text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRANCE BRIDGES, Defendant-Appellant.
    Third District
    No. 3—89—0278
    Opinion filed June 8, 1990.

      Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (Michael C. Rolinski, of State's Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Defendant Terrance Bridges was charged with armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18—2) and attempted murder (Ill. Rev. Stat. 1987, ch. 38, par. 8—4(a)). Following a jury trial, the defendant was convicted of both charges and sentenced to concurrent 30-year prison terms. The defendant appeals his convictions and sentence. We affirm.

The defendant’s convictions arise from an incident that occurred on August 11, 1988, at the Coastal Mart gas station/convenience store located at 2324 7th Avenue in Rock Island. According to the store manager and a store customer, at approximately 4 p.m. on that day, a black male, later identified as the defendant, entered the store. Armed with a gun, the defendant demanded money. The manager, who had seen the defendant in the store on previous occasions, apparently thought he was joking. The manager locked the cash register and turned his back on the defendant. The defendant shot the manager in the back. He then again demanded money. The manager, with the assistance of the customer, loaded some rolls of change into a bank bag. The defendant demanded more money so the manager took out his wallet and gave the defendant a $5 bill. The defendant then fled, and the customer called the police. Using a photo lineup, the manager later identified the defendant as being the person who had shot him.

The defendant, who was 17 years of age at the time of the crime, turned himself in to Rock Island police on August 12, 1988, at approximately 4 a.m. He was arrested and subsequently interrogated, where he made incriminating statements to investigating police officers.

The issue of the defendant’s fitness to stand trial was raised at a hearing on February 8, 1989. A psychiatric expert testified that it was his opinion that the defendant had “borderline intelligence” but that he would be able to participate in his defense if his attorney took care to educate him as to the various aspects of the defense. The defendant was found competent to stand trial.

At the beginning of the defendant’s trial on February 14, 1989, a hearing was held on the defendant’s motion to suppress his confession. Rock Island police investigator Ronald Moser testified that he interrogated the defendant at approximately 1 p.m. on August 12, 1988. A second officer, Charles Hauman, looked on through a security viewer located on the door to the interview room. Hauman testified that he could hear the conversation.

According to Moser, the interview commenced with Moser verbally giving the defendant his Miranda (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602) rights. Moser asked the defendant if he understood his rights, and the defendant indicated that he did. Moser then asked the defendant to sign a waiver of rights sheet which the defendant did. Moser told the defendant that he was investigating an armed robbery and asked the defendant if he had committed it. The defendant denied involvement in the crime. Moser then asked whether there was any reason why defendant’s bloody footprints would be found at the crime scene. The defendant replied no. Moser then asked if there was any reason why his fingerprints would be at the crime scene. The defendant again replied no. Moser then asked if there was any reason that he’d be on the security camera film. The defendant did not reply. Moser indicated that on the film he could not see what the attendant was doing. He asked the defendant to explain and queried whether the defendant thought that the attendant was going for a gun. The defendant replied affirmatively, indicating that he thought the attendant was going for a gun so he shot him.

Moser then told the defendant that the attendant wasn’t dead yet, but that they would need the gun to help determine the trajectory which could be used to assist in medical treatment. The defendant indicated that he threw the gun in the woods behind Turnkey Apartments. The defendant refused to provide any further information and also refused to allow a tape recording of his statement. He did agree to allow Hauman to come in and have Moser reiterate the statement for Hauman to hear. Moser then brought in Hauman, reiterated the story and asked the defendant to verify that he had reiterated it correctly. The defendant indicated that Moser had properly summarized his statement. Moser further testified that he did not promise, threaten or coerce the defendant in any way and that the defendant never asked to invoke any of his Miranda rights.

On cross-examination, Moser conceded that he made up facts regarding the evidence at the crime scene. There were no footprints or fingerprints. There was no camera or picture of the defendant committing the crime. Moser also conceded that he planted the idea in the defendant’s mind that the attendant was going for a gun. Moser suggested that the defendant shot to protect himself. Additionally, Moser conceded that the information about the necessity of the trajectory to assist in medical treatment was fabricated.

Hauman then testified, corroborating Moser's testimony regarding the interrogation. Hauman indicated that after he heard the defendant verify Moser’s reiteration, he asked the defendant some questions and the defendant pointed out on a map where he had disposed of the gun. The gun was never recovered. Hauman also testified that he did not promise, threaten or coerce the defendant in any way and that the defendant never asked to invoke any of his Miranda rights.

The defendant testified that he signed the waiver form but did not know what it meant. He testified that Moser told him that the form recognized that the two had talked about the incident. The defendant testified that he told Moser that he did not have a statement to make and that he wanted to go to court.

The trial court denied the motion to suppress. The court held that there wasn’t any evidence that the defendant’s statements were coerced or not voluntary.

At trial, the manager and the store customer testified. Additionally, two women testified that they saw the defendant standing outside the store at 3:30 to 3:45 p.m. on August 11, 1988. About 20 minutes later a neighbor of one of the women asked if they would drive the defendant to his sister’s house. They agreed and took a route that went past the store where police were investigating the shooting. Both witnesses testified that as they drove past the store, the defendant ducked down in the back seat and admitted that “he did it.”

A crime-lab serology expert testified that he found traces of human blood on the shoes the defendant was wearing the night he was arrested. The expert conceded that he could not identify the blood and that it could have been the defendant’s blood.

The defendant took the stand and denied any involvement in the crime. The defendant claimed that he only purchased a soda that day in the store. He claimed that another man committed the offense and that he ducked down in the car because he was wanted on a previous arrest warrant. The defendant explained the blood on his shoes was from an incident earlier in the week. The defendant denied making inculpatory statements to the police. The State’s cross-examination consisted of asking the defendant if he thought each of the State’s witnesses had lied.

As indicated earlier, the jury returned guilty verdicts on both counts. The defendant appeals, raising three issues for our consideration.

The defendant first contends that the trial court erred in failing to suppress his confession. The defendant maintains that the confession was the direct result of the police interrogator’s lies regarding nonexistent evidence that defendant was told linked him to the crimes.

A trial court’s ruling denying a defendant’s motion to suppress his confession will not be reversed on appeal unless it is contrary to the manifest weight of the evidence. (People v. Schultz (1981), 99 Ill. App. 3d 762, 777, 425 N.E.2d 1267.) The determination depends on the totality of the circumstances, with consideration given to both the individual characteristics of the accused and the details of the interrogation. People v. Cleesen (1988), 177 Ill. App. 3d 103, 110, 531 N.E.2d 1113.

In regard to the individual characteristics, the relevant factors to be considered are the age, education, mental capacity, emotional characteristics, previous experience with the criminal system and whether the confession was induced by police deception. (In re T.S. (1986), 151 Ill. App. 3d 344, 350, 502 N.E.2d 761.) Additionally, this court has indicated that special care in scrutinizing the record is required when the defendant is young and has a diminished mental capacity. People v. Smith (1989), 178 Ill. App. 3d 976, 983, 533 N.E.2d 1169.

In regard to the details of the interrogation, the factors to consider include the duration of the questioning, whether the defendant received his rights and whether he was subjected to physical punishment. In re T.S. (1986), 151 Ill. App. 3d 344, 350, 502 N.E.2d 761.

We are of the opinion that the trial court erred in failing to suppress the defendant’s confession. The record indicates that the defendant was 17 years of age at the time of the interrogation. The defendant had been twice tested regarding his intelligence level. One test revealed that he was in the “high average range of the severely retarded classification.” A subsequent test described the defendant as “borderline mentally retarded.” The psychiatric expert at the fitness hearing opined that the defendant had “borderline intelligence.” At a minimum, then, it is apparent that the defendant had a diminished mental capacity. The defendant’s educational history was poor. He had behavioral problems while a student at various schools. Although he had some educational and vocational training while in the custody of the Illinois Department of Corrections, his formal education stopped at the age of 14.

