People v. Garnier , 20 Ill. App. 2d 492 ( 1959 )

PRESIDING JUSTICE LEWE

delivered the opinion of the court.

Defendant was charged with driving a motor vehicle while under the influence of intoxicating liquor in violation of section 47 of the Uniform Act Regulating Traffic, Ill. Rev. Stat. 1957, ch. 95%, § 144. Upon a plea of not guilty and waiver of a jury, the court found defendant guilty and assessed a fine of $106 and ordered that his driver’s license he revoked for one year. Defendant appeals.

Defendant contends that the evidence was insufficient to show that he was driving and therefore he was not proved guilty beyond a reasonable doubt.

The evidence produced by the State shows that defendant was arrested for illegal parking and taken to the police station. The arresting officer testified that the defendant had the odor of liquor on his breath when arrested; that his face was pale, his clothes disarranged, his attitude excited and indifferent, his eyes were bloodshot, pupils dilated, balance wobbling, walk and turning were stumbling and swaying, picking up coins slow, and speech slurred. Defendant’s breathilizer test read .180 and in the officer’s opinion defendant was under the influence of intoxicating liquor. Defendant testified that he had been drinking for about eight hours and that he felt capable of driving a car. He did not explain how his car got from the Blue Note, located at 3 North Clark Street, where he had spent eight hours drinking to the place of arrest, 4300 South Michigan Avenue, over 40 blocks away.

Breathilizer tests are admissible evidence of intoxication in Illinois. People v. Bobczyk, 343 Ill. App. 504. The evidence here justifies the inference of defendant’s intoxication and in fact defendant does not seem to object to this conclusion. Rather, he argues that since no one observed him operating the car the conviction cannot be sustained. However, as this court has previously stated, observation of defendant in the act of driving while intoxicated is not an indispensable requirement for conviction under section 47 of the Traffic Act. People v. Falkenberg, 5 Ill.App.2d 578. Other states have approached the problem in a similar manner and reached the same conclusion. See State v. Hazen, 176 Kan. 594, 272 P.2d 1117; State v. Baumgartner, 21 N. J. Super. 348, 91 A.2d 222. It should be noted that circumstantial evidence alone was held sufficient to support a verdict of guilty in the Hazen case. The defendant in the Falkenberg case was found asleep in his parked car in a vacant lot and offered the defense of alibi, that someone else was driving the car, but the conviction was upheld. Here the facts give a much stronger indication that defendant was driving. It would be most unreasonable to assume defendant did not drive his car after hearing him testify that he felt capable of driving, and finding him in the car a short time after he left the Blue Note and headed in the direction of home. Then, too, he never denied driving.

Generally, circumstantial evidence which produces a reasonable and moral certainty that the accused committed the crime is sufficient to justify a conviction. People v. Magnafichi, 9 Ill.2d 169. The test as set out in the Falkenberg case is “whether the whole evidence proves that the crime was committed and that the accused committed it.” We think the uncontradicted evidence here satisfies the test and justifies the court’s decision. In our opinion defendant was proved guilty beyond a reasonable doubt and this rule is the same “whether they [the crimes] be felonies or be misdemeanors.” Stanley v. People, 104 Ill. App. 294, 295.

The conviction is affirmed.

Affirmed.

MURPHY, J., concurring.