{ "id": 3586745, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JAMES D. FOSTER, Defendant-Appellee", "name_abbreviation": "People v. Foster", "decision_date": "1988-05-26", "docket_number": "No. 2\u201487\u20140836", "first_page": "306", "last_page": "311", "citations": [ { "type": "official", "cite": "170 Ill. App. 3d 306" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "167 Ill. App. 3d 313", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3471333 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/167/0313-01" ] }, { "cite": "150 Ill. App. 3d 283", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3501497 ], "weight": 4, "pin_cites": [ { "page": "285" }, { "page": "286-87" }, { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/150/0283-01" ] }, { "cite": "63 Ill. 2d 128", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5426498 ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0128-01" ] } ], "analysis": { "cardinality": 527, "char_count": 12358, "ocr_confidence": 0.783, "pagerank": { "raw": 2.090423874691734e-07, "percentile": 0.76032038933544 }, "sha256": "c0e761ccdd43e5528ec2d7ef93e1d6f8139a41a55528210dfd12a33760efc432", "simhash": "1:476bf1849d4f5cf0", "word_count": 2108 }, "last_updated": "2023-07-14T14:52:57.912624+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JAMES D. FOSTER, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE INGLIS\ndelivered the opinion of the court:\nThe State has appealed contending that the trial judge erred in suppressing the results of a breathalyzer test. We reverse.\nDefendant was arrested for driving while under the influence of alcohol in violation of sections 11 \u2014 501(a)(1) and (a)(2) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1985, ch. 95\u00bd, pars. 11 \u2014 501(a)(1), (a)(2)). Defendant has not responded to the State\u2019s brief in this court. We will therefore consider the only issue presented under the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.\nOn January 27, 1987, defendant filed a motion to suppress the results of a breathalyzer test, arguing that since his arrest was on private property, he should not have been read the warning to motorist, and the fact that he was given that warning rendered the test involuntary.\nAt the hearing on the motion, defendant testified on direct examination that on September 12, 1986, he was on a private access road that ran between West Avenue and Route 83, across the property of the Elmhurst-Chicago Stone Company in Elmhurst, Illinois. Defendant is employed by Elmhurst-Chicago Stone Company.\nDefendant was involved in a vehicular collision on that road and was taken by the Elmhurst police to the police station. He was given certain warnings, including the statement that if he did not take the breathalyzer test, his driver\u2019s license would be suspended for six months. He stated that he would not have taken the test if he had not been given the warnings.\nOn cross-examination, defendant testified that th\u00e9 collision had taken place at about 9:35 p.m. on September 12, 1987. Just prior to the accident defendant had been at a restaurant and had travelled on West Avenue, a public highway, to get from the restaurant to the stone quarry property. The accident occurred immediately after the defendant had proceeded to the access road. The private road has only two entrance and exit points, Route 83 and West Avenue. Defendant took the breathalyzer after the warnings were read to him. On redirect examination, defense counsel asked defendant if he had been drinking on the property. Defendant responded that in fact he had been drinking at \u201cLeo\u2019s,\u201d the restaurant he had mentioned earlier.\nThe State called Paul Carney, a police officer for the City of Elmhurst. At 9:34 p.m. on September 12, 1987, he was dispatched to the scene of an accident on the access road to the stone quarry, between Route 83 and West Avenue.\nUpon arriving at the scene, Officer Carney observed two vehicles, a blue Oldsmobile and a white pickup truck. Defendant\u2019s vehicle was on the north side of the road, and the other vehicle was on the south side of the road about 150 yards east of defendant's vehicle. The officer stated that the road on which he observed the vehicles is private property. The officer testified that there are only two means of access to this private road, one from Route 83 and one from West Avenue.\nOfficer Carney had a conversation with defendant within a minute or two of arriving at the scene. Defendant told the officer that the blue Oldsmobile was his (defendant\u2019s) and that he was driving westbound on the road when the truck swerved and hit his car. Defendant was arrested for DUI at the scene and was transported to the Elmhurst police department.