City of Highland Park v. Block

• Decision Date: 02 May 1977
• Docket Number: No. 76--46,76--46
• Citation: 362 N.E.2d 1107,6 Ill.Dec. 285,48 Ill.App.3d 241
• Parties: , 6 Ill.Dec. 285 CITY OF HIGHLAND PARK, a Municipal Corporation, Plaintiff-Appellee, v. Harry R. BLOCK, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1107

362 N.E.2d 1107

48 Ill.App.3d 241, 6 Ill.Dec. 285

CITY OF HIGHLAND PARK, a Municipal Corporation, Plaintiff-Appellee, v. Harry R. BLOCK, Defendant-Appellant.

No. 76--46.

Appellate Court of Illinois, Second District.

May 2, 1977.

Lionel I. Brazen, Manuel Rosenstein, Chicago, for defendant-appellant.

Rosing & Carlson, Raymond M. Carlson, Waukegan, for plaintiff-appellee.

GUILD, Justice:

In a jury trial the defendant, Harry R. Block, was convicted of driving while under the influence of intoxicating liquor in violation of chapter 71, section 71.105 of the City of Highland Park ordinances. He was fined $25.

In this appeal the defendant has raised eight issues. For the purpose of convenience they are itemized as follows:

1. Whether the defendant who was driving while intoxicated on a private driveway of a private residence could be convicted under the city ordinance where there was no enabling ordinance governing traffic on private driveways, it being contended that by virtue of the Illinois Vehicle Code traffic regulations over private driveways or private streets may be promulgated only upon the written request of the owners thereof.

2. Whether proper foundation was laid for the admission of the results of a breathalyzer machine test.

3. Whether the trial court improperly limited cross-examination of one of the City's witnesses.

4. Whether a voluntary and alleged prejudicial comment by a witness for the City of Highland Park constituted reversible error.

5. Whether there was a violation of the Miranda rule where the defendant requested the services of a lawyer and the police officer administered a 'performance test' before the lawyer was available.

6. Whether the trial court's remarks directed to the defense attorney were disparaging and sufficiently gross to deny defendant a fair trial.

7. Whether the trial court erred in refusing to allow defense counsel to rehabilitate the defendant's witness after cross-examination tended to show the witness was biased.

8. Whether the defendant received a fair trial under the United States and Illinois constitutions.

The principal contention of the defendant in this appeal appears to be that the offense of driving while intoxicated may not be committed on private property. As a part of this contention defendant cites section 11--209.1 of the Illinois Vehicle Code (Ill.Rev.Stat.1973, ch. 95 1/2, § 11--209.1). While it is true that section 11--209.1 deals with the regualtion of traffic upon private roads and further provides that such regulation may be adopted upon the written request of the owners of the private property involved, we find that the same does not apply factually to the situation before us. The City of Highland Park's ordinance provides, in pertinent part:

'No person who is under the influence of intoxicating liquor may drive or be in actual physical control of any vehicle within the City of Highland Park.'

This wording parallels that used in section 11--501(a) of the Illinois Vehicle Code (Ill.Rev.Stat.1973, ch. 95 1/2, § 11--501(a)), which reads:

'No person who is under the influence of intoxicating liquor may drive or be in actual physical control of any vehicle within this State.'

Two other sections of the Illinois Vehicle Code are also relevant to the issue presented herein. Section 11--207 (Ill.Rev.Stat.1973, ch. 95 1/2, § 11--207) states in pertinent part:

'The provisions of this Chapter shall be applicable and uniform throughout this State and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any ordinance, rule or regulation in conflict with the provisions of this Chapter unless expressly authorized herein. . . .'

The pertinent part of section 11--201 (Ill.Rev.Stat.1973, ch. 95 1/2, § 11--201) further provides:

'The provisions of Articles IV and V of this Chapter shall apply upon highways and Elsewhere throughout the State.' (Emphasis added.)