The police interrogator admitted that his questions in regard to footprints and fingerprints were without an evidentiary basis. Additionally, he lied about the security camera. The interrogator also suggested the self-defense theory to explain why the defendant shot the manager and concocted the story regarding the trajectory as being necessary to help the medical personnel aid the victim.

It is true that the defendant was “street wise” and had previous experiences with criminal law. It is also true that the interrogation was not of a long duration, nor were the interrogators physically abusive toward the defendant. Nonetheless, we feel that, when viewed in light of all of the circumstances, it cannot be said that this was a voluntary and knowing confession as required by Miranda. Accordingly, we are of the opinion that the trial court should have granted the defendant’s motion to suppress his inculpatory statements.

We also are of the opinion, however, that this case need not be reversed due to this error. The United States Supreme Court, in Chapman v. California (1967), 386 U.S. 18, 22, 17 L. Ed. 2d 705, 709, 87 S. Ct. 824, 827, stated “there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.” We are convinced that the suppression of the defendant’s confession would have had no bearing on the jury’s determination of guilt. We have carefully reviewed the record and find that the evidence is overwhelming that the defendant committed these crimes.

The defendant next contends that the prosecutor’s cross-examination was improper and denied the defendant a fair jury determination of his guilt or innocence.

In order to preserve a question for appellate review, both an objection at trial and a written post-trial motion raising the issue are required. (People v. Enoch (1988), 122 Ill. 2d 176, 198-99, 522 N.E.2d 1124.) We have examined the record and find that the defendant waived any alleged error in the prosecutor’s cross-examination.

The defendant’s last issue requests this court to reduce the defendant’s 30 year-prison terms. The defendant alleges that the trial court focused only upon the seriousness of the defendant’s conduct and previous record and failed to consider mitigation in the cause.

We find the defendant’s issue to be without merit. We thus affirm the sentences imposed by the trial court.

The judgments of the circuit court of Rock Island County are affirmed.

Affirmed.

BARRY and SCOTT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    JUANITA BAINTER et al., Plaintiffs-Appellants, v. CHALMERS TOWNSHIP, Defendant-Appellee.
    Third District
    No. 3—89—0537
    Opinion filed June 8, 1990.
    Charles N. Edmiston, of Kanoski & Associates, of Rushville (Ronald Kanoski, of counsel), for appellants.
    Gregory Cerulo, of Quinn, Johnston, Henderson & Pretorius, of Peoria (Brian P. Mack, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiffs, Juanita and Lynn Bainter, appeal from the trial court’s granting the defendant’s, Chalmers Township’s, motion to dismiss count V of their complaint. This appeal involves a collision between the Bainters’ automobile and a school bus. The collision occurred on Timberhill Road in Chalmers Township (the township), a township of McDonough County, Illinois. The trial court granted the township’s motion to dismiss count V of the complaint for failure to state a cause of action relying on this court’s decision in Havens v. Harris Township (1988), 175 Ill. App. 3d 768, 530 N.E.2d 284. The trial court, pursuant to Supreme Court Rule 304(a), made its judgment final and appealable. (107 Ill. 2d R. 304(a).) We affirm.

On appeal, the Bainters ask this court to reverse our holding in Havens or find the instant case distinguishable from Havens. The Bainters further request that this court follow the reasoning in Long v. Friesland (1988), 178 Ill. App. 3d 42, 532 N.E.2d 914, wherein the court found the clearing of brush from alongside a road to be a ministerial act.

We will continue to adhere to our decision in Havens. A township has no common law duty to widen roads, smooth gravel, erect signs, or mow weeds (Havens v. Harris Township (1988), 175 Ill. App. 3d 768, 530 N.E.2d 284), and a public official has an absolute immunity from lawsuits challenging his acts of judgment or discretion. (Kirchgessner v. County of Tazewell (1987), 162 Ill. App. 3d 510, 516 N.E.2d 379.) Absent a statutory or common law duty, moreover, it is up to the township’s discretion to decide whether road improvements, such as clearing the brush in the instant case, were necessary. Havens, 175 Ill. App. 3d at 771, 530 N.E.2d at 285.

Accordingly, the judgment of the circuit court of McDonough County is affirmed.

Affirmed.

HEIPLE, P.J., and SCOTT, J., concur.


author: JUSTICE SPITZ

text:
    FAIRVIEW AREA CITIZENS TASKFORCE et al., Petitioners-Appellants, v. THE POLLUTION CONTROL BOARD et al., Respondents-Appellees.
    Third District
    No. 3—89—0408
    Opinion filed June 7, 1990.

      Michael F. Kukla, of Cowling, Ungvarsky, Kukla & Curran, of Crystal Lake, for petitioners.
    Neil F. Hartigan, Attorney General, of Springfield (Christine Zeman and John J. Kim, Assistant Attorneys General, of counsel), for respondent Pollution Control Board.
    Thomas R. Mulroy, Raymond T. Reott, and Rebecca Raftery, all of Jenner & Block, of Chicago, and Keith K. Kost, of Kost & Kost, of Lewis-town, for respondent Gallatin National Company.
    Ralph Froehling, of Froehling, Taylor & Weber, of Canton, for respondent Village of Fairview.
   JUSTICE SPITZ

delivered the opinion of the court:

This is an appeal by petitioners, Fairview Area Citizens Taskforce (FACT), Richard Kleine, Norma Kleine, Joseph Comer, Michelle Comer, Lewis Newcomb, Walter Newcomb, Harry Postin, Delores Postin, Gerald Bales, Virginia Bales, John Beoletto, Michael Beoletto, Gerald Ball, Becky Ball, Lyle Utsinger, Gary Hollis, Diane Hollis, Junior Schleich, and Melba Schleich, from a decision of the Illinois Pollution Control Board (IPCB) upholding a previous decision of the Village of Fairview Village Board (village board) granting site approval to Gallatin National Company for a regional pollution-control facility. In this appeal, petitioners raise two issues: (1) whether the procedures employed by the Fairview Village Board were fundamentally fair to petitioners, and (2) whether the decisions of the Fairview Village Board and the IPCB were against the manifest weight of the evidence.

Because the parties are well aware of the facts of this case and the record is extensive, we will not attempt to summarize all of the testimony and public comment contained in the record. Instead, only the facts necessary to the consideration of the parties’ contentions will be referred. However, the parties may rest assured this court has thoroughly reviewed the record in its entirety.

Petitioners were, of course, the objectors before the village board. On appeal, they argue that they were deprived of fundamental fairness because the village board was predisposed to grant the siting application and because the village board improperly considered matters relating to the economic benefit to be derived by the community from the approval of the facility.

Although citizens before the village board in this type of proceeding are not entitled to a fair hearing by reason of the constitutional guarantees of due process, they may nevertheless insist the procedure comport with standards of fundamental fairness. (Tate v. Pollution Control Board (1989), 188 Ill. App. 3d 994, 544 N.E.2d 1176.) In E & E Hauling, Inc. v. Pollution Control Board (1985), 107 Ill. 2d 33, 481 N.E.2d 664, the Illinois Supreme Court considered an objector’s arguments of conflict of interest and bias. The Illinois Supreme Court initially determined that these claims had been waived, but decided to consider them anyway because of the likelihood of recurrence.

Here, too, the IPCB found that petitioner waived the argument concerning predisposition by failing to challenge village board members at the beginning of the hearings. In order for the question of bias to be reviewed on appeal, the issue must be raised prior to or during the local hearings. (A.R.F. Landfill, Inc. v. Pollution Control Board (1988), 174 Ill. App. 3d 82, 528 N.E.2d 390.) On the issue of waiver, the Illinois Supreme Court has stated:

“Generally, of course, a failure to object at the original proceeding constitutes a waiver of the right to raise the issue on appeal. (People v. Carlson (1980), 79 Ill. 2d 564, 576-77[, 404 N.E.2d 233, 238-39].) ‘A claim of disqualifying bias or partiality on the part of a member of the judiciary or an administrative agency must be asserted promptly after knowledge of the alleged disqualification.’ (Duffield v. Charleston Area Medical Center, Inc. (4th Cir. 1974), 503 F.2d 512, 515.) The basis for this can readily be seen. To allow a party to first seek a ruling in a matter and, upon obtaining an unfavorable one, permit him to assert a claim of bias would be improper. It can be said that that was the situation here. The village did not claim that it was unaware of the alleged bias before the board hearing was concluded.” E & E Hauling, 107 Ill. 2d at 38-39, 481 N.E.2d at 666.

