SUPREME COURT OF ILLINOIS
537 N.E.2d 756, 127 Ill. 2d 390, 130 Ill. Dec. 427 1989.IL.428
Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Du Page County, the Hon. Thomas Callum, Judge, presiding.
JUSTICE RYAN delivered the opinion of the court. WARD and CALVO, JJ., took no part in the consideration or decision of this case.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN
Following a jury trial in the circuit court of Du Page County, defendant, Henry M. Janik, was found guilty of leaving the scene of an accident involving a death (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-401(a)) and driving under the influence of alcohol (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501(a)(2)), but not guilty of driving under the influence of alcohol while blood-alcohol concentration was .10 or more (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501(a)(1)). He was sentenced to a one-year term of probation, with conditions, including 150 days in the Du Page County jail. The appellate court affirmed the conviction of driving under the influence of alcohol. (165 Ill. App. 3d 453.) The appellate court, with one Justice Dissenting on the leaving the scene of an accident charge, reversed and remanded for a new trial, holding that the trial Judge improperly refused to instruct the jury on the defense of necessity. We granted the State's petition to appeal from the appellate court's reversal. The defendant pro se simply filed the brief which he had filed in the appellate court, which raised both the leaving the scene charge and the DUI charge. We therefore consider both charges and affirm both convictions. We find that under no interpretation of the facts was a necessity defense available to the defendant, and that a reasonable doubt is not raised as to the sufficiency of the evidence supporting the DUI conviction.
On Sunday, December 30, 1984, between approximately noon and 6 p.m., defendant was at a bar watching football play-off games. Defendant testified that he was temporarily unemployed at the time and brought with him only $3 or $4. He claimed that during the afternoon he consumed five eight-ounce glasses of draft beer. Two witnesses who saw and talked to the defendant at the bar testified that there was nothing unusual in his behavior, and they did not believe he was under the influence of alcohol. Defendant left the bar at 6:15 p.m., and drove west on Army Trail Road, a four-lane highway. At approximately the same time, Deputy Sheriff Dean Wildermuth was parked on an eastbound lane of Army Trail Road, facing east. Deputy Wildermuth was gesturing to the victim, who was walking eastbound on the outer westbound lane of traffic towards his abandoned car, to get off the road. The victim instead walked towards him, crossing the inside lane of westbound traffic, where the defendant's vehicle struck him.
The defendant's car hit the victim with such impact that the car's windshield shattered, leaving a hole on the right passenger side. The victim's tied tennis shoes were knocked off and his wallet and a glove apparently flew through the hole in the windshield and were later found in the front passenger seat of defendant's car. The defendant did not stop his vehicle. He testified that he felt an explosion and saw that his windshield was shattered, but he did not observe a person in the street. He thought something had been thrown at him and that he should immediately leave there and go home to call the police. The defendant lived four blocks away and arrived home less than a minute later.
Officer Steven Gabriel of the Village of Carol Stream's police department observed the accident from a nearby parking lot. He testified that the weather was cold, clear and dry. The scene of the accident was a dark rural area, but there were streetlights at the intersections on either side of the accident, the nearest lights being approximately 300 feet from the scene, and there was additional lighting from a shopping center located at the east intersection. Neither before nor after the impact did defendant's car swerve or take evasive action, nor did his brake lights appear to go on. The speed limit was 55 miles per hour, and the officer testified he could not determine whether the car was speeding. He did state, however, that defendant was not driving erratically.
After the accident, Deputy Wildermuth activated his overhead lights, made a U-turn and pursued the defendant. When he started, the defendant was 600 to 800 feet ahead and was 100 to 200 feet ahead when defendant pulled into his driveway. Defendant testified that he had not noticed Wildermuth parked on Army Trail Road, nor did he notice any emergency lights behind him on his way home. As defendant pulled into his driveway, his wife saw the smashed windshield and, when she went outside, she observed the defendant was pale and visibly shaken. She did not smell an odor of alcohol and she did not think he was intoxicated. Defendant told her someone had thrown something at the windshield and they had to call the police. Moments later, Wildermuth pulled into the driveway. He noticed that defendant was in a state of mild shock and asked defendant if he knew what he had struck. Defendant replied that he thought it was a mailbox, whereupon Wildermuth informed him it was a pedestrian.
Deputy Wildermuth recovered the victim's glove and wallet from the front passenger seat. Wildermuth noticed the vehicle had heavy right side damage to the hood, headlight assembly and windshield. He also testified that he did not observe the defendant driving erratically, and he had no opinion one way or the other on whether the defendant was under the influence of alcohol.
Wildermuth returned the defendant to the scene of the accident, where arresting officer Carol Lussky, of the Village of Hanover Park's police department, spoke with the defendant in her car. The officers testified defendant had no difficulty moving from one vehicle to the other. Officer Lussky asked the defendant whether he knew what had happened. He responded that he had seen something in the roadway, swerved to avoid it, but hit it anyway. When asked what he thought he hit, defendant said he thought it was a mailbox. Lussky detected a moderate odor of alcohol during the conversation and asked the defendant if he had been drinking. Defendant admitted he had been drinking at a tavern down the road. Lussky then advised the defendant he was under arrest for driving while under the influence of alcohol.
Officer Lussky administered two field sobriety tests, the heel-to-toe test and the finger-to-nose test. These were performed at the scene of the accident in front of an ambulance and next to the officer's car, both of which had their emergency lights activated. The defendant stated that the lights were at eye level and that he was in a state of shock when performing the tests. In performing the heel-to-toe test, defendant stepped from the line twice to regain his balance and in turning, wavered and was slow in making his turn. During the finger-to-nose test, defendant touched the bridge of his nose with one hand and his upper lip with the other. Officer Lussky testified that she believed the defendant was intoxicated. She based this opinion on the performance of the tests, her years of experience as an officer in stopping drivers suspected of being under the influence of alcohol and her observations and conversations with the defendant. In addition to the odor of alcohol on the defendant, he admitted to the officer that he spent the afternoon in a bar drinking and she noticed his eyes were watery. Also important to the officer were the facts that he had been involved in an accident with a pedestrian, yet even after being advised of this, the defendant claimed to have hit a mailbox, and that he had no knowledge of the victim's wallet or glove recovered from his car.
Defendant was then taken to a hospital where he voluntarily submitted to a blood test, expressing his belief that he was not under the influence of alcohol. During this time the defendant's speech was clear and coherent, and throughout the evening he was polite and cooperative. The blood samples were taken at approximately 8:20 p.m. At trial, Veronica Rotterman, a chemist employed by the State of Illinois Department of Public Health, testified as an expert witness to the alcohol concentration of defendant's blood. She stated that based on the ...