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People v. Connolly

June 13, 2001

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MARTIN CONNOLLY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 99-DT-4608 Honorable Kathryn E. Creswell, Judge, Presiding.

The opinion of the court was delivered by: Justice Rapp

Following a bench trial in the circuit court of Du Page County, defendant, Martin Connolly, was convicted of, inter alia, driving under the influence of alcohol (625 ILCS 5/11--501(a)(2) (West 1998)). Defendant appeals only his conviction of driving under the influence of alcohol, contending (1) that the trial court erred in denying his motion for a directed finding at the close of the State's case; (2) that the State failed to prove him guilty beyond a reasonable doubt; and (3) that he was denied a fair trial. We affirm.

I. FACTS

On November 16, 1999, defendant was charged with driving under the influence of alcohol (625 ILCS 5/11--501(a)(2) (West 1998)). Defendant waived his right to a trial by jury, and the case proceeded to a bench trial.

The State called Officer Razzino of the Lombard police department. Officer Razzino was on patrol duty early in the morning of November 16, 1999. At approximately 2:45 a.m., Officer Razzino was heading west on Roosevelt Road approaching Highland Avenue when he observed a blue Ford van in front of him. At that location, Roosevelt Road has two westbound lanes and two eastbound lanes. The westbound lanes are separated from the eastbound lanes by a double yellow line. The two westbound lanes are separated by a white dashed line. Officer Razzino saw the van cross over the white dashed line dividing the westbound lanes by approximately one to two feet. The van reentered its lane of traffic and then crossed approximately five to six inches over the double yellow line into the eastbound lanes.

Officer Razzino followed the van while running the registration through dispatch. At the intersection of Roosevelt and Finley Roads, Officer Razzino activated his squad car's emergency lights to effect a traffic stop. The van traveled two or three more blocks and then pulled over. Officer Razzino radioed in the traffic stop and got out of his squad car. Defendant immediately got out of the van and approached Officer Razzino. Officer Razzino told defendant to stay where he was and defendant responded by saying, "What did I do wrong?" Officer Razzino explained to defendant that he was stopped for improper lane usage and failure to signal. Defendant said that he did not believe he committed those offenses and asked again what he had done wrong. Officer Razzino explained once more why he stopped defendant and then asked defendant for his driver's license and proof of insurance. Defendant just stood there and stared at Officer Razzino. Officer Razzino asked defendant again to produce his driver's license and proof of insurance. Defendant again asked what he did wrong while he pulled out a state identification card. Officer Razzino ran defendant through the Law Enforcement Data System (LEADS). While waiting for a response from dispatch, Officer Razzino observed that defendant's eyes were bloodshot and glassy and that defendant had a strong odor of alcoholic beverage emanating from his breath when he spoke. Officer Razzino asked defendant where he was coming from, and defendant said he had been at a bar in Chicago. When asked if he had anything to drink at the bar, defendant threw his hands up in the air and said "Man, I will just leave my car here and I will walk to my girlfriend's house. We don't have to do this." Defendant then said something to the effect of "Why don't you go ahead and arrest me? You are going to do it anyway." Defendant then said that he had about a six-pack of beer within the last three hours.

Officer Razzino asked defendant if he could recite the alphabet beginning at E and ending at W. Defendant said that he could do it and recited "A, B, C, D, E, H, J" and then stopped and stated "I can't do this. Why don't you just go ahead and arrest me?" Next, Officer Razzino asked defendant if he could count backwards from 67 to 43. Defendant said that he could not and refused any further field sobriety testing.

Officer Razzino said that in his opinion defendant was under the influence of alcohol. Officer Razzino based his opinion on defendant's incoherence; his inability to answer simple questions or to follow simple instructions; his red, glassy, and bloodshot eyes; the strong odor of alcoholic beverage emanating from his breath; his admission of drinking; his inability to perform two field sobriety tests; and his refusal to take further field sobriety tests.

Officer Razzino advised defendant that he was under arrest for driving under the influence of alcohol, handcuffed him, and took him into custody. Officer Razzino took defendant to the Lombard police station, and defendant was put through standard booking procedure. Officer Razzino said that he handed defendant a copy of the warning to motorist and read the warning to defendant in its entirety from a standard form. When asked to submit to a Breathalyzer test, defendant refused, saying that he "felt pretty buzzed" and that there was a possibility that he "might blow over."

On cross-examination, Officer Razzino testified that it is approximately a mile to a mile and a half from the location where he saw the van cross the white and yellow lines to the location where defendant pulled over. That span of Roosevelt Road has three intersections with traffic lights, and Officer Razzino did not observe defendant commit any traffic violations while traveling that distance. There was nothing unusual in the way defendant pulled over. Defendant did not stumble or fall when he got out of the van. Defendant was not swaying or staggering and did not need to lean on the van for support. Defendant was not belligerent or out of control. Officer Razzino did not observe defendant having difficulty in retrieving his identification card. Defendant was standing near Officer Razzino when a dispatch advised that defendant's license was suspended, but Officer Razzino tried to keep defendant from hearing the information by putting the radio up to his ear. Defendant said, "[W]hy don't you just go ahead and arrest me because you are going to anyway" after Officer Razzino determined the status of defendant's license. Officer Razzino did not notice anything irregular about defendant's speech. Officer Razzino denied that defendant said that he wanted to speak to an attorney before he would take any field sobriety tests. Officer Razzino did not include the fact that defendant was incoherent in his police report regarding the incident.

