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11/10/88 the People of the State of v. Billy J. Sanders

November 10, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

BILLY J. SANDERS, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

531 N.E.2d 61, 176 Ill. App. 3d 467, 125 Ill. Dec. 882 1988.IL.1637

Appeal from the Circuit Court of McLean County; the Hon. Joseph H. Kelley, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. GREEN, P.J., and McCULLOUGH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

On February 13, 1988, defendant Billy J. Sanders was charged with the offense of driving under the influence of alcohol in violation of section 11-501 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501). On March 31, 1988, the circuit court of McLean County found the arresting officer did not have reasonable grounds to believe the defendant was driving under the influence of alcohol and rescinded the suspension of defendant's driver's license. The State appeals. We reverse.

On February 13, 1988, following a one-vehicle accident, defendant was charged with the offenses of DUI, leaving the scene of an accident, failure to report a motor vehicle accident to police, and failure to comply with the Illinois Vehicle Code. (Ill. Rev. Stat. 1987, ch. 95 1/2, pars. 11-501, 11-401, 11-402, 3-833.) Defendant refused to give a blood sample after being asked to by the arresting officer and, thusly, received a six-month summary suspension of his driver's license. (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 6-208.1.) On February 29, defendant filed a petition to have the suspension rescinded. A hearing was conducted on March 31, 1988.

Defendant's first witness was the arresting officer, Deputy Daniel Fever, of the McLean County sheriff's department. On February 13, Fever received a radio dispatch advising him of a one-vehicle accident where open alcohol was found in the car. He went to the hospital to speak with defendant, the driver. Upon entering the hospital room with defendant, he noticed a strong odor of an alcoholic beverage which grew stronger the closer he got to defendant. Defendant advised him he had fallen asleep behind the wheel and had run off the road. Defendant admitted drinking a couple of beers and stated he had no idea where the car was located.

Defendant's speech was slurred and thick-tongued. His eyes were bloodshot and glassy. Defendant was argumentative, at times not answering questions. He was also subject to severe mood swings. Defendant repeatedly stated he did not want to be at the hospital and only wanted to go home to sleep. Defendant had received no medication at this point. Defendant complained of chest pains, but no injuries were visible. It was Fever's opinion that defendant was definitely under the influence of alcohol. He based this on his observations and his experience of over 100 DUI arrests. Fever placed defendant under arrest for DUI and asked for a blood sample, which defendant refused to give.

Defendant's wife, Rebecca Sanders, testified that on the evening of February 13, defendant came home staggering. He was holding his stomach and slumped over a chair, crying. Defendant would not respond to questions. While she was arranging for child care so she could take defendant to the hospital, he fell down the steps and was unconscious in the backyard. Defendant complained of pains in his chest and stomach and continued to cry. She could see no visible injuries.

At the hospital, he refused any treatment. Defendant's conduct was out of control. When the nurse asked to draw blood, he refused to comply, stating he did not want to get AIDS. Rebecca had seen defendant under the influence of alcohol before, and it was now her opinion that he was not so at that time.

Louis Wittley, defendant's brother-in-law, was at the hospital with defendant. He could tell defendant had been drinking. Also, defendant told him he had a few beers.

Defendant testified he did not remember being in the hospital on February 13. The first thing he remembered was waking up in the hospital on February 14. This concluded defendant's evidence.

Richard Sutton, a neighbor of defendant's, testifying for the State, said that on February 13, he observed defendant's vehicle in a ditch with defendant behind the wheel, passed out. He woke defendant and took him home. At no time did he notice an odor of alcohol. When asked if he could tell if defendant had been ...


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