#### The City of Crystal Lake, Plaintiff-Appellee, v. Frances Woit, Defendant-Appellant.

(No. 71-136;

Second District

March 1, 1972.

*1060Franz & Franz, of Crystal Lake, (James C. Franz, of counsel,) for appellant.

John L. Cowlin and Thomas Baker, both of Crystal Lake, for appellee.

Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Defendant appeals from a bench trial finding her guilty of violating a city ordinance whereby it is unlawful “for any person to transport, carry, possess or have any alcoholic liquor in, upon or about any motor vehicle except in the original package and with the seal unbroken.”

In accordance with Supreme Court Rule 323(c), a report of proceedings was filed which, briefly, discloses that the defendant stopped at a restaurant to pick up a pizza and while there, ordered a martini but did not finish drinking it; that as she drove home, a policeman observed her speeding and gave chase; that as the officer followed, defendant made a turn without engaging her directional signal; that the officer put his “Mars” light on for a second but turned it off when he noticed defendant turn into her driveway. He parked his squad car in the drive an ap*1061proached defendant intending to warn her about the manner in which she had been driving. Upon reaching defendants car, he asked for her drivers license and simultaneously noticed, on the seat between defendant and her passenger, a glass containing a clear liquid. The defendant was then arrested for violating the above quoted city ordinance.

At trial, the City called Officer Shelton who testified that he was trained and educated in the operation of abreathalizer machine and certified as an operator by the State of Illinois. Upon stating that he had examined the contents of the glass (herein after referred to as the exhibit), defense counsel entered an objection to the effect that the officer was not qualified to make an analysis of the exhibit. The objection was overruled and the court allowed the officer to testify that he placed the liquid from the glass into the breathalizer and “the needle of the machine flew off the card indicating the contents were alcoholic.” On cross-examination he stated that he was not a chemist.

At the close of the case in chief, a motion to dismiss was denied and defendant then testified that she was not speeding, that she did engage her directional turn signals, and that she had had no knowledge of the presence of the exhibit in the car.

The court entered a finding of guilt and assessed a fine of $10, plus costs.

On appeal it is contended, (1) the arrest was invalid for the reason that the officer did not intend to arrest defendant when he approached her car, (2) the arrest was invalid because it occurred on private property, (3) the testimony of Officer Shelton (on the results of the breathalizer test) was incompetent, prejudicial evidence and its admission prevented the defendant from receiving a fair trial, and (4) the City failed to prove defendant guilty of the charge.

Under the first contention, defendant argues (based upon People v. Harr (1968), 93 Ill.App.2d 146, that because the officer intended only to warn defendant of her traffic violations, not arrest her, the subsequent discovery of the exhibit and the resultant arrest were unlawful. (The record discloses no motion to suppress the exhibit in the trial court.) In Harr, the foundation for the arrest was bottomed upon mere suspicion. In the case before us, the officer had witnesses actual traffic violations. Regardless of the officers intent at the time of approaching defendant, it is an unaltered fact that he then had reasonable grounds and authority to arrest. People v. Miezio (1968), 103 Ill.App.2d 398, 401; People v. Krueger (1968), 99 Ill.App.2d 431, 436.

The arrest is not invalidated because the episode occurred on private property. Section 107—5(d) of the Code of Criminal Procedure [Ill. Rev. Stat. 1969, ch. 38, par. 107—5(d)] provides for the “entry into *1062any- building - or property or part , thereof to - make .an - authorized arrest.” This-has been interpreted -to-mean that-where the basis for-a. valid arrest existed - previously, -the entry. .upon .private - property. cannot defeat\the arrest- (People v. Johnson (1970), 45 Ill.2d 283, 288.) Here, being law* fully present,. the- arresting- officer-saw-the exhibit in- open-- view,. Seizure of . an article in plain- view does not constitute, a .search. People v. Pickett (1968), 39 Ill.2d.88, 95.

■ - -Defendant ^claims prejudicial -error- in-thé trial court- having. allowed the- results - of - -the breathalizer- tést into , evidence- over - objection. -It is argued- that the- function of a breathalizer. ,is.,to .test the alcoholic content of -blood by means - of- a persons -breath,- not, to test; liquid -samplesto ascertain, the presence of- alcohol. - While".we- agree with; defendant ■ that; a proper foundation was not laid for-the introduction -of this evidence, -we are faced with -the presumption that, in a bench trial, the;, judge- will consider only competent evidence. To overcome-this presumption-it--must be-shown- that- the- judge’s decision- was -influenced by,the-.-incompetent evidence";- People v. Stewart (1970), (Ill.App,) 264; N.E.2d 557,559-560; People v. Armstrong. (1967), 80 Ill.App.2d 77,85.

The record discloses that, aside from the testimony of. the arresting officer, the-trial court - its elf- -remarked that the liquid (-preserved-for- trial) had the characteristic odor of alcohol. This fact stands unrebutted. Since the-question here, did- not require- .a determination, of the. quantity; of alcohol,-the trial judge-could (without-regard to" the-breathalizer cvh dence) rely-upon -his own senses-to-establish the fact-that the-liquid did contain-alcohol-.:- ;.....<>' •.. .. y.,............

Finally, at is- urged -that the City failed to; prove the charge in ás much "as- the record-is-Void of"-evidence"' tooshow-that. defendant -hacLpossession of the exhibit. For authority-on- this point: defendant-cites .People ■n,-MHlis41969) , -ll6-;Ill.App.2d :-283.-'There- the defendant was- charged with ■ “illegal* possession of liquor -( seal broken)” -under a- State statute. We find the ease not-in point in that- the" charge; was possession of open -liquor, within a motor -vehicle,-which- under, a - State statute, must-necessarily be. proved--beyond a- reasonable- doubt; In--the- instant-case -the charge-is that. of. transporting open liquor -within a motor vehicle- arid .violation of. an .ordinance-must be .proved by a dear- preponderance -of the. evidence..(City of Chicago v. Joyce (1967), 38 Ill.2d 368, 373 City of Rockford v. Maxwell (.1968), 92 Ill. App.2d 336, 340.) A review• of - the record befpré us discloses that by a clear preponderance of- the- evidence defendant was found guilty of the charge: of .transporting, open liquor".-'-

" Judgment affirmed......,

, ..SEIDENEEED; ;P: Vj,y apd( ABEAHAMSOvN;": J,,„cdñéür;.,;