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12/15/89 the People of the State of v. David P. Giere

December 15, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DAVID P. GIERE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

548 N.E.2d 1104, 192 Ill. App. 3d 520, 139 Ill. Dec. 548 1989.IL.1952

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

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. UNVERZAGT, P.J., and INGLIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Defendant, David P. Giere, was charged by indictment in the circuit court of Du Page County with one count of reckless homicide (Ill. Rev. Stat. 1987, ch. 38, par. 9-3) and one count of driving while under the influence of alcohol (Ill. Rev. Stat., 1986 Supp., ch. 95 1/2, par. 11-501(e)). Following the dismissal of the DUI count prior to trial, defendant was found guilty in a jury trial of reckless homicide and was sentenced to a two-year term of imprisonment.

On appeal, defendant raises four issues: (1) whether the trial court erred in admitting evidence of his blood-alcohol content where he did not consent to having his blood tested; (2) whether the trial court erred in denying defendant's request for a pretrial hearing as to the admissibility of the blood-alcohol test results; (3) whether the evidence established beyond a reasonable doubt that defendant committed reckless homicide; and (4) whether the trial court abused its discretion in sentencing defendant to two years' imprisonment.

The following facts were adduced at trial. Defendant's prosecution stems from an incident on August 17, 1987, in Naperville, Illinois, where the vehicle he was driving collided with a tow truck in which the deceased, Gordon McLelland, was the only occupant. On the night of the incident, defendant had been at the Two Rivers Sports Bar prior to the accident. According to Mary Koch, the bartender who had served defendant, defendant had consumed three beers and a shot of Grand Marnier liqueur while at the bar between 10 p.m. and 1 a.m. She opined that defendant was intoxicated and refused to serve him further. Defendant left shortly after 1 a.m.

Mr. Chris Rials, who was driving north on Washington Street in Naperville after 1 a.m. on August 17, 1987, observed defendant drive his van out of the parking lot of the bar and proceed north on Washington Street, following Rials. Defendant continued to follow Rials until Washington became a four-lane street, at which time defendant passed Rials' vehicle. According to Rials, defendant's vehicle previously was two to three car lengths behind his, and defendant had his bright lights on. At the point when defendant passed him, Rials was travelling at approximately 45 miles per hour and defendant was driving 10 to 15 miles per hour faster than Rials. The speed limit is 40 miles per hour at that point in the roadway.

When defendant's van was approximately 200 yards ahead of Rials' vehicle, Rials observed it apparently strike something in the roadway. Rials did not see any lights or any objects ahead of the van prior to the collision. Rials observed no skid marks behind the van at the collision site. The road was wet, but visibility was good. An unidentified witness told one of the police officers at the scene that he observed a tow truck sitting in the northbound lane without any lights on and that the van struck it.

Another witness, who resided in a house adjacent to Washington Street, stated that he did not observe the tow truck sitting on Washington Street, but did see defendant's van driving northbound prior to the accident. After hearing a crash, the witness went to his window and observed the tow truck, with no lights on, rolling and defendant's van sitting in the street.

Defendant's van struck the rear of the tow truck, sending it rolling into a nearby townhouse. The tow truck became engulfed in flames and its driver, Gordon McLelland, died as a result of the fire.

According to Dale Cibula, whose vehicle had been towed by McLelland earlier that evening at about 12:45 a.m., McLelland was drinking a can of Miller Lite beer and there were a couple of empty Miller Lite beer cans on the floor of the tow truck as well as two unopened cans. Cibula smelled the odor of alcohol on McLelland and was of the opinion that McLelland was intoxicated. He had driven with McLelland to a Shell station near the accident scene where his car was towed. The headlights on the tow truck were malfunctioning. While he was walking home, Cibula heard the collision. Five Miller Lite beer cans were observed on the roadway at the scene of the accident. The parties stipulated that the post-mortem results of McLelland's blood-alcohol test indicated a blood-alcohol content of .18.

Numerous witnesses, including police officers, an emergency room nurse, and an emergency room physician who treated defendant, testified that defendant was under the influence of alcohol. Defendant had bloodshot, glassy eyes, slurred speech, and the strong odor of alcohol on his breath. Defendant told one of the officers that he had shared a couple bottles ...


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