Although the Illinois Supreme Court has already discussed bias and conflict of interest, and it may be unnecessary for this court to consider the issue on the merits since this court agrees with the IPCB that waiver has occurred, we will nevertheless address the merits. Petitioners’ arguments center on the prior approval of an annexation agreement by the village board. It is also argued that village board members relied on the report of Otis Michels, president and chief executive officer of Daily & Associates Energies, Inc., a firm retained by Fairview to participate in the evaluation of the landfill. Michels met with applicants, in the presence of the village attorney, on one occasion. He also had other conversations with STS Consultants, Ltd., representatives. STS and Gallatin are owned by STS Holdings, Inc. Based on that, petitioners argue that Michels was predisposed toward Gallatin and, therefore, the village board’s decision was fundamentally unfair. Petitioners also contend the local siting-approval hearing was fundamentally unfair because the village board was predisposed to granting approval because the village board members believed the landfill would provide an economic benefit to the community, a factor which is not included among the statutory criteria. It is further argued that board members improperly considered the opinions of constituents gleaned from conversations outside the public-hearing process, that Michels considered matters outside the hearing process by discussing the matter with a person identified as Dr. Griffin, and Michels’ report included matters not disclosed in the hearing. All of these arguments were rejected by the IPCB.

In E & E Hauling the Illinois Supreme Court held that a county board was not disqualified as a decision maker simply because revenues would be received by the county. It is routine for government agencies to make decisions affecting revenues, and they are deemed to make decisions for the welfare of their governmental unit and their constituents. Board members are subject to public disapproval. Elected officers are subject to being turned out of office and appointed officials are subject to being replaced. Therefore, the Illinois Supreme Court concluded, such public officials should be considered to act without bias.

In Woodsmoke Resorts, Inc. v. City of Marseilles (1988), 174 Ill. App. 3d 906, 529 N.E.2d 274, this court held that even though Marseilles could realize more annual income than would the district in E & E Hauling it was not fundamentally unfair for Marseilles to review the site-approval application. Marseilles did not own the landfill property, and Marseilles, or its board members, would not realize and enjoy the additional potential revenues or pecuniary benefit, because it was the community at large which stood to gain or lose from the approval or disapproval of the site. Furthermore, unlike the members of the Du Page County Board in E & E Hauling, the Marseilles board members were not both judge and applicant. This court also rejected the claim that the annexation of the property, along with the respective relinquishment of various rights, was evidence of adjudicative prejudgment by Marseilles.

While the Illinois General Assembly granted the parties a right to a hearing, the hearing has to be conducted by the governing body of the municipality in which the proposed landfill is to be located. The statute states that Fairview’s jurisdiction is exclusive. (Ill. Rev. Stat. 1987, ch. 111½, par. 1039.2(g).) There is no reason that the Fairview Village Board cannot impartially review this application for a site approval.

Therefore, the previously approved annexation agreement and possible economic benefit to Fairview do not render the village board biased. Furthermore, for site-location-suitability approval, the facility must meet the criteria set out in section 39.2(a) of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1987, ch. 111½, par. 1039.2(a)). However, while these listed criteria must be satisfied, the statute does not state these are the only factors which may be considered. Nor do petitioners cite any cases which bar consideration of economic benefit to the community. Therefore, there is no impropriety by the village board considering the economic benefit, as long as the statutory criteria are also met.

In their reply brief, petitioners cite an earlier IPCB decision, City of Rockford v. Winnebago County Board (1987), 82 Ill. PCB Op. 83—95. In considering the case at bar, the IPCB distinguished that earlier decision from the facts of the instant case. According to petitioners, that leads to inequitable results, allowing the IPCB to reverse when the applicant complains the board considered matters outside the record and factors other than the statutory criteria — or to affirm when faced with these same contentions. A fair reading of these two decisions, however, indicates the petitioners’ objection is meritless.

In the City of Rockford case, the IPCB was concerned that the local board rejected site approval based on factors independent of consideration of the statutory factors, such that the local board may have rejected the site application even if the criteria were met. Merely because the IPCB decided in the instant case that a local board may consider factors in addition to the statutory factors does not require, as the petitioners would have this court conclude, that the IPCB would refuse to reverse a board’s local siting approval if the board considered additional factors where there was insufficient evidence to support one or more of the statutory criteria.

Petitioner admits the village board may retain an expert to advise the board. On the other hand, they argue the expert should remain impartial, refrain from ex parte contact, and refrain from considering matters not presented as evidence at the hearing. The unanimous decision of the IPCB found that even though three village board members testified that they considered Michels’ report along with all evidence and written comment when making their decision, elected officials are presumed to act objectively, and there is no evidence that the village board members acted otherwise. Since no village board member attended the September 1988 meeting between Michels and Gallatin’s representatives, there is no evidence the village board relied improperly upon Michels’ report. Michels’ alleged predisposition is not relevant because Michels did not have a vote. With regard to matters included in Michels’ report which were not matters testified to at the hearing, the IPCB found that report was properly submitted as public comment, to which petitioners had an opportunity to respond, but did not. The record supports those findings of the IPCB.

The IPCB also found that petitioners waived their challenge to the alleged predisposition of village board member Doyal Williams based on his March 1988 conversation with Kent Schleich, concerning which Schleich testified to the effect that Williams’ mind was made up and he would not change it. As the IPCB pointed.out, this matter should have been raised at the local hearing, but was not. There is no reason the challenge could not have been raised, and it is waived. Waste Management of Illinois, Inc. v. Pollution Control Board (1988), 175 Ill. App. 3d 1023, 530 N.E.2d 682.

The remaining contention to be considered under this issue is whether petitioners were denied fundamental fairness by village board members’ contacts with constituents and members of the general public outside the hearing process. The testimony indicates that this public comment was both for and against the site approval. Obviously Schleich and Wilmadean Fengel, opponents of the landfill, discussed the landfill matter with Williams. In Waste Management, the court stated:

“A court will not reverse an agency’s decision because of ex parte contacts with members of that agency absent a showing that prejudice to the complaining party resulted from these contacts. (E & E Hauling, Inc. v. Pollution Control Board (1983), 116 Ill. App. 3d 586, 607, 451 N.E.2d 555, aff’d (1985), 107 Ill. 2d 33, 481 N.E.2d 664.) Here, the record does not indicate that Waste Management suffered any prejudice as a result of the contacts between citizens of Lake County and LCB members. The various telephone calls, letters, and personal contacts were merely expressions of public sentiment to county board members on the issue of Waste Management’s landfill application. Moreover, existence of strong public opposition does not render a hearing fundamentally unfair where, as here, the hearing committee provides a full and complete opportunity for the applicant to offer evidence and support its application. (Waste Management, 123 Ill. App. 3d at 1081, 463 N.E.2d at 974.) Further, ex parte communications from the public to their elected representatives are perhaps inevitable given a county board member’s perceived legislative position, albeit in these circumstances, they act in an adjudicative role as well. Thus, although personal ex parte communications to county board members in their adjudicative role are improper, there must be a showing that the complaining party suffered prejudice from these contacts. (E & E Hauling, Inc., 116 Ill. App. 3d at 606-07, 451 N.E.2d at 571; see also Town of Ottawa, 129 Ill. App. 3d at 126-27, 472 N.E.2d at 154.) There is no showing of prejudice here, particularly in light of the extensive record developed during the local hearing. Accordingly, there is no basis to reverse the decision of the PCB on this issue.” Waste Management, 175 Ill. App. 3d at 1043, 530 N.E.2d at 697-98.

In the case at bar it is the objectors who assert unfair treatment by reason of the ex parte comment. However, they, too, were given every opportunity to be heard and to present evidence at the hearings. The record does not demonstrate prejudice to the petitioners and, therefore, the petitioners’ attempt to have the administrative decision overturned on the basis of a fundamentally unfair hearing must fail.

