June 13, 2001

JUSTICE RAPP delivered the opinion of the court:

Following a bench trial in the circuit court of Du Page County, defendant,Martin Connolly, was convicted of, inter alia, driving under the influence ofalcohol (625 ILCS 5/11--501(a)(2) (West 1998)). Defendant appeals only hisconviction of driving under the influence of alcohol, contending (1) that thetrial court erred in denying his motion for a directed finding at the close of theState's case; (2) that the State failed to prove him guilty beyond a reasonabledoubt; and (3) that he was denied a fair trial. We affirm.

On November 16, 1999, defendant was charged with driving under the influenceof alcohol (625 ILCS 5/11--501(a)(2) (West 1998)). Defendant waived his right toa trial by jury, and the case proceeded to a bench trial.

The State called Officer Razzino of the Lombard police department. OfficerRazzino was on patrol duty early in the morning of November 16, 1999. Atapproximately 2:45 a.m., Officer Razzino was heading west on Roosevelt Roadapproaching Highland Avenue when he observed a blue Ford van in front of him. Atthat location, Roosevelt Road has two westbound lanes and two eastbound lanes. The westbound lanes are separated from the eastbound lanes by a double yellowline. The two westbound lanes are separated by a white dashed line. OfficerRazzino saw the van cross over the white dashed line dividing the westbound lanesby approximately one to two feet. The van reentered its lane of traffic and thencrossed approximately five to six inches over the double yellow line into theeastbound lanes.

Officer Razzino followed the van while running the registration throughdispatch. At the intersection of Roosevelt and Finley Roads, Officer Razzinoactivated his squad car's emergency lights to effect a traffic stop. The vantraveled two or three more blocks and then pulled over. Officer Razzino radioedin the traffic stop and got out of his squad car. Defendant immediately got outof the van and approached Officer Razzino. Officer Razzino told defendant to staywhere he was and defendant responded by saying, "What did I do wrong?" OfficerRazzino explained to defendant that he was stopped for improper lane usage andfailure to signal. Defendant said that he did not believe he committed thoseoffenses and asked again what he had done wrong. Officer Razzino explained oncemore why he stopped defendant and then asked defendant for his driver's licenseand proof of insurance. Defendant just stood there and stared at Officer Razzino.Officer Razzino asked defendant again to produce his driver's license and proofof insurance. Defendant again asked what he did wrong while he pulled out a stateidentification card. Officer Razzino ran defendant through the Law EnforcementData System (LEADS). While waiting for a response from dispatch, Officer Razzinoobserved that defendant's eyes were bloodshot and glassy and that defendant hada strong odor of alcoholic beverage emanating from his breath when he spoke. Officer Razzino asked defendant where he was coming from, and defendant said hehad been at a bar in Chicago. When asked if he had anything to drink at the bar,defendant threw his hands up in the air and said "Man, I will just leave my carhere and I will walk to my girlfriend's house. We don't have to do this." Defendant then said something to the effect of "Why don't you go ahead and arrestme? You are going to do it anyway." Defendant then said that he had about a six-pack of beer within the last three hours.

Officer Razzino asked defendant if he could recite the alphabet beginningat E and ending at W. Defendant said that he could do it and recited "A, B, C,D, E, H, J" and then stopped and stated "I can't do this. Why don't you just goahead and arrest me?" Next, Officer Razzino asked defendant if he could count backwards from 67 to 43. Defendant said that he could not and refused any furtherfield sobriety testing.

Officer Razzino said that in his opinion defendant was under the influenceof alcohol. Officer Razzino based his opinion on defendant's incoherence; hisinability to answer simple questions or to follow simple instructions; his red,glassy, and bloodshot eyes; the strong odor of alcoholic beverage emanating from his breath; his admission of drinking; his inability to perform two field sobrietytests; and his refusal to take further field sobriety tests.

Officer Razzino advised defendant that he was under arrest for driving underthe influence of alcohol, handcuffed him, and took him into custody. OfficerRazzino took defendant to the Lombard police station, and defendant was putthrough standard booking procedure. Officer Razzino said that he handed defendanta copy of the warning to motorist and read the warning to defendant in itsentirety from a standard form. When asked to submit to a Breathalyzer test,defendant refused, saying that he "felt pretty buzzed" and that there was apossibility that he "might blow over."

