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02/29/96 PEOPLE STATE ILLINOIS v. CLAYTON R.

February 29, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
CLAYTON R. GOESTENKORS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Clinton County. No. 94-TR-1640. Honorable Harold H. Pennock, III, Judge, presiding.

Rule 23 Order Redesignated Opinion and Ordered Published February 29, 1996.

The Honorable Justice Welch delivered the opinion of the court: Hopkins, P.j., and Goldenhersh, J., concur.

The opinion of the court was delivered by: Welch

ORDER

This cause has been considered on the State's motion to publish; and the court being advised in the premises:

IT IS THEREFORE ORDERED that the State's motion to publish shall be, and the same hereby is, GRANTED.

The Honorable Justice WELCH delivered the opinion of the court:

Defendant, Clayton R. Goestenkors, appeals from the denial of his petition to rescind the statutory summary suspension of his driving privileges. (625 ILCS 5/2-118.1, 11-501(c) (West 1992).) Defendant challenges the validity of the initial stop of his motorcycle, argues that the officer lacked probable cause to believe he was under the influence of alcohol, and asserts that the court erred in allowing the State to question defendant and a witness about defendant's consumption of alcohol prior to his arrest. We affirm.

On August 4, 1994, at about 10:30 p.m., defendant and a companion were riding their motorcycles northbound on Illinois Route 160 between New Baden and Trenton in Clinton County. Just north of New Baden, adjacent to the New Baden Auto Parts store, one of the riders came two to three feet across the center line into the southbound lane, about two or three vehicle lengths in front of the southbound patrol unit of New Baden police department patrolman Jim E. Arrington. Officer Arrington turned around, entered the northbound lane, and made a request for assistance from the Trenton police department. He pursued the northbound motorcycles, which were now out of sight, with the intention of at least issuing a warning for careless driving. He established visual contact with the motorcycles after about three miles of travel, turned on his Mars lights when he was a considerable distance from Trenton, and saw what later proved to be defendant's cycle cross the center line, just south of the railroad tracks on Route 160 in Trenton. The cyclists stopped and Officer Arrington requested defendant's license and registration.

Defendant was slow to comply with the requests. His breath had the strong odor of an alcoholic beverage, he moved slowly, his speech was mumbled and slurred, and his eyes were red and glassy. The officer observed that defendant's jeans were wet from the knees down, and defendant complained of being cold and wet. Defendant was unable to recite the alphabet in order. He stopped at "v" and began over again, then confused the letters and ran them together, and finally just stopped reciting. He failed the one-leg-stand test because he swayed as he attempted to balance, put his foot down more than three times, raised his arms from his side, and stopped at seven seconds, rather than 20, as he was instructed. He refused to do the walk-and-turn test because he did not think he could do it, and he admitted that he had been drinking. He refused to take a breathalyzer test, prompting the suspension of his privilege to drive.

Elmer Strunk, a Trenton police officer, testified that he came to assist Officer Arrington after the cyclists were stopped. He recalled that the weather was clear and warm, rather than cold and rainy. The traffic citations for driving under the influence (DUI) indicate that the roadway was wet but that the weather was clear at the time of defendant's arrest. When he walked by defendant at the Trenton police station, Officer Strunk detected a moderate odor of an alcoholic beverage about him from a distance of three or four feet.

Defendant's companion testified that he never saw defendant cross the center line, but he admitted that defendant was riding behind him at times, and thus he did not observe all of his riding on the night in question. He conceded, over defense counsel's objection to the questioning about alcohol consumption, that they had three beers that night, but he asserted that defendant was not under the influence of alcohol.

Defendant claimed that he was not drunk and that he was not aware of any time that he crossed the center line, but he admitted on cross-examination that he might have inadvertently done so and that he had been drinking beer that evening. He also maintained that he was asked to recite the alphabet only once, recited the alphabet properly up to the letter "v", and then slurred the remaining letters because he was cold. Defendant was unsure if he put his arms out during the one-leg-stand test, and he asserted that he refused to do the walk-and-turn test because he was too cold.

The court found that the evidence was sufficient to support the conclusion that Officer Arrington had an articulable suspicion that a crime was being committed which was sufficient to pull defendant over, that he had probable cause to believe that defendant was driving under the influence of alcohol and to arrest him, and that the summary suspension should not be rescinded. Defendant filed a motion to reconsider which alleged that the arresting officer lacked an articulable suspicion sufficient to justify an investigatory stop, that probable cause to arrest defendant for driving under the influence was lacking, and that the trial court erred when it allowed the State to elicit testimony from defendant about his alcohol consumption prior to the stop. On November 16, 1994, the defendant's motion to reconsider was denied, and defendant entered a plea of guilty to improper lane usage in exchange for the dismissal of ...


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