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People v. Fortney

June 01, 1998


The opinion of the court was delivered by: Justice Colwell

Appeal from the Circuit Court of Kane County.

No. 97--DT--513

Honorable Grant S. Wegner, Judge, Presiding.

Defendant, Lisa Fortney, appeals from an order of the circuit court of Kane County denying her petition to rescind a statutory summary suspension of her driver's license (see 625 ILCS 5/2--118.1(b) (West 1996)). We affirm.

On appeal, defendant contends that (1) the trial court erroneously determined the time of her arrest for driving under the influence; (2) the arresting officer lacked reasonable grounds to arrest her for driving under the influence; (3) her breathalyzer test results did not indicate a blood-alcohol concentration of 0.10 or more; and (4) the trial court erroneously allowed the State to introduce hearsay testimony.


On May 4, 1997, at approximately 8:57 p.m., Sergeant Timothy Baker of the Geneva police department was patrolling in the 200 block of west State Street in Geneva when he received a radio dispatch reporting that a red Chevy Blazer was ramming a house containing occupants in the 500 block of Edison Street. In response, Sergeant Baker activated his squad car's flashing overhead lights and headlights, proceeded west on State Street, and then turned north on Sixth Street where he observed defendant's vehicle, which matched the suspected vehicle's description, traveling south in the 0-to-99 block of north Sixth Street. Sergeant Baker did not notice defendant driving erratically.

Sergeant Baker described the area as containing a liquor store parking lot on the east side of the street and a driveway entrance to a parking lot for an Ace Hardware and an L-shaped strip mall on the west side of the street. A White Hen Pantry convenience store was located at the opposite (south) end of the strip mall away from the Ace Hardware.

Upon observing defendant's vehicle, Sergeant Baker positioned his squad car in the southbound lane on Sixth Street so that defendant would stop her vehicle in the roadway. Instead, defendant turned right into the Ace Hardware parking lot and yelled at Sergeant Baker: "I didn't f--king do anything, leave me alone." Sergeant Baker activated his siren and followed defendant into the parking lot. Defendant stopped about 30 seconds later in front of the White Hen Pantry.

Once defendant stopped her vehicle, Sergeant Baker exited his squad car, drew his gun, and ordered defendant to stay in her car and put her hands on her head. Sergeant Baker testified that defendant continued yelling obscenities at him and would not keep her hands above her head. Sergeant Baker also ordered defendant out of her vehicle. Defendant, on the other hand, testified that she was telling the police that she did not have a gun and that she could not keep her hands above her head and exit her vehicle since she needed to push a release button on her prosthetic leg in order to exit the vehicle.

Sergeant Baker observed that defendant was crying but denied that she was hysterical. Sergeant Baker testified that at this time he did not tell defendant she was under arrest but stated that she was probably under arrest.

Within a minute after defendant stopped, other officers responding to the radio dispatch arrived on the scene. Officer Paul Van Dorn was the second officer on the scene. When Officer Van Dorn arrived, he observed Sergeant Baker with his gun drawn ordering defendant to keep her hands where he could see them. Officer Van Dorn then drew his weapon on defendant and maintained cover behind his squad car. Officer Van Dorn observed defendant exit and move to the back of her vehicle, stop, and fall back against the back of her vehicle. Defendant denied falling back.

Another officer placed defendant in handcuffs, and Sergeant Baker assigned Officer Van Dorn to be the arresting officer. While she was trying to enter the rear seat of Officer Van Dorn's squad car, defendant informed Officer Van Dorn and Sergeant Baker that she had a prosthetic leg. Defendant also told Sergeant Baker that her boyfriend had thrown her into some bushes.

Officer Van Dorn and Sergeant Baker testified that they arrested defendant for reckless conduct. Officer Van Dorn further testified that he did not perform any field sobriety tests on defendant at the scene and that he did not have an opportunity to observe defendant at the scene to determine whether she was intoxicated.

While Officer Van Dorn transported defendant to the police station, he noticed that defendant had a very runny nose and watery, glassy eyes, and he smelled a very strong odor of alcohol on her breath. At the police station, Officer Van Dorn asked defendant if she had been drinking and she responded affirmatively. Defendant told Officer Van Dorn that, earlier in the evening, she had three or four glasses of champagne.

Officer Van Dorn testified that he read defendant the statutory warning to motorist at 10:31 p.m. and asked her if she would take a breathalyzer test, to which she agreed. Officer Van Dorn then observed defendant for a 20-minute period before administering the breathalyzer test at 10:54 p.m. The machine printed out a ticket; Officer Van Dorn initialed the ticket and gave defendant a copy of the ticket while retaining the other two copies. Officer Van Dorn then entered defendant's blood-alcohol concentration into a logbook. Officer Van Dorn testified that the digital readout on the breathalyzer machine, the ticket, and the logbook entry all indicated that defendant's blood-alcohol concentration was .11. The trial court did not allow the State to enter the breathalyzer ticket or the logbook into evidence.

Officer Van Dorn further testified that he is trained in operating a breathalyzer machine and that the breathalyzer machine used to measure defendant's blood-alcohol concentration had been certified by the Illinois Department of Public Health within 45 days prior and subsequent to the test. Officer Van Dorn denied that there were any problems with the machine on the night he tested defendant.

Officer Van Dorn also testified that defendant was arrested at the police station for driving under the influence. He could not recall an exact time but stated that he arrested defendant after he conducted a field sobriety test and spoke with her for a little while. Officer Van Dorn did not testify as to which field sobriety test or tests defendant performed or which test or tests defendant failed. Officer Van Dorn then ...

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