The remaining issue to consider is whether the decisions of the Fairview Village Board and the IPCB were against the manifest weight of the evidence. Section 39.2(a) of the Act (Ill. Rev. Stat. 1987, ch. 111½, par. 1039.2(a)) provides:

“The county board of the county or the governing body of the municipality, as determined by paragraph (c) of Section 39 of this Act, shall approve the site location suitability of a new regional pollution control facility only if the facility meets the following criteria:
(i) the facility is necessary to accommodate the waste needs of the area it is intended to serve;
(ii) the facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected;
(iii) the facility is located so as to minimize incompatibility with the character of the surrounding area and to minimize the effect on the value of the surrounding property;
(iv) the facility is located outside the boundary of the 100 year flood plain or the site is flood-proofed;
(v) the plan of operations for the facility is designed to minimize the danger to the surrounding area from fire, spills, or other operational accidents;
(vi) the traffic patterns to or from the facility are so designed as to minimize the impact on existing traffic flows;
(vii) if the facility will be treating, storing or disposing of hazardous waste, an emergency response plan exists for the facility which includes notification, containment and evacuation procedures to be used in case of an accidental release; and
(viii) if the facility will be located within a regulated recharge area, any applicable requirements specified by the Board for such areas have been met.”

On appeal, the sufficiency of the evidence supporting five of the criteria is challenged by petitioners. The five challenged criteria sections are 39.2(a)(i), (a)(ii), (a)(iii), (a)(v), and (a)(vi). In Tate, the standard of review in a regional pollution-control facility site-lo.cation-suitability case was stated:

“Waste Management of Illinois, Inc. v. Pollution Control Board (1987), 160 Ill. App. 3d 434, 513 N.E.2d 592, decided that all of the statutory criteria must be satisfied in order for approval and that the proper standard of review for the County Board’s decision is whether the decision is against the manifest weight of the evidence, with the manifest weight standard being applied to each and every criterion. See also City of Rockford v. Pollution Control Board (1984), 125 Ill. App. 3d 384, 465 N.E.2d 996.
A decision is against the manifest weight of the evidence if the opposite result is clearly evident, plain, or indisputable from a review of the evidence. (Harris v. Day (1983), 115 Ill. App. 3d 762, 451 N.E.2d 262.) The province of the hearing body is to weigh the evidence, resolve conflicts in testimony, and assess the credibility of the witnesses. A reviewing court is not in a position to reweigh the evidence, but can merely determine if the decision is against the manifest weight of the evidence. Jackson v. Board of Review of the Department of Labor (1985), 105 Ill. 2d 501, 475 N.E.2d 879; McKey & Poague, Inc. v. Stackler (1978), 63 Ill. App. 3d 142, 379 N.E.2d 1198.” Tate, 188 Ill. App. 3d at 1022, 544 N.E.2d at 1195.

On the question of whether the proposed facility is necessary to accommodate the waste needs of the area it is intended to serve, we agree with the IPCB’s finding that the village board’s decision was not against the manifest weight of the evidence. Gallatin has defined the area the facility is intended to serve as Fulton County and five adjoining counties, plus six counties in northeastern Illinois. Wayne P. Pferdehirt testified that the proposed facility is necessary to accommodate the needs of the service area. Petitioners did not present any contrary evidence.

Instead, petitioners challenge the methods used by Pferdehirt in arriving at his conclusion. They argue he merely relied on Illinois Environmental Protection Agency (IEPA) reports, rather than doing an independent analysis. However, petitioners do not suggest why the IEPA reports are unreliable. They argue he improperly relied on information concerning waste generation in McHenry County as analogous to the waste-generation capacity of the local six-county service area, and failed to consider the capability of some of the smaller municipal landfills in the six-county northeastern Illinois service area.

However, the similarities and dissimilarities between McHenry County and the local service area were before the village board. Furthermore, petitioners presented no evidence to suggest the small, municipal landfills located in the northeastern Illinois service area omitted from consideration would have a significant impact on the needs of the service area.

Likewise, petitioners argue the local six-county service area’s need has not been demonstrated. The local counties included in the service area are Fulton, Knox, Mason, McDonough, Schuyler, and Warren Counties. Petitioners contend (1) Schuyler County waste is mostly disposed of in Cass County, and there is no evidence of the life expectancy of the landfill in Cass County, or that any of the Schuyler County waste is currently or will in the future be disposed of at the proposed facility; (2) Warren County waste is disposed of in Mercer County, and there is no evidence of the life expectancy of the Mercer County landfill, or that Warren County will dispose of its waste in the proposed facility; (3) Knox County disposes of all of its waste in Knox County and petitioners suggest the Knox County landfill has a three-year life expectancy; (4) the life expectancy of the McDonough landfill is 11 years; (5) the life expectancy of the Fulton County landfill is nine years; and (6) Mason County currently sends half its waste to Fulton County, and half to Tazewell County (which is outside the service area). Petitioners contend that all areas which currently send their waste to landfills outside of the proposed local service area should be excluded from the proposed local service area.

In Tate, it was explained that the criterion of whether a facility is necessary to accommodate the area’s needs does not require a showing of absolute necessity. Nor should the need be determined by application of an arbitrary standard of life expectancy of existing disposal capacities. If the Knox County landfill has a life expectancy of three years, in three years Knox County will be sending waste to Mercer, McDonough, Fulton, or some other landfill. Petitioners have presented no evidence of a proposal to expand the Knox County landfill or to build a new landfill in Knox County. As a result of the Knox County landfill being closed in three years, the life expectancy of the surrounding landfills could be considerably shortened. And while the village board was not made aware of the life expectancies of the Cass, Mercer, or Tazewell County landfills, by either. Gallatin or petitioners, the village board could reasonably conclude that the stress on those landfills, as well as on the landfills in the six-county local service area, could be considerably relieved by the proposed facility, thereby extending the life expectancies of the existing facilities.

Had the life expectancies of the local and surrounding landfills been such as to negate a need, petitioners had the opportunity to place such evidence before the village board. While challenging Gallatin’s figures, petitioners did not present calculations of their own for the village board’s consideration. As a result, it is appropriate for the village board to rely on the information in evidence.

The next criterion to consider is whether the proposed facility is so designed, created, and proposed to be operated that the public health, safety, and welfare would be protected. Before the IPCB, petitioners argued that there is no natural protection at the proposed sites and that Gallatin relies solely on engineered protection features, which petitioners’ experts indicate could fail, resulting in groundwater contamination. The IPCB found the decision of the village board was not against the manifest weight of the evidence.

Most of the testimony and evidence presented at the hearings before the village board pertained to this criterion. The determination of this question is purely a matter of assessing the credibility of expert witnesses, an issue the village board decided in favor of Gallatin. Since there is evidence to support the village board’s decision and, as was pointed out in Tate, it is not the function of the reviewing court to reweigh evidence or reassess credibility, the finding of the village board on this criterion is not against the manifest weight of the evidence.

The third criterion to consider is whether the proposed facility is located so as to minimize incompatibility with the character of the surrounding area and the effect on the value of surrounding property. William A. McCann, a real estate appraiser, testified he believed the proposed facility was located in such a way as to minimize the impact on the value of other property in the area. McCann pointed to the facts that (1) the 80-acre disposal area is to be located within a 995-acre facility, which itself is located within a 2,700-acre parcel owned by Gallatin; (2) the area is rural and largely agricultural in use and characterized by depleted, mined-out land; (3) except for one residence within half a mile of the facility and one residence within a mile, most residences in Fairview itself are V-k miles from the site; and (4) there will be a 500-foot green area with berms. On the other hand, petitioners presented no contrary evidence or testimony.

