People v. Barlow
| Decision Date | 03 December 1987 |
| Docket Number | No. 5-86-0592,5-86-0592 |
| Citation | 516 N.E.2d 982,163 Ill.App.3d 281,114 Ill.Dec. 827 |
| Parties | , 114 Ill.Dec. 827 PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Floyd D. BARLOW, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Richard A. Runde, State's Atty., Effingham, Kenneth R. Boyle, Director, Stephen E. Norris, Deputy Director, Raymond F. Buckley, Jr., Staff Atty., Office of State's Attys. Appellate Pros., Mt. Vernon, for the People.
K. Rick Keller, Braden Law Office, Neoga, for Barlow.
The State appeals from an order of the circuit court of Effingham County rescinding the summary suspension of the driver's license of defendant, Floyd Barlow, after an implied consent hearing. The State contends the court erred in finding police did not have reasonable grounds to believe defendant was in actual physical control of his vehicle while under the influence of alcohol. We reverse and remand with directions.
Defendant was issued a traffic ticket on July 13, 1986, for driving while under the influence of alcohol. On August 4, 1986, he requested an implied consent hearing, which was held on August 20, 1986. Also on that date, defendant was charged by information with driving under the influence of alcohol.
The evidence at the implied consent hearing showed that at approximately 12:20 a.m. on July 13, 1986, Illinois State Trooper Mary Rhodes received a report from police headquarters that a subject was slumped over the steering wheel of a vehicle in the village of Dieterich. Trooper Rhodes subsequently located a pickup truck alongside the road. She testified the vehicle was legally parked. She went to the truck and opened the driver's door. Defendant was sitting in the driver's seat "slumped back" with his eyes closed and an open can of beer on his lap. The keys were in the ignition but the engine was not running. Trooper Rhodes shook defendant to get his attention then told him she needed to see his driver's license. Defendant complied, although he fumbled as he reached for it and "it took him a while." The trooper could smell a strong odor of alcohol on his breath, and testified defendant "was sitting there in a stupor." Trooper Rhodes took defendant's license and the beer can back to her squad car to run a radio check of defendant's license. While she was in the squad car, defendant started the engine of his truck. Trooper Rhodes went to the truck and told defendant to turn off the engine and to come to her squad car. Defendant staggered as he walked to the squad car. His speech was slurred. Trooper Rhodes told defendant he was being arrested for driving while under the influence and she informed defendant of his rights regarding a breath test. Defendant stated he would take the test. Trooper Rhodes then took defendant to the Effingham County jail where the breath test is performed. On the way there, defendant took some chewing tobacco from his pocket. Trooper Rhodes told defendant if he placed the chewing tobacco in his mouth it would constitute a refusal to take the breath test. Defendant said, "I don't care, I want to chew." He then placed the chewing tobacco in his mouth. Trooper Rhodes testified she then "wrote him a refusal." At the jail, defendant stated he wanted to take the breath test, but Trooper Rhodes told him his actions had indicated a refusal.
Defendant testified that he was asleep in his truck in a parking place along Main Street about three blocks from his home when Trooper Rhodes shined a light in his truck. This startled him. She asked him for his keys and he gave them to her. She then asked for his driver's license and he complied. Trooper Rhodes then told defendant to get out of the truck and come back to her squad car. Referring to testimony of Trooper Rhodes that defendant staggered when he walked, defendant testified, "I have a little arthritis I guess you would say, and when I sit for a period of time, my legs take a while--I have to walk a ways before I can get limbered up." In the squad car, Trooper Rhodes advised defendant he was being arrested for driving while intoxicated and asked if he wanted to take the breath test. He told her he wanted to take the test. Defendant testified he was chewing tobacco when Trooper Rhodes first approached the truck, and that sometimes he sleeps with tobacco in his mouth. On the way to the jail, defendant was in the process of taking another chew when Trooper Rhodes said, "Don't put that in your mouth." According to defendant, he already had the tobacco in his mouth by the time Trooper Rhodes finished her warning. After the tobacco was in his mouth, Trooper Rhodes told him he had just refused to take the test. Defendant responded by saying, "Why, I didn't refuse to take no test." Trooper Rhodes told him he had refused by his actions. Defendant further testified that he does not recall starting the engine of the truck after Trooper Rhodes arrived. He admitted he had been drinking at a tavern prior to falling asleep in the truck, and stated he had been asleep approximately one hour before Trooper Rhodes arrived.
