People v. Krueger

• Decision Date: 21 February 1991
• Docket Number: No. 2-89-1207,2-89-1207
• Citation: 153 Ill.Dec. 759,208 Ill.App.3d 897,567 N.E.2d 717
• Parties: , 153 Ill.Dec. 759 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kevin KRUEGER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 717

567 N.E.2d 717

208 Ill.App.3d 897, 153 Ill.Dec. 759

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kevin KRUEGER, Defendant-Appellant.

No. 2-89-1207.

Appellate Court of Illinois,

Second District.

Feb. 21, 1991.

Rehearing Denied March 19, 1991.

Donald J. Ramsell, Ramsell & Associates, Wheaton, for Kevin krueger.

James E. Ryan, Du Page County State's Atty., Wheaton, William L. Browers, Deputy Director, Cynthia N. Schneider, State's Attys. Appellate Prosecutors, Elgin, for the People.

Justice DUNN delivered the opinion of the court:

The defendant, Kevin Krueger, appeals a trial court order denying his petition to rescind the summary suspension of his driver's license (Ill.Rev.Stat.1989, ch. 95 1/2, par. 2-118.1). The trial court held that the suspension was valid even though the warrantless arrest of the defendant inside his home, on which the suspension was predicated, violated the defendant's right to be free of unreasonable searches and seizures. On appeal the defendant argues that the summary suspension of his driver's license pursuant to section 11-501.1 of the Illinois Vehicle Code (Ill.Rev.Stat.1989, ch. 95 1/2, par. 11-501.1) may not be predicated on an illegal arrest. We agree and reverse.

On October 8, 1989, the defendant was arrested and charged with driving under the influence of alcohol (Ill.Rev.Stat.1989, ch. 95 1/2, pars. 11-501(a)(1), (a)(2)). He received notice that his license would be suspended. On October 19, 1989, the defendant filed a petition to rescind the suspension, and a hearing on the petition was held on November 6, 1989. The trial court denied the petition on that day and, on November 19, 1989, denied the defendant's motion to reconsider the judgment but granted a stay of the suspension pending appeal.

Testimony at the hearing on the defendant's petition to rescind centered on the events of the early morning of October 8, 1989. The defendant resided with his parents and brother at 1009 Riverside Drive in Elmhurst. Mary Dachtera, who resided next door at 1005 Riverside Drive, was awakened at approximately 1 a.m. by noises coming from the area of the Kruegers' home. She heard knocking on the window or door of the Kruegers' house and, looking out her windows, observed three uniformed officers of the Elmhurst police department outside. She went out the back door and started talking to the policemen. One of the officers told Dachtera that the defendant had been in a car accident and that they needed to talk to him. After finding an unlocked door, Dachtera went upstairs and called the defendant's name. She found that the defendant was sound asleep in his bed and, according to her testimony, went downstairs, opened the front door and told the officers that the defendant was upstairs and that she could not wake him up. She also told the officers "[h]e is out of it, but he is fine."

After the officers insisted that they needed to talk to the defendant, Dachtera let them in, and the four proceeded upstairs to the defendant's bedroom. One officer woke up the defendant, and, after the defendant sat up, the officers asked him to get dressed and go downstairs to talk with them. Dachtera went downstairs, and a few minutes later the officers brought the defendant, now dressed, down to the dining room table to talk with him. Dachtera, who had telephoned the defendant's sister, did not hear the questions that the officers asked the defendant.

The defendant's mother, Patricia Krueger, testified that she and her husband had just returned from Florida on the afternoon before their son was arrested and that before going on vacation they had told Mary Dachtera to watch the house. They did not give Dachtera a key to the house or permission to enter the house or to allow others to enter. Mrs. Krueger testified that, slightly before 1 a.m. on October 8, she and her husband talked with their son, who had just come home. They asked him where his car was; he replied not to worry, that a friend had driven him home; they went out to find his car. The defendant's father, George Krueger, testified that Mary Dachtera had not been given consent to allow any individuals to enter the Kruegers' home and that the Kruegers had not consented to the entry of the police into their home on October 8, 1989.