Petitioners contend Gallatin has not sufficiently demonstrated it has taken and plans to take reasonably feasible steps to do what it can to minimize the impact of the facility, but has shown only minimal effort. Petitioners cite Waste Management of Illinois, Inc. v. Pollution Control Board (1984), 123 Ill. App. 3d 1075, 463 N.E.2d 969. This case was referred to in Tate:

“The case of Waste Management of Illinois, Inc. v. Pollution Control Board (1984), 123 Ill. App. 3d 1075, 463 N.E.2d 969, discussed the type of evidence which might appropriately be considered with reference to minimizing the impact of. the proposed facility to the surrounding area. However, it is logical to require this evidence to be presented only if there is indeed some incompatibility with the surrounding area shown to exist.” Tate, 188 Ill. App. 3d at 1025, 544 N.E.2d at 1197.

With regard to this criterion, it is difficult to imagine a more practical place to locate a landfill than the site proposed here. Certainly the landfill would have no more deleterious impact on the value or aesthetics of the surrounding area than does an abandoned strip mine. Since petitioners have placed no evidence on this issue before the village board, the village board could reasonably accept the testimony and report of McCann.

The fourth criterion to consider is whether the proposed facility is designed to minimize the danger to the surrounding area from fire, spills, or other operational accidents. As the IPCB noted, the engineering report submitted by Gallatin in conjunction with its application contains a section addressing criterion five. The report discusses fire, security, spills, and other accidents. Again, petitioners introduced no evidence on this criterion, and their challenge appears to be based upon an alleged lack of detail in the Gallatin application. Absent any evidence being submitted by petitioners demonstrating the procedures outlined by Gallatin are inadequate, the decision of the village board was not against the manifest weight of the evidence.

The final question is whether the village board’s decision is against the manifest weight of the evidence because the traffic patterns to and from the facility are not so designed as to minimize the impact on existing traffic flows. Gallatin presented testimony from Matthew C. Sielski, a traffic engineer, who stated he believed the proposed facility satisfied this criterion. Sielski submitted a traffic-study report and concluded that traffic accidents are not expected to increase and the surrounding roads could easily accommodate the expected 8% increase in daily traffic. Again, petitioners did not present any contrary evidence or testimony relating to this criterion.

While Tate involved the expansion of an existing facility, the question of the impact on existing traffic flows was discussed. In Tate it was decided that the applicant was not required to place into evidence designs for exact routes, types of traffic and projections of volume and hours of traffic. The statute does not refer to a “traffic plan,” but about traffic patterns to and from the facility being designed to minimize impact on existing traffic flow. Complaints about traffic noise and dust do not relate to the effect on traffic flow. Nor is the potential negligence of the truck drivers relevant to the effect on traffic flow. The operative word in the statute is “minimize.” It is impossible to eliminate all problems.

There is no doubt there will be increased traffic on Route 97 at or near the site’s entrance. Sielski’s conclusion is based on his expectation that most of the increased traffic will utilize Route 97, while he seemed to consider the other roads adjoining the site, including the streets of Fairview, to be required to accommodate a lesser increase in traffic. Petitioners presented no evidence of how the traffic flow to the expanded facility would negatively impact existing traffic flow or how the traffic flow should be changed, as had been done in McHenry County Landfill, Inc. v. Environmental Protection Agency (1987), 154 Ill. App. 3d 89, 506 N.E.2d 372.

As Gallatin points out, the question is not whether there will be no adverse impact, but whether the impact on traffic flow has been minimized. Should a new access road be built? Should landfill traffic be routed to Routes 9 or 116? Should traffic signals or signs be installed at any intersections where they are not presently located? Petitioners presented no evidence to indicate that the proposed traffic patterns did not already minimize the impact on the existing traffic flow. No State, county, township, or village official concerned with roadways or traffic testified that the traffic patterns in Gallatin’s proposal did not minimize the impact on existing traffic flows. While Sielski’s credibility was challenged, the village board apparently found him to be a credible witness and, as already indicated, it is not a function of the reviewing court to reassess credibility. Therefore, this criterion does not support reversal.

Accordingly, the order of the IPCB affirming the decision of the Village of Fairview is affirmed.

Affirmed.

KNECHT and STEIGMANN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. LENA “MARIE” WILSON et al., Defendants (James D. Reynolds and Associates, Appellee).
    Third District
    Nos. 3—89—0199, 3—89—0498 cons.
    Opinion filed June 5, 1990.

      Kevin W. Lyons, State’s Attorney, of Peoria (Terry A. Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    G. Edward Murphy, of Reynolds, Murphy & Associates, of Peoria, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The State appeals the trial court’s order vacating bond forfeiture judgments entered against the defendants, Lena “Marie” Wilson and Joe Marks. The court vacated the bond forfeiture judgments so it could use the money for victim restitution and attorney fees.

The State also appeals the trial court’s subsequent order disbursing the $16,000 in bond money. Both appeals are consolidated in this decision.

The record shows that the defendants were each charged with conspiracy and two counts of theft (Ill. Rev. Stat. 1987, ch. 38, pars. 8—2, 16—1(b)). Both of the defendants posted cash bonds and assigned their rights in the bonds to their legal counsel, the law firm of James D. Reynolds & Associates, which is the appellee in this appeal. When the defendants failed to appear at their arraignment, the State requested that the bonds be forfeited (Ill. Rev. Stat. 1987, ch. 38, par. 110—7(g)). The trial judge granted the State’s request and ordered the bonds forfeited.

A forfeiture hearing was subsequently held for each of the defendants. When Wilson failed to appear at her hearing, the trial court entered judgment on her bond forfeiture. Prior to the entry of the judgment, one of the appellee’s attorneys asked the court if there was any way to preserve the firm’s interest in the bond. The trial court noted that there was no longer any interest to protect since the bond had already been ordered forfeited. The trial court also entered a forfeiture judgment against Marks when he failed to appear at his hearing.

The appellee then filed an attorney’s lien against Wilson’s personal property “being held in the control of the People of the State of Illinois.” Notice of the lien was served upon an assistant State’s Attorney and upon Frank Walter of the Illinois State Police. No lien was filed against Marks’ property.

The defendants were subsequently tried in absentia. The jury found Wilson guilty of conspiracy and two counts of theft. Marks was found guilty only of conspiracy.

Following the trial, the appellee filed a petition for attorney fees in the amount of $50,000. The petition alleged that each of the defendants had agreed to pay the law firm a $25,000 retainer to defend the case. In support of its petition, the appellee relied upon section 115—4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115—4.1), which states that when a defendant has been tried in absentia, the trial court may order the clerk of the circuit court to pay counsel such sum as it deems reasonable from any bond money posted by the defendant. In its response, the State argued that the court was without jurisdiction to hear the petition, since the bonds had already been ordered forfeited. The State further contended that the trial court had lost any authority to vacate the forfeiture orders, since neither the defendants nor the appellee had objected to them and 30 days had passed since their entry.

At the hearing on the petition, the appellee argued that its attorney’s lien acted as a motion to vacate pursuant to section 2—1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401). The State argued that the filing of an attorney’s lien did not alter the general rule that a forfeiture judgment is final 30 days after its entry. Further, the State noted that the lien was filed only with respect to Wilson’s personal property being held by the State and did not include her bond money. The State also noted that the lien did not even mention Marks. The appellee replied that “personal property” included the cash bond and asked the court to allow it to amend its lien to include Marks’ bond as well.

The trial court found that it had made a mistake in failing to preserve the defendants’ bond money for restitution and attorney fees and issued a writ of error coram nobis to correct its mistake. In setting aside the forfeiture judgments, it noted that the procedure for awarding attorney fees, as set forth in section 115—4.1 of the Code of Criminal Procedure, superseded the forfeiture provisions of section 110—7(g). Accordingly, it awarded the appellee a total of $4,500 in attorney fees, which came from both of the defendants’ bonds. It also awarded the victim $11,500 in restitution from the bond money.

On appeal, the State argues that the trial court was without jurisdiction to set aside the bond forfeitures. It further argues that even if the trial court had jurisdiction, it abused its discretion in vacating the forfeiture orders.

