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06/30/94 PEOPLE STATE ILLINOIS v. ROBERT HOOD

June 30, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ROBERT HOOD, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Macoupin County. No. 93TR2850. Honorable Dennis L. Schwartz, Judge Presiding.

Released for Publication August 24, 1994. As Corrected September 6, 1994. Second Correction December 28, 1994.

Honorable James A. Knecht, J., Honorable Carl A. Lund, J., Honorable Frederick S. Green, J.

The opinion of the court was delivered by: Knecht

JUSTICE KNECHT delivered the opinion of the court:

Defendant, Robert Hood, appeals from the denial of his petition to rescind the statutory summary suspension of his driving privileges. (625 ILCS 5/6-208.1, 11-501(c) (West 1992).) Hood challenges the validity of the stop of his motorcycle, as well as the admission of evidence of tests administered. We affirm.

I. FACTS

On July 11, 1993, Officer Charles Leach stopped Hood while Hood was riding his motorcycle. After determining Hood might be under the influence of alcohol, he requested Hood to submit to several field-sobriety tests and a preliminary breath test (PBT). Hood could not successfully complete any of the tests and was arrested by Leach for driving under the influence of alcohol (DUI). (625 ILCS 5/11-501(a) (West 1992).) According to Leach, the warning to motorists was read to Hood, as required by statute. (625 ILCS 5/11-501.1(c) (West 1992).) Hood refused to submit to a breathalyzer test. Since Hood is not a first-time offender, his driving privileges were suspended for two years as the result of this refusal. (625 ILCS 5/6-208.1(a)(3) (West 1992).) Hood filed a motion to rescind the summary suspension.

The hearing on the petition occurred on September 1, 1993. Hood testified that on the afternoon of July 11, 1993, he attended a benefit at the Bunkhouse Tavern in Bunker Hill. The benefit was held for a woman who had allegedly been beaten up by the Saddle Tramps, a motorcycle gang. Hood stated the sponsors of the benefit were concerned the Saddle Tramps might disrupt the benefit. Hood testified "two different people had called me up who associate with the Saddle Tramps, and asked if I would basically come and basically bounce at the benefit." Hood testified he went to the benefit to act as a "bouncer," and would be responsible for removing any disruptive individuals. He stated he was with Carla Schmidt the entire time he was at the benefit. During this time he drank three bottles of Budweiser beer and ate one Sloppy Joe sandwich. Although the benefit had not ended, Hood left at 6 p.m. with Schmidt.

Hood and Schmidt rode on Hood's motorcycle to Alton, where they ate dinner at a Steak 'N Shake restaurant. After dinner they returned to Bunker Hill. In Bunker Hill they went to BJ's Tavern, arriving at 8:30 p.m. Between 8:30 p.m. and 9 p.m. they listened to a band and Hood drank two bottles of Budweiser beer. At 9 p.m., Hood left BJ's Tavern alone. Several minutes later, while driving out of town, Hood was stopped by Leach.

Hood testified that while driving out of town he obeyed the speed limit. He drove in the "low part" of second gear and estimated he traveled at a speed of 20 miles per hour. Although his motorcycle is not equipped with a speedometer, Hood testified he is able to gauge speed by monitoring the revolutions per minute shown on the tachometer.

Hood testified there are two positions on the ignition of his motorcycle. When the key is in the first position the motorcycle will run, but the headlight and brake light will not function. When the key is in the second ignition position the headlight and brake light are also operational. Hood conceded the key was in the first ignition position when Leach examined the motorcycle after stopping him. However, Hood explained it had been in the second position while he was driving. When Leach stopped him he turned the key from the second to the first position out of habit. He did not, however, turn off his motorcycle completely. According to Hood, when Leach told him the brake light did not work, Hood told Leach the key had to be turned to the second ignition position. The key was placed in the second ignition position, and Hood demonstrated to Leach the brake light did in fact work.

Hood testified that once he demonstrated the brake light was functional, Leach said "well, you have no rearview mirror." Hood explained his mirror had fallen off while he was riding the motorcycle. Leach then told Hood he did not have a muffler, he had an odor of alcohol on his breath, and Leach was going to arrest him for DUI.

Hood testified he was not intoxicated, and explained his slurred speech, stating he has a "thicker tongue" than most people as the result of a triple fracture to the side of his face which left him with no feeling in his lip or cheek. His face becomes more numb when it is in the wind.

Hood testified he performed various field-sobriety tests. First he performed the "heel-to-toe" test. When Leach said it "wasn't good enough," Hood repeated the test. Hood testified "to my knowledge I thought I was doing it right." However, Hood explained he had previously injured his back at work and was stiff when he got off the motorcycle. On cross-examination he conceded he had not sought medical attention for his injury, explaining he had just begun working for a new company and "didn't want to bother them." He also conceded his back injury did not prevent him from being the bouncer at the Bunkhouse Tavern, nor did it impair his balance or his ability to walk.

Hood testified he performed a "one-leg-stand" test. He stated, "I went on one foot four seconds and he didn't say anything. I don't know how he expected me to stay up on one foot."

Hood testified Leach never read the warning to motorists as required by statute, but merely stated if Hood had more than one DUI in 10 years he would lose his license for two years if he refused to submit to the breathalyzer test.

According to Hood, on the day following his arrest for DUI, Hood had the motorcycle examined by an individual who found the brake light to be operational.

Charles Leach testified he began following Hood's motorcycle when he noticed it did not have a muffler. He used a stationary radar to determine Hood's speed and found Hood travelled at 35 miles per hour in a 25-mile-per-hour zone. When Hood stopped at a stop sign, Leach noticed Hood's brake light did not work. Leach believes a brake light is important on a motorcycle and decided to make an enforcement stop. Before Leach stopped Hood, Hood accelerated to a speed in excess of 30 miles per hour.

Leach stopped Hood and told him his brake light did not work. Hood seemed genuinely surprised. Leach asked Hood to demonstrate the light did work. Although Hood attempted to do so, when he pressed the brake pedal, the brake light did not operate. Leach told Hood he would issue a written warning. During the conversation with Hood, Leach detected an odor of alcohol on Hood's breath and noticed Hood's speech was slurred. Leach decided that, before confronting Hood with the issue of whether he was DUI, he would perform a license check on Hood to learn more about him. The license check revealed there was a caution associated with Hood regarding possible motorcycle gang activity. Hood called for backup. Once another police officer arrived, Leach resumed his conversation with Hood. He told Hood it smelled like he had been drinking. Hood admitted to drinking "a beer or two," or some nominal amount of alcohol. Leach requested Hood to perform several field-sobriety tests.

The first test administered was the Horizontal Gaze Nystagmus (HGN) test, which involves watching the movement of the motorist's eyes as they follow an object. Hood failed this test. The defense objected to testimony regarding the HGN test on the basis it is not reliable. The objection was overruled.

The next test was the one-leg-stand test. Leach demonstrated and explained the test, instructing Hood to stand on one leg for 30 seconds. Although he made several attempts, Hood could not stand on one leg for more than four or five seconds.

The third test was the "walk-the-line" or "walk-and-turn" test. Hood failed this test as he was unable to walk heel to toe, did not walk in a straight line, and had ...


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