\nAt the police station, defendant was read the warnings to motorist and was asked to take a breathalyzer test. Defendant agreed to take the test and was tested at about 10:52 p.m.\nOn cross-examination, the officer was asked to \u201cguess\u201d the length of the private road, the distance from Route 83 to West Avenue. The officer guessed 250 yards, 750 feet. Defendant\u2019s car was headed toward Route 83 and was about 50 feet from the entrance when the accident occurred. The officer testified that the property is a stone quarry and that in terms of access to the road in question, there might be other roads that come up from the quarry and someone on the property could pull onto the road from the side of the road. The property belongs to Elmhurst-Chicago Stone Company, and the officer believed that defendant was employed by that company. The officer did not see the defendant drive on a State highway.\nDefense counsel argued that the arrest was made on private property, that the officer knew of no nexus to driving on a public highway, and that the summary suspension procedures for DUI apply only when the arrest is for DUI on a public highway. He further argued that the warnings to motorist read to the defendant by the police coerced the defendant into taking the breathalyzer. He concluded that because the test was not voluntarily taken, its results must be suppressed.\nThe State argued that it was a reasonable conclusion for the officer to draw from the circumstances surrounding the arrest that defendant had driven on a public highway and that he had been under the influence of alcohol when he did so. The State also argued that section 11 \u2014 501.2 of the Code sets forth the requirements for the admissibility of a breathalyzer test and observed that arrest on a public highway was not one of those requirements. Finally, the State argued that voluntariness is not a relevant requirement for physical evidence such as breathalyzer evidence because coercion would not affect the validity of the test.\nThe court then continued the case until the next day for a ruling. On August 4, 1987, the court recounted the evidence presented the day before, considered the case law and the language of the statute, and concluded that defendant\u2019s motion to suppress should be granted. The court believed there was insufficient nexus for the officer to believe defendant was driving on a public highway and that therefore defendant should not have been read the warning to motorist. Having been read the warning, the court found that defendant did not voluntarily consent to taking the test. Based upon this analysis, the trial court suppressed the evidence of the breathalyzer result.\nOn October 20, 1987, the trial court granted defendant\u2019s petition to rescind the summary suspension upon the finding that defendant\u2019s driving was on private property.\nThe State\u2019s notice of appeal from the trial court\u2019s order granting the motion to suppress was timely filed. The State\u2019s certificate of impairment was also properly filed.\nIn the instant case, the trial court focused on whether the police officer, at the time of the arrest, had knowledge that defendant had driven on a public highway. The court stated: \u201c[A]t the time the officer made the arrest, there has been no testimony that the officer knew the Defendant had driven on a public highway.\u201d The trial court then went on to state that it did not believe that there was the nexus between the driving on the public highway that was discussed in People v. Kissel (1986), 150 Ill. App. 3d 283. We are of the opinion that the trial court misapprehended our decision in Kissel and section 11\u2014 501.1 of the Code.\nSection 11 \u2014 501.1(a) of the Code provides in pertinent part:\n\u201cAny person who drives or is in actual physical control of a motor vehicle upon the public highways of this State shall be deemed to have given consent *** to a chemical test or tests of blood, breath, or urine for the purpose of determining the alcohol, other drug, or combination thereof content of such person\u2019s blood if arrested, as evidenced by the issuance of a Uniform Traffic Ticket, for any offense as defined in Section 11\u2014 501 or a similar provision of a local ordinance.\u201d Ill. Rev. Stat. 1985, ch. 95\u00bd, par. 11-501.1(a).\nIn Kissel, we concluded that the implied consent statute required a nexus between driving upon a public highway at the time of or shortly before defendant\u2019s arrest and being subjected to the implied consent provision of section 11 \u2014 501.1. (Kissel, 150 Ill. App. 3d at 285.) The applicable rule was set forth in Kissel:\n\u201cWhere there is evidence that a person drove or was in control of a vehicle upon a public highway while under the influence of alcohol or other drug, as required by the statute, he will be deemed to have consented to testing under the statute whether actually arrested on the highway or on private property.