People v. Furness

526 N.E.2d 947, 172 Ill. App. 3d 845, 122 Ill. Dec. 554, 1988 Ill. App. LEXIS 1197
CourtAppellate Court of Illinois
DecidedAugust 2, 1988
Docket5-87-0392
StatusPublished
Cited by8 cases

This text of 526 N.E.2d 947 (People v. Furness) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Furness, 526 N.E.2d 947, 172 Ill. App. 3d 845, 122 Ill. Dec. 554, 1988 Ill. App. LEXIS 1197 (Ill. Ct. App. 1988).

Opinion

JUSTICE EARNS

delivered the opinion of the court:

Defendant, Craig Furness, was arrested on February 27, 1987, for driving under the influence of alcohol as a result of an accident which occurred near Illinois Route 16 in Montgomery County. Furness was issued a notice of summary suspension pursuant to section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 951/2, par. 11— 501.1) and charged by information with the offense of driving under the influence of alcohol in violation of section 11 — 501(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95V2, par. 11 — 501(a)). The criminal charge was dismissed on motion by the State, and Furness filed a written notice in the circuit court of Montgomery County requesting a judicial hearing on the suspension pursuant to section 2 — 118.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 951/2, par. 2 — 118.1). At the conclusion of the hearing, the circuit court continued the suspension and this appeal followed.

On February 27, 1987, Officer Douglas Francis was called to the scene of an accident near Illinois Route 16. Upon arriving he observed an overturned pickup truck in a field and was informed by Montgomery County Deputy Unser that another deputy was bringing Craig Furness to the scene. The deputies informed Francis that Furness was the driver of the pickup. As Officer Francis was questioning Furness, he detected the odor of alcohol on Furness’ breath. Officer Francis then proceeded to give Furness the horizontal gaze nystagmus test. Based on the smell of alcohol on Furness’ breath and the results of the test, Furness was placed under arrest and taken to the Montgomery County jail. Furness was given his Miranda rights and a breathalyzer exam, which indicated a blood-alcohol content of .15.

Furness filed a motion to rescind the summary suspension and a motion to quash his arrest and suppress all statements and evidence arising therefrom on the basis that he should have been given his Miranda warning at the scene and prior to any questioning regarding driving under the influence. The trial court granted the motion to suppress, but refused to quash the arrest or rescind the summary suspension. The court further ruled that Furness’ statements could be used in the summary suspension hearing.

Furness’ first argument on appeal is that there was no probable cause to support his arrest and without an arrest, his statutory summary suspension should have been rescinded. Specifically, Furness argues that because the State did not lay a proper foundation by way of expert testimony for the horizontal gaze nystagmus test it was not admissible for the purpose of showing probable cause for arrest. Furness also argues that the information given by him to Officer Francis for the accident report was confidential under section 11 — 412 of the Vehicle Code (Ill. Rev. Stat. 1985, ch. 951/2, par. 11 — 412) and could not be used to support probable cause for arrest. Section 11 — 412 specifically provides that accident reports cannot be used as evidence in any trial, civil or criminal. (Ill. Rev. Stat. 1985, ch. 951/2, par. 11— 412.) Without an arrest, Furness maintains, there can be no suspension under section 11 — 501.

Section 11 — 501.1(a) of the Illinois Vehicle Code provides that anyone arrested for driving under the influence of drugs or alcohol is deemed to have consented to a blood, breath, or urine test. (Ill. Rev. Stat. 1985, ch. 95V2, par. 11 — 501.1(a).) Section 11 — 501.1 further provides that if the person arrested either refuses testing or is tested and the results disclose a blood-alcohol content of 0.10 or greater, such person’s driver’s license shall be automatically suspended. Section 2 — 118.1 of the Vehicle Code provides that anyone whose license is suspended by virtue of section 11 — 501 may request a judicial hearing in the circuit court of venue. The scope of such hearing is limited to four issues:

(1) Whether the person was placed under arrest for a section 11 — 501 offense; and
(2) Whether the arresting officer had reasonable grounds to believe the person was driving under the influence of alcohol or drugs; and
(3) Whether the person refused to submit to testing; or
(4) Whether, if tested, the test results disclosed a blood-alcohol content of 0.10 or higher.

Based upon its finding with regard to these issues, the court either continues or rescinds the summary suspension.

Furness argues that because there was no proper foundation for the horizontal gaze nystagmus test and because accident reports are confidential, there is no evidence to support probable cause for arrest or reasonable grounds to believe he was driving under the influence of alcohol.

Furness relies on People v. Vega (1986), 145 Ill. App. 3d 996, 496 N.E.2d 501, for the proposition that the horizontal gaze nystagmus test cannot be used for probable cause for arrest. His reliance on Vega is misplaced. Vega dealt with admissibility of the test in a criminal DUI trial, not the issue of probable cause, and valid summary suspension does not require conviction for driving under the influence. (People v. Gerke (1988), 123 Ill. 2d 85.) Further, the horizontal gaze nystagmus test has been considered as a factor in justifying an arrest for driving under the influence. (See People v. Griffith (1986), 143 Ill. App. 3d 683, 493 N.E.2d 413, cert. denied (1987), 482 U.S. 910, 96 L. Ed. 2d 668, 107 S. Ct. 3179.) While we find no cases passing on the issue of the test’s general acceptance in the scientific community or its admissibility for the purpose of proving driving under the influence, we believe that the test, when combined with other factors, is acceptable to establish probable cause for arrest. “Reasonable grounds or probable cause to effect an arrest exist when the facts and circumstances within the arresting officer’s knowledge *** are sufficient to warrant a man of reasonable caution in believing that an offense has been committed ***.” (People v. Frye (1983), 113 Ill. App. 3d 853, 858, 447 N.E.2d 1065, 1069.) The results of the horizontal gaze nystagmus were sufficient to establish probable cause that an offense had been committed.

Furness also argues that there was no “offender probable cause” — that there was no probable cause to show that he, Craig Furness, had in fact committed any offense. Furness’ position is based on the argument that all of his statements to Officer Francis were for the accident report and were confidential under section 11 — 412 of the Vehicle Code or else were suppressed because made in violation of Miranda. Without these statements, Furness maintains, there is no evidence to show that he was the one driving the truck. We disagree. We believe the trial court ruled correctly when it declined to suppress Furness’ statements for purposes of the statutory summary suspension hearing. Miranda warnings are designed to protect the rights of the accused in a criminal proceeding.

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Cite This Page — Counsel Stack

Bluebook (online)
526 N.E.2d 947, 172 Ill. App. 3d 845, 122 Ill. Dec. 554, 1988 Ill. App. LEXIS 1197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-furness-illappct-1988.