Officer Razzino indicated that defendant said that he wanted to consult with an attorney before submitting to the Breathalyzer test. Officer Razzino told defendant that he did not have the right to speak to an attorney before deciding whether to submit to the Breathalyzer test and that he could talk to an attorney later but that defendant needed to decide right now if he wanted to submit to the Breathalyzer test. Officer Razzino considered defendant's request to speak to an attorney before submitting to the Breathalyzer test as a refusal and recorded it as such. Defendant made a phone call after refusing the Breathalyzer test.

Officer Razzino admitted that defendant was able to recite his own phone number, his brother's name, phone number, and address without difficulty within an hour of his arrest. Officer Razzino did not note that defendant was confused, disorientated, loud, profane, belligerent, or combative. Rather, Officer Razzino admitted that at all times defendant was cooperative and oriented. Officer Razzino stated that defendant was handcuffed behind his back when he was walked from the squad car to the police station and had no difficulty walking on his own.

The State rested. Defendant made a motion for a directed finding. Defendant argued that the standard to be applied upon defendant's motion for a directed finding at a bench trial is that the State must have proved its case beyond a reasonable doubt. Defendant argued that the State had not met its burden. The State argued that the motion for a directed finding should be denied because the State had proved its case beyond a reasonable doubt.

The trial court denied defendant's motion. In ruling on defendant's motion for a directed finding the trial court stated:

"The burden at this point is whether, when the evidence is viewed in the light most favorable to the People, they have met their burden of beyond a reasonable doubt."

Defendant testified that on the night he was arrested he arrived at Thurston's bar in Chicago at about 7 p.m. or 8 p.m. and stayed there until the bar closed at 2 a.m. According to defendant, he consumed four beers while at Thurston's. After leaving the bar, defendant headed to Wheaton to see a girlfriend. Defendant detailed the route he traveled from the bar to Lombard. Defendant said that he had no difficulty driving the van from Chicago to Lombard. Defendant said that the van he was driving was old and the steering was loose so it "floats a bit." When defendant saw the emergency lights go on behind him he pulled over. Defendant exited his van at the same time the officer exited his squad car. Defendant began to walk toward the officer but the officer told him to stop. Defendant asked the officer why he had been stopped. The officer told him that he was swerving. Defendant denied swerving. The officer asked defendant for his driver's license. Defendant gave the officer his State of Illinois identification card because his driver's license was suspended due to unpaid parking tickets. After receiving information over the radio, the officer asked defendant if he knew his driver's license was suspended. Defendant indicated that he knew his license was suspended and that he understood he was in a little bit of trouble. Defendant asked the officer if it would be okay if he just parked the van there and walked the rest of the way to his girlfriend's house. Defendant denied ever saying, "Why don't you just go ahead and arrest me already? You are going to do it anyway." When asked, defendant told the officer that he was coming from a bar in Chicago where he had consumed four beers over the course of the evening.

According to defendant, the officer asked him to recite the alphabet backwards from H. At that point, defendant said, "Well if you are going to start testing me for, you know, field tests for DUI, I think I should talk to a lawyer first." Defendant also said "I am not refusing these tests, I am not saying that I am not going to take them, but I would like to talk to a lawyer first." According to defendant, the officer responded by saying, "Are you going to do it or aren't you? Are you refusing?" Defendant said "No, I am not refusing to take it. However, I am asking you if I can talk to a lawyer to see whether I should continue to talk to you any longer." The officer then said "Oh, you are refusing." Defendant testified that he never actually performed the alphabet test or any other test.

Defendant claimed that he was never told what would happen to his license if he refused to submit to the Breathalyzer test. Defendant said that he made it clear to the officer that he was not refusing to submit to the Breathalyzer test but that he just wanted to talk to his lawyer before deciding. The officer then said, "I will take that as a refusal."

Defendant said that after the officer recorded the refusal he was permitted to call an attorney. After speaking to the attorney, defendant told the officer he would take the Breathalyzer test, but he was not permitted to take the test. Defendant denied telling the officer that he was "pretty buzzed" and that he thought he "might blow over." Defendant stated that he was not under the influence of alcohol that night and that he felt fine to drive.

Defendant recalled Officer Razzino. Officer Razzino testified that, at the police station, in response to questions on a prisoner information report form, defendant said that he had drunk four beers in the last eight hours.

After hearing closing arguments, the trial court found defendant guilty of driving under the influence of alcohol. Defendant filed a posttrial motion for new trial, which was heard and denied. Defendant was sentenced to two years' probation, including 90 days in ...


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