The defendant testified that he arrived home about a quarter to one on the morning of October 8, having been driven home in his car by a friend whose identity he could not recall. He acknowledged that, before coming home, he had had "a lot to drink," specifically three or four Bacardi and rum mixed drinks. He testified that he talked to his parents, consumed "a couple of [alcoholic] drinks," and went to bed. He did not hear the officers knocking or Mary Dachtera calling. He did not give the police consent to enter his home, was asleep when the officers entered his bedroom, and was never asked by the officers if he minded their being there. The defendant testified that one officer asked him to talk about the accident, that he agreed to do so, and that he told the officer that he had lost his head and panicked. Under a continuing objection by his attorney, the defendant testified further that he told the officer that he had had too much to drink, was drunk, and was sorry. He testified that after this questioning the officers ordered him to dress and come downstairs, that downstairs the officers questioned him some more about the accident, and that they then had him perform some field sobriety tests. The defendant admitted that he fell several times while performing the balance test and the walk-and-turn test and that he did badly on the heel-to-toe test.

Officer Richard A. Lewis of the Elmhurst police department testified that at 12:46 a.m. on October 8, 1989, he received a report of an unknown vehicle striking some mail boxes on the frontage road of Route 83. When he arrived at the accident scene, he observed that the vehicle had left the roadway, struck and flattened a pole that held four mailboxes, and left behind a passenger side T top and other vehicle parts. With the help of other officers, he located the vehicle two blocks away in the parking lot of the Ramada Inn. He ran a check on the license plate and went to the defendant's address. He went to the front porch, knocked on the door and got no answer. A call to the residence by the dispatch system also received no reply. Officer Lewis and two other officers knocked on the back door, and, after Mary Dachtera asked what the problem was, he told her that there had been an accident involving the defendant's car and that he wanted to talk to the defendant about it.

Officer Lewis testified that Mary Dachtera went into the Kruegers' house for a couple of minutes and came back down. According to Lewis, Dachtera told the officers that the defendant was in his bedroom, that he had vomit on him, that he was unresponsive to her yelling and shaking him, and that he did not wake up. Dachtera opened the door and let the officers inside. Officer Lewis testified that he entered solely to check on the defendant's well-being and was afraid that the defendant may have suffered internal injuries or choked on his own vomit. After seeing the defendant asleep in the bedroom, Officer Lewis checked for the defendant's pulse and breathing and shook the defendant awake. Officer Lewis noted that the defendant's breath smelled strongly of alcohol and that the defendant's eyes were very glassy. He asked the defendant if the latter minded his being there, and the defendant said that he did not care. On the request of the police, the defendant got dressed and went downstairs. Officer Lewis arrested the defendant in the house between 1 and 1:30 a.m. and administered a breath test on the defendant at 2:35 a.m.

Officer Lewis acknowledged that he had received no consent to enter the Kruegers' home. He was aware before entering that Mary Dachtera was a neighbor, not the owner of the house.

Officer Lewis acknowledged that the breathalyzer test he gave the defendant reflected the effect of any alcohol the defendant may have consumed after 12:46 a.m. He acknowledged that the machine could not differentiate between predriving and post-driving alcohol consumption and that if the defendant had had any alcoholic beverages after driving, the machine would not accurately reflect his blood-alcohol content at the time of driving.

The trial judge held initially that the inclusion of the effect of post-driving alcohol consumption in the results of the breathalyzer test did not violate due process. The trial judge then held that the warrantless entry into the defendant's home was illegal. The trial judge found specifically that the police entered without consent, that Mary Dachtera had told the officers that the defendant was asleep but was fine and not, as Officer Lewis had testified, that she had told him that the defendant was unconscious and unresponsive, and that the officers entered not merely to check on the defendant's health but also to investigate the defendant's possible driving under the influence. The trial judge concluded that there were no exigent circumstances to validate the warrantless entry into the defendant's home.

The trial judge also found that the defendant was arrested in his living room after the field sobriety tests, that the defendant had cooperated with the officers' request that he take those tests, and that the officers at the time of arresting the defendant had probable cause to believe that the defendant had been driving while under the influence of alcohol. The trial judge also concluded that without evidence of the defendant's blood-alcohol test reading, he could not state by a preponderance of the evidence that the extra two drinks that the defendant consumed at home caused the reading to meet or exceed .10 of 1%. The court denied the petition for rescission.

In denying the petition and the subsequent motion to reconsider, the...