APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
522 N.E.2d 892, 168 Ill. App. 3d 643, 119 Ill. Dec. 230 1988.IL.613
Appeal from the Circuit Court of Du Page County; the Hon. Margaret O. Coffin, Judge, presiding.
JUSTICE NASH delivered the opinion of the court. UNVERZAGT and REINHARD, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH
Defendant, Donald Leahy, appeals from his conviction, after jury trial, of driving under the influence of alcohol in violation of section 11-501(a)(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501(a)(2)) for which he was placed on probation for one year, fined $250, and ordered to attend DUI school. Defendant contends that the trial court improperly prevented him from presenting certain expert testimony, and the State failed to prove him guilty beyond a reasonable doubt.
Officer Tannahill (Tannahill) testified that at 11:40 p.m., on February 27, 1986, he observed defendant in his vehicle proceeding southbound on Cass Avenue, in Westmont. Tannahill observed defendant stopped at a red light with his car straddling a white line separating the two southbound lanes. When the light turned green, the officer followed defendant for about five blocks during which time defendant weaved toward the curb about six times, almost striking the curb. Tannahill pulled defendant's car over to the side of the road, and when defendant rolled down his window, Tannahill detected the odor of alcohol on defendant's breath and noticed that his eyes were bloodshot, watery, and swollen. Defendant required two to three minutes to find his driver's license, his clothes were wrinkled and off-center, his speech was slurred, mumbled, and almost unintelligible, according to the officer. While exiting the car, defendant used the car door as a prop. Tannahill also testified that defendant swayed attempting to balance himself during the heel-to-toe walking/turning test. Defendant could not walk a straight line and completely missed touching his fingers to the tip of his nose. Tannahill also indicated that defendant's legs were wobbly, and he had to explain to the defendant several times how to perform the tests. Tannahill opined that defendant was under the influence of alcohol.
At the police station, defendant was allowed to telephone his wife and attorney, and when Tannahill then requested him to take the breathalyzer test, defendant refused, indicating that his lawyer advised him not to do so if he felt he could not pass it. Defendant mentioned to Tannahill that he was diabetic but denied needing medical attention. Tannahill did not remember defendant asking him for sugar, and the officer was not allowed to testify regarding his opinion of the effects of diabetes.
For the defense, Wayne Muhs, the general manager of Suburbanite Bowl in Westmont, testified that from 6 to 7 p.m. on February 27, 1986, he met with defendant and others to discuss the sale of the business. Muhs, defendant, and others left the bowling alley to have dinner, where defendant consumed one cocktail. Later, when they returned to the bowling alley, Muhs observed defendant drinking a beer. When Muhs arrived at the police department after defendant's arrest, he noticed defendant's eyes were glassy and bloodshot and his speech was slurred. Muhs, however, did not believe that defendant was under the influence of alcohol but was exhibiting symptoms of diabetes.
Defendant's wife, Hazel Leahy, testified that defendant had been diabetic since he was eight years old. In her opinion, defendant was not under the influence of alcohol on February 27, 1986, and she thought defendant was having a reaction induced by diabetes. According to Mrs. Leahy, defendant has a grey tinge to his skin and perspires during diabetic reactions. Once at home, defendant drank orange juice, and his color returned.
Defendant testified that during the evening of February 27, 1986, he consumed a gin and tonic and a beer. As he was driving on Cass Avenue, defendant saw a police car pull over another car farther south on the road, and he went outside his lane in order to pass the vehicles. Defendant also stated that he was able to touch his nose during testing and that after the arrest, he asked for sugar, but was refused because it might influence the results of the breathalyzer test.
At a conference held on Friday, August 8, 1986, prior to trial, the court ruled that defendant's expert witness, an alcohol evaluator, would not be allowed to testify as to the effects of diabetes on an individual because the witness was not a physician nor qualified to speak on the subject matter. Defendant declined to make an offer of proof and asked that the question be reserved.
At trial, defendant made an offer of proof regarding the qualifications of his expert, Linda Savage, who was a State-approved alcohol and substance abuse counselor, and prepared written evaluations used by the Secretary of State and other State agencies. Defendant's offer of proof by his counsel revealed that Savage had two years of training as an alcohol and substance abuse counselor, and held a master's degree. Defense counsel did not recall the nature of Savage's master's degree, nor did he detail Savage's work experience. Based on her interview with defendant and his history, Savage would testify that defendant was having an insulin reaction at the time of his arrest; that symptoms of an insulin reaction are similar to the effects of intoxication; and a diabetic having an insulin reaction will smell of alcohol even if he has not been drinking. Savage would further testify that, based on her review of a written report by Dr. Libert on April 5, 1986, defendant was an uncontrolled diabetic, and that a report by Floyd Misner, O.D., in January 1984, revealed that defendant had conjunctivitis which produced bloodshot eyes, and a dry eye condition caused by defendant's diabetes. The record is not clear whether Savage's proposed testimony relating to the medical reports would be based on her own independent Conclusions or represented the Conclusions of Dr. Libert and Floyd Misner. The court ruled that Savage was not qualified to testify on the effects of diabetes on an individual because she was not a physician and noted that defendant was free to present the testimony of a qualified medical expert.
Defendant and the State both rested, and, after an in-chambers meeting, defense counsel moved to reopen his direct examination of defendant. After brief further examination, both sides again rested, and the court advised the jury that, in view of the ...