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05/25/89 the People of the State of v. Clifford W. Allcorn

May 25, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

CLIFFORD W. ALLCORN, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

539 N.E.2d 813, 183 Ill. App. 3d 431, 132 Ill. Dec. 250 1989.IL.804

Appeal from the Circuit Court of Du Page County; the Hon. Donald J. Hennessy, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE UNVERZAGT delivered the opinion of the court. INGLIS and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

The State appeals from a judgment of the circuit court of Du Page County which granted the defendant's petition for rescission of the statutory summary suspension of his driving privileges, pursuant to section 2-118.1 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 2-118.1). The State contends that the trial court impermissibly considered the defendant's state of mind in finding no reasonable grounds for the arrest and that the trial court improperly based its order for rescission on its determination that the arresting officer should have attended to an existing medical emergency prior to processing the defendant's arrest. We do not believe the trial court's findings regarding reasonable grounds were against the manifest weight of the evidence and therefore affirm its judgment.

The defendant has not filed a brief in this matter; however, where the record is simple and the issues capable of easy resolution, a reviewing court may decide the merits of such an appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 131-33.

The defendant was arrested at 5:42 a.m., March 26, 1988, by an Elmhurst police officer and charged with driving under the influence of alcohol in violation of section 11-501(a)(1) of the Code (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501(a)(1)). He refused to submit to a breathalyzer test at the police station, and, on the basis of his refusal, the arresting officer prepared a law enforcement sworn report and served notice upon the defendant of the summary suspension of his driving privileges pursuant to section 11-501.1 of the Code. (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501.1.) The defendant timely requested a summary suspension hearing at which he presented his own testimony and that of the arresting officer. The following facts were adduced at the hearing.

The defendant was transporting his fiancee, who had injured her mouth and teeth, to the dentist and was traveling eastbound on North Avenue in Elmhurst when he observed two police squad cars leaving a parking lot. He pulled over into the right-hand eastbound lane and signaled to one of the police cars to stop. Officer Steven Weatherford of the Elmhurst police pulled in front of the defendant's automobile and met the defendant between the cars. The defendant was extremely agitated and reported to Officer Weatherford that he had a medical emergency. The officer observed the defendant to have red, bloodshot eyes and a strong odor of alcoholic beverage about his person and so proceeded to require the defendant to submit to field sobriety tests. The defendant performed them rapidly, not waiting for complete instructions on each test, and was unable to perform the one-leg balancing test. Officer Weatherford arrested the defendant for driving under the influence of alcohol and transported him to the Elmhurst police station, while another police officer escorted the defendant's fiancee to the dentist's office.

The defendant testified that he had had two wine spritzers with dinner at approximately 8 p.m. the preceding evening and one-half to three-fourths of a scotch and water sometime shortly before the incident. He stated that he and his fiancee were preparing to get into a hot tub in the early morning hours when she tripped and fell, injuring her teeth. The defendant said he attempted to assist his fiancee, then contacted the dentist and proceeded to take his fiancee to the dentist's office for emergency medical attention. He testified that he was travelling approximately 35 miles per hour when he saw the two squad cars and signaled them to stop. He stated that he explained to the police officer that there was a medical emergency and the police officer asked him if he was a doctor. The defendant testified that when he said he was not a doctor, the police officer allegedly told him that he would decide who had a medical emergency. The defendant stated he was extremely agitated and became more and more upset as the police officer administered the field sobriety tests. He stated that he told the police officer he could not stand on his left leg due to prior injuries and continuously insisted that his fiancee be taken care of first. When asked by the State's Attorney whether he had indicated to the officer that he had four or five scotches that evening, the defendant replied, "No. That is only half of what I told him. I said, 'Whether it's four or five scotches or fifty or sixty scotches, I don't have time for this.'" While the exchange between the defendant and Officer Weatherford continued, the defendant's fiancee remained seated in the car. The defendant testified that she continued to bleed from the mouth, while Officer Weatherford stated he observed blood on the woman's pant leg but did not see her actually bleeding at the time.

Officer Weatherford testified that he observed the defendant's car proceeding eastbound on North Avenue at a high rate of speed. Although he did not have a radar device, he estimated the speed to be approximately 60 miles per hour. The officer stated that defendant's car passed him as he was exiting a parking lot. He said the defendant then pulled over in a lane of traffic and signaled for him to stop. Upon exiting the vehicle, Officer Weatherford met the defendant and noticed a strong odor of alcoholic beverage on the defendant's breath. He also observed that the defendant's eyes were glassy and bloodshot and that he had blurred speech. Weatherford further reported that the defendant had difficulty in removing his driver's license from his wallet. The officer testified that the defendant told him there was a medical emergency but did not recall what he said to the defendant in response. He further stated that he spoke to the woman in the defendant's car to ask if she was alright and received a positive response. Officer Weatherford then proceeded to administer field sobriety tests and asked the defendant whether he had had anything to drink. He reported that the defendant was unable to perform the heel-to-toe test and swayed while attempting to perform the one-leg stand. He further stated that the defendant told him he had had four or five scotches. Officer Weatherford testified that he was of the opinion at that time that the defendant was intoxicated based upon his observations, including the rate of speed at which the defendant's vehicle had been traveling.

On cross-examination, Officer Weatherford admitted that during emergencies he had operated a vehicle in excess of the speed limit; he further admitted that, under such circumstances, his speeding did not indicate that he was under the influence of alcohol at that time. The officer could not recall whether the defendant had told him about previous injuries to his left leg. He also admitted that the defendant was able to understand all of his instructions with regard to the field sobriety tests.

During further cross-examination, Officer Weatherford admitted that the defendant continued to insist there was a medical emergency he was attending to and that the emergency appeared to be the defendant's primary consideration. The officer failed to ask the defendant whether he wore contacts, how much sleep he had and whether he had had eye defects or injuries recently and ...


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