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05/26/88 the People of the State of v. James D. Foster

May 26, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

JAMES D. FOSTER, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

524 N.E.2d 681, 170 Ill. App. 3d 306, 120 Ill. Dec. 651 1988.IL.840

Appeal from the Circuit Court of Du Page County; the Hon. Thomas E. Callum, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. LINDBERG, P.J., and DUNN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

The State has appealed contending that the trial Judge erred in suppressing the results of a breathalyzer test. We reverse.

Defendant was arrested for driving while under the influence of alcohol in violation of sections 11-501(a)(1) and (a)(2) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1985, ch. 95 1/2, pars. 11-501(a)(1), (a)(2)). Defendant has not responded to the State's brief in this court. We will therefore consider the only issue presented under the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

On January 27, 1987, defendant filed a motion to suppress the results of a breathalyzer test, arguing that since his arrest was on private property, he should not have been read the warning to motorist, and the fact that he was given that warning rendered the test involuntary.

At the hearing on the motion, defendant testified on direct examination that on September 12, 1986, he was on a private access road that ran between West Avenue and Route 83, across the property of the Elmhurst-Chicago Stone Company in Elmhurst, Illinois. Defendant is employed by Elmhurst-Chicago Stone Company.

Defendant was involved in a vehicular collision on that road and was taken by the Elmhurst police to the police station. He was given certain warnings, including the statement that if he did not take the breathalyzer test, his driver's license would be suspended for six months. He stated that he would not have taken the test if he had not been given the warnings.

On cross-examination, defendant testified that the collision had taken place at about 9:35 p.m. on September 12, 1987. Just prior to the accident defendant had been at a restaurant and had travelled on West Avenue, a public highway, to get from the restaurant to the stone quarry property. The accident occurred immediately after the defendant had proceeded to the access road. The private road has only two entrance and exit points, Route 83 and West Avenue. Defendant took the breathalyzer after the warnings were read to him. On redirect examination, defense counsel asked defendant if he had been drinking on the property. Defendant responded that in fact he had been drinking at "Leo's," the restaurant he had mentioned earlier.

The State called Paul Carney, a police officer for the City of Elmhurst. At 9:34 p.m. on September 12, 1987, he was dispatched to the scene of an accident on the access road to the stone quarry, between Route 83 and West Avenue.

Upon arriving at the scene, Officer Carney observed two vehicles, a blue Oldsmobile and a white pickup truck. Defendant's vehicle was on the north side of the road, and the other vehicle was on the south side of the road about 150 yards east of defendant's vehicle. The officer stated that the road on which he observed the vehicles is private property. The officer testified that there are only two means of access to this private road, one from Route 83 and one from West Avenue.

Officer Carney had a conversation with defendant within a minute or two of arriving at the scene. Defendant told the officer that the blue Oldsmobile was his (defendant's) and that he was driving west-bound on the road when the truck swerved and hit his car. Defendant was arrested ...


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