The only other witness at the hearing was John Ashbaugh, a corrections officer with the Effingham County sheriff's department who was at the jail when Trooper Rhodes brought defendant there. Ashbaugh testified that defendant asked Trooper Rhodes more than once to give him a breath test, and that the trooper told defendant he had refused by placing the tobacco in his mouth. Defendant also asked Ashbaugh more than once if he could take the test. Ashbaugh further testified defendant was walking "kind of slow," his breath smelled of alcohol, and his speech was "slow and low."
The trial court first concluded that defendant was placed under arrest for driving while under the influence of alcohol. The court then stated in its order:
The court rescinded the suspension of defendant's driver's license.
Section 2-118.1(b) of the Illinois Vehicle Code (Ill.Rev.Stat.1985, ch. 95 1/2, par. 2-118.1(b)) states the issues which are to be determined at an implied consent hearing:
"The scope of the hearing shall be limited to the issues of:
1. Whether the person was placed under arrest for an offense as defined in Section 11-501, or a similar provision of a local ordinance, as evidenced by the issuance of a Uniform Traffic Ticket; and
2. Whether the arresting officer had reasonable grounds to believe that such person was driving or in actual physical control of a motor vehicle while under the influence of alcohol, other drug, or combination thereof; and
3. Whether such person, after being advised by the arresting officer that the privilege to operate a motor vehicle would be suspended if the person refused to submit to and complete the test or tests, did refuse to submit to or complete such test or tests to determine the person's alcohol or drug concentration; or
4. Whether the person, after being advised by the arresting officer that the privilege to operate a motor vehicle would be suspended if the person submits to a chemical test, or tests, and such test discloses an alcohol concentration of 0.10 or more, and such person did submit to and complete such test or tests which determined an alcohol concentration of 0.10 or more." Ill.Rev.Stat.1985, ch. 95 1/2, par. 2-118.1(b).
There is no dispute here that defendant was arrested for driving while under the influence of alcohol. The trial court's finding at issue here is whether Trooper Rhodes had reasonable grounds to believe defendant was driving or was in actual physical control of his truck while under the influence of alcohol. A preliminary issue in this case is whether Trooper Rhodes had a right to be in a position where she could detect evidence that defendant was intoxicated. The trial court found that there was no basis for confronting defendant because no violations were observed by the officer. The State concedes that the officer did not have any reasonable grounds to believe defendant was intoxicated until the officer opened the door of the vehicle. The State argues, however, that Trooper Rhodes was justified in opening the door because she had reason to believe defendant might have been sick or injured. Defendant contends that it was just as likely for Trooper Rhodes to believe defendant was merely asleep.
In Village of Algonquin v. Ford (1986), 145 Ill.App.3d 19, 99 Ill.Dec. 148, 495 N.E.2d 595, involving a charge of driving while under the influence of alcohol, a police officer observed a vehicle in a private driveway with its motor running and its lights on. The officer shined a light into the vehicle and observed the occupants slumped forward. The defendant was in the driver's seat. The officer knocked on the window but the defendant did not respond. The officer testified he then had the defendant get out of the car and submit to field sobriety tests. The appellate court concluded that based on these facts, "there is no question that the officer had probable cause to make his investigation and, once started, to proceed to the field tests for sobriety." (145 Ill.App.3d 19, 22, 99 Ill.Dec. 148, 151, 495 N.E.2d 595, 598.) While the court did not offer any reasons for its conclusion, Professor LaFave has stated: "If the police find a person unconscious or disoriented and incoherent in a vehicle, it is reasonable for them to enter the vehicle for the purpose of giving aid to the person in distress and of finding information bearing upon the cause of his condition."...
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