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People v. Rozela12/30/2003
UNPUBLISHED
Defendant, Tracy E. Rozela, appeals from an order of the circuit court of Du Page County denying her petition to rescind the statutory summary suspension of her driver's license, pursuant to section 11--501.1 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11--501.1 (West 2002)), for driving under the influence of alcohol. We affirm.
FACTS
Only Sergeant Kevin Driscoll of the Naperville police department testified at the hearing on defendant's petition to rescind the statutory summary suspension. Driscoll had been a police officer for 19 years and was trained in the use of field tests for intoxication and in the use of portable breath tests (PBTs). Driscoll had been trained as an instructor in the use of field sobriety tests and was certified as a breathalyzer operator.
At 12:54 a.m. on September 12, 2002, Driscoll was in his squad car at a gas station in Naperville. Defendant's car drove past him, and Driscoll estimated that her speed exceeded the 25- mile-per-hour limit. Driscoll activated his radar, which disclosed that defendant was traveling at 37 miles per hour. Driscoll followed defendant's car and activated his emergency lights after observing it weave twice across the lane dividing line. Defendant turned right onto a street that ran one way in the opposite direction. After defendant curbed her car, Driscoll approached and saw that defendant's eyes were glassy and bloodshot.
Driscoll smelled a strong odor of alcohol on defendant's breath. Defendant explained that she drove erratically because she was unfamiliar with the area and she was upset by a recent argument with her boyfriend. She admitted drinking a couple of beers at a local tavern that evening.
Driscoll administered the horizontal gaze nystagmus test. The test involves evaluating six points, and defendant failed at every point. However, defendant passed three other field sobriety tests: the one-leg stand test, the walk-and-turn test, and the recite-part-of-the-alphabet test. Defendant's successful completion of the three tests did not affect Driscoll's opinion that she was under the influence of alcohol. He believed that a failure of a sobriety test proves a person's intoxication but successful completion of a test proves nothing.
On direct examination, defense counsel asked Driscoll whether he asked defendant to submit to a PBT. Driscoll testified that he had done so and that defendant complied. There was no evidence that defendant's submission to the test was involuntary. On cross-examination, Driscoll testified that he used a calibrated, certified Intoximeter Alcosensor III, which reported a blood-alcohol concentration of .126. Defense counsel objected to the admission of the test results, and the court overruled the objection.
Driscoll testified that he arrested defendant for driving under the influence (DUI) and transported her to the police station, where a breathalyzer test reported a blood-alcohol concentration of .109. The Secretary of State suspended defendant's driving privileges for three months.
The trial court found Driscoll's testimony credible and concluded that defendant had not established a prima facie case for rescission of the suspension of her driving privileges. Emphasizing that defendant had a right to refuse to take the PBT without penalty, the court stated that Driscoll was authorized to use the test as a tool to further investigate his reasonable suspicion that defendant had operated a vehicle while under the influence of alcohol. The court denied the petition to rescind the suspension but issued a judicial driving permit for defendant to travel to work and school. Defendant's timel
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