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05/18/87 the People of the State of v. Joel R. Sanders

May 18, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

JOEL R. SANDERS, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

508 N.E.2d 497, 155 Ill. App. 3d 759, 108 Ill. Dec. 336 1987.IL.644

Appeal from the Circuit Court of Stephenson County; the Hon. John E. Payne, Judge, presiding.

APPELLATE Judges:

JUSTICE HOPF delivered the opinion of the court. DUNN and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOPF

The plaintiff, the State, appeals from the judgment of the circuit court which granted the request of the defendant, Joel R. Sanders, to rescind the summary suspension of his driving privileges pursuant to section 11-501.1 of the Illinois Vehicle Code (the Code) (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.1). On appeal, the State contends that there is no evidence which supports the trial court's action to rescind the defendant's statutory summary suspension. For the reasons set forth below, we reverse the judgment of the circuit court.

On March 10, 1986, the defendant was charged with driving while under the influence of alcohol in violation of section 11-501(a) of the Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501(a)). On that date he was also given written notice of the summary suspension of his driving privileges pursuant to section 11-501.1 of the Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.1). On March 21, 1986, the defendant filed a request for a judicial driving permit. He also filed a request for a rescission hearing pursuant to section 2-118.1 of the Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 2-118.1) on the grounds that: (1) he had not been placed under arrest as defined in section 11-501; (2) the arresting officer did not have reasonable grounds to believe that the defendant was driving under the influence of alcohol; (3) the arresting officer failed to warn the defendant that his driver's license would be subject to suspension if he submitted to a breathalyzer test and that test disclosed an alcohol concentration of .10 or more; (4) the test to which the defendant did submit failed to disclose an alcohol concentration level of .10 or more at the time the defendant operated a motor vehicle; and (5) the tests were not properly administered.

On April 8, 1986, the court heard argument on the two matters. The trial court denied the defendant's request for a judicial driving permit. The remainder of the hearing concerned the defendant's request for rescission of the summary suspension.

The defendant testified that on March 10, 1986, at approximately 2:30 a.m. he was stopped while driving his car. He was not operating his car in an unusual or illegal manner. At that time, the police officer arrested the defendant, placed him in the squad car, and indicated that the arrest was for battery. The officer did not ask the defendant to perform any field sobriety tests at the scene. When the defendant arrived at the police station the officer asked him to perform several sobriety tests, which the defendant reported he performed "well." The officer also requested that the defendant take a breathalyzer test. First, however, the officer warned the defendant of what would occur if he refused to take a breathalyzer test, as well as if he failed the breathalyzer test. The defendant also stated that before he took the breathalyzer test the police officer told him that he was under arrest for driving while under the influence of alcohol. After the defendant completed the breathalyzer test, he saw the reading, which he noted was .10, yet believed was inaccurate. At the hearing the defendant also stated that he did not feel he was under the influence of alcohol at the time of the test.

On cross-examination the defendant admitted that he had consumed four or five beers earlier in the evening. He also stated that he was at a young lady's house earlier in the evening, but denied grabbing a telephone receiver from her as she attempted to call the police for slapping her. With respect to the breathalyzer machine's accuracy, the defendant stated as follows:

"A. He says blow into the machine until the green light goes out and I blew and it went out and I took the hose away and the light came back on and he said blow again and I requested to have it done over and then he said no it can't be done.

Q. Run that by me again.

A. I blew into the hose and he said blow it until the green light goes out. It went out. I took the hose away and the light came back on. He said blow again and I had to blow some more. And then you know it went out and I sat down. Can we do that over, that didn't seem right and he said no."

The defendant stated that "something seemed wrong." After he completed the test the defendant was charged with battery, as well as ...


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