It is well settled that a trial court loses authority to vacate an order of forfeiture 30 days after entry of that order. (People v. Montaigne (1980), 86 Ill. App. 3d 220, 407 N.E.2d 1107.) In the instant case, the record reveals that 30 days had passed since the entry of the forfeiture orders and that neither the defendants nor the appellee had objected to their entry within that time. Therefore, the trial court was without jurisdiction to vacate those orders.

The appellee nonetheless argues that its attorney’s lien acted as a motion to vacate pursuant to section 2—1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401), which provides for relief from both criminal and civil judgments after 30 days from the entry of the judgments. We note that to obtain relief under section 2—1401, the moving party must demonstrate that a meritorious defense or claim exists; that he used due diligence in presenting this defense or claim in the original action; that through no fault or negligence on his part, an error of fact or a valid defense or claim was not presented to the trial court when the challenged judgment was entered; and that he used due diligence in filing the 2—1401 petition. Schmidt v. Siegal Trading Co. (1979), 72 Ill. App. 3d 611, 391 N.E.2d 32.

Based upon our review of the appellee’s petition, we are unable to find that it meets the requirements of section 2—1401. The appellee failed to allege that it had a meritorious defense and that it exercised due diligence in filing the petition. Moreover, it failed to allege that through no fault of its own, an error of fact or a valid claim was not presented to the trial court when the forfeiture judgments were entered. Because these requirements were not met, the trial court was without jurisdiction to vacate the forfeiture orders under section 2—1401. (Lurie Co. v. Teichner (1978), 63 Ill. App. 3d 950, 380 N.E.2d 959.) Accordingly, we find that the court did not have jurisdiction to vacate its forfeiture orders.

The judgment of the circuit court of Peoria County is reversed.

Reversed.

HEIPLE, P.J., and BARRY, J., concur.


author: JUSTICE GORMAN

text:
    COMMONWEALTH FINANCIAL CORPORATION, Plaintiff-Appellee, v. NORMAN E. DeWALT, Indiv. and d/b/a Bedroom Plaza, Defendant-Appellant.
    Third District
    No. 3—89—0770
    Opinion filed May 31, 1990.

      Thomas L. Perkins and David G. Mawn, both of Kavanagh, Scully, Sudow, White & Frederick, P.C., of Peoria, for appellant.
    Michael W. Heller, of Peoria, for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

The plaintiff, Commonwealth Financial Corporation, sued the defendant, Norman E. DeWalt, to recover $6,072 that DeWalt paid to Wright’s Furniture Mills, Inc., for goods he purchased from Wright’s Furniture. It was undisputed that Commonwealth had previously notified DeWalt that it had a security interest in Wright’s Furniture’s accounts receivable. The trial court granted Commonwealth’s motion for summary judgment. DeWalt appeals.

The record reveals that Wright’s Furniture and Commonwealth entered into a written security agreement wherein Commonwealth took an assignment of Wright’s Furniture's accounts receivable as security for its indebtedness to Commonwealth. Thereafter, Commonwealth sent notice of the assignment to DeWalt in accordance with section 9—318 of the Uniform Commercial Code (the Code) (Ill. Rev. Stat. 1987, ch. 26, par. 9—318). After receiving notice, DeWalt made three collect on delivery (COD) purchases from Wright’s Furniture for a total of $6,072. DeWalt paid Wright’s Furniture for the goods.

Commonwealth brought this action, alleging that DeWalt was obligated to make the COD payments to it, because DeWalt had received notice of the assignment of Wright’s Furniture’s accounts receivable. In response, DeWalt filed a motion for summary judgment, contending that a COD transaction does not create an “account” under article 9 of the Code (Ill. Rev. Stat. 1987, ch. 26, par. 9—101 et seq.). In that regard, he argued that even though Commonwealth had a security interest in Wright’s Furniture’s accounts, it had no interest in the COD payments made to Wright’s Furniture. Commonwealth filed a response and a counterpetition for summary judgment, arguing that COD payments constitute “accounts” within the meaning of section 9—106 of the Code (Ill. Rev. Stat. 1987, ch. 26, par. 9—106).

The sole issue presented on appeal is whether the COD transactions involved here constituted “accounts” within the meaning of the Code, thus obligating DeWalt to make his payments to Commonwealth.

Section 9—106 of the Code defines an “account” as “any right to payment for goods sold *** whether or not it has been earned by performance.” (Ill. Rev. Stat. 1987, ch. 26, par. 9—106.) The Code also provides that goods are sold when title passes from the seller to the buyer for a price. (Ill. Rev. Stat. 1987, ch. 26, par. 2—106(1).) Unless otherwise agreed, title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods. Ill. Rev. Stat. 1987, ch. 26, par. 2—401(2).

DeWalt argues on appeal that tender of delivery did not precede payment. Therefore, he reasons, title did not pass and a sale did not occur until after payment. He concludes that since a sale did not occur until after payment, no “account” was ever created.

We note that this appears to be a case of first impression in Illinois. However, having examined the Code, decisions in other jurisdictions, and treatises on this subject, we find DeWalt’s reasoning faulty. In the instant case, title to the goods passed before payment. Thus, an “account” was created, obligating DeWalt to make his payments to Commonwealth. This is so because in a COD transaction, title to goods passes immediately upon delivery to the carrier, even though the carrier retains possession on behalf of the seller. (3 R. Anderson, Uniform Commercial Code §2—401:54, at 551 (3d ed. 1983).) Furthermore, even though the parties have expressly agreed that the goods will not be delivered until they are paid for, the transfer of title is not deferred until payment. (3 R. Anderson, Uniform Commercial Code §2—401:54, at 551 (3d ed. 1983).) It does not matter whether payment is due immediately or in the future, the right to payment is still an “account.” See Matthews v. Arctic Tire, Inc. (1970), 106 R.I. 691, 262 A.2d 831.

Accordingly, we find that the trial court properly granted Commonwealth’s motion for summary judgment.

The judgment of the circuit court of Peoria County is affirmed.

Affirmed.

SCOTT and BARRY, JJ., concur.


text:
    CENTRAL TRUST AND SAVINGS BANK, Ex’r of the Estate of Lee D. Davis, Plaintiff-Appellant, v. BEVERLY TOPPERT et al., Defendants-Appellees.
    Third District
    No. 3—89—0141
    Opinion filed May 31, 1990.
    James J. Gende, of Moline, for appellant.
    Robert V.P. Waterman, Jr., of Lane & Waterman, of Davenport, Iowa (John D. DeDoncker, of counsel), for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiff in this case, Central Trust and Savings Bank, as executor of the estate of Lee D. Davis, brought this wrongful death action against defendants Beverly Toppert, Burdette Toppert, Charles Toppert, and Rock River Stone Quarry, Inc., the alleged owners or operators of a rock quarry where plaintiff’s decedent was killed in a blasting operation. The circuit court dismissed an absolute liability count of the complaint, but certified for interlocutory appeal the question of whether the absolute liability count stated a cause of action. The interlocutory appeal was allowed. We affirm.

The third amended complaint, the complaint before us on appeal, contains three counts: the first alleging negligence, the second alleging breach of contract, and the third alleging absolute liability. The circuit court granted the motion of the defendants to dismiss the absolute liability count, but denied a motion of the plaintiff to strike certain affirmative defenses pleaded by the defendants against the absolute liability count. In the order disposing of these motions, the circuit court made the findings requisite to an interlocutory appeal under Supreme Court Rule 308 (107 Ill. 2d R. 308); the plaintiff applied for leave to appeal, and this court allowed the appeal. The questions of law certified by the circuit court are as follows:

(1) “whether under the dangerous circumstances alleged in Count III of the Third Amended Complaint, and absent special precautions taken by Defendants, Defendants are absolutely liable”; and
(2) “whether contributory negligence or assumption of the risk of any sort should apply, thus rendering the absolute liability less than absolute.”

