People v. Sanders

• Decision Date: 18 May 1987
• Docket Number: No. 2-86-0357,2-86-0357
• Citation: People v. Sanders, 508 N.E.2d 497, 155 Ill.App.3d 759, 108 Ill.Dec. 336 (Ill. App. 1987)
• Parties: , 108 Ill.Dec. 336 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Joel R. SANDERS, Defendant-Appellee.
• Court: Appellate Court of Illinois

Page 497

508 N.E.2d 497

155 Ill.App.3d 759, 108 Ill.Dec. 336

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Joel R. SANDERS, Defendant-Appellee.

No. 2-86-0357.

Appellate Court of Illinois Second District.

May 18, 1987.

Charles R. Hartman, State's Atty., Freeport, William L. Browers, Marshall M. Stevens, State's Attys., Appellate Service Com'n, Elgin, for plaintiff-appellant.

Justice HOPF delivered the opinion of the court:

The plaintiff, the State, appeals from the judgment of the circuit court which granted the request of the defendant, Joel R. Sanders, to rescind the summary suspension of his driving privileges pursuant to section 11-501.1 of the Illinois Vehicle Code (the Code) (Ill.Rev.Stat.1986, ch. 95 1/2, par. 11-501.1). On appeal, the State contends that there is no evidence which supports the trial court's action to rescind the defendant's statutory summary suspension. For the reasons set forth below, we reverse the judgment of the circuit court.

On March 10, 1986, the defendant was charged with driving while under the influence of alcohol in violation of section 11-501(a) of the Code (Ill.Rev.Stat.1985, ch. 95 1/2, par. 11-501(a)). On that date he was also given written notice of the summary suspension of his driving privileges pursuant to section 11-501.1 of the Code (Ill.Rev.Stat.1985, ch. 95 1/2, par. 11-501.1). On March 21, 1986, the defendant filed a request for a judicial driving permit. He also filed a request for a rescission hearing pursuant to section 2-118.1 of the Code (Ill.Rev.Stat.1985, ch. 95 1/2, par. 2-118.1) on the grounds that: (1) he had not been placed under arrest as defined in section 11-501; (2) the arresting officer did not have reasonable grounds to believe that the defendant was driving under the influence of alcohol; (3) the arresting officer failed to warn the defendant that his driver's license would be subject to suspension if he submitted to a breathalyzer test and that test disclosed an alcohol concentration of .10 or more; (4) the test to which the defendant did submit failed to disclose an alcohol concentration level of .10 or more at the time the defendant operated a motor vehicle; and (5) the tests were not properly administered.

On April 8, 1986, the court heard argument on the two matters. The trial court denied the defendant's request for a judicial driving permit. The remainder of the hearing concerned the defendant's request for rescission of the summary suspension.

The defendant testified that on March 10, 1986, at approximately 2:30 a.m. he was stopped while driving his car. He was not operating his car in an unusual or illegal manner. At that time, the police officer arrested the defendant, placed him in the squad car, and indicated that the arrest was for battery. The officer did not ask the defendant to perform any field sobriety tests at the scene. When the defendant arrived at the police station the officer asked him to perform several sobriety tests which the defendant reported he performed "well." The officer also requested that the defendant take a breathalyzer test. First, however, the officer warned the defendant of what would occur if he refused to take a breathalyzer test, as well as if he failed the breathalyzer test. The defendant also stated that before he took the breathalyzer test the police officer told him that he was under arrest for driving while under the influence of alcohol. After the defendant completed the breathalyzer test, he saw the reading, which he noted was .10, yet believed was inaccurate. At the hearing the defendant also stated that he did not feel he was under the influence of alcohol at the time of the test.

On cross-examination the defendant admitted that he had consumed four or five beers earlier in the evening. He also stated that he was at a young lady's house earlier in the evening, but denied grabbing a telephone receiver from her as she attempted to call the police for slapping her. With respect to the breathalyzer machine's accuracy the defendant stated as follows:

"A. He says blow into the machine until the green light goes out and I blew and it went out and I took the hose away and the light came back on and he said blow again and I requested to have it done over and then he said no it can't be done.

Q. Run that by me again.

A. I blew into the hose and he said blow it until the green light goes out. It went out. I took the hose away and the light came back on. He said blow again and I had to blow some more. And then you know it went out and I sat down. Can we do that over, that didn't seem right and he said no."

The defendant stated that "something seemed wrong." After he completed the test the defendant was charged with battery, as well as driving under the influence of alcohol.

The State moved to dismiss the defendant's request for rescission on the basis that the defendant had not sustained his burden of proof. The trial court denied the motion.

Officer Daniel Prather testified that on March 10, 1986, at approximately 2 a.m. he received a radio communication which directed him to the home of Chris J. Kolb. When he arrived at the residence Kolb told Officer Prather that she had been battered by the defendant. She further stated the defendant told her that he had been drinking that night. He also drank some whiskey in her presence. A few minutes later Officer Prather stopped the defendant's vehicle and placed the defendant under arrest for battery. At this time Prather also noticed that the defendant had trouble standing up straight and swayed back and forth. At the station Prather requested that the defendant perform sobriety tests. Prather stated that after he observed the defendant perform the tests, it was his opinion that the defendant was under the influence of alcohol.

After Prather arrested the defendant for driving under the influence of alcohol, Prather informed the defendant of his rights. After being informed of his rights, the defendant agreed to take the breathalyzer test on an intoxilyzer machine which Officer St. Ores then conducted in Prather's presence. Prather stated that he observed nothing unusual about the operation of the intoxilyzer machine and that St. Ores complied with the Illinois Department of Public Health Rules relating to breath alcohol testing. Prather described the giving of the test as follows:

"A. Officer St. Ores asked Mr. Sanders to step over to the machine. He removed the mouth piece from a sealed plastic bag, placed it onto a tube that went into the machine, handed this to Mr. Sanders, explained to him that he should blow into the machine as long as he could or until a light went out. I forget which color the light is. He told him that if the light didn't go out just to take another deep breath and continue to blow into the machine as the machine does retain--this particular machine retains the samples and that as long as he keeps blowing into it it will keep collecting the sample amount until it has enough to make the analysis."

Prather stated that he observed the defendant blow into the machine and the machine produced a readout.

On cross-examination Prather stated that he was not a certified intoxilyzer operator. He also stated that he observed the intoxilyzer test but was unable to observe whether the light on the machine went off and came back on again from where he stood. On redirect Prather stated that when the light on the machine goes off, the machine has obtained enough of a sample to register a reading and the machine must have an adequate size sample to make an analysis.

At the conclusion of the hearing the court made several findings: (1) that the defendant was placed under...