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11/24/87 the People of the State of v. John W. Borst

November 24, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JOHN W. BORST, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

516 N.E.2d 854, 162 Ill. App. 3d 830, 114 Ill. Dec. 699 1987.IL.1743

Appeal from the Circuit Court of Du Page County; the Hon. James W. Jerz, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. WOODWARD and UNVERZAGT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Defendant, John W. Borst, was charged with driving under the influence of alcohol in violation of section 11-501(a)(2) of the Illinois Vehicle Code (the Code) (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501(a)(2)), being in actual physical control of a vehicle with a blood-alcohol concentration of .10 or more in violation of section 11-501(a)(1) of the Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501(a)(1)), and resisting a peace officer. He was convicted by a jury of driving with a blood-alcohol concentration of .10 or more, and of resisting a peace officer, and found not guilty of the other charge. He was fined $100 plus costs and sentenced to one year of reporting probation. He was also ordered to perform 120 hours of public service and to attend DUI school as conditions of his probation. Defendant appeals only the DUI conviction, and we affirm.

At trial, Officer Mark Edwalds of the Du Page County sheriff's department testified that on March 1, 1985, at approximately 3:22 a.m., he noticed defendant's car parked on the shoulder of Roosevelt Road near the East-West Tollway with its lights on. As Officer Edwalds approached the car, he noticed defendant sitting upright in the driver's seat with his head down. Defendant was asleep, the car was in park, and the key was in the on position, but the motor was not running. Officer Edwalds woke defendant by knocking on the window and asked to see defendant's driver's license. Edwalds noticed a strong odor of alcohol when defendant opened his window. As defendant was looking through his wallet, he said he was just taking his girlfriend home and was then going home himself. When Officer Edwalds pointed out that defendant was alone in the car, defendant responded that he must have already dropped his girlfriend off.

Edwalds then requested that defendant perform field sobriety tests. Defendant replied that he had only had a few beers and did not need the tests. When Edwalds insisted, defendant mocked the finger to nose test by touching various parts of his face with both hands. After being instructed in the proper procedure for the test, defendant twice hit the bridge of his nose with the base of his right index finger, touched his lips with his left index finger once, and finally touched the tip of his nose with his left index finger. Officer Edwalds then asked defendant to recite the alphabet, but after the letters A, B, C, defendant's response was slurred and unintelligible. Defendant then said the field tests were "bullshit" and demanded a blood test.

After defendant's performance on the alphabet test, Officer Edwalds advised defendant that he was under arrest for DUI and asked him if he would take a breathalyzer test, to which defendant agreed. Edwalds then tried to put handcuffs on defendant, but defendant resisted, stating that he would not be arrested and that he wanted to go to the Westchester, Illinois, police station (which is in Cook County) for a blood test. After several unsuccessful attempts to handcuff defendant, Edwalds called for assistance. While Edwalds was on the radio, defendant got back in his car and tried to start it. Edwalds told defendant to get back out, and when defendant did so, he staggered into the roadway.

Another officer arrived and defendant was finally handcuffed. He was then taken to the Lombard police station for a breathalyzer. Defendant was given the breath test and then was taken to the Du Page County jail, where he was interviewed by Officer Edwalds. Defendant admitted drinking beer earlier that evening and also stated that he had not eaten in two days. Sergeant Dillenkoffer of the Lombard police department testified that he administered the breathalyzer to defendant. He described his qualifications and the manner of testing. He stated that, according to the results of the test, defendant's blood-alcohol concentration was .10 at 4:16 a.m. on March 2, 1985.

Defendant testified as to his activities of March 1 and 2, 1985. He stated that he had nothing to eat during the day of March 1. In the evening he practiced with his band at a friend's house and then went to a tavern in Lyons, Illinois, where he had between one and five draft beers. He left the tavern at 12 midnight to take his girlfriend home. He arrived at her house between 12:30 and 12:45 a.m. and stayed there until 2 or 2:15 a.m. He then started for home but ran out of gas on Roosevelt Road, so he pulled over to the shoulder.

Defendant testified that no gas stations were open along that part of Roosevelt Road, so he decided to rest and wait until morning. He also testified that he was tired from a busy schedule that day and added that he had been in the hospital a week before for treatment of a concussion sustained in a fall. Although he was not taking medication that night, he testified to having headaches and back problems from the fall.

Defendant then testified to his version of the encounter with Officer Edwalds. He testified that he performed the field sobriety tests as requested, including walking a straight line. He also repeatedly requested a blood test. He described his arrest and the breathalyzer test. He stated that he had slept only four hours the previous night, and that he was not under the influence of alcohol the night he was arrested. After closing arguments, instructions were read to the jury without objection.

Defendant first argues that he was denied due process of law because of a variance between the complaint and the proof adduced at trial. The statute under which defendant was charged and convicted, ...


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