 789, 154 Ill. App. 3d 696, 107 Ill. Dec. 46 1987.IL.469

Appeal from the Circuit Court of McLean County; the Hon. William D. DeCardy, Judge, presiding.


JUSTICE LUND delivered the opinion of the court. SPITZ, P.J., and GREEN, J., concur.


In a bench trial, defendant was convicted of driving with blood-alcohol content greater than .10, driving while under the influence of alcohol , illegal transportation of alcoholic liquor, and improper lighting (one headlamp) in violation of sections 11-501(a)(1) and (a)(2), 11-502(a), and 12-211, respectively, of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95 1/2, pars. 11-502(a)(1) and (a)(2), 11-502(a), and 12-211). The circuit court of McLean County sentenced defendant to a term of 12 months' conditional discharge, to include 20 days' incarceration in the McLean County jail on the DUI count. He was also ordered to pay a $50 fine plus costs on each of the counts of illegal transportation of alcoholic liquor and improper lighting. No sentence was imposed on the charge of BAC greater than .10. Defendant appeals from the convictions for DUI and driving with BAC greater than .10. We affirm the conviction for DUI. We vacate the conviction of BAC greater than .10, as both alcohol-related offenses arose out of the same act. (See People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273.) Because we hold as above-mentioned, we need deal only with the evidence relating to the charge of DUI.

Defendant raises two other errors on appeal: (1) he was not proved guilty beyond a reasonable doubt on the conviction for DUI, and (2) the trial court erred in allowing the arresting police officer to testify as to his opinion that defendant was unfit to drive.

In order to discuss the first issue, we must look in detail at the relevant testimony obtained at trial. Defendant and two others were stopped by Officer Mark Kotte of the Normal police department at about 2:30 a.m. on June 1, 1985. Defendant was the driver and owner of the vehicle stopped. Defendant and his passengers had been drinking.

The State called only one witness at trial -- the arresting police officer. Officer Kotte testified that he had been employed as a police officer for the city of Normal for three years. He stated that through his job he had seen "a couple hundred" people who were intoxicated. At approximately 2:27 a.m. on the morning of June 1, 1985, Officer Kotte was in his patrol car at the corner of Florence and Fell streets in Normal. He observed defendant's car approaching with the right headlight out. He followed defendant. Within the space of a block to a block and a half, defendant's car weaved from side to side of the right-hand lane two to three times. The car also crossed over "a couple of feet" into the left side of the road. Although the street did not have a center line marked on the road, a crack in the approximate center of the street served the officer as a marker.

Officer Kotte turned on his lights and pulled the vehicle over. As the car pulled over, the officer saw defendant's car strike the curb. As Officer Kotte exited his car, defendant also exited from his car. Officer Kotte noticed that defendant used the car door and the side of the car as supports to help him exit. Defendant did not appear to have good balance as he walked; he staggered a bit and swayed as he walked. Kotte observed a strong odor of alcohol emanating from defendant's car. He noticed a pitcher in front of the passenger seat which contained what subsequently proved to be beer.

The officer gave defendant several field sobriety tests. The first test required defendant to put both feet together, close his eyes, tip his head back, hold his hands out to his sides, and remain as still as possible. Defendant performed the test, but "swayed considerably from side to side." The next test required defendant to assume the same position as the first, but added the act of touching his nose with his right and then his left index finger. Officer Kotte stated defendant touched the upper lip area with both right and left fingers. He also continued swaying. Another test requested of defendant was to recite the alphabet. He completed the alphabet, but with a little hesitation. In another test, defendant was required to stand on one foot, hold the other foot six inches or so off the ground and count to 30. Defendant attempted the test, but started hopping on the one leg on which he had his weight, and his arms came out to his side in order to maintain balance. He also put his second foot down several times. Defendant was next asked to walk heel-to-toe for nine steps, with arms down at his sides. After the ninth step, he was to pivot on one foot, turn around, and come back the same way. Defendant had his arms outstretched for support as he walked and was unable to make the turn. He stumbled as he attempted to turn and did not finish the test.

Kotte arrested defendant and brought him to the station. Kotte testified that en route to the station defendant told him that "he was drunk and that he was not going to pass the Breathalyzer test." He made the same statement to Kotte while in the booking room. Defendant agreed to take the Breathalyzer test, however, and did take the test. The Breathalyzer-test results, having a reading of .11, were introduced into evidence without objection by the defendant. However, the defendant produced evidence suggesting that because of the time span involved between the consumption and the test, that the actual blood-alcohol content count at the time of the arrest would have been .07. Defendant contends that the test lacked probative value and should not be given weight in determining whether or not the defendant had been proved guilty beyond a reasonable doubt of driving under the influence. This argument was before the court, but we find that there is no problem existing in regard to the driving under the influence conviction because, as we will explain, the other evidence was sufficient to support the verdict.

Officer Kotte gave his opinion, based on his experience with intoxicated persons, that defendant was intoxicated.

On cross-examination, Officer Kotte acknowledged defendant cooperated in everything he was asked to do. Although Kotte detected a strong odor of alcohol on defendant's breath, Kotte noticed no unusual actions such as hiccuping, belching, vomiting, fighting, crying, or laughing. Defendant's speech was fair and his ...

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