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People v. Bock4/22/2005
uestion regarding the effect of her test refusal on her driver's license. Failure to include a claim of error in a written posttrial motion also waives an issue for purposes of appellate review. People v. Enoch, 122 Ill. 2d 176, 186 (1988).
Bock cites City of Rockford v. Elliott, 308 Ill. App. 3d 735 (1999), for the proposition that testimony regarding the civil penalties faced by a defendant for refusal of a breath test requires reversal of the defendant's conviction. In our view, her reliance on Elliott is misplaced. There, in a DUI jury trial, the prosecution elicited police testimony that the defendant had been warned that the driver's license suspension consequences would be twice as severe for refusing to take a breath test as they would have been for taking the test and failing. 308 Ill. App. 3d at 737. The appellate court for the Second District determined that the trial court had neglected to weigh the probative value of such evidence against the prejudicial effect of its admission and concluded that the evidence should have been excluded because the prejudice outweighed its value.
In the instant case, however, the fact finder was the trial court, not a jury, and the evidence elicited regarding the consequence of a breath test refusal consisted only of the fact that Bock had been warned of an impact on her license, and did not include mention of what that impact was. We believe that these distinctions significantly lessen the possibility that Bock's verdict was the product of the prejudice identified by the Elliott court.
In addition, we depart from the Elliott court's apparent conclusion that the statutory provision allowing admission into evidence of a driver's breath test refusal in any civil or criminal proceeding for acts relating to intoxicated driving (625 ILCS 5/11-501.2(c)(1) (West 2000)), precludes admission of the fact that a defendant had been advised of the civil consequences of refusing the test. The statute provides that "evidence of refusal shall be admissible"; in our view, the Elliott court's discussion of the statutory language would be persuasive if the statute instead provided that "only the fact of a driver's refusal shall be admissible." We find no support in the language of the statute for the conclusion that the circumstances surrounding a driver's breath test refusal may not be admitted into evidence.
In summary, we believe that Bock waived this issue on appeal and that, even if the issue were considered to have been properly preserved, she has presented no basis for reversal of her conviction.
4. Sufficiency of the Evidence
Bock contends that she was not proved guilty of driving while under the influence of alcohol beyond a reasonable doubt. Given the testimony of the arresting officers regarding her driving, the odor of alcohol on her breath, her glassy, bloodshot eyes, her unsteady gait, her failure of two sobriety tests, and her own admission of the consumption of at least some alcohol, we cannot say that the evidence, viewed most favorably to the prosecution, was so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of her guilt. People v. Long, 316 Ill. App. 3d 919, 926 (2000).
CONCLUSION
For the foregoing reasons, we affirm Candace Bock's conviction for driving under the influence of alcohol and the sentence imposed thereon.
Affirmed.
FITZGERALD SMITH, P.J. and TULLY, J., concur.
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