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July 26, 1996


Appeal from the Circuit Court of Cook County. Honorable James Etchingham, Judge Presiding.

Released for Publication August 29, 1996.

Presiding Justice Zwick delivered the opinion of the court: Egan, J., concurs. Rakowski, J., specially concurs.

The opinion of the court was delivered by: Zwick

PRESIDING JUSTICE ZWICK delivered the opinion of the court:

Following a bench trial, defendant, Miroslaw Dunskus, was convicted of driving under the influence of alcohol. 625 ILCS 5/11-501(a)(2) (West 1992). He was subsequently sentenced to a term of four months in the Cook County Department of Corrections.

Defendant appeals, contending (1) the trial court erred when it denied defendant's motion to dismiss the complaint, i.e., the traffic ticket, and allowed the State's motion to amend the complaint; (2) his right to a speedy trial was violated by the court's failure to set trial within 160 days of his demand; and (3) the State failed to prove him guilty beyond a reasonable doubt. After carefully reviewing the record and considering the arguments of the parties, we affirm the judgment of the trial court.

The record contains the following pertinent facts. On November 5, 1993, defendant was involved in a two-car accident. He was issued a traffic ticket that charged him with "driving under infl. [the influence]" in violation of section "11-501" of the Illinois Vehicle Code. 625 ILCS 5/11-501 (West 1992).

On December 27, 1993, the trial court appointed the Cook County Public Defender to represent defendant. Counsel filed an appearance and a motion requesting, inter alia, a bill of particulars. The appearance form stated simply, "The undersigned, as attorney, enters the appearance of defendant and demands trial." The State tendered an accident report, an alcohol influence report, and medical records. On January 31, 1994, defendant moved to continue the case to March 8 to have an Alcohol/Drug Assessment Services (ADAS) evaluation done. On March 8, defendant requested a hearing on a plea discussion (see 134 Ill. 2d R. 402); however, no plea was entered.

On July 13, 1994, defendant filed a motion to dismiss the complaint on grounds that the ticket failed to state a charge. Defendant also argued in this motion that any amendment to the complaint would constitute a new and substantive charge and would, thereby, violate his right to a speedy trial. On August 23, at the close of a hearing on the motion, the trial court denied defendant's motion to dismiss, and granted the State's motion to amend the ticket by adding "of alcohol" with its Vehicle Code subsection "(a)(2)," and filing a long-form charge of driving with a blood alcohol content of .10 or more (625 ILCS 5/11-501(a)(1) (West 1992)).

A bench trial commenced on October 7, 1994. Chicago police Officer Cathy Farrell testified that, at approximately 11:30 p.m. on November 5, 1993, she saw defendant drive erratically, southbound on Western Avenue. At the intersection of Western and Berenice Avenues, defendant rear-ended a moving vehicle and continued south on Western Avenue. Near the intersection of Western Avenue and Roscoe Street, defendant rear-ended a second vehicle. The driver of that vehicle was pinned between the steering wheel and the trunk. Defendant's car had extensive front-end damage rendering it inoperable. As another police officer assisted defendant into the rear of a squad car, defendant appeared to have trouble keeping his balance and the officer was supporting him.

Officer Gricki was assigned to investigate the accident. At the scene, he first saw defendant in the back seat of a squad car. As Gricki opened the car door, he smelled a strong odor of alcohol, and observed that defendant's eyes were bloodshot and his face was flushed. Officer Gricki attempted to talk with defendant, but defendant did not respond. Defendant exited the squad car after the arrival of an ambulance and, as he did, he leaned and fell against the car. Paramedics had to help defendant into the ambulance.

At the close of the State's case the defendant moved for a finding. The trial court denied the motion, and defendant rested without presenting any evidence. The court convicted defendant of driving under the influence in violation of Vehicle Code section 11-501(a)(2). The trial court initially sentenced defendant to a term of six months in the Cook County Department of Corrections, but subsequently reduced the sentence to four months.

Defendant first contends that the trial court erred when it denied his motion to dismiss the complaint. He argues that the complaint was insufficient in that it did not specify what substance he was under the influence of, with the corresponding Vehicle Code subsection. Defendant asserts that the complaint was void and could not, therefore, be amended to add "of alcohol" with Vehicle Code subsection "(a)(2)."

A criminal defendant has the fundamental right to be informed of the nature and cause of the charge against the defendant. U.S. Const., amend. VI; Ill. Const. 1970, art. I, ยง 8. In Illinois, this right is given substance by section 111-3(a) of the Code of Criminal Procedure of 1963, which requires that a criminal charge be in writing; state the name of the offense; cite the statutory provision alleged to be violated; and set forth the nature and elements of ...

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