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12/03/87 the People of the State of v. Floyd D. Barlow

December 3, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

FLOYD D. BARLOW, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

516 N.E.2d 982, 163 Ill. App. 3d 281, 114 Ill. Dec. 827 1987.IL.1786

Appeal from the Circuit Court of Effingham County; the Hon. Richard C. Hodson, Judge, presiding.

APPELLATE Judges:

JUSTICE HARRISON delivered the opinion of the court. WELCH, J., concurs. PRESIDING JUSTICE KARNS, P.J., Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

The State appeals from an order of the circuit court of Effingham County rescinding the summary suspension of the driver's license of defendant, Floyd Barlow, after an implied consent hearing. The State contends the court erred in finding police did not have reasonable grounds to believe defendant was in actual physical control of his vehicle while under the influence of alcohol. We reverse and remand with directions.

Defendant was issued a traffic ticket on July 13, 1986, for driving while under the influence of alcohol. On August 4, 1986, he requested an implied consent hearing, which was held on August 20, 1986. Also on that date, defendant was charged by information with driving under the influence of alcohol.

The evidence at the implied consent hearing showed that at approximately 12:20 a.m. on July 13, 1986, Illinois State trooper Mary Rhodes received a report from police headquarters that a subject was slumped over the steering wheel of a vehicle in the Village of Dieterich. Trooper Rhodes subsequently located a pickup truck along-side the road. She testified the vehicle was legally parked. She went to the truck and opened the driver's door. Defendant was sitting in the driver's seat "slumped back" with his eyes closed and an open can of beer on his lap. The keys were in the ignition but the engine was not running. Trooper Rhodes shook defendant to get his attention, then told him she needed to see his driver's license. Defendant complied, although he fumbled as he reached for it and "it took him a while." The trooper could smell a strong odor of alcohol on his breath, and testified defendant "was sitting there in a stupor." Trooper Rhodes took defendant's license and the beer can back to her squad car to run a radio check of defendant's license. While she was in the squad car, defendant started the engine of his truck. Trooper Rhodes went to the truck and told defendant to turn off the engine and to come to her squad car. Defendant staggered as he walked to the squad car. His speech was slurred. Trooper Rhodes told defendant he was being arrested for driving while under the influence and she informed defendant of his rights regarding a breath test. Defendant stated he would take the test. Trooper Rhodes then took defendant to the Effingham County jail, where the breath test is performed. On the way there, defendant took some chewing tobacco from his pocket. Trooper Rhodes told defendant if he placed the chewing tobacco in his mouth it would constitute a refusal to take the breath test. Defendant said, "I don't care, I want to chew." He then placed the chewing tobacco in his mouth. Trooper Rhodes testified she then "wrote him a refusal." At the jail, defendant stated he wanted to take the breath test, but Trooper Rhodes told him his actions had indicated a refusal.

Defendant testified that he was asleep in his truck in a parking place along Main Street about three blocks from his home when Trooper Rhodes shined a light in his truck. This startled him. She asked him for his keys and he gave them to her. She then asked for his driver's license and he complied. Trooper Rhodes then told defendant to get out of the truck and come back to her squad car. Referring to testimony of Trooper Rhodes that defendant staggered when he walked, defendant testified, "I have a little arthritis I guess you would say, and when I sit for a period of time, my legs take a while -- I have to walk a ways before I can get limbered up." In the squad car, Trooper Rhodes advised defendant he was being arrested for driving while intoxicated and asked if he wanted to take the breath test. He told her he wanted to take the test. Defendant testified he was chewing tobacco when Trooper Rhodes first approached the truck, and that sometimes he sleeps with tobacco in his mouth. On the way to the jail, defendant was in the process of taking another chew when Trooper Rhodes said, "Don't put that in your mouth." According to defendant, he already had the tobacco in his mouth by the time Trooper Rhodes finished her warning. After the tobacco was in his mouth, Trooper Rhodes told him he had just refused to take the test. Defendant responded by saying, "Why, I didn't refuse to take no test." Trooper Rhodes told him he had refused by his actions. Defendant further testified that he does not recall starting the engine of the truck after Trooper Rhodes arrived. He admitted he had been drinking at a tavern prior to falling asleep in the truck and stated he had been asleep approximately one hour before Trooper Rhodes arrived.

The only other witness at the hearing was John Ashbaugh, a corrections officer with the Effingham County sheriff's department who was at the jail when Trooper Rhodes brought defendant there. Ashbaugh testified that defendant asked Trooper Rhodes more than once to give him a breath test, and that the trooper told defendant he had refused by placing the tobacco in his mouth. Defendant also asked Ashbaugh more than once if he could take the test. Ashbaugh further testified defendant was walking "kind of slow," his breath smelled of alcohol, and his speech was "slow and low."

The trial court first concluded that defendant was placed under arrest for driving while under the influence of alcohol. The court then stated in its order:

"The arresting officer did not have reasonable grounds to believe the Defendant was driving or was in actual physical control of a motor vehicle while under the influence of alcohol or other drug.

The most the evidence shows is that the officer had a dispatch of a subject being slumped over the steering wheel, the vehicle being parked legally in a public area, and no other violations whatsoever being ...


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