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04/30/97 PEOPLE STATE ILLINOIS v. LESTER E.

April 30, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
LESTER E. VANZANDT, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Perry County. No. 94-TR-1926. Honorable Robert N. Gandy, Judge, presiding.

The Honorable Justice Rarick delivered the opinion of the court. Welch and Maag, JJ., concur.

The opinion of the court was delivered by: Rarick

The Honorable Justice RARICK delivered the opinion of the court:

On October 5, 1994, Lester Vanzandt was issued a traffic citation for driving under the influence of alcohol (DUI) in violation of section 11-501(a)(2) of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501(a)(2) (West Supp. 1993)). A bench trial was held on September 6, 1995. On the day of trial, the State filed an additional charge of driving under the combined influence of alcohol and drugs in violation of section 11-501(a)(4) of the Code (625 ILCS 5/11-501(a)(2) (West Supp. 1993)). Vanzandt's objection to the filing of the new charge was overruled.

At trial, Illinois State Police Sergeant John Hafford testified that at 2:47 a.m. on October 5, 1994, he was traveling south on Route 51 when he observed a vehicle approaching from the other direction at a high rate of speed. His radar indicated that the vehicle was traveling at 86 miles per hour. As the vehicle approached Hafford, it weaved across the center line, forcing him to take evasive action. Hafford then turned and pursued the vehicle. During the pursuit Hafford observed the vehicle weaving erratically. Eventually it turned off onto a side road and pulled over.

Hafford stopped behind the vehicle. He exited his squad car, and as he approached the vehicle, he observed the driver's door open and the driver fall partially out, catching himself with his hand. The vehicle lurched forward and Hafford yelled at the driver to put his foot on the brake. The driver was then able to upright himself in his seat. As Hafford approached the vehicle, he observed a blond female in the passenger's seat.

Hafford asked the driver for his driver's license, at which point the driver exited the vehicle and stated that his driver's license was suspended for driving under the influence. Hafford then advised him that he was under arrest for driving while suspended, speeding, improper lane usage, and not wearing a seat belt. Hafford also asked the driver his name, and he identified himself as Lester Vanzandt. Hafford testified that he smelled the odor of alcohol emanating from the vehicle and on Vanzandt's breath.

Hafford then returned to his squad car to run a computer check on Vanzandt. While he was running the check, he observed Vanzandt swaying and shifting his feet to steady himself. Eventually Vanzandt simply leaned up against his car. Hafford testified that based upon this, the odor of alcohol, the erratic driving, and Vanzandt's thick-tongued, slurred speech, Hafford felt that Vanzandt was under the influence of alcohol.

Hafford then requested Vanzandt to take a field sobriety test. Vanzandt refused, stating that his attorney had advised him that he was not required to do so. At this point, Hafford told Vanzandt that he was under arrest for driving under the influence of alcohol, handcuffed him, and placed him in the squad car. Hafford testified that Vanzandt said something to the effect of "Why don't you arrest her, she's drunker than I am."

Hafford talked to the female passenger, but she did not appear to be intoxicated. Hafford advised her of what Vanzandt's bond would be and allowed her to leave. Hafford then took Vanzandt to district headquarters, where he refused to take a breathalyzer test, again stating that his refusal was based upon the advice of his attorney. Vanzandt then asked if he could call his wife because he needed his insulin. Hafford asked Vanzandt if he was a diabetic, and he said yes.

After reading Vanzandt his Miranda rights, Hafford proceeded to interview him. This consisted of asking Vanzandt a series of questions from a standardized form. One of the questions was whether he took insulin. Vanzandt stated that he took insulin because he was an insulin-dependent diabetic and that he had last taken insulin around 5 p.m. Hafford also asked Vanzandt if he had been drinking, and he said that he had had one gin and tonic. Shortly thereafter, Vanzandt's wife arrived at police headquarters and informed Hafford that Vanzandt was a diabetic. Hafford asked Vanzandt if he needed to go to the hospital, but he said no. Hafford testified that while at headquarters, Vanzandt did not appear nervous or "fainty," he did not act ill, he did not complain of feeling ill, and his demeanor never changed. He remained unsteady and his speech remained slurred.

Hafford testified that he had made several hundred DUI arrests in his 18-year career and had many more opportunities to observe persons who were under the influence of either alcohol or drugs. Based on Vanzandt's actions, his erratic driving, and Hafford's observations, Hafford opined that Vanzandt was under the influence of alcohol.

Hafford also testified that his father-in-law was a diabetic and an alcoholic, and because of this personal experience he could tell the difference between someone who had alcohol on their breath and someone whose breath odor was the result of their diabetic condition. When asked if he was familiar with whether alcohol had a greater effect on the physical abilities and symptoms of diabetics, he stated that was "hard to say." He stated that based on his experience with his father-in-law he knew that alcohol affected a person's blood sugar level and could cause severe problems for a diabetic. He further stated that a person who was taking insulin was not supposed to drink because there is sugar in alcohol.

The court asked Hafford several questions regarding alcohol and insulin:

"THE COURT: Officer, if someone has taken insulin at 5:00 on the previous evening, would you expect this, the effects of this insulin to affect, or the effects of the diabetes after having taken that insulin the day before or taken the shot the day before, does this effect [sic] his ability to drive at 2:00 a.m. in the morning?

: Well, the problem you run into is, if you get too much sugar in your system. Now if you are taking insulin, you are not supposed to drink period, no alcohol at all, because there is sugar in alcohol. So, if you are drinking alcohol, in addition to taking insulin, ...


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