On cross-examination, Officer Razzino testified that it is approximately amile to a mile and a half from the location where he saw the van cross the whiteand yellow lines to the location where defendant pulled over. That span ofRoosevelt Road has three intersections with traffic lights, and Officer Razzinodid not observe defendant commit any traffic violations while traveling thatdistance. There was nothing unusual in the way defendant pulled over. Defendantdid not stumble or fall when he got out of the van. Defendant was not swaying orstaggering and did not need to lean on the van for support. Defendant was notbelligerent or out of control. Officer Razzino did not observe defendant having difficulty in retrieving his identification card. Defendant was standing nearOfficer Razzino when a dispatch advised that defendant's license was suspended,but Officer Razzino tried to keep defendant from hearing the information byputting the radio up to his ear. Defendant said, "[W]hy don't you just go aheadand arrest me because you are going to anyway" after Officer Razzino determinedthe status of defendant's license. Officer Razzino did not notice anythingirregular about defendant's speech. Officer Razzino denied that defendant saidthat he wanted to speak to an attorney before he would take any field sobrietytests. Officer Razzino did not include the fact that defendant was incoherent inhis police report regarding the incident.

Officer Razzino indicated that defendant said that he wanted to consult withan attorney before submitting to the Breathalyzer test. Officer Razzino tolddefendant that he did not have the right to speak to an attorney before decidingwhether to submit to the Breathalyzer test and that he could talk to an attorneylater but that defendant needed to decide right now if he wanted to submit to theBreathalyzer test. Officer Razzino considered defendant's request to speak to anattorney before submitting to the Breathalyzer test as a refusal and recorded itas such. Defendant made a phone call after refusing the Breathalyzer test.

Officer Razzino admitted that defendant was able to recite his own phonenumber, his brother's name, phone number, and address without difficulty withinan hour of his arrest. Officer Razzino did not note that defendant was confused,disorientated, loud, profane, belligerent, or combative. Rather, Officer Razzinoadmitted that at all times defendant was cooperative and oriented. OfficerRazzino stated that defendant was handcuffed behind his back when he was walkedfrom the squad car to the police station and had no difficulty walking on his own.

The State rested. Defendant made a motion for a directed finding. Defendant argued that the standard to be applied upon defendant's motion for adirected finding at a bench trial is that the State must have proved its casebeyond a reasonable doubt. Defendant argued that the State had not met itsburden. The State argued that the motion for a directed finding should be deniedbecause the State had proved its case beyond a reasonable doubt.

The trial court denied defendant's motion. In ruling on defendant's motionfor a directed finding the trial court stated:

"The burden at this point is whether, when the evidence is viewed inthe light most favorable to the People, they have met their burden of beyonda reasonable doubt."

Defendant testified that on the night he was arrested he arrived atThurston's bar in Chicago at about 7 p.m. or 8 p.m. and stayed there until the barclosed at 2 a.m. According to defendant, he consumed four beers while atThurston's. After leaving the bar, defendant headed to Wheaton to see agirlfriend. Defendant detailed the route he traveled from the bar to Lombard. Defendant said that he had no difficulty driving the van from Chicago to Lombard. Defendant said that the van he was driving was old and the steering was loose soit "floats a bit." When defendant saw the emergency lights go on behind him hepulled over. Defendant exited his van at the same time the officer exited hissquad car. Defendant began to walk toward the officer but the officer told himto stop. Defendant asked the officer why he had been stopped. The officer toldhim that he was swerving. Defendant denied swerving. The officer asked defendantfor his driver's license. Defendant gave the officer his State of Illinoisidentification card because his driver's license was suspended due to unpaidparking tickets. After receiving information over the radio, the officer askeddefendant if he knew his driver's license was suspended. Defendant indicated thathe knew his license was suspended and that he understood he was in a little bitof trouble. Defendant asked the officer if it would be okay if he just parked thevan there and walked the rest of the way to his girlfriend's house. Defendantdenied ever saying, "Why don't you just go ahead and arrest me already? You aregoing to do it anyway." When asked, defendant told the officer that he was comingfrom a bar in Chicago where he had consumed four beers over the course of theevening.

According to defendant, the officer asked him to recite the alphabetbackwards from H. At that point, defendant said, "Well if you are going to starttesting me for, you know, field tests for DUI, I think I should talk to a lawyerfirst." Defendant also said "I am not refusing these tests, I am not saying thatI am not going to take them, but I would like to talk to a lawyer first." According to defendant, the officer responded by saying, "Are you going to do itor aren't you? Are you refusing?" Defendant said "No, I am not refusing to takeit. However, I am asking you if I can talk to a lawyer to see whether I shouldcontinue to talk to you any longer." The officer then said "Oh, you arerefusing." Defendant testified that he never actually performed the alphabet testor any other test.

Defendant claimed that he was never told what would happen to his licenseif he refused to submit to the Breathalyzer test. Defendant said that he made itclear to the officer that he was not refusing to submit to the Breathalyser testbut that he just wanted to talk to his lawyer before deciding. The officer thensaid, "I will take that as a refusal."

Defendant said that after the officer recorded the refusal he was permittedto call an attorney. After speaking to the attorney, defendant told the officerhe would take the Breathalyzer test, but he was not permitted to take the test. Defendant denied telling the officer that he was "pretty buzzed" and that hethought he "might blow over." Defendant stated that he was not under theinfluence of alcohol that night and that he felt fine to drive.