Section 11--501(a) is part of Article V, mentioned in section 11--201, and is clearly applicable throughout the entire state of Illinois. This issue was considered, in part, by this court in People v. Erickson (1969), 108 Ill.App.2d 142, 246 N.E.2d 457, in which we held that a defendant could be convicted for driving while intoxicated upon a privately owned parking lot. In that case we held that the words 'elsewhere throughout the State' appearing in the predecessor of section 11--201 included such a semipublic place. This issue and the Erickson case were further considered in People v. Guynn (1975), 33 Ill.App.3d 736, 338 N.E.2d 239. In Guynn the question presented was whether the offense of driving while intoxicated could be committed on purely private property. The court there cited our decision in People v. Erickson, supra, and went on to state that:

'We conclude the words 'elsewhere throughout the State' encompass all areas of the State, public or private. While this issue is one of first impression in Illinois, in reaching this conclusion we find support in the courts of other States where the statutory language is identical. (Citations.) 33 Ill.App.3d at 739, 338 N.E.2d at 241.

The defendant herein does not contend that the City of Highland Park was without any authority to prohibit driving while intoxicated within the city limits, and under the authority of section 11--207 the City could not exempt any portion of such territory without enacting an ordinance contrary to section 11--501(a). Thus, we conclude that section 11--209.1 of the Illinois Vehicle Code was intended to apply solely to traffic regulations which were not already in force throughout all areas of the State. The ordinance in question was valid and properly applied in the instant case.

We turn next to the contention of the defendant that no proper foundation was presented for the admission into evidence of the results of the breathalyzer test, as the officer administering the test 'gave no clear-cut or affirmative testimony unequivocal in nature to establish compliance with the statutory law governing the administration of breathalyzer tests.' Section 11--501(d) of the Illinois Vehicle Code (Ill.Rev.Stat.1973, ch. 95 1/2, § 11--501(d)), provides in part:

'Chemical analysis of the person's blood or breath to be considered valid under this Section must be performed according to uniform standards adopted by the State Department of Public Health, . . .'

The officer testified in response to inquiry as to his knowledge of the rules and regulations of the Department of Public Health regarding the administration of these tests that 'It is my understanding that our standards parallel the standards of the Department of Public Health.' In response to the inquiry as to whether he had further knowledge of those standards, he replied, 'Other than they are the same standards as the ones set up by our department.' Unfortunately, no exhibits have been furnished this court. The record is not clear as to whether the State's standards and the Highland Park standards were introduced into evidence. A somewhat similar situation to this is found in People v. Clifton (1973), 11 Ill.App.3d 112, 296 N.E.2d 48. Defense counsel in that case objected to the admission into evidence of the breathalyzer test on the ground there was no foundation proof that the test had been performed in accordance with the uniform standards of the Department of Public Health as required by the statute. The officer in that case testified he did not know what the 'uniform standards' were. The court held that evidence of the breathalyzer test was therefore improperly admitted. However, the court there found that inasmuch as it was a bench trial it was presumed that the judge considered only competent evidence. In the dissent to Clifton, Justice Stouder took issue with this finding and stated:

'Were incompetent evidence of a breathalzyer test presented in a trial before a jury, there is little doubt that such evidence would result in reversible error, and I see no reason for believing other than that the evidence had a similar prejudicial effect in this case.' 11 Ill.App.3d at 115, 296 N.E.2d at 51.

See, also, People v. Winfield (1975), 30 Ill.App.3d 668, 332 N.E.2d 634, where the court again considered whether there was compliance with the standards relative to the administration of the breathalyzer test. The court in Winfield stated:

'Without considering the evidence of the breath tests, the testimony of the two witnesses describing defendant's behavior at the scene of the accident would be sufficient to sustain defendant's conviction.' 30 Ill.App.3d at 671, 332 N.E.2d at 637.

The question then arises as to whether or not there was sufficient compliance with the standards with relation to the knowledge of the administrating officer and, if not, was the therefore erroneous admission of the results of the breathalyzer in a jury trial reversible error. Under the facts of this case, disregarding the admission of the results of the breathalyzer test, it is impossible to see how the jury could have done otherwise than to return a verdict of guilty. We are constrained to believe that the City should have introduced evidence of the knowledge and compliance of the breathalyzer operator with the Illinois standards promulgated for the administration of the breathalyzer test. However, we see no useful purpose in reversing this case where the evidence of defendant's guilt is overwhelming. Defendant drove his motor vehicle into the driveway of a Mrs. Ware and proceeded to hit a stone wall. He backed up into some evergreens and proceeded to hit the stone wall a second time. When Mrs. Ware, aroused from her home by the crash, confronted the defendant in his motor vehicle she noted the strong odor of alcohol on him. In substance she stated that he was in no condition to drive and asked him to remain in the car until she called the police. When the police arrived the defendant was unable to find his driver's...