People v. Vanzandt
State: Illinois
Court: 5th District Appellate
Docket No: 5-95-0847
Case Date: 04/30/1997
NO. 5-95-0847
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS,) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Perry County.
)
v. ) No. 94-TR-1926
)
LESTER E. VANZANDT, ) Honorable
) Robert N. Gandy,
Defendant-Appellant. ) Judge, presiding.
_________________________________________________________________
JUSTICE RARICK delivered the opinion of the court:
On October 5, 1994, Lester Vanzandt was issued a traffic
citation for driving under the influence of alcohol (DUI) in
violation of section 11-501(a)(2) of the Illinois Vehicle Code
(Vehicle Code) (625 ILCS 5/11-501(a)(2) (West Supp. 1993)). A
bench trial was held on September 6, 1995. On the day of trial,
the State filed an additional charge of driving under the combined
influence of alcohol and drugs in violation of section 11-501(a)(4)
of the Code (625 ILCS 5/11-501(a)(2) (West Supp. 1993)).
Vanzandt's objection to the filing of the new charge was overruled.
At trial, Illinois State Police Sergeant John Hafford
testified that at 2:47 a.m. on October 5, 1994, he was traveling
south on Route 51 when he observed a vehicle approaching from the
other direction at a high rate of speed. His radar indicated that
the vehicle was traveling at 86 miles per hour. As the vehicle
approached Hafford, it weaved across the center line, forcing him
to take evasive action. Hafford then turned and pursued the
vehicle. During the pursuit Hafford observed the vehicle weaving
erratically. Eventually it turned off onto a side road and pulled
over.
Hafford stopped behind the vehicle. He exited his squad car,
and as he approached the vehicle, he observed the driver's door
open and the driver fall partially out, catching himself with his
hand. The vehicle lurched forward and Hafford yelled at the driver
to put his foot on the brake. The driver was then able to upright
himself in his seat. As Hafford approached the vehicle, he
observed a blond female in the passenger's seat.
Hafford asked the driver for his driver's license, at which
point the driver exited the vehicle and stated that his driver's
license was suspended for driving under the influence. Hafford
then advised him that he was under arrest for driving while
suspended, speeding, improper lane usage, and not wearing a seat
belt. Hafford also asked the driver his name, and he identified
himself as Lester Vanzandt. Hafford testified that he smelled the
odor of alcohol emanating from the vehicle and on Vanzandt's
breath.
Hafford then returned to his squad car to run a computer check
on Vanzandt. While he was running the check, he observed Vanzandt
swaying and shifting his feet to steady himself. Eventually
Vanzandt simply leaned up against his car. Hafford testified that
based upon this, the odor of alcohol, the erratic driving, and
Vanzandt's thick-tongued, slurred speech, Hafford felt that
Vanzandt was under the influence of alcohol.
Hafford then requested Vanzandt to take a field sobriety test.
Vanzandt refused, stating that his attorney had advised him that he
was not required to do so. At this point, Hafford told Vanzandt
that he was under arrest for driving under the influence of
alcohol, handcuffed him, and placed him in the squad car. Hafford
testified that Vanzandt said something to the effect of "Why don't
you arrest her, she's drunker than I am."
Hafford talked to the female passenger, but she did not appear
to be intoxicated. Hafford advised her of what Vanzandt's bond
would be and allowed her to leave. Hafford then took Vanzandt to
district headquarters, where he refused to take a breathalyzer
test, again stating that his refusal was based upon the advice of
his attorney. Vanzandt then asked if he could call his wife
because he needed his insulin. Hafford asked Vanzandt if he was a
diabetic, and he said yes.
After reading Vanzandt his Miranda rights, Hafford proceeded
to interview him. This consisted of asking Vanzandt a series of
questions from a standardized form. One of the questions was
whether he took insulin. Vanzandt stated that he took insulin
because he was an insulin-dependent diabetic and that he had last
taken insulin around 5 p.m. Hafford also asked Vanzandt if he had
been drinking, and he said that he had had one gin and tonic.
Shortly thereafter, Vanzandt's wife arrived at police headquarters
and informed Hafford that Vanzandt was a diabetic. Hafford asked
Vanzandt if he needed to go to the hospital, but he said no.