In the absolute liability count, the plaintiff alleges that the defendants owned or operated a certain rock quarry and that in furtherance of the operations of the quarry L.D. Davis Construction Company, Inc., was hired “to work with Charles Toppert in setting dynamite and caps in [certain bore] holes and exploding same.” The plaintiff’s decedent, as an employee of L.D. Davis Construction Company, Inc., was allegedly in the process of doing that when “on May 18, 1984, at about 5:45 RM. at said Rock River Stone Quarry, *** while inserting a stick of dynamite with a cap into the 13th bore hole, [he] was killed from a premature explosion.” Plaintiff further alleges in that count that Charles Toppert or someone under the control of Charles Toppert had inserted about 10 sticks of dynamite into that same bore hole immediately prior to the plaintiff’s decedent’s insertion of the capped dynamite. Plaintiff alleges that the work place was inherently dangerous in certain specified respects, that special precautions were not taken for the safety of the plaintiff’s decedent such as certain specified examples, and “[t]hat as a result of said inherent danger, Defendants *** are absolutely liable to Plaintiff for the pecuniary injuries suffered to the heirs of Lee D. Davis as a result of said death.”

While perhaps not technically correct as a general proposition, for purposes of this appeal and for ease of exposition we will treat the terms “absolute liability” and “strict liability,” and corresponding variations thereof, as being synonymous.

As a general rule, one who engages in blasting operations will be strictly liable, regardless of lack of fault on his, her, or its part, for damages proximately caused by the blasting. (See Peet v. Dolese & Shepard Co. (1963), 41 Ill. App. 2d 358, 190 N.E.2d 613; cf. Restatement (Second) of Torts §519 (1977).) Also, an owner or operator of a quarry who employs an independent contractor to perform blasting operations cannot thereby be insulated from such liability, but remains strictly liable for damages due to the blasting. (Cf. City of Joliet v. Harwood (1877), 86 Ill. 110; Restatement (Second) of Torts §427A (1965).) As we interpret the first question certified by the circuit court, we are called upon to decide whether the plaintiff in this case can invoke these general rules to hold the defendants strictly liable, i.e., liable without the need for the plaintiff to show any fault on the part of the defendants, for the damages occasioned by the death of the plaintiff’s decedent. We hold that the plaintiff cannot.

While the parties have cited no cases in Illinois that we consider precisely on point, the issue we are facing has been addressed elsewhere. In Prosser’s treatise on torts is found the following helpful passage:

“[I]f the plaintiff *** encounters the risk [of injury from an abnormally dangerous thing or activity] pursuant to a contract with the defendant ***, then it is quite possible that as between the parties it was impliedly if not expressly understood that there would be no liability in the absence of negligence. Risks should be allocated in the way parties would normally expect those risks to be allocated in the absence of coercion or an expression to the contrary.” (Emphasis added.) (W. Keeton, Prosser & Keeton on Torts §79, at 566 (5th ed. 1984).)

The corporation employing the plaintiff’s decedent was hired to assist in the blasting work at the quarry. While employees or agents of the quarry allegedly participated in the placement of the dynamite in the bore holes, the plaintiff’s decedent had direct, physical control over what clearly was a particularly dangerous part of the work at the time of the premature explosion which caused his death. While each case will turn on its facts, in this case the facts alleged lead us to conclude that the parties could not have reasonably understood the defendants to be strictly liable, i.e., liable without any fault on the part of the defendants, for injuries to or the death of the plaintiff’s decedent in the event dynamite prematurely exploded. Hence, we hold that under the facts here the plaintiff cannot maintain an action against these defendants based on strict or absolute liability.

Both parties cite Conroy v. Sherwin-Williams Co. (1988), 168 Ill. App. 3d 333, 522 N.E.2d 731, as supporting their respective positions. In that case, the defendant and third-party plaintiff (Sherwin-Williams) hired the third-party defendant (independent contractor Phillips) to take care of an electrical problem in high-voltage equipment. Phillips in turn hired the plaintiff (Conroy) as an independent contractor more experienced than employees of Phillips in the repair of high-voltage equipment. Conroy was severely injured when he came into contact with some energized high-voltage equipment. SherwinWilliams settled with Conroy, but sought contribution from Phillips. The circuit court granted Phillips a judgment notwithstanding a jury verdict assessing 20% liability to Phillips, and the appellate court affirmed.

The appellate court in Conroy had to determine what duties, if any, Phillips owed to Conroy under the circumstances of that case. Sherwin-Williams argued, among other things, that since the work involved was inherently dangerous, Phillips owed a nondelegable duty to Conroy to take special precautions for his protection. In response to that argument, the appellate court dealt with nondelegable duties involved in inherently dangerous work and only mentioned in passing that it was dealing with “a theory involving absolute liability rather than negligence” (Conroy, 168 Ill. App. 3d at 339, 522 N.E.2d at 735). In our view, despite the reference to absolute liability, the appellate court in Conroy did not deal with the issue we face in this case, viz., whether, under the facts of the case, the plaintiff comes within the protection of the general rules of strict liability for injuries resulting from abnormally or inherently dangerous activities.

Some authorities treat the nondelegable duty to take special precautions as arising in a wider scope of situations than just those involving inherently dangerous activities (see Donovan v. Raschke (1969), 106 Ill. App. 2d 366, 246 N.E.2d 110; Johnson v. Central Tile & Terrazzo Co. (1965), 59 Ill. App. 2d 262, 276-77, 207 N.E.2d 160, 167; Restatement (Second) of Torts §§413, 416, 427 (1965); but cf. Spivey v. Brown (1986), 150 Ill. App. 3d 139, 144, 502 N.E.2d 23, 26 (“inherently dangerous instrumentality exception” held not to apply); Woodward v. Mettille (1980), 81 Ill. App. 3d 168, 175-77, 400 N.E.2d 934, 941-43 (declining to do what the court perceived as broadening the definition of an inherently dangerous activity)), from which it could be inferred that breach of such a duty would subject the breaching party to a liability different from strict liability. Whatever may be the correct rule of law on how and when a nondelegable duty to take special precautions arises, breach of any such duty in a context such as this would be a form of negligence, or at least would be akin to negligence. Liability flowing from such a breach would not be a form of strict liability any more than liability flowing from ordinary negligence would be characterized as strict liability. The essence of strict or absolute liability lies in the assessment of liability for damages regardless of fault. The ones the law holds responsible for an activity giving rise to strict liability will be liable for damages proximately caused by the activity no matter how carefully the activity is engaged in, and no matter what precautions are taken, special or otherwise.

Many of the cases cited by the parties are distinguishable from the case before us inasmuch as they do not deal with strict liability. (Anderson v. Marathon Petroleum Co. (7th Cir. 1986), 801 F.2d 936 (direct negligence, imputed negligence, and duty to take special precautions); Woolen v. Aerojet General Corp. (1962), 57 Cal. 2d 407, 369 P.2d 708, 20 Cal. Rptr. 12 (duty to take special precautions); Chicago Economic Fuel Gas Co. v. Myers (1897), 168 Ill. 139, 48 N.E. 66 (direct negligence and imputed negligence where work is “intrinsically dangerous”); Wagner v. Continental Casualty Co. (1988), 143 Wis. 2d 379, 421 N.W.2d 835 (direct negligence, imputed negligence, and duty to take special precautions).) One cited case dealt with the issue we deal with here and came to the same result, but fashioned a broader holding than we are prepared to make under the facts of this case. Peneschi v. National Steel Corp. (W. Va. 1982), 295 S.E.2d 1.

Since we have held that the plaintiff cannot state a cause of action against these defendants based upon a theory of strict or absolute liability, we need not consider the second question certified to us, viz., whether the affirmative defenses to the absolute liability count should apply. We affirm the decision of the circuit court and remand this cause for further proceedings.

Affirmed.

HEIPLE, P.J., and SCOTT, J., concur.


text:
    THE TOWN OF DEER CREEK ROAD DISTRICT, Plaintiff-Appellee, v. DONALD J. HANCOCK et al., Defendants-Appellants.
    Third District
    No. 3—89—0672
    Opinion filed May 31, 1990.

      Robert L. Metzler, of Pekin, for appellants.
    Black, Black & Brown, of Washington (Kenneth L. Black, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Tazewell County declaring a certain road to be a public highway. The sole issue on appeal is whether or not Hancock Road (road) is a public highway.

