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September 28, 2001

Defendant, Ronald A. Boomer, was charged by complaint in thecircuit court of De Kalb County with driving under the influence of alcohol or the combined influence of alcohol and anothersubstance or substances (DUI) (625 ILCS 5/11--501(a)(2), (a)(5)(West Supp. 1999)) and improper lane usage (625 ILCS 5/11--709(West 1998)). Defendant moved to quash his arrest and to suppressevidence on the basis that probable cause for the arrest wasabsent. The trial court granted the motion and the State broughtthis appeal. We affirm.

The following evidence was introduced during the hearing ondefendant's motion to quash. Brad Carls, a deputy with the De KalbCounty sheriff's police department, testified that on September 16,1999, at about 11:20 p.m., he was dispatched to an accident sceneon Glidden Road just north of Route 64. Once there, he founddefendant lying on his back in a ditch about 15 feet from amotorcycle. Defendant had suffered a severe injury to his mouthand was trying to communicate by blinking. When he attempted tospeak, his words were muffled. Deputy Carls detected a strong odorof alcohol emanating from defendant.

Defendant was taken by ambulance to a nearby hospital. DeputyCarls initially remained at the scene of the accident and brieflyinterviewed a witness who indicated that while driving southboundon Glidden Road she observed "sparking" in front of her vehicle. She was unsure what the sparking was. Deputy Carls proceeded tothe hospital, arriving at about 11:45 p.m. At that time defendantwas being treated in the emergency room. Deputy Carls askeddefendant if he had been drinking, and defendant noddedaffirmatively. Deputy Carls proceeded to warn defendant inaccordance with section 11--501.1(c) of the Illinois Vehicle Code(Code) (625 ILCS 5/11--501.1(c) (West Supp. 1999)). While DeputyCarls was doing so, defendant became unresponsive, at which pointDeputy Carls requested that the attending medical personnel drawdefendant's blood for testing. Deputy Carls issued tickets forimproper lane usage and for DUI in violation of section 11--501(a)(2) of the Code (625 ILCS 5/11--501(a)(2) (West Supp. 1999)). Deputy Carls also issued an "I Bond" which he left, along with thetickets, among defendant's possessions.

Deputy Carls returned to the hospital the next day and askeddefendant questions about the accident after advising him of hisMiranda rights. On October 7, 1999, after receiving the results ofthe blood test, Deputy Carls issued another ticket for DUI charginga violation of section 11--501(a)(5) of the Code, which prohibitsdriving "under the combined influence of alcohol, other drug ordrugs, or intoxicating compound or compounds." 625 ILCS 5/11--501(a)(5) (West Supp. 1999).

Following the presentation of this evidence, the trial courtruled from the bench as follows:

"My finding is that this officer, at the time he arrestedthis Defendant for the first charge of DUI, did not haveprobable cause.

All he had is a severely injured person who had been inan accident on a motorcycle. There's nothing unique aboutthat.

He does have, however, a strong odor of alcohol. Astrong odor of alcohol at that time is not sufficient, underthese facts, for me to believe that he had probable cause tobelieve this defendant was under the influence of alcohol."

The trial court reserved ruling on whether probable cause existedfor the second arrest, based on the results of the testing of theblood drawn from defendant while he was unconscious. The trialcourt also expressly reserved ruling on whether there was probablecause to arrest defendant for improper lane usage. In a subsequentwritten order, the court granted defendant's motion to quash hisarrest and suppress evidence. This appeal followed.

In challenging the trial court's ruling, the State relies onthe fact that defendant had apparently skidded off the road, hadthe strong odor of alcohol on his breath, and nodded affirmativelywhen the arresting officer asked him if he had been drinking. TheState contends that these circumstances provided probable cause fordefendant's arrest.

Probable cause exists if the arresting officer knows factsthat would lead a reasonable person to believe that the arresteehas committed an offense. People v. Rush, 319 Ill. App. 3d 34, 40(2001). While proof beyond a reasonable doubt is not required,mere suspicion is insufficient. Rush, 319 Ill. App. 3d at 40. Theodor of alcohol is frequently cited as a factor contributing toprobable cause to arrest for DUI when considered in combinationwith other indicia of intoxication. However, a trial court is notrequired to find probable cause based solely on the odor ofalcohol. For example, in People v. Tucker, 245 Ill. App. 3d 161(1993)--which arose from a proceeding for the rescission of thesummary suspension of the defendant's driving privileges--thiscourt affirmed the trial court's ruling that the smell of alcoholon the defendant's breath and his inadequate performance on anunspecified field sobriety test did not constitute reasonablegrounds for the belief that the defendant was driving under theinfluence of alcohol. In this setting, the term "reasonablegrounds" is synonymous with probable cause. Rush, 319 Ill. App. 3dat 38. People v. Ripplinger, 316 Ill. App. 3d 1261 (2000), citedby the State, is not to the contrary; the existence of probablecause was not at issue in that appeal.

Our supreme court has recently observed that, under thetraditional standard of review when a trial court's ruling on amotion to suppress evidence involves factual determinations andcredibility assessments, the ultimate ruling will not be disturbedon appeal unless it is manifestly erroneous. People v. Sorenson,196 Ill. 2d 425, 430-31 (2001). Recently, however, Illinois courtshave reviewed suppression rulings in accordance with the principlesset forth in Ornelas v. United States, 517 U.S. 690, 134 L. Ed. 2d911, 116 S. Ct. 1657 (1996). See Sorenson, 196 Ill. 2d at 431. Asstated in Sorenson, under Ornelas, findings of historical factshould be reviewed only for clear error and the reviewing courtmust give due weight to the inferences drawn from those facts bythe trial court. Sorenson, 196 Ill. 2d at 431, citing Ornelas, 517U.S. at 699, 134 L. Ed. 2d at 920, 116 S. Ct. at 1663. However,the ultimate determination of probable cause based on those factsand inferences will be reviewed de novo. Rush, 319 Ill. App. 3d at38-39.