Hafford testified that while at headquarters, Vanzandt did not
appear nervous or "fainty," he did not act ill, he did not complain
of feeling ill, and his demeanor never changed. He remained
unsteady and his speech remained slurred.
Hafford testified that he had made several hundred DUI arrests
in his 18-year career and had many more opportunities to observe
persons who were under the influence of either alcohol or drugs.
Based on Vanzandt's actions, his erratic driving, and Hafford's
observations, Hafford opined that Vanzandt was under the influence
of alcohol.
Hafford also testified that his father-in-law was a diabetic
and an alcoholic, and because of this personal experience he could
tell the difference between someone who had alcohol on their breath
and someone whose breath odor was the result of their diabetic
condition. When asked if he was familiar with whether alcohol had
a greater effect on the physical abilities and symptoms of
diabetics, he stated that was "hard to say." He stated that based
on his experience with his father-in-law he knew that alcohol
affected a person's blood sugar level and could cause severe
problems for a diabetic. He further stated that a person who was
taking insulin was not supposed to drink because there is sugar in
alcohol.
The court asked Hafford several questions regarding alcohol
and insulin:
"THE COURT: Officer, if someone has taken insulin at
5:00 on the previous evening, would you expect this, the
effects of this insulin to affect, or the effects of the
diabetes after having taken that insulin the day before or
taken the shot the day before, does this effect [sic] his
ability to drive at 2:00 a.m. in the morning?
[HAFFORD]: Well, the problem you run into is, if you get
too much sugar in your system. Now if you are taking insulin,
you are not supposed to drink period, no alcohol at all,
because there is sugar in alcohol. So, if you are drinking
alcohol, in addition to taking insulin, and you are not
checking yourself, you can have a reaction to that.
THE COURT: But we don't know how much alcohol it would
take to cause him to have a reaction because everyone is
different. Is that what you are saying?
[HAFFORD]: Yes, sir. I am not a doctor. Everyone is
different. There's a lot of different variables. The size--
THE COURT: One drink in his case maybe the amount that
would--
[HAFFORD]: I have seen my father-in-law. *** And if he
gets too much sugar in his system *** it messes him up. He is
not allowed to drive. Of course, he has had a stroke. But it
definitely will effect [sic] your ability, your coordination,
it will effect [sic] your ability to think clearly. It can
cloud your thinking, I should say. And you definitely should
not be behind the wheel of a vehicle at any hour of the day or
night."
Cathy Spiller, Vanzandt's wife and a nurse, testified that
Vanzandt was a diabetic. She stated that if his blood sugar level
was high, he would become boisterous and euphoric and his speech
would be very slurred. Spiller testified that she took care of
Vanzandt, reminding him of when to check his blood sugar level,
eat, and take his insulin. Vanzandt would typically check his
blood sugar level around 11 a.m., then eat and take his insulin.
He would check his blood sugar again at 3 p.m. and 7 p.m., at which
time he would again take his insulin.
Spiller testified that she had taken Vanzandt to the "Other
Bar," a tavern in DeSoto which Vanzandt's family owned and where he
worked, at around 11 a.m. on October 4, 1994. She returned to the
"Other Bar" around 6 p.m., and she and Vanzandt spent the rest of
the evening there socializing and talking to friends. Vanzandt
drank ice water and she drank beer. They left around 1 a.m. to go
and get something to eat. Vanzandt was tired and they were arguing
about the radio. She remembered going somewhere else and stopping
without getting out of the car, but she did not remember where.
When they were stopped by the State police, Spiller had half
a can of beer. She poured it out on the floorboard and put the can
under the seat. After Vanzandt was arrested, the trooper told her
what his bond would be and allowed her to leave. She went home,
got the bond money, and returned to police headquarters. When she
got there, Vanzandt was being loud and argumentative, which she
said he does when his blood sugar is too high or too low.
