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People v. Rush

March 02, 2001

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
MARK C. RUSH III, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Ogle County. Nos. 99--DT--199; 99--TR--7096; 99--TR--7097 Honorable Michael T. Mallon, Judge, Presiding.

The opinion of the court was delivered by: Justice Rapp

Defendant, Mark C. Rush III, was arrested and charged with driving under the influence of alcohol (DUI) (625 ILCS 5/11--501(a)(2) (West 1998)) and driving with an alcohol concentration of 0.08 or more (625 ILCS 5/11--501(a)(1) (West 1998)). In addition, he was given notice that his driving privileges would be summarily suspended. See 625 ILCS 5/11--501.1 (West 1998). He moved to suppress the State's evidence, arguing that he was stopped and arrested in violation of the fourth amendment (U.S. Const., amend. IV). He also petitioned to rescind the summary suspension, contending that the arresting officer lacked "reasonable grounds" to believe that he was driving under the influence of alcohol. See 625 ILCS 5/2--118.1(b) (West 1998). The trial court granted both the motion and the petition, and the State appeals, asserting that the stop and arrest were valid. We reverse and remand.

Following a traffic stop, Brian Ketter, an Ogle County deputy sheriff, arrested defendant for DUI. He ticketed defendant for DUI, transporting alcohol illegally (625 ILCS 5/11--502(a) (West 1998)), and driving in the wrong lane (625 ILCS 5/11--701(a) (West 1998)). Defendant submitted to a chemical test that revealed an alcohol concentration of 0.11. As a result, he received the notice of summary suspension. Ketter stated on the notice that he had "reasonable grounds" to arrest defendant for DUI. Ketter explained:

"Rush was observed crossing center line once and fog line once. Rush had bloodshot eyes, slurred speech, strong odor of alcohol and admitted consuming alcohol. Rush failed all field sobriety tests."

At a hearing, the trial court first took up defendant's motion to suppress. Defendant testified that, on October 24, 1999, about 1:30 a.m., he was driving alone in his Dodge pickup truck. He noticed that a vehicle was following him "very closely." The vehicle "made [him] a little nervous so [he] kept an eye on it." After following him for about 4½ miles, the vehicle activated its emergency lights, revealing that it was a police car. Defendant pulled over and was ultimately arrested. He never saw a warrant for his arrest.

On cross-examination, defendant testified that he admitted to the officer that he had consumed "five to six beers" since the previous evening. He added later that he had consumed "a couple" of beers with his dinner. Defendant did not believe that he had committed any traffic violation.

The court found that the burden on the motion had shifted to the State. The State called Ketter, who testified as follows. On October 24, he was driving his vehicle behind a Dodge. He saw the Dodge "cross the yellow center line twice" and "cross the white fog line." He stopped the Dodge and spoke with defendant, the driver and sole occupant of the vehicle. Ketter told defendant why he had stopped him. Ketter noticed that defendant "had slurred speech" and emitted "a strong odor of alcohol." Defendant admitted that he had consumed "five to six beers" since the previous evening. Defendant also said that "an open can of beer" was "on the passenger's seat."

Ketter asked defendant to exit the vehicle so that he could perform some field sobriety tests. Defendant complied, telling Ketter that no disabilities prevented him from standing, walking, or counting. Ketter directed defendant to a "nice, level area," where he performed the tests.

First, Ketter asked defendant to put his arms at his sides, stand on one leg, and count to 30. Ketter demonstrated the test, and defendant said that he understood. Because defendant "raised his arms" and "dropped his foot to the ground five *** times," he failed the test.

Second, Ketter asked defendant to take nine steps, heel to toe, back and forth along the white fog line. Ketter demonstrated the test, and defendant had no questions. Because defendant stepped off the line "several times," failed "to touch heel to toe," and "raised his hands" for balance, he failed the test.

Third, Ketter asked defendant to close his eyes, tip his head back, and touch his nose with a finger on each hand. Although defendant's movements were "slow and deliberate," he passed the test.

Fourth, Ketter administered a horizontal gaze nystagmus (HGN) test. He noticed that, as defendant's eyes were following a pen, they "did not follow the pen smoothly back and forth, they were jerking." Defendant also "had an onset of nystagmus prior to 45 degrees."

Finally, Ketter administered a portable breath test (PBT), which indicated an alcohol level of 0.07. Based on his tests, Ketter believed that defendant was under the influence of alcohol. Defendant then told Ketter that he had consumed "seven or eight beers" since the previous afternoon.

On cross-examination, Ketter testified that he followed defendant's vehicle for about four miles. He was "three to four car lengths" behind defendant's vehicle. Defendant did not exceed the speed limit, disregard any traffic control devices, or impede any other vehicles. Ketter acknowledged that, on the notice of summary suspension, he wrote that defendant had ...


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