\u201d (150 Ill. App. 3d at 286-87.)\nIn Kissel, we affirmed the findings that defendants had not driven on public highways in cases where there was no evidence presented that defendants had driven on public highways. More recently, in People v. Wingren (1988), 167 Ill. App. 3d 313, we found that the implied consent statute applied even though the arresting officer in that case had not seen the defendant drive on the public highway. From Wingren, it is evident that as in any other case an ultimate fact (i.e., driving on a public highway) may be proved through circumstantial evidence. We further note that under the statute, while there must be a valid arrest for a violation of section 11 \u2014 501, there is no requirement that a police officer have probable cause to believe that defendant was driving on a public highway. (See Ill. Rev. Stat. 1985, ch. 95\u00bd, par. 11\u2014 501.1.) Section 11 \u2014 501 of the Vehicle Code does not limit itself to individuals driving on public highways. (See Kissel, 150 Ill. App. 3d at 286.) Consequently, section 11 \u2014 501.1, which requires an arrest for any violation described in section 11 \u2014 501, requires only that a police officer have probable cause to believe that defendant was operating a vehicle while under the influence of alcohol. Thus, when a trial court is conducting an implied consent hearing it must first determine whether there was probable cause to arrest the defendant for a violation under section 11 \u2014 501 of the Vehicle Code and second whether the defendant actually drove on a public highway at or near the time to his arrest. The trial court therefore erred in focusing on whether the arresting officer knew that defendant had driven on a public highway.\nIn the instant case, defendant conceded that there was probable cause for an arrest under section 11 \u2014 501. Thus, the only remaining issue was whether defendant had driven on a public highway at or near the time of his arrest. On this question the evidence was clear. On cross-examination, defendant testified as follows:\n\u201cQ. Where had you been just prior to the accident?\nA. Up at a restaurant.\nQ. And was it from that location that you proceeded to the stone quarry private property?\nA. Yes.\nQ. Did you take a public highway to get to that location?\nA. Yes, West Avenue.\u201d\nIt is thus evident that the ruling of the trial court was against the manifest weight of the evidence. It is also evident that this case is distinguishable from the outcome in Kissel because in that case there was no evidence that defendants had operated their vehicles on a public highway at or near to the time of their arrests.\nEven had defendant not admitted that he had driven on a public highway prior to his arrest, we would be compelled to remand in order to allow the trial court to make a factual determination as to whether defendant had driven on a public highway. Defendant was arrested on a private road that had only two access points, both of which were public highways. Furthermore, the private grounds that defendant was arrested on contained a quarry, a place where one would not ordinarily go to drink. Under such circumstances an inference, while not required, could easily be drawn by the trial court that defendant consumed alcohol at some other location and then drove to the quarry. Such an inference would be sufficient to support a conclusion that the defendant had driven on a public highway and thereby triggered the implied consent provision of section 11 \u2014 501.1.\nFor the foregoing reasons, the judgment of the circuit court' of Du Page County is reversed, and the matter is remanded for further proceedings consistent with this opinion.\nReversed and remanded.\nLINDBERG, P.J., and DUNN, J., concur.", "type": "majority", "author": "JUSTICE INGLIS" } ], "attorneys": [ "James E. Ryan, State\u2019s Attorney, of Wheaton (Barbara A. Preiner, Assistant State\u2019s Attorney, and William L. Browers, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.", "No brief filed for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JAMES D. FOSTER, Defendant-Appellee.\nSecond District\nNo. 2\u201487\u20140836\nOpinion filed May 26, 1988.\nJames E. Ryan, State\u2019s Attorney, of Wheaton (Barbara A. Preiner, Assistant State\u2019s Attorney, and William L. Browers, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.\nNo brief filed for appellee." }, "file_name": "0306-01", "first_page_order": 328, "last_page_order": 333 }