Spiller also testified that she had spent a lot of time at the
"Other Bar" and had seen many people under the influence of
alcohol. She stated that when they were stopped, Vanzandt had some
of the symptoms of alcohol intoxication, even though he had not
been drinking. Spiller indicated that emotional distress, not
eating, or too many activities would trigger a hyperglycemic or
hypoglycemic episode. She also stated that Vanzandt had trouble
with his balance even when he was not experiencing a hypoglycemic
attack.
Russel Black testified that until recently, he had worked for
Vanzandt at both the "Other Bar" and another bar Vanzandt owned.
On the night of October 4, 1994, he was in and out of the "Other
Bar" throughout the evening. He saw Vanzandt talking to people
while his wife was drinking. He saw Vanzandt drinking a big cup of
ice water, which is what he usually drank.
Paula Young testified that she worked for Vanzandt at the
"Other Bar" and had known him for five years. She normally worked
the 7 p.m. to 2 a.m. shift and was working on the night of October
4, 1994. Vanzandt and his wife were at the "Other Bar" throughout
the evening. Young served Vanzandt ice water in what she described
as a large "Hardee's Moose Cup." She stated that later in the
evening she took a drink from Vanzandt's cup and that it contained
ice water. To her knowledge, Vanzandt never drank alcohol. Later
in the evening Vanzandt appeared tired, and he and his wife were
arguing.
Terry Egbert testified that he got off work around midnight
and stopped at the "Other Bar." He saw Vanzandt, whom he knew, and
Spiller. Vanzandt called him over and wanted to talk about some
business. He remember Young serving Vanzandt ice water because he
remembered making a joke about it. He stated and he and Vanzandt
had a serious business conversation and that Vanzandt did not
appear to be under the influence of alcohol.
Lester Vanzandt testified that he was a diabetic. He had been
on insulin until June 1995. After going to the hospital with a
foot infection, it was determined that he was being overmedicated
and was switched to another medication. Vanzandt stated that he
had experienced hypoglycemic attacks in the past. They were
usually triggered by stress, tiredness, or not eating right. He
would start to get tunnel vision, he would sweat, his speech would
be slurred, he would have trouble with his balance, and he would
become confused.
Vanzandt testified that he had gone to work around 11 a.m. By
the time his shift ended at 7 p.m. his wife was there. They sat
around socializing and talking to friends. He drank ice water
while his wife drank beer. Vanzandt also testified that he had
taken insulin at 11 a.m. and 7 p.m. that day.
Vanzandt and his wife left the "Other Bar" around 1 a.m. They
were going to get something to eat and were arguing about the
radio. Vanzandt was tired and hungry, but Spiller did not want to
go home. They stopped at "Vanzandt's," the other bar Vanzandt's
family owned, but did not go in. He and Spiller continued to argue
until he saw the flashing red lights in his rearview mirror. He
noticed that when he got out of the car he was having trouble
standing.
The trial court found Vanzandt not guilty of driving under the
influence of alcohol, but guilty of driving under the combined
influence of alcohol and drugs.
On appeal, Vanzandt argues first that count II of the
information, which charged him with driving under the combined
influence of alcohol and drugs, was defective because it failed to
properly set forth the elements of the offense.
Section 11-501 of the Vehicle Code provides:
"A person shall not drive or be in actual physical control of
any vehicle within this State while:
* * *
(4) under the combined influence of alcohol and any other
drug or drugs to a degree that renders the person incapable of
safely driving." 625 ILCS 5/11-501(a)(4) (West Supp. 1993).
Count II of the information charges that Vanzandt committed
the offense of:
"DRIVING UNDER THE INFLUENCE OF ALCOHOL (A)(4) in that said
defendant knowingly drove a 1989 Pontiac, while the defendant
was under the influence of alcohol or drugs or a combination
of alcohol and drugs, CLASS A MISDEMEANOR in violation of
ILCS, 1992, Ch. 625, Sec. [sic] 5/11-501(a)(4)."
As Vanzandt notes, the charge fails to properly set forth the
elements of the offense. Count II charges that Vanzandt drove
under the influence of alcohol or drugs or a combination of alcohol
and drugs. The charge also fails to allege that he was incapable
of driving safely.
