Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois. Nos. 92-CM-225 and 92-TR-489. Honorable Fred S. Carr, Jr., Judge, Presiding
Released for Publication June 9, 1994.
Present - Honorable Allan L. Stouder, Justice, Honorable Tom M. Lytton, Justice, Honorable Tobias Barry, Justice
The opinion of the court was delivered by: Lytton
JUSTICE LYTTON delivered the opinion of the court:
Defendant, John M. Norwick, was convicted of the offenses of driving under the influence of alcohol (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 11-501(a)(1)) and unlawful use of weapons (Ill. Rev. Stat. 1991, ch. 38, par. 24-1(a)(4)). He was assessed fines for both offenses and sentenced to one year of court supervision for unlawful use of weapons. Defendant appeals both convictions.
The issues before us are (1) whether defendant's status as an auxiliary policeman exempted him from prosecution for the unlawful use of weapons offense; and (2) whether the State's evidence was sufficient to prove beyond a reasonable doubt that defendant drove or was in physical control of his vehicle while intoxicated. Having considered the parties' arguments and the record before us, we now affirm both convictions.
According to the record on appeal, Officer Berziky of the Bourbonnais Police Department testified that he was dispatched to a field behind 355 Barrington Lane at 1:46 a.m. on January 10, 1992, to check on a vehicle driving around the field with its lights flashing. Berziky and fellow officer James Phelps proceeded to Barrington Lane and walked into the field. Using a spotlight, they discovered defendant's truck lodged in a ditch. Although he had patrolled the area about 10 times during the night, Berziky stated that he had not seen the truck before and could not say how long it had been in the ditch.
As the officers approached, defendant got out of the truck carrying a can of beer. Berziky testified that defendant gave the officers permission to search the vehicle. Berziky's search revealed that the hood of the truck was warm to the touch, the keys were in the ignition, and a loaded revolver and a six-pack of beer with one missing were inside. Berziky observed that defendant's speech was slurred, he smelled of alcohol, and he had poor coordination. Berziky placed defendant under arrest for unlawful use of weapons and patted him down. His pat-down search yielded a loaded 9mm handgun. Berziky subsequently cited defendant for driving under the influence of alcohol.
Officer Phelps also testified for the State. He too testified that he had patrolled Barrington Lane several times during the night of January 9 - 10, but had not observed defendant driving around the field and did not know how long the truck had been in the ditch.
In his defense, defendant testified that he was employed by the Village of Manteno as an auxiliary policeman. Defendant stated that on January 9, 1992, he drank three 12-ounce beers with a friend in Limestone during the afternoon. He was driving to his home in Bourbonnais alone around 11:25 p.m., when he stopped at a gas station and picked up two six-packs of beer. Within three blocks of his home, defendant decided to test his four-wheel drive and newly installed off-road lighting system. Defendant testified that he entered the field at Barrington Lane and then had trouble getting the truck out of the muddy ditch. He said that he hit a large culvert around 11:45 p.m., and thereafter could not dislodge the truck.
Defendant said that he just listened to the radio and drank about seven beers in the disabled vehicle before deciding to walk home. When he got out, he saw the police officers approaching. While he talked to Phelps, Berziky searched the truck. Defendant testified that he volunteered that he was carrying a second weapon when Berziky found the revolver in the truck.
At the Conclusion of the evidence, the court found defendant guilty of driving under the influence of alcohol and unlawful use of weapons and entered convictions.
Defendant argues that he is exempt from prosecution for carrying a concealed revolver in his vehicle (Ill. Rev. Stat. 1991, ch. 38, par. 24-1(a)(4)) by virtue of his employment as an auxiliary policeman. A "peace officer" is exempt from prosecution under section 24-1(a)(4) of the Criminal Code of 1961. (Ill. Rev. Stat. 1991, ch. 38, par. 24-2(a)(1).) By definition, a "peace officer" is "any person who by virtue of his office or public employment is vested by law with a duty to maintain public order or to make arrests for offenses, whether that duty extends to all offenses or is limited to specific offenses." (Ill. Rev. Stat. 1991, ch. 38, par. 2-13.) Defendant's argument presumes that an auxiliary policeman is a "peace officer."
The State argues that, unlike regular policemen, an auxiliary policeman is a "peace officer" only when he is on duty. When he is not on duty, the auxiliary policeman is a private citizen, and the exemption allowing peace officers to carry concealed firearms does not apply. Defendant must establish his claim to the exemption by a preponderance of the evidence ( People v. Spain (1980), 91 Ill. App. 3d 900, 415 N.E.2d 456, 47 Ill. Dec. 451), but defendant produced no evidence in this ...