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08/01/96 PEOPLE STATE ILLINOIS v. JAMES M. WISE

August 1, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JAMES M. WISE, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Sangamon County. No. 95TR32634. Honorable Roger W. Holmes, Judge Presiding.

As Corrected August 30, 1996.

Honorable Robert W. Cook, P.j., Honorable Robert J. Steigmann, J., Honorable John T. McCULLOUGH, J., Concurring. Presiding Justice Cook delivered the opinion of the court.

The opinion of the court was delivered by: Cook

PRESIDING JUSTICE COOK delivered the opinion of the court:

On October 12, 1995, defendant James M. Wise was arrested and charged with driving under the influence of alcohol (DUI) in violation of section 11-501(a)(2) of the Illinois Vehicle Code (Code) (625 ILCS 5/11-501(a)(2) (West Supp. 1995)). Pursuant to section 11-501.1 of the Code (625 ILCS 5/11-501.1 (West 1994)), the arresting officer, Chris Steil, submitted a sworn report that defendant refused to submit to a chemical test. Defendant filed a petition to rescind statutory summary suspension, claiming that Officer Steil did not have reasonable grounds to suspect defendant had been DUI. After defendant concluded his evidence, the State moved for a judgment at the close of proponent's case. The trial court denied defendant's petition, and defendant appeals, alleging that the trial court erred in granting the State's motion. We affirm.

The following evidence was presented at the hearing. On October 12, 1995, between 6 p.m. and 7:30 p.m., defendant drank approximately 3 1/2 beers. Defendant denied having anything more to drink thereafter. Defendant then had supper at a friend's house and left for home at about 10:30 p.m. As he was driving home, defendant attempted to insert an audiotape into his truck's tape deck. While doing so, he dropped the cigarette he was holding in his right hand. The cigarette fell to the passenger side floor of defendant's truck, where it landed upon various papers. Defendant observed the embers of the cigarette and saw the smoke rising from the papers. While leaning over to retrieve the cigarette, defendant hit a parked truck. In the accident, defendant hit his head on the dashboard and hit his chest on the gearshift lever.

Defendant exited the truck and examined the damage to both trucks. He then walked up to a house to determine if the truck belonged to the occupant of the house. Three people came out of the house. Defendant explained what happened. One person was Michael Trello, the owner of the truck. The other people were Trello's parents, George Trello and his wife. Defendant testified that he suggested the Trellos call the police. Mrs. Trello phoned the police while defendant, George, and Michael examined the damage to Michael's truck. During this inspection, defendant slid underneath Michael's truck to straighten out the tailpipe, which had been bent in the accident. While waiting for the police to arrive, defendant exchanged insurance information with the Trellos.

The police arrived about 50 minutes after the accident. Officer Steil was an officer in training at the time of the incident and was accompanied by his field training officer, J. Kohler. Upon his arrival, Steil approached defendant and the Trellos. Defendant explained the accident to Steil. Steil did not notice whether defendant was having any difficulty balancing, but he noted that defendant's breath smelled strongly of alcohol and that defendant's eyes were glassy and bloodshot. According to Steil, defendant's speech was also "a little slurred." Steil decided to conduct a field-sobriety test.

First, defendant was asked to say the alphabet. Steil said he heard each letter clearly and distinctly, but that defendant stopped after the letter "T." Defendant agrees he stopped at the letter "T," but argues that he did so in order to take a breath and that Steil then told him, "That's enough." Steil testified that when defendant stopped at the letter "T," Steil waited a few seconds before asking defendant if he was finished, to which defendant responded "yes, he was." Steil's police report is apparently silent on this issue.

Defendant was next asked to perform a "one-legged stand test." In this test, the defendant was asked to stand on one leg and, while holding the other foot six inches off the ground, count from 1001 to 1030. Defendant claims that he set his raised foot to the ground only twice during the count, once at 1007 and again at 1028. He claims he did not stumble. Steil agrees that defendant put his foot down during this test, but claims that it happened three times, at 1017, 1022, and 1028. Steil said that defendant set his foot down long enough to regain his balance.

Steil then asked defendant to perform a heel-to-toe test in which he was to take nine steps heel-to-toe along the sidewalk, pivot, and take nine heel-to-toe steps back. Defendant was to count each step out loud. Defendant initially objected to this test because the sidewalk was broken and had weeds growing in the cracks. Steil took defendant to a different portion of the sidewalk. Defendant took nine steps and then turned and paused. He claims that Steil then told him, "Okay. Continue on and take your nine steps back." Defendant claims he then completed the test. Steil testified that defendant did not count for the first few steps, and then stumbled on the third or fourth step. Defendant then asked if he could start over. Steil said that defendant "was swaying and catching his balance the whole time. He was doing the test pretty good except for he had to start over and he miscounted and he wasn't following the instructions of the test on the way back." Steil said that defendant only took seven steps on the way back.

Finally, defendant was asked to perform the "finger-to-nose" test. While defendant touched his right index finger to his nose and then his left index finger to his nose, Steil testified that defendant started performing the test before Steil finished giving the instructions. Defendant was arrested for DUI shortly thereafter. Prior to taking the field-sobriety test, defendant may have complained about a stiff neck, but according to Steil, he refused medical treatment. On cross-examination, Steil acknowledged that some injuries may affect an injured person's balance, but explained that he asked defendant if he wanted to perform the field-sobriety test and that defendant had said, "Yes."

George Trello testified on behalf of the defendant. Trello described defendant's speech, immediately after the accident, as being "shook up" and "fast and nervous." Trello did not smell alcohol on defendant's breath, nor did he notice whether defendant's speech was slurred. Trello did not believe that defendant was under the influence of alcohol. Trello, however, did not observe defendant take the field-sobriety test.

Defendant appeals, alleging the trial court erred in granting the State's motion for judgment at the close of proponent's case, arguing that he had proved a prima facie case for rescission. A summary suspension is a civil action in which the motorist acts in the role of plaintiff. People v. Scott, 249 Ill. App. 3d 597, 600, 619 N.E.2d 809, 813, 189 Ill. Dec. 108 (1993). In a summary suspension proceeding, the motorist must show by a ...


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