Although Vanzandt objected to the late filing of count II, he
did not attack the sufficiency of the charge at trial. Where the
sufficiency of a charge is attacked for the first time on appeal,
the standard of review is whether the charging instrument apprised
the defendant of the precise offense charged with enough
specificity to permit preparation of his defense and allow pleading
a resulting conviction as a bar to further prosecution arising out
of the same conduct. People v. Pujoue, 61 Ill. 2d 335, 335 N.E.2d
437 (1975). In other words, the issue before this court is whether
the defect in the information prejudiced the defendant in preparing
his defense. People v. Thingvold, 145 Ill. 2d 441, 584 N.E.2d 89
(1991).
Vanzandt advances no argument regarding how he was prejudiced.
Reviewing the record, we find that at the time Vanzandt objected to
the filing of the information, defense counsel indicated that he
did not believe there would be any evidence of drugs or alcohol,
and when the prosecutor offered a continuance, defense counsel
declined, stating that he did not think the new charge would affect
Vanzandt's defense. Under such circumstances, it is apparent that
Vanzandt was not prejudiced in the preparation of his defense.
Vanzandt argues next that the trial court erred in allowing,
over his objection, the filing of count II immediately prior to
trial. Vanzandt contends that the new charge interjected the issue
of driving under the influence of drugs and that the last-minute
filing of this charge deprived him of any opportunity to prepare an
adequate defense. As noted above, however, defense counsel stated,
at the time he objected to the filing of count II, that he did not
believe there would be any evidence of either alcohol or drugs, and
counsel declined the offer of a continuance because he did not
think that the new charge would affect Vanzandt's defense. Under
such circumstances we cannot find that the trial court erred in
allowing the State to file count II.
Vanzandt's third argument on appeal is that the trial court's
finding of guilt on the charge of driving under the combined
influence of alcohol and drugs in violation of section 11-501(a)(4)
is legally inconsistent with the finding of not guilty of the
charge of driving under the influence of alcohol in violation of
section 11-501(a)(2). Citing People v. Jacquith, 129 Ill. App. 3d
107, 472 N.E.2d 107 (1984), and People v. Bitterman, 142 Ill. App.
3d 1062, 492 N.E.2d 582 (1986), Vanzandt maintains that to be found
guilty of a violation of section 11-501(a)(4) the State was
required to prove that he was under the influence of alcohol, a
finding specifically rejected by the trial court's finding of not
guilty of driving under the influence of alcohol. We do not agree
with Vanzandt's contentions.
In both Jacquith and Bitterman the court held that section 11-
501(a)(4) required proof that a defendant was under the influence
of both alcohol and drugs. In Jacquith, the court held that the
testimony of the two arresting officers was sufficient to prove the
defendant guilty of driving under the influence of alcohol because
determining whether a person was under the influence of alcohol was
within the common experience of the average person. The court
further held, however, that the determination of whether a person
was under the influence of drugs was not within the experience of
the officers and thus their testimony was insufficient to support
a finding that the defendant had operated a motor vehicle while
under the influence of a drug. Because the State failed to offer
any evidence that the defendant was under the influence of a drug,
the court reversed his conviction.
In Bitterman, the defendant admitted that he had been drinking
when he was stopped by the police. When the officer asked the
defendant if "he had anything in his possession that he might
regret," the defendant produced an envelope containing a green
leafy substance later identified as marijuana. When the officer
asked the defendant if he had been smoking or was under the
influence of marijuana, he responded affirmatively. At trial, the
arresting officer was allowed to testify that the defendant was
under the influence of alcohol at the time of his arrest, but the
officer was not allowed to offer a similar opinion as to drug
intoxication. The defendant testified that he did not remember the
officer asking about marijuana usage or telling the officer that he
had been smoking marijuana, but he admitted giving the officer a
packet of "some substance," the contents of which he claimed to be
unaware.
On appeal, the defendant argued that there was insufficient
proof of drug intoxication. In affirming his conviction, the court
in Bitterman noted that in addition to the defendant's admission
that he had been at a party where he obtained the marijuana found
on his person, he admitted smoking and being under the influence of
the drug.
Neither Jacquith nor Bitterman supports defendant's arguments.
