People v. Kane

584 N.E.2d 1044, 223 Ill. App. 3d 377, 165 Ill. Dec. 610, 1991 Ill. App. LEXIS 2197
CourtAppellate Court of Illinois
DecidedDecember 31, 1991
Docket4-91-0485
StatusPublished
Cited by12 cases

This text of 584 N.E.2d 1044 (People v. Kane) 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. Kane, 584 N.E.2d 1044, 223 Ill. App. 3d 377, 165 Ill. Dec. 610, 1991 Ill. App. LEXIS 2197 (Ill. Ct. App. 1991).

Opinion

JUSTICE KNECHT

delivered the opinion of the court:

After a jury trial in Champaign County circuit court, defendant, James T. Kane, was convicted of improper lane usage on a one-way street (111. Rev. Stat. 1989, ch. 951/2, par. 11 — 708(b)) and driving under the influence of alcohol (DUI) (111. Rev. Stat. 1989, ch. 951/2, par. 11 — 501(a)(2)). He was sentenced to 24 months’ conditional discharge and 14 days in the Champaign County Correctional Center, and ordered to perform 200 hours of community service. Defendant was also ordered to receive 10 hours of alcohol remedial education, 20 hours of outpatient alcohol treatment, and to attend three Alcoholics Anonymous meetings per week for 12 weeks. Defendant’s incarceration was stayed pending appeal.

He appeals his DUI conviction. He argues the trial court abused its discretion in denying him an opportunity to present an expert’s testimony about his blood-alcohol level when he was arrested for DUI. We disagree and affirm.

On February 23, 1991, at approximately 2:45 a.m., defendant was stopped by police after he turned his vehicle and drove the wrong way on a one-way street in Champaign. Ted Turner, a University of Illinois police officer, testified that when he approached defendant’s vehicle, he smelled alcohol on defendant’s breath. He also observed defendant’s eyes were glassy and somewhat bloodshot, and his speech was slightly slurred. Defendant initially denied he had been drinking, but later admitted he had consumed several drinks several hours earlier. When defendant exited the vehicle, Officer Turner noted defendant leaned on his vehicle to balance himself.

According to Officer Turner, defendant experienced difficulties while performing two coordination tests. The tests administered to defendant were the walk-and-turn test and the one-legged stand test. Three times during the walk-and-turn test, defendant could not maintain heel-to-toe contact, and on one occasion he counted out an incorrect number of steps. Officer Turner also observed defendant had difficulty balancing himself. During the one-legged stand test, defendant’s balance was poor, he was unable to count in sequence, and he put his foot down three times by the time he reached the count of 1017 — the test requires the person being tested to hold up one foot while counting from 1001 to 1030. Although on cross-examination Officer Turner agreed defendant did not fall down, stumble, or need help in standing or walking, he characterized defendant’s imbalance as “greater than normal.” Officer Turner concluded defendant was under the influence of alcohol and arrested him. Defendant told Officer Turner he would take the breathalyzer test.

Another University of Illinois police officer, Mike Kurlakowsky, testified he was called to defendant’s traffic stop to assist Officer Turner. His testimony corroborated Officer Turner’s testimony regarding defendant’s difficulty in balancing himself. Officer Kurlakowsky described defendant’s balance as slightly off while he performed the walk-and-turn test. He characterized defendant’s balance during the one-legged stand test as very poor. He too, agreed defendant did not require help in standing and defendant never fell. Despite this, he, too, thought defendant was under the influence of alcohol.

Sharon Little, a Champaign County correctional officer and a certified breathalyzer-test operator, testified she was called about 3 a.m. to administer a breath test to defendant. She explained to defendant a properly conducted breath test cannot be performed before observing the party for 20 minutes during which the party cannot eat, smoke, drink, vomit, or belch. She began the 20-minute observation period of defendant. Ten minutes into the observation period, defendant informed her he had belched. She started the observation period over. Fifteen minutes later, however, defendant again informed her he had belched. She did not see defendant belch on either occasion. After defendant said he had belched a second time, Officer Little told him he was not cooperating with the testing procedure. She concluded his actions represented a refusal to take the breath test. Officer Little agreed with defense counsel’s statements that defendant never fell off his chair nor exhibited any strange behavior and he did not cry or swear during the observation period. She concluded defendant was under the influence of alcohol because his eyes were glassy, he smelled of alcohol, and he was uncooperative.

During the defense case, University of Illinois police officer Mike Kurlakowsky was examined anew. Officer Kurlakowsky explained Laura Canham, the passenger in defendant’s vehicle, had remained at the scene to drive defendant’s car home. He denied telling Canham he had not smelled alcohol on defendant’s breath. He explained he had not noted an alcoholic smell on defendant’s breath, because during the testing and communicating with defendant, he was either to the side of or behind defendant.

Defendant’s roommate, Steve Goldman, a 20-year-old University of Illinois student, testified he and defendant played a drinking game the evening of February 22, 1991. Goldman testified defendant drank three to four beers during the game, which lasted from 8 p.m. until 9:45 p.m. Defendant took a shower and he, Goldman, and others went out to bars at 10:20 p.m. Goldman stated each of them bought a quart of beer when they reached a bar called “Cochran’s.” According to Goldman, they stayed there until midnight and defendant spent 80% of his time dancing. At midnight, he and defendant proceeded to another bar called “O’Malley’s” to play foosball, a table soccer game which Goldman characterized as requiring a great deal of skill and coordination to play. Neither he nor defendant consumed alcohol while at O’Malley’s. They went home at 1 a.m. Defendant was drinking another beer at home when Goldman went to bed around 1:30 a.m. Before retiring to bed, Goldman talked with defendant about the foosball game and their evening. Goldman stated he knew when someone, including defendant, was under the influence of alcohol. Common characteristics of someone in this state, according to Goldman, are slurred speech, lack of coordination, and somewhat incoherent speech. Although he agreed defendant drank three to four beers before leaving home, and a quart of beer at Cochran’s, Goldman did not think defendant was under the influence of alcohol because he had been acting normally, talking intelligently, and had no difficulty with his balance.

Laura Canham, a 21-year-old University of Illinois student, was the passenger in defendant’s vehicle the night defendant was arrested. She testified defendant arrived at her sorority house at approximately 2:20 a.m. to pick her up. She had called him because she could not sleep after seeing a movie which frightened her. Canham had not consumed any alcohol that evening. She spoke with defendant on the phone for 15 minutes before he came to pick her up. According to Canham, defendant spoke clearly on the phone and showed no coordination problems negotiating the stairs to her sorority house. He was also able to parallel park his vehicle and had no difficulty shifting his manual transmission. Canham testified defendant performed both field coordination tests properly. Defendant walked heel-to-toe and took the number of steps which he was asked to take without loss of balance or walking unusually. She noted his knees were shaking slightly, but explained this was because he was wearing shorts and he was cold.

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Bluebook (online)
584 N.E.2d 1044, 223 Ill. App. 3d 377, 165 Ill. Dec. 610, 1991 Ill. App. LEXIS 2197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kane-illappct-1991.