Defendant recalled Officer Razzino. Officer Razzino testified that, at thepolice station, in response to questions on a prisoner information report form,defendant said that he had drunk four beers in the last eight hours.

After hearing closing arguments, the trial court found defendant guilty ofdriving under the influence of alcohol. Defendant filed a posttrial motion fornew trial, which was heard and denied. Defendant was sentenced to two years'probation, including 90 days in the Du Page County jail. Defendant filed a timelynotice of appeal.

Defendant's first contention on appeal is that his conviction of drivingunder the influence of alcohol should be reversed because the trial court appliedan improper standard in ruling on defendant's motion for a directed finding at theclose of the State's case. The State argues that defendant waived his right toappeal the denial of this motion when defendant presented evidence following theState's case and failed to renew his motion at the close of all the evidence.

A defendant who chooses to present evidence after the denial of his motionfor a directed finding at the close of the State's case waives any error in thetrial court's ruling on the motion unless he renews the motion at the close of allthe evidence. People v. DeBartolo, 242 Ill. App. 3d 811, 816 (1993). At thebeginning of his closing argument, defense counsel stated that he was adopting hisargument in support of the motion for a directed finding in its entirety. TheState argues that defense counsel merely adopted the factual arguments made insupport of the motion and did not renew the motion itself. While defensecounsel's statement at the beginning of his closing argument could be fairlyconstrued as an adoption of the former argument and not a renewal of the motion,the trial court acknowledged the renewal of the motion and denied the motion onthe record before the sentencing hearing began. Although defense counsel couldhave been more precise, we think that he sufficiently renewed defendant's motionfor a directed finding at the close of all the evidence. Therefore, the issue isproperly preserved for review.

The statutory authority for directed verdicts and findings is found insection 115--4(k) of the Code of Criminal Procedure of 1963, which provides:

"(k) When, at the close of the State's evidence or at the close of allof the evidence, the evidence is insufficient to support a finding orverdict of guilty the court may and on motion of the defendant shall makea finding or direct the jury to return a verdict of not guilty, enter ajudgment of acquittal and discharge the defendant." 725 ILCS 5/115--4(k)(West 1998).

Although a motion pursuant to the above section made at a bench trial has beencommonly referred to as a "motion for a directed finding" or a "motion for anacquittal," we believe the most accurate way to refer to this motion in a nonjurycase is a motion for a finding of not guilty pursuant to section 115--4(k) of theCode of Criminal Procedure.

A motion for a directed verdict in a case tried before a jury requires thetrial judge to consider only whether a reasonable mind could fairly conclude theguilt of the accused beyond a reasonable doubt, considering the evidence in alight most favorable to the State. People v. Withers, 87 Ill. 2d 224, 230 (1981). Defendant does not take issue with this standard but, rather, takes the positionthat there is no clear precedent establishing the propriety of the use of the samestandard when a similar motion is made in a bench trial. Defendant argues that,upon a motion for a finding of not guilty at the close of the State's case in abench trial, the trial court should enter a finding of not guilty when theevidence does not establish defendant's guilt beyond a reasonable doubt withoutconsidering the evidence in a light most favorable to the State. In other words,defendant argues that the sufficiency of evidence standard applied to a motion fora finding of not guilty in a bench trial should be different from the standardapplied to a motion for a directed verdict in a jury trial. We disagree.

The due process clause of the fourteenth amendment (U.S. Const., amend. XIV)protects an accused against conviction "except upon evidence that is sufficientfairly to support a conclusion that every element of the crime has beenestablished beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 313-14, 61 L. Ed. 2d 560, 570, 99 S. Ct. 2781, 2786 (1979). In determining theconstitutional sufficiency of the evidence, "the relevant question is whether,after viewing the evidence in the light most favorable to the prosecution, anyrational trier of fact could have found the essential elements of the crime beyonda reasonable doubt." (Emphasis omitted.) Jackson, 443 U.S. at 319, 61 L. Ed. 2dat 573, 99 S. Ct. at 2789. The question of the constitutional sufficiency of theevidence is, of course, entirely different from the ultimate question of guiltyor not guilty, which involves the weighing of evidence and determining thecredibility of witnesses, and is reserved for the finder of fact. See Jackson,443 U.S. at 319 n.13, 61 L. Ed. 2d at 574 n.13, 99 S. Ct. at 2789 n.13. Thepurpose of authorizing a motion for a directed verdict of not guilty is to providean avenue by which a defendant can challenge the constitutional sufficiency of theevidence against him by moving the trial court to review the evidence and todirect a verdict of not guilty if the evidence does not meet the Jackson standard. See 5 W. LaFave, J. Israel & N. King, Criminal Procedure