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People v. DiPace

November 10, 2004

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
LORENZO DIPACE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 02-CF-506. Honorable Kathryn E. Creswell, Judge, Presiding.

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

PUBLISHED

Modified Upon Denial of Rehearing

Defendant, Lorenzo DiPace, appeals from his convictions of Class 2 felony driving under the influence of alcohol (625 ILCS 5/11--501( c-1)(3) (West 2002)), and Class 4 felony driving while license revoked (625 ILCS 5/6--303(d) (West 2002)). Defendant contends that (1) the trial court erred in denying his motion to suppress because the police lacked reasonable suspicion to stop his vehicle; (2) his breath alcohol analysis should not have been admitted by the trial court; (3) the State failed to prove his prior violations of the statutes as elements of both crimes; and (4) he cannot be convicted of both Class 2 felony driving under the influence and Class 4 felony driving while license revoked, because the crimes should be merged. We affirm.

I. Facts

On February 14, 2002, two women were driving north on Interstate 355 when they noticed a red Mercury Mountaineer being driven erratically in front of them. After watching the car drift out of its lane and then jerk back into its lane several times, they called the police. They provided the dispatcher with a description of the car and its license plate number. They followed the Mountaineer as it exited onto Lake Street, where they watched it drift onto the shoulder, make contact with a raised curb, and also almost make contact with another car before finally pulling into a grocery store parking lot. While the two women waited in the parking lot for police to arrive, defendant exited the Mountaineer and went into the grocery store.

Defendant was still inside the grocery store when Officer Michael Gicla arrived on the scene. The two women relayed to Gicla what they had seen. They pointed out defendant's car, which was parked in a relatively isolated area in the parking lot, and they described the driver as a white male, possibly in his forties. After providing Gicla with their names, birth dates, and phone numbers, the two women departed. One of the women later testified at trial.

From his police car, Gicla watched the Mountaineer until he saw defendant return to his car and drive out of the parking lot. He followed defendant for approximately one mile before he saw defendant's car cross onto the dotted white lane-dividing lines. Gicla then activated his police lights to pull over defendant's car. Defendant slowed and continued driving for approximately one-half mile, passing a few minor streets, before pulling over at the next major intersection.

When Gicla approached defendant's car, he noted a strong odor of alcohol on defendant's breath. Gicla also noted that defendant's speech was noticeably slurred. Defendant claimed that he had consumed 1" beers. Gicla asked defendant to provide a driver's licence, which defendant was unable to do. Gicla then asked defendant to exit the car so that Gicla could administer some field sobriety tests. As the two walked to the front of defendant's vehicle to perform the tests, Gicla noted that defendant had unsteady balance and was stutter-stepping and swaying as he walked. Gicla asked defendant to walk nine steps in a straight line, heel to toe, then turn and walk nine steps back to his starting point. Defendant attempted to comply, but he could not muster the balance to complete the test. He almost fell over trying to turn around after only seven steps. At that point, defendant informed Gicla that back and leg injuries would prevent him from completing the test.

Gicla asked him to perform a finger dexterity test, whereby defendant was required to touch his thumb to his other fingers and simultaneously count to four, and then go back through the same sequence in reverse. Defendant was unable to complete the task as instructed. Gicla then asked defendant to recite part of the alphabet, which defendant also was unable to do correctly. Gicla then arrested defendant and took him to the police station.

At the police station, Gicla continued to observe defendant before a breath alcohol analysis test was administered. The breath analysis showed that defendant had a blood-alcohol level of 0.246. The breath analysis machine had been certified as operational on February 12, 2002, and it gave a reading of 0.000 for blank air just before defendant's reading. The machine was certified again on March 15, 2002, the same day that it was replaced because of "frequent false mouth alcohol display," which meant that the machine's mouth alcohol detector was incorrectly detecting the presence of alcohol in the mouth of a test subject and aborting the breath test.

After a bench trial, defendant was found guilty of Class 2 felony driving under the influence and Class 4 felony driving with a revoked license. He timely appeals. Pursuant to the discussion below, we affirm the judgment of the trial court.

II. Discussion

As a threshold matter, the State argues that defendant's issues on appeal are waived because defendant did not file a posttrial motion preserving those issues. Although a written posttrial motion is generally required to preserve an issue for appeal (People v. Enoch, 122 Ill. 2d 176, 185-87 (1988)), a posttrial motion is not necessary to preserve questions in a bench trial if the issues were presented to the trial court (People v. Crowder, 174 Ill. App. 3d 939, 941 ...


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