People v. Scapes

• Decision Date: 12 August 1993
• Docket Number: No. 4-93-0088,4-93-0088
• Citation: 247 Ill.App.3d 848,617 N.E.2d 1366
• Parties: , 187 Ill.Dec. 645 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John A. SCAPES, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1366

617 N.E.2d 1366

247 Ill.App.3d 848, 187 Ill.Dec. 645

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John A. SCAPES, Defendant-Appellant.

No. 4-93-0088.

Appellate Court of Illinois Fourth District.

Argued July 20, 1993.

Decided Aug. 12, 1993.

William A. Yoder (argued), Ostling, Ensign, Barry & Glenn, Bloomington, for defendant-appellant.

Charles G. Reynard, State's Atty., Bloomington, Norbert J. Goetten, Director, State's Attys. Appellate Prosecutor, Springfield, Robert J. Biderman, Deputy Director, and James Majors, Staff Atty. (argued), for plaintiff-appellee.

Justice McCULLOUGH delivered the opinion of the court:

Defendant John Anthony Scapes appeals the trial court's order denying his petition to rescind the statutory summary suspension of his driver's license. Defendant alleges he was not in actual physical control of a motor vehicle while under the influence of alcohol. We affirm.

On December 11, 1992, defendant went with a few friends to a bar located in downtown Normal. Defendant drove his 1966 Mustang to this bar and parked his car in front of the Campus Town Supply Store. Defendant consumed approximately three bottles of Miller Lite beer and three shots of alcohol. When defendant left the bar at approximately 12:30 a.m., he knew he was too drunk to drive and so he began to look for someone to drive him home. Because he could not find anyone to drive him home, defendant decided to either call his girlfriend or to simply walk home. Defendant lived approximately one-half mile from the bar. As he was cold, he decided to sit in his car with the heat on while he decided how he was going to get home. Defendant realized his girlfriend was scheduled to take the Graduate Record Examination (GRE) the next morning so, rather than wake her up, he decided to walk home.

While defendant was sitting in his car warming himself, he looked up and saw a sign directly in front of him stating "no parking 2 a.m.--6 a.m." Defendant did not want to get a ticket or have his car towed, so he decided to stay in his car instead of walking home. He turned the car off, and put the key into the "accessory" position in order to play the radio. Defendant put on his seat belt "to hold me up, plus it's the law."

He dozed off and was subsequently awakened by a police officer knocking on his car window. Defendant rolled down the window and told the officer he was not going anywhere, but that he drank too much at the bar and was merely sitting in his car. Defendant testified he had no intent to drive his car that night.

Officer Duane Lee Harris of the Town of Normal police department testified that at approximately 12:45 a.m. on December 12, he saw a white older model Ford Mustang parked along North Street near a bar called Rocky's. The engine was idling as evident by the smoke coming from the exhaust pipe. Officer Harris observed one person in the driver's seat. Approximately one-half hour later, Officer Harris passed by that vehicle again. The car was not running this time. Officer Harris exited his squad car, went up to the vehicle, looked into the car, saw the driver slumped over the wheel asleep and heard the radio playing. Officer Harris testified the key was in the "on" position.

Officer Harris woke up the driver, whom he later identified in court as defendant. He noticed defendant's eyes were bloodshot and glassy and he had a strong odor of alcoholic beverage on his breath. Officer Harris had defendant perform field sobriety tests. He was of the opinion that defendant was under the influence of alcohol and subsequently placed him under arrest for driving under the influence of alcohol (DUI). The record on appeal indicates defendant took the breathalyzer test that evening, which produced a reading of .11. Defendant was served immediate notice of the suspension of his driving privileges.

On December 21, 1992, defendant filed a petition to rescind the statutory summary suspension. He alleged, among other things, the arresting officer had no reasonable grounds to believe he was in actual physical control of a motor vehicle while under the influence of alcohol. A hearing was held on January 14, 1993, and the court took the case under advisement. On January 22, 1993, the court issued an order denying the petition to rescind the statutory summary suspension. The court found defendant was in actual physical control of the motor vehicle and had a blood-alcohol concentration of greater than .10.

