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People v. Bostelman

September 28, 2001

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JEFFREY A. BOSTELMAN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 99--DT--3572 Honorable Kathryn E. Creswell, Judge, Presiding.

The opinion of the court was delivered by: Justice O'malley

UNPUBLISHED

Following a bench trial, defendant, Jeffrey Bostelman, was convicted of driving under the influence of alcohol (625 ILCS 5/11--501(a)(2) (West 1998)). On this appeal he argues that (1) his trial counsel provided ineffective assistance for not seeking to exclude, as lacking foundation, the arresting officer's testimony concerning the field sobriety tests defendant underwent and the arresting officer's opinion concerning defendant's state of intoxication; and (2) there was insufficient evidence to convict him of driving under the influence of alcohol. We reject both arguments and affirm.

BACKGROUND

On September 2, 1999, defendant was charged with driving under the influence of alcohol (625 ILCS 5/11--501(a)(2) (West 1998)), operating a motorcycle with illegal handlebars (625 ILCS 5/11--1403(c) (West 1998)), and speeding (625 ILCS 5/11--601(b)(West 1998)).

At the beginning of defendant's bench trial, the court granted the State's motion to nol-pros the illegal handlebars charge. Officer Darrell Klunk testified for the State that on September 2, 1999, he had been a police officer with the Village of Lombard for 2½ years. During the early morning hours on that date, Klunk was on traffic patrol traveling eastbound on Roosevelt Road in Lombard. At 3:30 a.m., he observed a "fast moving motorcycle" traveling westbound on Roosevelt Road. Employing his dash-mounted radar unit, Klunk gauged the motorcycle's speed at 51 miles per hour. As the speed limit in that area was 35 miles per hour, Klunk activated his overhead lights and pursued the motorcycle. As he pursued it, Klunk did not observe the motorcycle weave within its lane or cross into the oncoming lanes of traffic.

Klunk testified that when he stopped the motorcycle, he approached the driver and asked him to produce his driver's license and insurance card, by which Klunk identified the driver as defendant. Klunk did not notice defendant having any physical difficulty in producing these items. Klunk asked defendant where he came from and where he was going, and defendant responded that he had come from Galway's, a restaurant and bar, and was on his way to his home in St. Charles. Asked if he had consumed any alcoholic beverages, defendant replied that he had had "a couple" at Galway's. While he conversed with defendant, Klunk smelled a strong odor of an alcoholic beverage on defendant's breath and observed that defendant's eyes were glassy and bloodshot.

Klunk testified that, based on these observations, he decided to ask defendant to perform several field sobriety tests. First, Klunk asked defendant to recite the alphabet from "E" to "W." Defendant did not immediately comply but instead inquired why Klunk was asking him to perform the test. Defendant also produced from his wallet the business cards of two Chicago-area police officers and remarked that the officers were his acquaintances. Klunk reiterated his request that defendant recite the alphabet from "E" to "W," and defendant again asked why Klunk was asking him to perform the test. Eventually, defendant began reciting the alphabet, beginning at "A" and stopping at "L." Officer Klunk asked defendant to continue, and defendant did not. Officer Klunk testified that, based on this performance, defendant failed this test.

Klunk testified that he then asked defendant to count from 67 down to 43. Defendant asked why Klunk was asking him to perform the test. Eventually, defendant began counting at 67 and stopped at 63. Klunk repeated the instructions to defendant. Defendant then began counting down again, this time starting at 67 and stopping at 61. Klunk testified that, based on this performance, defendant failed the counting test.

On cross-examination, Klunk corrected himself and testified that defendant began at 66, not 67, on his first attempt and stopped at 63, and that he did not stop defendant from counting despite the fact that defendant started with the wrong number. Klunk also testified on cross-examination that he did not in fact repeat the instructions after defendant stopped counting the first time and that defendant began counting the second time on his own initiative. Klunk, however, reiterated his conclusion that defendant had failed the test.

Klunk testified that, following the counting test, he asked defendant to perform two additional field sobriety tests in a nearby parking lot, which had a flat, dry, and level asphalt surface. First, Klunk asked defendant to stand with his arms at his side and with his feet positioned heel-to-toe. Demonstrating the test, Klunk instructed defendant to lift one of his feet six inches off the ground, stare at the toe of the raised foot, and count to 30 by 1000's (i.e., "one-one thousand, two-one thousand," etc.) while keeping the foot raised. Defendant indicated that he understood the instructions and demonstration and that he had no physical problems that would prevent him from performing the test. However, when defendant attempted the test, he stood with his arms at waist level while his body swayed. Defendant placed his raised foot back down on the pavement four times and stopped counting at 18. Klunk testified that, based on this performance, defendant failed the test. On cross-examination, Klunk testified that he did not recall, but acknowledged that it was possible, that defendant succeeded in counting to 30. Klunk, however, did not contradict on cross-examination his earlier statement that defendant's foot touched the ground several times before he reached 30.

Klunk testified that he next asked defendant to walk with his hands by his sides along an imaginary line, placing the heel of the front foot against the toes of the back foot. Defendant was to take nine steps, pivot on the line, and then take nine steps back. As with the previous test, Klunk supplemented his verbal instructions with a demonstration. When he attempted the test, defendant's heel was one inch apart from his toes on three of the first nine steps. When defendant turned, he failed to pivot as instructed. Additionally, defendant stepped off the imaginary line by the width of his foot three times on the return set of steps. Klunk testified that, based on this performance, defendant failed this test. Klunk also administered the horizontal gaze nystagmus (HGN) test but did not testify concerning the results of that test.

Klunk testified that, following the tests, he again asked defendant how much he had to drink that night. Defendant responded that he had consumed a can of beer at 12 noon the day before and another can at 1 a.m. that morning. Defendant also remarked that his father was a police officer. Klunk arrested defendant for driving under the influence, at which point defendant began to cry. Klunk testified that he asked defendant a series of questions in the holding area of the police station. When Klunk asked defendant what time it was, defendant responded that he did not know because Klunk had taken his watch. Klunk testified that a clock was within defendant's sight at this time. Klunk then asked defendant what day of the week it was, and defendant responded that he did not know because Klunk had taken his watch. Asked what the date was, defendant replied that he was confused. Asked what city or town he was in, defendant replied, "How should I know? I am in a cell right now." Defendant did, however, accurately recall the direction in which he was driving when he was stopped by Klunk. Asked when he had begun his travel homeward that morning, defendant again said that he was confused. Asked if he had been drinking, defendant replied, "No, sir." Defendant refused Klunk's request that he submit to a Breathalyzer test.

Klunk testified that, throughout his interaction with defendant, he noticed no slurring or murmuring in defendant's speech and had no difficulty understanding defendant. Klunk testified that, based on defendant's moving violation, his physical appearance, and his failure to perform field sobriety tests adequately, he concluded that defendant was under the influence of alcohol. Klunk testified that, during his time with the Lombard police department, he had participated in approximately 20 arrests for driving under the influence and had administered the HGN test on approximately 50 ...


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