In arguing that the trial court erred in granting defendant'smotion to suppress, the State cites various cases where probablecause was found based in part on the odor of alcohol on themotorist's breath at the time of a DUI arrest and the motorist'sinvolvement in a collision or his or her failure to keep thevehicle on the roadway. For various reasons, the cases cited areinapposite.

The State initially cites People v. Brodeur, 189 Ill. App. 3d936 (1989), and People v. Wingren, 167 Ill. App. 3d 313 (1988), inwhich this court reversed probable cause rulings favorable to thedefendants. In Brodeur, the defendant was involved in a rear-endcollision with a tow truck, and in Wingren the defendant had drivenher vehicle into the backyard of a residence. While in both cases,as here, the smell of alcohol on the defendant's breath was noted,there were additional indicia of intoxication that led to theconclusion that probable cause existed. In both cases, thedefendants' speech was slurred, and their eyes were described asred and bloodshot (Brodeur, 189 Ill. App. 3d at 938) or red andglassy (Wingren, 167 Ill. App. 3d at 316).

People v. Ruppel, 303 Ill. App. 3d 885 (1999), is similarlydistinguishable. The Ruppel court concluded that the trial court'sruling that probable cause existed was not manifestly erroneouswhere, beyond the odor of alcohol on the defendant's breath, guiltyknowledge could be inferred because she attempted to conceal theodor with a mint, and her speech was slightly slurred or altered. Ruppel, 303 Ill. App. 3d at 890. Here, in contrast to Brodeur,Wingren, and Ruppel, nothing about defendant's demeanor,appearance, or behavior suggests intoxication.

Two other cases upon which the State relies aredistinguishable in light of the circumstances of the motor vehicleaccidents that occurred in those cases. In People v. Preston, 205Ill. App. 3d 35 (1990), the defendant's truck had evidently crossedthe center line and collided with an oncoming vehicle, and inPeople v. Goodman, 173 Ill. App. 3d 559 (1988), the defendant wasarrested following reports that he had committed a hit and runoffense. Here, all that is known about defendant's accident isthat he apparently lost control of his motorcycle. The arrestingofficer spoke with a witness who observed "sparking," but there wasno evidence that defendant was riding in an erratic manner. Moreimportantly, the vehicle defendant was operating, a motorcycle, wasby its very nature far more vulnerable than a truck or automobileto any of a number of road hazards that the driver of a vehiclewith four wheels could have safely negotiated. As an indicator ofintoxication, the spill defendant took is hardly comparable to theaccidents in Preston and Goodman.

As noted above, while the ultimate question of probable causeis subject to de novo review, the trial court's findings ofhistorical fact and the inferences drawn from those facts areentitled to deference. In Preston and Goodman, the deferentialstandard favored the State, which had prevailed in the trial court. Here, however, the standard of review runs the other way. Thetrial court heard the arresting officer's testimony concerning thescene of defendant's accident and the officer's impressions fromhis observations. The trial court found that the circumstances ofthe accident did not indicate the involvement of alcohol. Thisfinding is not manifestly erroneous.

While defendant nodded affirmatively when the arrestingofficer inquired whether he had been drinking, this fact addsnothing to the probable cause determination that was not alreadyevident from the smell of alcohol on the defendant's breath. Accordingly, the trial court did not err in concluding thatprobable cause to arrest defendant for DUI was lacking.

The State also argues that the arresting officer had theauthority to request that defendant's blood be drawn pursuant tosection 11--501.6 of the Code, which provides in pertinent part:

"(a) Any person who drives or is in actual control of amotor vehicle upon the public highways of this State and whohas been involved in a personal injury or fatal motor vehicleaccident, shall be deemed to have given consent to *** achemical test or tests of blood *** for the purpose ofdetermining the content of alcohol, other drug or drugs, orintoxicating compound or compounds of such person's blood ifarrested as evidenced by the issuance of a Uniform TrafficTicket for any [nonequipment] violation of the IllinoisVehicle Code ***. ***

(b) Any person who is dead, unconscious or who isotherwise in a condition rendering such person incapable ofrefusal shall be deemed not to have withdrawn the consentprovided by subsection (a) of this Section. In addition, ifa driver of a vehicle is receiving medical treatment as aresult of a motor vehicle accident, any physician licensed topractice medicine, registered nurse or a phlebotomist actingunder the direction of a licensed physician shall withdrawblood for testing purposes *** upon the specific request of alaw enforcement officer." 625 ILCS 5/11--501.6(a),(b) (WestSupp. 1999).

Under this provision, "no driver is chemically tested unless theperson has been arrested, based on the existence of probable cause,for a nonequipment violation of the Vehicle Code." Fink v. Ryan,174 Ill. 2d 302, 315 (1996). As discussed above, probable cause toarrest defendant for DUI was lacking. The State has not challengedthe trial court's ruling that there was no probable cause to arrestdefendant for improper lane usage. Accordingly, section 11--501.6does not apply.

For the foregoing reasons, the judgment of the circuit courtof De Kalb County is affirmed.

Affirmed.

HUTCHINSON, P.J., and BOWMAN, J., concur.