Defendant contends the trial court erred in denying his petition to rescind the statutory summary suspension because when he was arrested, he had no intent to operate the motor vehicle or be in actual physical control of the motor vehicle.

Section 11-501(a)(1) of the Illinois Vehicle Code provides that a person shall not drive or be in actual physical control of any vehicle while having a blood-alcohol concentration of .10 or more. (Ill.Rev.Stat.1991, ch. 95 1/2, par. 11-501(a)(1).) Illinois courts have held that a motorist need not be actually driving a vehicle in order to be in actual physical control of it. (People v. Brown (1988), 175 Ill.App.3d 676, 678, 125 Ill.Dec. 156, 157, 530 N.E.2d 74, 75.) Defendant's intent to put the car in motion is irrelevant to that determination. People v. Cummings (1988), 176 Ill.App.3d 293, 296, 125 Ill.Dec. 514, 517, 530 N.E.2d 672, 675; People v. Davis (1990), 205 Ill.App.3d 431, 435, 150 Ill.Dec. 349, 352, 562 N.E.2d 1152, 1155.

Certain factors, such as whether the motorist is positioned in the driver's seat of the vehicle, in possession of the ignition key and has the physical capability of starting the engine and moving the vehicle are repeatedly singled out as indications that the motorist is in actual physical control of the vehicle. Courts have also found actual physical control where the defendant is the only one present in the vehicle and the vehicle doors are locked. (Davis, 205 Ill.App.3d at 435, 150 Ill.Dec. at 352, 562 N.E.2d at 1155; Cummings, 176 Ill.App.3d at 295, 125 Ill.Dec. at 516, 530 N.E.2d at 674; People v. Heimann (1986), 142 Ill.App.3d 197, 199, 96 Ill.Dec. 593, 595, 491 N.E.2d 872, 874.) A defendant may be in actual physical control of his vehicle even though he is asleep in it. (Cummings, 176 Ill.App.3d at 295, 125 Ill.Dec. at 516, 530 N.E.2d at 674.) A finding of actual physical control was not defeated where the facts showed defendant was asleep, unconscious, slumped to the passenger side of the vehicle, had his head on the driver's door with his legs extended across the front seat or the vehicle was off the road in a ditch. See Davis, 205 Ill.App.3d at 435-36, 150 Ill.Dec. at 352-53, 562 N.E.2d at 1155-56 (and cases cited therein).

At a hearing regarding the propriety of the statutory summary suspension, the defendant motorist has the initial burden of presenting a prima facie case for rescission. (People v. Orth (1988), 124 Ill.2d 326, 337-38, 125 Ill.Dec. 182, 187, 530 N.E.2d 210, 215.) Actual physical control is a question of fact that must be decided on a case-by-case basis. (Davis, 205 Ill.App.3d at 435, 150 Ill.Dec. at 352, 562 N.E.2d at 1155; Cummings, 176 Ill.App.3d at 295, 125 Ill.Dec. at 516, 530 N.E.2d at 674.) A trial court's finding will not be reversed on review unless it is against the manifest weight of the evidence. Orth, 124 Ill.2d at 341, 125 Ill.Dec. at 189, 530 N.E.2d at 217.

Accordingly, under this analysis, the trial court's finding was not against the manifest weight of the evidence. Defendant was found asleep in his car, in the driver's seat, with his seat belt on and the key in the ignition in the accessory position. Defendant admitted to starting the engine and letting it run for approximately five minutes. He would merely have to turn the key over to start the car. The only evidence tending to show no actual physical control was that defendant was asleep and had no intent to drive the vehicle. However, defendant's intent is irrelevant and being asleep is not enough to defeat a finding of actual physical control.

Defendant believes this court should adopt the public policy argument set forth in Davis and Cummings which holds that where the facts indicate a motorist is "sleeping it off," the trial court should be allowed to find a defendant was not in actual physical control of his vehicle.

In Cummings, the third district noted its ...