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03/03/95 PEOPLE STATE ILLINOIS v. DENNIS SMITH

March 3, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT
v.
DENNIS SMITH, DEFENDANT-APPELLEE



Appeal from Circuit Court of Champaign County. No. 94T4587. Honorable John R. DeLaMar, Judge Presiding.

Honorable Robert J. Steigmann, J., Honorable James A. Knecht, P.j., Concurring, Honorable John T. McCULLOUGH, J., Dissenting. Knecht, P.j., concurs. McCULLOUGH, J., dissents.

The opinion of the court was delivered by: Steigmann

The Honorable Justice STEIGMANN delivered the opinion of the court:

In March 1994, defendant, Dennis Smith, was arrested for driving while under the influence of alcohol (DUI) (625 ILCS 5/11-501(a) (West 1992)). The arresting officer asked defendant to undergo a breath test, and when he refused, a statutory summary suspension of his driver's license resulted (625 ILCS 5/11-501.1 (West 1992)).

In April 1994, defendant filed a petition to rescind the statutory summary suspension. After a hearing in May 1994, the trial court granted defendant's petition, ruling that the arresting officer improperly stopped defendant's vehicle.

The State appeals, and we reverse.

I. BACKGROUND

A summary of the evidence presented at the hearing on defendant's petition to rescind statutory summary suspension is as follows. In the late evening hours, defendant left a tavern in Urbana, went to his car in the tavern's parking lot, and drove north on Cunningham Avenue. Urbana police officer Andrew Charles watched defendant do so from a vantage point in a parking lot across the street from the tavern. He was part of a DUI patrol in that area because of numerous DUI arrests of people who had been drinking at that tavern. Charles decided to follow defendant's vehicle to see if he would drive in compliance with the Illinois Vehicle Code (Code) (625 ILCS 5/1-100 et seq. (West 1992)). Charles followed defendant's vehicle for about 12 blocks down Cunningham Avenue, a four-lane road with a fifth lane in the center for turning. At that hour of the night, traffic was light.

As Charles followed defendant's vehicle in the left-hand lane, he noticed the driver's side wheels of defendant's car cross into the center turn lane by six inches or more. A few moments later, Charles observed the right-side wheels of defendant's vehicle cross into the right-hand lane, and again the tires went six inches beyond the lane line. Defendant did not signal any lane changes either time, nor did there appear to be any reason, such as traffic or potholes, for why he did not drive entirely within the bounds of the left-hand northbound lane.

Charles viewed defendant's driving as a violation of the Code and pulled him over accordingly. Charles testified that when he stopped defendant's car, he intended to give defendant a verbal warning instead of a ticket regarding his driving across the lane lines. He also intended to determine whether defendant was driving under the influence of alcohol. Once Charles approached defendant's vehicle, he smelled a strong odor of alcohol on defendant's breath and noticed that his speech was slurred. Defendant admitted to Charles that he had been drinking. He also had difficulty getting his driver's license out of his wallet. Charles asked defendant to perform a field-sobriety test, and defendant complied and failed. Charles then arrested him for DUI.

We commend the trial court for explaining its findings of fact and conclusions of law in its ruling on defendant's motion to rescind statutory summary suspension. The court's doing so has greatly helped this court and has clarified the issues on appeal.

The trial court described Charles as testifying "with commendable candor" and explicitly stated that it found Charles "to be very credible." The court noted that Charles did not claim to be stopping defendant because "of any reasonable, articulable facts to suggest that he had been driving under the influence of alcohol," but instead because the officer believed defendant drove his vehicle in violation of the Code other than DUI. Although defendant argued that Charles' stop of defendant's vehicle was a mere subterfuge because Charles intended to stop any vehicle driven by someone who left the tavern in question, the court concluded that Charles had not determined to stop defendant's vehicle unless Charles saw it involved in a violation of the Code. The court commented that what Charles asserted, "in essence, was his right to follow any vehicle in his unbridled discretion. I believe this he may do without contravening the fourth amendment."

The trial court then focused upon section 11-709(a) of the Code (625 ILCS 5/11-709(a) (West 1992)), which defines the offense of improper lane usage, and stated that the issue it must resolve is whether defendant's automobile, as observed by Charles, violated that section. After carefully analyzing case law, the court concluded that defendant's driving did not violate that section and that Charles did not have reasonable, articulable facts to justify the stop of defendant's car.

II. ANALYSIS

A. Standard of Review

In People v. Adams (1992), 225 Ill. App. 3d 815, 817, 587 N.E.2d 592, 594, 167 Ill. Dec. 323, this ...


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