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12/23/87 the People of the State of v. Phyllis L. Doty

December 23, 1987





517 N.E.2d 338, 164 Ill. App. 3d 53, 115 Ill. Dec. 136 1987.IL.1916

Appeal from the Circuit Court of Mason County; the Hon. Arthur L. Strong, Judge, presiding.


JUSTICE LUND delivered the opinion of the court. KNECHT and SPITZ, JJ., concur.


On April 17, 1987, Phyllis L. Doty was charged with driving under the influence of alcohol in violation of section 11-501(a) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat., 1986 Supp., ch. 95 1/2, par. 11-501(a)). Her driver's license was summarily suspended pursuant to the provisions of section 11-501.1 of the Code. (Ill. Rev. Stat., 1986 Supp., ch. 95 1/2, par. 11-501.1.) The trial court granted defendant's motion to rescind her statutory suspension on July 7, 1987, finding no warning or request was given as required by section 11-501.1(c). (Ill. Rev. Stat., 1986 Supp., ch. 95 1/2, par. 11-501.1(c).) The State appeals. We reverse.

The record in this case does not contain a verbatim transcript of proceedings. The parties have obtained a bystander's report. (107 Ill. 2d R. 323(c).) That report summarizes the facts as follows: defendant testified she was driving her car in Havana, Illinois, early in the morning on April 17, 1987. At 1:43 a.m., she turned right onto Schrader Street from Market Street. She saw a Havana police car follow her, and she pumped her brakes for the next several blocks, as they had been repaired recently and she was attempting to "bleed" them. After six or seven blocks, she was stopped at the intersection of Schrader and Pearl. Officer Lance Marshall approached, inquired if defendant had car trouble, and asked defendant to exit her car. During the conversation that ensued, defendant told Marshall she was not under the influence and that she was not going to be arrested for DUI. He did not place her under arrest or tell her she was under arrest. Officer Marshall told her to lock her car, which contained two occupants. She returned to her car, retrieved her purse, and walked from the scene to a nearby friend's or relative's house. She saw no police officers for several days thereafter.

Officer Lance Marshall of the Havana police department testified that he and Officer Rod Boggs were stopped at the intersection of Schrader and Market when Marshall observed defendant make a right turn, in which she nearly struck the squad car. He and Boggs turned around and saw defendant's car drive off the road several times. After stopping defendant at the intersection of Schrader and Pearl, Marshall asked defendant to exit her car. He asked defendant to perform field sobriety tests, but she refused, saying she had previously broken her leg and could not stand on one foot.

Marshall testified he told defendant to lock her car, although during the hearing he acknowledged there were occupants inside the car. Defendant went to her car, then ran from the scene despite Marshall's shouts for her to stop. Neither Marshall nor Boggs pursued defendant.

Marshall stated he was going to arrest the defendant, but after refreshing his recollection with a copy of his police report, he stated he had told defendant, "[You] are under arrest." Marshall testified he had not completed the DUI procedure by issuing a warning or making a request to submit to testing. Testing was not mentioned during the conversation with defendant prior to her flight. He testified defendant was not free to leave. He stated he did not give defendant any warnings because she left before he could do so.

Officer Rod Boggs, the driver of the police car, corroborated Marshall's testimony relating to defendant's erratic driving. He stated defendant fled on foot toward the Mason County housing project. He did not hear Marshall shout at defendant to stop. Boggs stated he was an observer, not the primary arresting officer.

The trial court found that Marshall had probable cause to stop defendant and arrest her for driving under the influence. The court also found Marshall did place defendant under arrest, and that after her arrest, defendant left without the permission of the arresting officer or any other officer. Insofar as the credibility of the witnesses was concerned, the court believed the testimony of the officer. The court also found no implied-consent warnings were read to defendant, and she was not requested to take a chemical test.

The trial court adhered to a strict construction of the implied-consent statute and ruled since no warnings or requests were issued, the statutory requirements were not met. The court rescinded defendant's statutory summary suspension. This appeal followed.

The State argues the purpose of the statutory summary suspension statute is frustrated by defendant's flight from the scene, and the suspension should not be rescinded because Officer Marshall had no opportunity to complete the statutory procedure. The defendant agrees with the strict ...

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