APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
529 N.E.2d 800, 175 Ill. App. 3d 272, 124 Ill. Dec. 819 1988.IL.1506
Appeal from the Circuit Court of Du Page County; the Hon. Ronald B. Mehling, Judge, presiding.
JUSTICE UNVERZAGT delivered the opinion of court. LINDBERG, P.J., and WOODWARD, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT
The defendant, Jeffrey A. Schuld, driving a friend's pickup truck on Lake Street near Rodenburg Road in Roselle and accompanied by a sleeping passenger, Kenneth Kennedy, at 4:30 a.m., struck a Commonwealth Edison power pole which was located approximately eight feet off the side of the road. As a result of the impact, the windshield in front of the defendant was "spider-webbed" and he received a cut on his upper lip. The windshield in front of Kennedy was broken; he received a cut on his chin and was knocked unconscious. The defendant subsequently was charged, in the circuit court of Du Page County, with driving while under the influence of alcohol, driving with a breath-alcohol concentration in excess of .10, improper lane usage, and driving without wearing a seat belt.
He was convicted by a jury of driving under the influence of alcohol (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501(a)(2)) but was acquitted on the charge of driving with a breath-alcohol concentration in excess of .10 (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501(a)(1)). The other two charges were nolle prossed before trial. Defendant's post-trial motions to vacate the judgment and for a new trial were denied.
The defendant raises these issues:
1. Whether the State proved he was intoxicated at the time he was driving.
2. Whether he was denied a fair trial where a juror failed to disclose during voir dire that her son had become intoxicated and committed suicide.
3. Whether he was deprived of his right to due process and a fair trial because the court refused to grant a continuance of the trial.
4. Whether he should have been advised of his Miranda rights prior to answering any questions at the scene of the accident.
5. Whether the jury's verdicts are legally inconsistent.
6. Whether the court erred when it refused to vacate its order denying a rescission of the statutory summary suspension of his driver's license.
Officer Lee testified that on September 6, 1986, at about 4:40 a.m., he responded to the scene of an accident on Lake Street near Rodenburg Road. He arrived at the scene two to four minutes after he was dispatched. He saw a pickup truck partially off the roadway with damage to its right front area and the windshield on both the driver's and passenger's sides. There was a broken-off power pole near the pickup truck, along with glass and plastic debris from the pickup truck. There were wood splinters in the damaged area of the truck. There were no skid marks and no obstructions in the road, but there were tire rotation marks leading from the collapsed, damaged right front wheel to the resting point of the vehicle. The right rear tire was flat, and it had scuff marks on the inner side wall indicating after-accident deflation caused by rotation of the vehicle. There was a person in the passenger seat of the pickup; another person, identified as the defendant, was standing outside the vehicle attending to the passenger. Officer Lee asked the defendant if he was okay, and the defendant replied that he was, but that he was worried about his passenger. There was a small cut on the defendant's upper lip, and the officer brushed glass splinters from the defendant's hair. The officer was within one foot of the defendant when he smelled a strong odor of alcohol on the defendant's breath and noticed that his speech was slurred. Officer Lee asked the defendant who the driver was. Defendant replied, "I was."
Officer Lee then asked the defendant to perform a series of field sobriety tests, the second being a finger-to-nose test. After instructing the defendant and demonstrating to him the manner in which the test was to be completed, the defendant failed to touch the tip of his nose with either his right or left index finger, but, rather, touched underneath his nose and his lip. The defendant was then requested to complete a one-legged stand test. Again, Officer Lee instructed the defendant how to perform the test and the defendant responded affirmatively that he understood. While performing this test, Officer Lee observed the defendant sway and use his arms to balance himself. Twice during this 30-second test, the defendant placed his foot on the ground. Finally, Officer Lee instructed the defendant how to perform a walk-and-turn test on a straight line. Twice during this test the defendant stepped off the fog line on the road to which he was supposed to be adhering. The defendant swayed and used his arms for balance.
Following these tests, the defendant was placed under arrest for driving under the influence of alcohol and taken to the Roselle police station. There, the defendant submitted to a breath test after the mandatory 20-minute waiting period, during which time he was closely observed. The defendant's breath-alcohol concentration was measured as .13 by the Intoxilyzer 5000 machine. The defendant was placed under arrest for driving under the influence of alcohol, and, after reading the defendant the Miranda warnings, Officer Lee asked him if he had been drinking. The defendant responded that he had been ...