People v. Frazier

• Citation: 463 N.E.2d 165,79 Ill.Dec. 27,123 Ill.App.3d 563
• Decision Date: 19 April 1984
• Docket Number: No. 4-83-0204,4-83-0204
• Parties: , 79 Ill.Dec. 27 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Percy FRAZIER, Jr., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 165

463 N.E.2d 165

123 Ill.App.3d 563, 79 Ill.Dec. 27

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Percy FRAZIER, Jr., Defendant-Appellant.

No. 4-83-0204.

Appellate Court of Illinois,

Fourth District.

April 19, 1984.

Michael R. Cornyn, Allen & Korkowski & Associates, Rantoul, for defendant-appellant.

Thomas J. Difanis, State's Atty., Urbana, Ill., Robert J. Biderman, Deputy Director, Rebecca L. White, Staff Atty., State's Attys. Appellate Service Com'n, Springfield, for plaintiff-appellee.

MILLER, Justice:

The defendant was tried by a jury, convicted of driving while under the influence of alcohol, and sentenced to 300 days' imprisonment. An analysis of the defendant's breath an hour after his arrest revealed a blood-alcohol concentration of .28, and this information was introduced into evidence. On appeal the defendant argues that the results of the breath test should not have been used at trial and that the jury received misleading instructions on the subject of intoxication. The defendant also argues that he was not proved guilty beyond a reasonable doubt. We conclude that no reversible error occurred and that the defendant was proved guilty of the offense, and we affirm the judgment of the circuit court.

In Champaign shortly after 6 p.m. on October 15, 1982, the defendant, driving home, was involved in a car collision several feet from his driveway. The defendant's car hit the left rear side of a car that was traveling in the opposite direction; both drivers had moved toward the center of the street to avoid parked cars, and apparently the accident resulted from those maneuvers. The police were called. At trial, two officers testified that they found the defendant seated behind the steering wheel of his car, staring straight ahead. The defendant's speech was clear, but his breath smelled of alcohol, his eyes were glassy, and he had trouble standing. The defendant was arrested and taken to the Champaign police station, where he initially refused to submit to a breath test but later changed his mind and took the test. The defendant also took two dexterity tests at the police station, and he had trouble performing both. Both police officers believed that the defendant was intoxicated at the time of his arrest.

The defendant testified that in the four hours preceding the accident he went to two taverns and had a total of four or five mixed drinks of whiskey and water. The defendant denied that he was unsteady on his feet after the accident. The bartender at the first tavern confirmed the defendant's account of his two or three drinks at that establishment and said that he had not noticed anything unusual about the defendant's condition. A neighbor who heard the collision and watched the police escort the defendant from his car testified that the defendant did not have any difficulty walking.

I

The defendant first argues that because he initially refused to take the breath test, one should not have been given and therefore the trial court should have granted his motion to suppress the test results. In arguing the motion, the parties agreed that the report made by the arresting officer, Hockings, would constitute the evidence. According to the report, upon arriving at the police station the defendant was informed of his rights under the implied consent law, section 11-501.1 of the Illinois Vehicle Code (Ill.Rev.Stat.1981, ch. 95 1/2, par. 11-501.1). When the defendant announced his refusal to take the test, Hockings advised him to consider the consequences of that decision. The defendant persisted in his refusal, so Hockings told him to think about it for 10 minutes. Soon the defendant changed his mind and agreed to take the test, which showed a blood-alcohol concentration of .28. The defendant argues that his initial decision to refuse to take the test was binding and irrevocable and that the police conduct resulting in his eventual decision to take the test was coercive.

The defendant first relies on the provision in section 11-501.1(c) that if a driver refuses to take a test, "none shall be given" and instead the clerk of the county court is to be notified of the refusal (Ill.Rev.Stat.1981, ch. 95 1/2, par. 11-501.1(c)). The defendant interprets this as barring all testing after a refusal.

