*1 v. Illinois, of the State Wheatley, 25, 1972. Distric t 19, 1972. Rehearing May Pride, Walter LaVan No- A. Hanrahan, Chicago, (Robert States Taubert,
velle Nicholas Assistant State’s D. People.
for the of the court: delivered the opinion LEIGHTON Mr. JUSTICE and with light with speeding, was charged *2 He the influence of a vehicle while under driving but a red court, light, and tiled aquitted was by $100, fined ordered He was convicted intoxicated. revoked “as statute.”* per court costs and his driver’s license was $5 pay contention this we consider disposing appeal, did not him the evidence prove guilty officer.
The State’s evidence consisted of the saw He testified that at 12:15 he about on February A.M. or at Chicago defendant automobile north on State Street near 67th Street. He said much faster” “moving defendant’s car was the vehicles beside him. He 45 in traveling than clocked defendant 30 miles-per-hour light, zone. After defendant a red seeing go through he him 64th stopped at or near and to a Responding question State. he whether had a conversation with officer answered: vehicle, “When I embed car, his came exited back squad car. In he my was under and I told him he Then, wasn’t further from any point.” asked, “Officer, prosecuting came to this attorney you before said, make certain observations of did The officer you Wheatley?” did, officer, “Yes, I sir.” The asked the “Would relate prosecutor you time, Court at these observations to the this starting with court, told the alcohol?” officer then reading from apparently flushed, document, “Odor of was strong alcohol and color of face was uncooperative, attitude became walking stumbling, stag- was he turning gered. Apparent normal behavior. No observable His physical defects. 95%, par. 144(a) (c) Ill. Stat. Rev. ch. "(a) person intoxicating liquor may who No drive any physical or be in actual control of within this State. (i) Every person who is convicted of a violation this section shall be
punished by imprisonment days for not year, less than nor more than 1 or $100 fine of not than nor more than or $1000 both such and fine imprisonment. subsequent On a second conviction for an offense committed years within after the commission punished by of the first offense he shall be imprisonment days for not less than 90 year, and, nor than 1 more in the court, discretion of the a fine not more than $1000. Secretary of State shall operator’s revoke the chauffeur’s or license of person convicted under this section.” actions; were red eyes and his glassy, clothes were in Unusual disarray. Balance; he returned his auto sup- and refused to needed get out. he White, His speech was port. slurred.” After the Officer rested its case. prosecution on February testified that at about 9:00 P.M.
Defendant then where ate some the home of he sandwiches Harry he went to Jones left resi- of beer. At about he midnight, three bottles drank Jones’ denied He denied began driving speeding. He he was dence home. light. drove He he was through He that he had a foot He offered explained ailment. letter no from treating physician. to prove letter; ruling to the there no its admission the court. objection was on testified corroborated material of defendant’s Harry parts Jones testified that defendant suffered from a foot testimony. Jones that when defendant left for home midnight, He gave not under influence of intoxicating liquor. the evidence which defendant did not reviewing contends doubt, beyond a we observe that in his him say White did not when or where how he the observa Officer made that led him to conclude at the time tions question, under the influence of intoxicating liquor. a motor vehicle *3 foundation for White’s con is devoid of totally record The condition, the evidence to the support convic defendant’s cerning a a answer to claimed "yes” leading question, White in this case. tion under the people observe influence.” He “[ojccasion of lifetime a however, as a admitted, that his two years policeman candidly with a driving motor vehicle while person charged arrested a had never The a of police under he has of times arrested with persons charged and the number officer in determining are factors of important drunken a for while conviction under the influ Casa, 1, People See v. 113 of 251 Ill.App.2d ence 194, 290; Buzinski, v. 212 64 N.E.2d People Ill.App.2d 270. N.E.2d had to the facts the State case, of one time a at the defendant drove alleged, doubt a influence of intoxicating liquor. (People while vehicle motor “under influence 571.) Being 270 N.E.2d Sullivan, (Ill.App.2d), v. condition, caused of a means liquor” intoxicating of able, mentally either intoxicants, physically, a person makes nerves, steady with hands and clear both, judgment, to exercise himself and to the Dawkins public. safety with automobile operate
109.1 v. Denver Snyder 821; v. Chavez 61, 71, 285 P.2d 132 Colo. (1955), 222, 226, 227 123 P.2d (1951), Colo. testi White’s of Officer consisted
The without foundation without mony, proof value Moreover, evidentiary whatever opinion to which testified. White’s defendant’s weakened by it was further a witness, foot suffered from (supported Jones) officer a police Evidence conclusions disability explains raise can reasonable doubt a defendant Clark, 123 Ill.App. v. (People under the liquor. of intoxicating 41, factors 2d of all the Therefore, N.E.2d our 636.) consideration shown in failed to prove us the State evidence leads to conclude that Wallace, (People (Ill. guilty beyond a Williams, People App.2d), 273 Ill.App.3d N.E.2d N.E.2d judgment reversed.
Judgment reversed.
SCHWARTZ, J., concurs. dissenting: PRESIDING STAMOS JUSTICE foundation for record reflects ample intoxicating officer that defendant was face, alcohol, ap- disheveled eyes, liquor. Odor flushed bloodshot and eccentric balance, uncertain lack slurred speech pearance, gait, arrest- which the intoxication behavior —these are all classic There was evidence officer in defendant’s ing appearance. observed officer’s police traffic also foundation violations testi- His further three consuming beers. opinion. witnesses, an issue raised merely and that of his mony, corroborating to be resolved the trier of fact. v. Greenberg, per- find Ill.App.2d I a single There, suasive. the State’s case consisted follows: who described police appearance officer unsure face, clothing, bloodshot strong eyes, mussed pale balance, walk, and erratic behavior. weaving slurred speech, his own also testified on evidence of violation. The defendant *4 beer, behalf and of one but denied had been brother-in-law intoxicated. He was corroborated physician, the latter had exhibited testifying that defendant previously concussion, lay- of a could symptoms cerebral be confused by affirmed, man with court intoxication. The holding and that "the there was sufficient evidence to finding the wit- credibility judge judge trial the best position nesses.” to the extent that Greenberg case is distinguishable intoxi officer there had considerable
testifying However, cated motorists. inexperience element adduced, diminish does not enhance or bar, on the In the but bears issue of witness case credibility. of the the trial court the relative fully apprised inexperience officer, but found Where the testifying guilt him credible nonetheless. conflicting innocence depends upon of the trial will testimony, finding court not be disturbed. (People Cool, 26 Ill.2d to that We should adhere rule in this well-established case. Melvyn Illinois, State
Allen, Distric t Defender, Gerald W. Getty, Public C. Smith and (Judith Doherty, Defenders, Assistant Public counsel,) James J. Scott, General, Attorney Springfield, J.
Hanrahan, of Chicago, B. Assistant At- Zagel, (James General, torney and Robert A. Novelle Karnezis, Themis N. Assist- ant State’s the People.