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People v. Dea11/30/2004
A jury convicted defendant, Richard J. Dea, of driving under the influence of alcohol (DUI) in violation of section 11-501(a)(2) of the Illinois Vehicle Code (625 ILCS 5/11-501(a)(2) (West 2000)). He appeals his conviction, claiming the trial court committed reversible error when it allowed evidence that he faced greater penalties for refusing the Breathalyzer test than for taking and failing it. We affirm.
I. BACKGROUND
According to the evidence presented at trial, at 10:40 p.m. on May 11, 2001, Mt. Pulaski police officer Jeremy Roberts stopped defendant for speeding. Officer Roberts approached defendant at the driver's side of the vehicle and noticed he smelled strongly of alcohol. Defendant said he had two beers that evening and gave Officer Roberts permission to conduct field-sobriety tests. The officer administered the horizontal gaze nystagmus, the turn-and-walk, and the one-legged-stand tests. According to the officer, defendant failed all three. Officer Roberts placed defendant under arrest and transported him to the Logan County jail.
At the jail, the officer took defendant to the "Breathalyzer room" and read to him the warning to motorist. At defendant's trial, the prosecutor asked Officer Roberts to testify to the content of the warning whereby the following exchange occurred:
"Q. Can you tell the members of the jury without really worrying about what the length of time is here, are the penalties for a driver[']s license suspension greater if you don't blow than if you blow?
A. Yes."
After the officer read to defendant the warning to motorist, he asked defendant to submit to the Breathalyzer test, and defendant refused. When cross-examining defendant, the prosecutor asked:
"Q. Okay. At any rate you yourself was [sic ] asked to take a breath test?
A. Right.
Q. And you refused, correct, and you told Mr. Markwell [defense attorney] that since you already had the ticket and it wasn't going to change anything that it didn't matter whether you took the breath test or not?
A. Correct.
Q. That is not true, is it?
A. What do you mean?
Q. In fact, if you don't take the breath test, it changes the length of your suspension?
A. It doesn't change whether I'm going to be getting the ticket.
Q. The [w]arning to [m]otorist that you were read that you ignored does warn you of the consequences of taking a test and failing and not taking a test, correct?
A. Yes."
In his rebuttal closing argument, the prosecutor said:
"[B]ut there is one thing that could have settled this whole matter and one thing and only person in this room who knows what that result would have been. It would have been to take a breath test. A breath test after being warned pursuant to the [w]arning to [m]otorist that, on the one hand, if you take a breath test and you flunk, your suspension is going to be this amount of time, and on the other hand, if you don't take a breath test, your suspension is this amount of time. That is what the testimony is, ladies and gentlemen. That defendant knew what that [w]arning to [m]otorist was, and yet what did he do? He refused the breath test."
*2 The jury found defendant guilty of DUI. Without raising the issue presented here, defendant filed a posttrial motion claiming the evidence did not support the jury's verdict. The trial court denied the motion and sentenced defendant to a 12-month term of conditional discharge, 30 days in the county jail, attendance at a victim-impact panel, submission to an alcohol evaluation, and payment of a fine and court costs. This appeal followed.
II. ANALYSIS
For the first time on appeal, defendant argues the trial court impermissibly admitted evidence of the civil penalties defendant faced for refusing to submit to the Breathalyzer test. And, he claims, the St
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