The adjuration, "none shall be given," expresses the legislature's decision to prohibit involuntary blood and breath tests, though they would be constitutionally permissible under Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. (See People v. Todd (1975), 59 Ill.2d 534, 322 N.E.2d 447 (discussing earlier versions of the implied consent statute (Ill.Rev.Stat.1971, ch. 95 1/2, par. 11-501; Ill.Rev.Stat.1969, ch. 59 1/2, par. 144)).) The legislature has found involuntary tests distasteful and has chosen instead to permit drivers to refuse to take tests, to withdraw their implied consent, but bear the consequences that may flow from that decision. (See South Dakota v. Neville (1983), 459 U.S. 553, ---, 103 S.Ct. 916, 921, 74 L.Ed.2d 748, 756 ("South Dakota, however, has declined to authorize its police officers to administer a blood-alcohol test against the suspect's will. Rather, to avoid violent confrontations, the South Dakota statute permits a suspect to refuse the test, and indeed requires police officers to inform the suspect of his right to refuse. [Citation.] This permission is not without a price, however.").) The statute does not prevent the police from administering a test to a driver who has changed his mind and has voluntarily decided to submit to a test; the provision prevents only involuntary testing.

The defendant also relies on People v. Shorkey (1974), 23 Ill.App.3d 662, 321 N.E.2d 46. The implied consent statute applicable in that case provided that a driver's "refusal to submit to the test within 90 minutes after being given the written notice [i.e., of his statutory rights] shall constitute a refusal to take the test." (Ill.Rev.Stat.1973, ch. 95 1/2, par. 11-501.1(a)(9).) There, a driver at first refused to submit to a test but within the 90-minute period changed his mind and asked to take it; the police refused to administer one. The driver argued that his consent was timely and was not precluded by his earlier decision to refuse to take the test. On appeal the court held that "a refusal to submit to a chemical breath analysis is a binding refusal which cannot be nullified by a subsequent consent" (23 Ill.App.3d 662, 665, 321 N.E.2d 46, 48); the same result was reached in People v. Wierman (1982), 107 Ill.App.3d 7, 62 Ill.Dec. 779, 436 N.E.2d 1081. The defendant argues that this reasoning supports his theory that a driver may not revoke an initial refusal to take a test.

Wierman and Shorkey do not prohibit the police from administering a test as a matter of grace to a driver who has reconsidered his initial refusal. The problem in those two cases stemmed from the 90-minute period then allowed by the implied consent law for a driver to submit to a test, and the question common to those cases was whether a driver could be bound irrevocably by a refusal made before the 90 minutes were up. The statute applicable here was rewritten by Public Act 82-311, effective January 1, 1982, (see People v. Frye (1983), 113 Ill.App.3d 853, 69 Ill.Dec. 630, 447 N.E.2d 1065 (discussing the legislative history of P.A. 82-311)) and does not contain a similar provision concerning time. Wierman and Shorkey should be read as holding only that a refusal would bind the driver if the police wanted it to; thus, the police did not have to wait out the remainder of the 90 minutes, unemployed, once the driver refused to take a test.

We see no reason to prohibit the police from allowing a driver to take a test if he has reconsidered his refusal. What is finally done is all that counts of course: just as a driver who fails to complete a test will be deemed to have refused to take it (People v. Schuberth (1983), 115 Ill.App.3d 302, 71 Ill.Dec. 24, 450 N.E.2d 459), the initial refusal of the defendant here could have been given no effect once he completed the test.

The defendant also argues that he was mentally coerced into taking the test. That would be contrary to the legislature's decision to permit drivers to refuse to take tests. The defendant's eventual decision to submit to the test was made freely and voluntarily. Officer Hockings merely advised the defendant to think carefully about what he wanted to do and gave the defendant some time to reflect. This does not even constitute nagging and falls far short of coercion.

Therefore, we conclude that the trial court did not err in denying the defendant's motion to suppress the breathalyzer results.

II

The defendant argues that the result of the breathalyzer test should not have been admitted into evidence. The defendant bases this objection on two separate grounds: first, that the State failed to produce the text of certain standards on vetting and certifying breathalyzer machines, and second, that the State failed to show that the results of the breath test were accurate evidence of the defendant's blood-alcohol concentration at the time he was driving.

Before introducing the testimony of Kent Randolph, the certified breathalyzer technician who regularly tests the accuracy of the Champaign police department's machine, the State asked the trial judge to take judicial notice of a pamphlet issued by the Illinois Department of Public Health and called, "Standards and Procedures for Testing for Alcohol and All Other Drugs by Breath, Blood, and Urine Analysis." The date of the pamphlet was January 1, 1982. Rule 4.04 of the "Standards and Procedures" said:

"Instruments which meet the provisions of Rules 4.01, 4.02, and 4.03 will be tested by the Department in accordance with the Standards for Devices to Measure Breath Alcohol which were promulgated by the National Highway Traffic Safety Administration, U.S....