dissenting:
I must respectfully dissent with the majority opinion of this court. As the majority correctly notes, this court is not to reweigh the evidence and substitute its own judgment for that of the trial court. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) Nevertheless, where the evidence, viewed in a light most favorable to the prosecution, is so improbable or unsatisfactory as to raise a reasonable doubt of the defendant’s guilt, the conviction must be reversed. (People v. Janik (1989), 127 Ill. 2d 390, 402, 537 N.E.2d 756, 761.) It is my opinion, after carefully reviewing the record herein, that defendant’s conviction should be reversed because a reasonable doubt as to whether defendant was under the influence was indeed raised by the evidence.
As the majority notes in its opinion, the evidence against defendant was based almost entirely on the testimony of Koonce and the other officers. Officer Koonce testified that the basis for his arrest of defendant for driving under the influence was defendant’s failure of the two field sobriety tests, his swaying and confusion, and the moderate odor of alcohol on his breath. Koonce admittedly was “fuzzy” in his memory of the events in question, and his trial testimony regarding the strength of the odor of alcohol on defendant’s person as well as whether defendant had correctly performed one of the field sobriety tests changed from his previous testimony at the suspension hearing. Koonce’s opinion regarding defendant’s swaying and confusion was also impeached by his trial testimony that defendant had no trouble exiting his vehicle and, though unsteady, defendant did not fall, stagger, or otherwise need assistance. Moreover, Koonce’s assessment that defendant was “confused” was tempered by his admission that he could not say for sure that this and defendant’s unsteadiness were not the result of the accident.
Indeed, Officer Emerick acknowledged that the accident in which defendant’s vehicle collided with several highway signs was substantial enough to have knocked a person around and that accident victims can be confused, disoriented, and nervous. Emerick, however, based his opinion that defendant was under the influence of alcohol on defendant’s mumbled speech, the moderate odor of alcohol on his breath, and his conclusion that given the relatively minor nature of the accident it was unlikely that the accident was responsible for defendant’s behavior. Emerick later admitted on cross-examination that his opinion that defendant was under the influence could have been wrong. Emerick, like Officer Koonce, did not recall defendant’s eyes being bloodshot, red, or glassy, nor did he recall defendant’s face being flushed or anything else abnormal about defendant’s appearance. While Emerick testified that defendant swayed and was unsteady, he also admitted that defendant did not stagger or fall and did not need any assistance to stand. Officer Banal also offered an opinion that defendant was under the influence of alcohol and unfit to operate a motor vehicle based upon the “moderate” odor of alcohol and defendant’s unsteadiness on his feet.
Each of the three officers responding to the scene of the accident described defendant’s demeanor as polite and cooperative. The officers also testified that the defendant’s clothing was orderly. Moreover, the record indicates that defendant had a “unique” speaking style, which could be considered by some to be mumbling, and in fact, was nicknamed “Mumbles.” In addition, while Officer Emerick gave defendant the horizontal-gaze-nystagmus test, there was nothing in the record to indicate the results of this field sobriety test. Defendant testified that he felt disoriented or confused after the accident. Although the officers relied on defendant’s response that he was not injured in the accident, the record indicates that defendant had reported hitting his head and that his head hurt.
Although convictions for driving under the influence may be sustained solely upon the testimony of the arresting officers, that testimony must be sufficient to sustain the State’s burden to prove beyond a reasonable doubt that defendant was under the influence of alcohol. (People v. Winfield, (1973), 15 Ill. App. 3d 688, 304 N.E.2d 643.) In my opinion there was conflicting evidence as to the strength of the odor of alcohol, results of the field sobriety tests, and drunken appearance or demeanor of defendant. Moreover, defendant’s swaying, confusion, and inability to pass the “walk-and-turn” and one-legged-stand tests could admittedly have been a result of injury from the accident. Most notedly, Officer Emerick admitted that he could have been wrong in his opinion that defendant was under the influence. I must conclude, therefore, that the evidence supporting the officers’ opinions that defendant was under the influence of alcohol was insufficient to sustain the State’s burden beyond a reasonable doubt. Accordingly, I would reverse the judgment of the circuit court of Fayette County, Illinois.