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People v. Rozela

December 30, 2003

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
TRACY E. ROZELA, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 02-DT-4298 Honorable Mark W. Dwyer, Judge, Presiding.

The opinion of the court was delivered by: Justice Byrne

UNPUBLISHED

Defendant, Tracy E. Rozela, appeals from an order of the circuit court of Du Page County denying her petition to rescind the statutory summary suspension of her driver's license, pursuant to section 11--501.1 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11--501.1 (West 2002)), for driving under the influence of alcohol. We affirm.

FACTS

Only Sergeant Kevin Driscoll of the Naperville police department testified at the hearing on defendant's petition to rescind the statutory summary suspension. Driscoll had been a police officer for 19 years and was trained in the use of field tests for intoxication and in the use of portable breath tests (PBTs). Driscoll had been trained as an instructor in the use of field sobriety tests and was certified as a breathalyzer operator.

At 12:54 a.m. on September 12, 2002, Driscoll was in his squad car at a gas station in Naperville. Defendant's car drove past him, and Driscoll estimated that her speed exceeded the 25- mile-per-hour limit. Driscoll activated his radar, which disclosed that defendant was traveling at 37 miles per hour. Driscoll followed defendant's car and activated his emergency lights after observing it weave twice across the lane dividing line. Defendant turned right onto a street that ran one way in the opposite direction. After defendant curbed her car, Driscoll approached and saw that defendant's eyes were glassy and bloodshot.

Driscoll smelled a strong odor of alcohol on defendant's breath. Defendant explained that she drove erratically because she was unfamiliar with the area and she was upset by a recent argument with her boyfriend. She admitted drinking a couple of beers at a local tavern that evening.

Driscoll administered the horizontal gaze nystagmus test. The test involves evaluating six points, and defendant failed at every point. However, defendant passed three other field sobriety tests: the one-leg stand test, the walk-and-turn test, and the recite-part-of-the-alphabet test. Defendant's successful completion of the three tests did not affect Driscoll's opinion that she was under the influence of alcohol. He believed that a failure of a sobriety test proves a person's intoxication but successful completion of a test proves nothing.

On direct examination, defense counsel asked Driscoll whether he asked defendant to submit to a PBT. Driscoll testified that he had done so and that defendant complied. There was no evidence that defendant's submission to the test was involuntary. On cross-examination, Driscoll testified that he used a calibrated, certified Intoximeter Alcosensor III, which reported a blood-alcohol concentration of .126. Defense counsel objected to the admission of the test results, and the court overruled the objection.

Driscoll testified that he arrested defendant for driving under the influence (DUI) and transported her to the police station, where a breathalyzer test reported a blood-alcohol concentration of .109. The Secretary of State suspended defendant's driving privileges for three months.

The trial court found Driscoll's testimony credible and concluded that defendant had not established a prima facie case for rescission of the suspension of her driving privileges. Emphasizing that defendant had a right to refuse to take the PBT without penalty, the court stated that Driscoll was authorized to use the test as a tool to further investigate his reasonable suspicion that defendant had operated a vehicle while under the influence of alcohol. The court denied the petition to rescind the suspension but issued a judicial driving permit for defendant to travel to work and school. Defendant's timely appeal followed.

ANALYSIS

In her brief, defendant mistakenly states that this court has jurisdiction to consider her appeal under Supreme Court Rule 604(a)(1) (188 Ill. 2d R. 604(a)(1)). Rule 604(a)(1) applies only to appeals filed by the State. However, a trial court's decision to grant or deny a petition to rescind a summary suspension is treated as a final order in a civil matter, which is appealable under Supreme Court Rule 303 (155 Ill. 2d R. 303). People v. O'Connor, 313 Ill. App. 3d 134, 136 (2000). Therefore, we have jurisdiction to review the denial of the petition to rescind.

On appeal, defendant argues that (1) section 11--501.5(a) of the Vehicle Code (625 ILCS 5/11--501.5(a) (West 2002)), which authorizes PBTs is unconstitutional; (2) Officer Driscoll lacked reasonable suspicion to ask defendant to submit to the PBT; and (3) the results of the test were inadmissible because the State failed to establish an adequate foundation. Defendant based her petition to rescind on the assertion that there were no reasonable grounds to arrest her for DUI. See 625 ILCS 5/2--118.1(b) (West 2002). We initially note that an arrest requires "reasonable grounds" or "probable ...


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