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No. 3--01--0988

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2003

In the indictment, the State alleged defendant drove a motorvehicle while under the influence of alcohol at a time when hisdriving privileges had been suspended due to a violation ofsection 11--501.1 of the Illinois Vehicle Code. The State alsocharged defendant by citation with driving while his license wassuspended and transportation of alcoholic liquor in a motorvehicle.

At the bench trial, the evidence showed that two policeofficers responded to the scene of an accident. The officerswere informed that a black car which was involved in the accidenthad left the scene.

Shortly thereafter, the officers located the vehicle parkedalong a highway approximately five miles from the location of theaccident. The driver was not in the area. One of the officersfound an unopened can of beer inside the car and an empty can ofbeer outside the vehicle near the driver's side door. Thevehicle was towed from the highway.

Less than two hours later, defendant was found walking alongthe highway approximately 50 feet north of where the car had beenlocated. One of the officers noticed that defendant's breathsmelled of alcohol, his eyes were red and glassy and his speechwas slurred. Defendant asked if he had injured anyone in theaccident.

The evidence also showed that defendant's driver's licensewas suspended at the time this incident occurred. Based on thisevidence, the trial court found defendant guilty of the charges.

On appeal, defendant asserts that his conviction of drivingwhile his license was suspended should be vacated on one-act,one-crime principles because the suspension of his license was anelement of the offense of aggravated driving while under theinfluence of alcohol. The State concedes error in this regard.

Where all of the elements of one offense are included inanother, a conviction for only the more serious offense maystand. See People v. Garcia, 179 Ill. 2d 55, 688 N.E.2d 57(1997). In this case, the elements of driving with a suspendedlicense were included in the offense of aggravated driving whileunder the influence of alcohol. See 625 ILCS 5/11--501(c--1)(1)(West 2000). Accordingly, we vacate defendant's conviction andsentence for driving while his license was suspended.

Defendant also contends that the State failed to prove himguilty beyond a reasonable doubt of transportation of alcoholicliquor in a motor vehicle.

When faced with such a claim, we view the evidence in thelight most favorable to the prosecution and determine whether anyrational trier of fact could have found the elements of the crimeproven beyond a reasonable doubt. People v. Collins, 106 Ill. 2d237, 478 N.E.2d 267 (1985). A reversal is warranted only if theevidence is so unsatisfactory that it leaves a reasonable doubtregarding the defendant's guilt. People v. Flowers, 306 Ill.App. 3d 259, 714 N.E.2d 577 (1999). A person is guilty oftransportation of alcoholic liquor in a motor vehicle if hetransports an unsealed container of alcohol within the passengercompartment of a motor vehicle. 625 ILCS 5/11--502(a) (West2000).

In this case, a police officer found an empty container ofalcohol near the driver's side door as well as an unopenedcontainer inside the vehicle. Since it is clear that theunopened can of beer would not support defendant's conviction(see People v. Nadermann, 309 Ill. App. 3d 1016, 723 N.E.2d 857(2000)), the State's case was based on the empty can. However,the State did not present evidence that the empty container wasthe same brand of beer as the one in the car, or any otherevidence indicating that the empty container had been inside thevehicle. Moreover, assuming the empty container had been insidethe vehicle, there is no evidence that it was open at that time.

It may be a logical inference that defendant possessed anopen container as he drove, and that he later left the empty cannear the vehicle when he walked away. However, it is equallypossible that the container had not even been inside the vehicle,but was litter along the roadside. Another possibility is thatdefendant possessed the container, but opened it after he exitedthe vehicle.

In sum, the State has the burden of presenting evidencesufficient to prove defendant guilty beyond a reasonable doubt. In this case, we are left with the simple fact that there was anempty can of beer near the door of the vehicle. While theevidence would permit an inference that defendant transported theopen container in his vehicle, there are too many uncertaintiesto find defendant was proven guilty of this charge beyond areasonable doubt. Accordingly, we reverse defendant's convictionof transportation of alcoholic liquor in a motor vehicle.

For the foregoing reasons, we vacate defendant's convictionand sentence for driving while his license was suspended andreverse his conviction of transportation of alcoholic liquor in amotor vehicle.

Reversed in part and vacated in part.

LYTTON and SCHMIDT, J.J., concur.