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04/28/88 the People of the State of v. Terrance M. Stice

April 28, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

TERRANCE M. STICE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

523 N.E.2d 1054, 168 Ill. App. 3d 662, 120 Ill. Dec. 143 1988.IL.614

Appeal from the Circuit Court of Adams County; the Hon. Mark A. Schuering, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

On September 21, 1987, in the circuit court of Adams County, defendant Terrance Stice was found guilty at a bench trial of the offense of driving under the influence of alcohol in violation of section 11-501 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501) and was placed on a one-year period of court supervision with a fine of $200. Defendant appeals.

On June 27, 1987, defendant was placed under arrest for DUI and took a breath test, with the result being 0.17. Accordingly, he received a statutory summary suspension of three months. (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.1.) On July 21, 1987, he filed a petition asking the suspension be rescinded.

A hearing was conducted on August 11, 1987. The court found there was not enough evidence to show the officer had reasonable grounds to believe defendant was under the influence of alcohol at the time of the arrest, and rescinded the suspension. The State did not appeal.

On August 13, 1987, defendant filed a motion to dismiss alleging the State was collaterally estopped from relitigating the issue of probable cause for the arrest of defendant. The motion was denied.

A bench trial was conducted on September 21, 1987. Ron Burgess, a police officer with the city of Quincy, was the lone witness. He testified he was on duty on June 27, 1987, when he was advised by a motorist that a truck was being operated erratically, and the motorist believed the driver was under the influence of alcohol. Burgess did not know the motorist nor did he get his name. After the motorist pointed out the truck, Burgess began to follow it.

As he followed the vehicle, it drifted in its lane, and on several occasions, its left rear wheel crossed the center line. Burgess stopped the vehicle, and defendant was the driver. Burgess observed an odor of alcohol on defendant's breath. He, therefore, had defendant exit the car, and he conducted four field-sobriety tests. Defendant satisfactorily performed on the finger-to-nose test and on the standing-on-one-foot test. He failed the walking heel-to-toe test and the recite-the-alphabet test. At this point, Burgess believed defendant was under the influence of alcohol and placed him under arrest. Burgess transported defendant to the police station, where a breath test was administered with a result of 0.17.

On cross-examination, Burgess testified he stopped defendant at 10:50 p.m. and administered the breath test at 11:18 p.m. He maintained he observed defendant at the police department for the required 20-minute interval prior to administering the test.

The court found the defendant guilty, explaining the testimony at the trial filled in gaps that were present at the rescission hearing. Defendant was placed on court supervision for a period of one year and ordered to pay a fine of $200. This appeal followed.

Defendant contends the court erred in denying his motion to dismiss. While the document is entitled "Motion to Dismiss," it is not artfully drawn. A review of its contents establishes that defendant was asserting the impropriety of his arrest because the officer lacked probable cause for the arrest. The proper forum for raising a lack of probable cause is a motion to suppress evidence pursuant to section 114-12 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. ...


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