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09/01/94 PEOPLE STATE ILLINOIS v. SCOTT W. WIEBLER

September 1, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
SCOTT W. WIEBLER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois. No. 92-TR-16882. Honorable E. Michael O'Brien, Judge Presiding

Released for Publication October 13, 1994.

Present - Honorable Kent Slater, Presiding Justice, Honorable Allan L. Stouder, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Mccuskey

JUSTICE McCUSKEY delivered the opinion of the court:

Following a bench trial, the defendant, Scott W. Wiebler, was convicted of driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 11-501(a)(2)) and various other traffic offenses. He was placed on 18 months' probation and was ordered to serve 60 days in the Peoria County jail.

The defendant raises two issues in his appeal of his DUI conviction: (1) whether the trial court erred in admitting evidence regarding the horizontal gaze nystagmus (HGN) testing of the defendant; and (2) whether he was proved guilty of DUI beyond a reasonable doubt. For reasons which follow, we affirm.

At trial, the State's case consisted of the testimony of Greg Metz, a Peoria police officer. Metz testified that on August 1, 1992, at 4:26 p.m., he observed the defendant riding a motorcycle. The defendant stopped at an intersection in fairly heavy traffic, "popped a wheelie," and accelerated quickly in relation to the other traffic. The defendant then proceeded to make a left turn without signalling, and Officer Metz pulled him over.

Upon approaching the defendant, the officer observed the defendant was not wearing any protective eyewear. According to Metz, the defendant had a flushed face, bloodshot eyes, slurred speech, and was swaying slightly as he stood. Metz also noticed a very strong odor of alcohol on the defendant's breath. As a consequence, the officer asked the defendant to perform the HGN field sobriety test. Metz testified he had attended a three-day course on field sobriety tests, including the HGN test. As part of this course, Metz participated in practice HGN testing. Metz also took and passed a written examination on testing procedures. Metz further testified he had given the HGN test in over 150 other DUI stops. Metz also described how he conducted the defendant's HGN test.

Based on the results of the HGN test, as well as his observations of the defendant, Metz concluded the defendant was driving under the influence of alcohol. Metz issued the defendant a copy of the Warning to Motorists and read the warning to him.

At his trial, the defendant presented testimony that on the day in question he had been working at a charity fund-raiser at Walters Brothers Harley-Davidson in Peoria. During the fund-raiser, the defendant spent most of the day behind the counter selling parts. He also spent some time in a charity dunk tank and cooked food on a charcoal roaster.

The defendant admitted that during the day he drank two beers. The defendant claimed he was not intoxicated. Wayne Wiebler, the defendant's father and employer at Walters Brothers Harley-Davidson, testified that his son did not appear to be intoxicated.

Frank Serrano, an off-duty Peoria police officer, testified he attended the charity fund-raiser. Serrano stated that, in his opinion, the defendant was not intoxicated. Serrano further testified that the defendant's normal speech pattern was slow, deliberate, and hard to understand at times.

After hearing the evidence, the trial court found the defendant guilty of DUI. The defendant filed a timely notice of appeal.

The defendant argues the trial court erred in admitting the evidence concerning the HGN field sobriety test. In support of his argument, the defendant cites our opinion in People v. Jebelian (1990), 204 Ill. App. 3d 11, 561 N.E.2d 1079, 149 Ill. Dec. 383. The defendant asserts that this court held in Jebelian that HGN testing was inadmissible as evidence of a defendant's intoxication because the test lacked general ...


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