dissenting:
The driver’s license of the defendant, Jerry L. Jones, was summarily suspended after he refused to submit to a breathalyzer test following his arrest for driving under the influence of alcohol. Thereafter, the defendant filed a petition to rescind his statutory suspension. Following a hearing, the trial court denied the defendant’s petition. The majority opinion affirms the denial of the petition. I dissent.
The agreed statement of facts reveals that in the early morning hours of April 30, 1989, someone called the Mercer County sheriff’s office to report that he had observed a truck in a ditch one mile west of Aledo with one person in the truck. Deputy Sheriff John Stewart responded to the call and observed the defendant between 200 and 300 yards east of the truck walking toward Aledo. The defendant smelled of alcohol and slurred his speech. The defendant was taken to the sheriff’s department, where he refused to perform a field sobriety test and refused to take a breathalyzer test.
At the trial court hearing on the defendant’s petition to rescind his statutory summary suspension, the defendant testified that he was not the driver and that a friend had done the driving. The State offered no evidence with regard to whether the defendant was driving or in actual physical control of the truck. Rather, the State’s entire case was premised on the officer encountering the defendant in a drunken condition some 200 to 300 yards from the defendant’s truck. The trial court denied the defendant’s-petition to rescind his summary suspension. I would reverse.
The majority, in affirming the trial court, cites to this court’s recent decision in People v. Wireman (1989), 181 Ill. App. 3d 385, for the rule that, at a hearing on a petition to rescind a statutory summary suspension, the burden of proof is initially on the motorist. The majority further cites to the Illinois Supreme Court ruling of People v. Orth (1988), 124 Ill. 2d 326, for the rule that a trial judge’s finding as to whether or not a motorist has established a prima facie case for rescission of a summary suspension of his driver’s license will not be overturned on appeal unless it is against the manifest weight of the evidence. While I agree with the majority’s recitation of the relevant case law, I disagree with the majority’s application of that law to the case at hand. Here, the trial court ruling was against the manifest weight of the evidence, the defendant established a prima facie case for rescission, and the burden of proof shifted to the State to come forward with evidence showing that the officer had reasonable grounds to believe that the defendant was driving or in actual physical control of the truck.
In order to establish a prima facie case for rescission, the defendant must produce evidence of “any circumstance which tends to cast doubt” as to whether the defendant was driving or in actual physical control of the motor vehicle. (People v. Orth (1988), 124 Ill. 2d 326, 341.) Such evidence was presented. First, the defendant was found some 200 to 300 yards from his truck when the officer arrived at the scene. No minimum link was established to show that the defendant had driven the truck or had any actual physical control of the truck. Second, the defendant testified at trial that he was not driving the truck but that his friend, John, was driving the truck. This testimony was uncontradicted.
The burden then shifted to the State to prove the reasonableness of the officer’s belief that the defendant had been driving or was in actual physical control of the truck while in an intoxicated condition. At the time the officer picked up the defendant and took him to the station for a sobriety test, the reasonableness of the officer’s belief was premised on three salient facts. First, the call to the station that a truck was in a ditch with a person behind the wheel. Second, the officer’s arrival at the scene where he found a truck in the ditch with the defendant some 200 to 300 yards away from the truck. And third, when the officer observed the defendant to smell of alcohol and to speak with slurred speech.
At the trial, however, no evidence was offered as to fact one above. The only evidence supporting the State’s case was facts two and three. That is to say, that there was a truck in the ditch with the owner standing some 200 to 300 yards away who smelled of alcohol and had slurred speech. The State offered no evidence to show how long the truck had been in the ditch, how it got there or who was driving it.
As noted in People v. Wireman (1989), 181 Ill. App. 3d 385, the legislature did not intend to impose a summary suspension upon a person who was not driving or operating a motor vehicle while under the influence of alcohol. The State’s wholly circumstantial case was extremely weak at best. It was a bubble. When the defendant established a prima facie case that he was not the driver, the bubble burst. At that point, in the absence of any other evidence, the motion to rescind should have been granted. The defendant’s evidentiary burden was met but the State’s was not.
This is not to say that circumstantial evidence can never be sufficient. Indeed it can and often is. The defendant, typically, may be found asleep behind the wheel or be observed driving or exiting the vehicle or some such state of circumstances. No such evidence was offered in this case.
Accordingly, I dissent.