The defendant's conviction in Jacquith was reversed because the
State failed to provide any evidence that the defendant was under
the influence of a drug. The defendant's conviction in Bitterman
was affirmed because his admission that he was under the influence
of marijuana constituted direct proof that he was under the
influence of a drug.
Vanzandt's argument in the present case is premised on the
assumption that to sustain a conviction under section 11-501(a)(4)
the State must show the same level of alcohol intoxication as would
be necessary to sustain a conviction for violation of section 11-
501(a)(2). This assumption is incorrect. Section 11-501(a)(2)
required that there be sufficient alcohol in the person's blood to
render him incapable of driving safely. Section 11-501(a)(4) does
not require that the person have enough alcohol in his system to
render him incapable of driving safely, or that he have sufficient
drugs in his system so as to render him incapable of driving
safely, only that there be some alcohol present and some other drug
or drugs present and that the combined influence of the two render
him incapable of driving safely. To interpret the statute
otherwise would reduce it to mere surplusage. If defendant had
enough alcohol in his system to render him incapable of driving
safely, he could be charged under section 11-501(a)(2). If he had
enough drugs in his system to render him incapable of driving
safely, he could be charged under section 11-501(a)(3) (625 ILCS
5/11-501(a)(3) (West Supp. 1993)). There would be no need for
section 11-501(a)(4) under Vanzandt's interpretation.
Vanzandt's final argument is that the State failed to prove
him guilty of driving under the combined influence of alcohol and
drugs beyond a reasonable doubt. Specifically, Vanzandt maintains
that the only evidence regarding the presence of a drug was his
testimony that he was a diabetic and that he had taken insulin
around 5 o'clock the previous evening. He contends that his
apparently intoxicated behavior was the result of a hypoglycemic
attack.
The elements of the offense of driving under the combined
influence of alcohol and any other drug or drugs are: (1) the
person is driving or is in actual physical control of any vehicle;
(2) while under the combined influence of alcohol and any other
drug or drugs; (3) to a degree which renders such person incapable
of safely driving. 625 ILCS 5/11-501(a)(4) (West Supp. 1993). In
other words, the person must have consumed alcohol, ingested some
other drug or drugs, and be under the combined influence of both.
The essence of the offense is that the alcohol and the other drug
or drugs, acting together, render the person incapable of driving
safely. It is axiomatic that the other drug or drugs must have
some intoxicating effect, either on its own or because of being
combined with alcohol.
It is well established that even a layman is competent to
testify regarding intoxication from alcohol, because such
observations are within the competence of all adults of normal
experience. Jacquith, 29 Ill. App. 3d at 113, 427 N.E.2d at 111
(citing People v. Bobczyk, 343 Ill. App. 504, 99 N.E.2d 567
(1951)). With respect to drugs, we have held that the testimony of
police officers that a defendant was under the influence of drugs
would be sufficient, provided that the officers had relevant
skills, experience, or training to render such an opinion.
Bitterman, 142 Ill. App. 3d at 1064-65, 492 N.E.2d at 584.
In the present case, the trial court found Vanzandt not guilty
of driving under the influence of alcohol. This necessarily
implies that the trial court found that he did not have sufficient
alcohol in his system to render him incapable of driving safely.
To sustain the conviction, therefore, there must be evidence in the
record that Vanzandt ingested a drug or drugs that, in combination
with the alcohol, rendered him incapable of driving safely. The
testimony of both Hafford and Vanzandt establish that Vanzandt had
taken insulin earlier that evening. Unlike the defendant in
Bitterman, however, Vanzandt never admitted "being under the
influence" of insulin. Further, there is no evidence which would
indicate that insulin, either by itself or in combination with
alcohol, would render a person incapable of driving safely.
Although Hafford testified that alcohol would affect a diabetic's
blood sugar level which in turn would affect a person's
coordination and ability to think clearly, he is not qualified to
give expert testimony on the complex physiological effects that
alcohol produces in diabetics.
Because the State has failed to produce any evidence that
Vanzandt was under the combined influence of alcohol and insulin,
the judgment of the circuit court of Perry County must be reversed.
Reversed.
WELCH and MAAG, JJ., concur.
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