The record shows that on February 8, 1989, the Town of Deer Creek road commissioner held a public hearing regarding the proposed widening and altering of the road. After listening to arguments for and against the proposal, the commissioner found said widening and altering of the road to be a public work, for a public use, and constituting a public purpose, namely, a public highway. Thereafter, the Town of Deer Creek Road District (Deer Creek) sought an agreement with the abutting landowners, including the appellants, Donald and Nancy Hancock (the Hancocks), concerning just compensation. No agreement, however, was ever reached. As a result, Deer Creek filed a complaint for condemnation seeking to exercise its alleged right of eminent domain over a portion of the Hancocks’ land for purposes of widening and altering the road. Deer Creek claimed that the road had become a public highway through prescriptive use by the public for 15 years pursuant to section 2—202 of the Illinois Highway Code (Ill. Rev. Stat. 1987, ch. 121, par. 2—202). The Hancocks presented a motion to dismiss the complaint, arguing that the road was not a public highway. The trial court, however, found the road to be a public highway. On appeal, the Hancocks contend the trial court’s judgment is against the manifest weight of the evidence.

The road, located in a rural area of Deer Creek Township, is a narrow, one-lane, gravel, “L”-shaped dead end. The record does not disclose the road’s origin. In the past, Deer Creek has dug new ditches, put in culverts, and widened and graveled the road. Deer Creek continues to blade the grass and plow the snow on the road. School buses and mail carriers use the road, and since 1964, Illinois motor fuel tax funds have been allocated to Deer Creek for the road.

At trial, evidence was adduced regarding the public’s use of the road. Various witnesses testified that the road had been used by the public and maintained by public authorities for more than 15 years. Duane Eichelberger, an abutting landowner, testified that when he moved onto the property at the end of the road 37 years ago Deer Creek maintained the road. In addition, Deer Creek presented the testimony of the former and present road commissioners for the past 35 years. The commissioners testified, inter alia, that Deer Creek has in the past dug new ditches, built new culverts, bladed the grass, plowed the snow, widened the road, and that maintenance of the road does not differ from that of other Deer Creek roads. One of the commissioners also noted that the Hancocks have, on occasion, called Deer Creek asking that the township plow the snow on the road. Deer Creek also adduced evidence indicating that salesmen, hunters, and construction trucks have used the road in the past; and that in 1924 one Earl Stechman used the road to walk to school. The Hancocks did not produce any witnesses.

At the close of the evidence, the Hancocks presented a motion to dismiss. The trial court denied the motion. The court noted that once public use has been shown, the burden is on the party who denies the existence of a public highway to show that the public use was under some license or indulgence inconsistent with the claim of right by the public. (Neely v. Coffey (1980), 81 Ill. 2d 439, 410 N.E.2d 839.) The court determined that the Hancocks did not prove that the public use of the road was at their sufferance or by their permission. The trial court then made the ruling a final and appealable order pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)).

The Hancocks contend that the trial court’s finding that the road was a public highway by prescription was against the manifest weight of the evidence. According to the Hancocks, the only people who travel upon the road are those who enter the road by mistake; social invitees of the landowners; an occasional hunter; and those who service the families living on the road.

Under section 2—202 of the Illinois Highway Code, a private road becomes a public highway if it is used by the public for the requisite 15-year period. (Ill. Rev. Stat. 1987, ch. 121, par. 2—202.) The requirements necessary to establish a public highway by prescription under the statute are the same as those necessary to establish a private easement by prescription. (Batchelder Co. v. Gustafson (1975), 32 Ill. App. 3d 14, 335 N.E.2d 565.) The evidence must establish a well-defined route of travel for a period of at least 15 years, and the public’s use must be adverse, under a claim of right, continuous and uninterrupted, with the knowledge of the owner but without his consent. (Zacny v. Sasyk (1975), 30 Ill. App. 3d 93, 332 N.E.2d 568.) Our supreme court has further stated:

“The test in determining whether a road has become a highway is whether or not the public generally had the free and unrestricted right in common to use the road, and where it is shown to have been openly and notoriously used as an open public highway in common by all the people for the statutory period it will be considered a public highway.” Lee v. Dickman (1925), 316 Ill. 529, 533, 147 N.E. 380, 381.

The Hancocks argue that the public’s past use of the road was permissive and not adverse. Thus, the evidence does not establish its status as a public highway. The Hancocks observe that it is a necessary element of proof that the public’s use of the road be shown to be with the knowledge but without the consent of the owner, as mistaken or permissive use cannot ripen into a prescriptive right. (People ex. rel. Carson v. Mateyka (1978), 57 Ill. App. 3d 991, 373 N.E.2d 471.) According to the Hancocks, they did not present testimony indicating that anyone ever objected to the public’s use of the road because the abutting landowners gave permission to those who used the road. The Hancocks state that since the public’s use of the road was permissive, there was no reason to interrupt what little traffic there was on the road. We find the Hancocks’ argument unavailing.

The burden of proof of the elements of prescription rests on the party pleading the prescription. (Village of Cypress v. Green (1987), 154 Ill. App. 3d 119, 506 N.E.2d 762.) However, once a roadway is shown to have been used and enjoyed by the public for the time required by statute, a presumption arises that such grant or use was prescriptive, and the burden is on the one denying the existence of a public highway to show that the use was under some license or indulgence inconsistent with the claim of right in the public. (Swinford v. Roper (1945), 389 Ill. 340, 59 N.E.2d 863.) The Hancocks did not rebut this presumption. Indeed, at trial, the Hancocks offered no evidence. Instead, the Hancocks sought, by cross-examination of Deer Creek’s witnesses and in closing argument, to establish that the road is a narrow, dead end road and that, in order for a motorist to turn around on it, the motorist must enter onto private land abutting the road. This the Hancocks proved. The Hancocks did not prove, however, that they or other abutting landowners, at any time, put up any kind of barricade or other means to prevent the public’s use of their land.

In addition to the general public’s use of the road, Deer Creek also presented substantial evidence of public maintenance of the road. It is well settled that maintenance of a road by public authorities is a strong indication that the road is a public highway. (Walden v. Bourn (1973), 10 Ill. App. 3d 289, 296 N.E.2d 92.) The record indicates, as explained in detail earlier, that Deer Creek has maintained and made substantial improvements to the road for at least the past 35 years. This evidence of long-term public maintenance of the road, when coupled with the Hancocks’ failure to present any testimony rebutting the evidence of the general public’s use of the road, firmly establishes that said road is a public highway.

The Hancocks propose that because the road’s origin was not known, this case is analogous to People ex. rel. Carson v. Mateyka (1978), 57 Ill. App. 3d 991, 373 N.E.2d 471, wherein the court found the road to be private. Where a way has been used openly, uninterruptedly continuously and exclusively for more than a period of 20 years, the origin of the way not being shown, there is a presumption of a right or grant from the long acquiescence of the party upon whose land the way is located. (Rush v. Collins (1937), 366 Ill. 307, 8 N.E.2d 659.) In Mateyka, the landowners asserting an adverse claim of right had easements over the ground on which the road was located. Although the opinion is not entirely clear, the court seemed to indicate that the road’s origin was the easements. Thus, the presumption in favor of a public highway never arose. Here, in contrast, the origin of the road was not shown. The Hancocks, we conclude, failed to rebut the presumption in favor of a public highway.

In cases such as this, the test is not the number of persons actually using the disputed road, but the character of the use, namely, whether or not the public, generally, have had the free and unrestricted right to use the road. (Verh v. Morris (1951), 410 Ill. 206, 101 N.E.2d 566.) In the instant case, the evidence established that the general public had the free, unrestricted use of the road, the abutting landowners made no attempt to interrupt the public’s use, and Deer Creek has maintained the road for over 30 years. We conclude, therefore, that the trial court’s findings were correct in that there was an open, notorious, and uninterrupted use of the tract of land known as Hancock Road by the public without permission or consent of the abutting landowners for more than 15 years.

For these reasons, we affirm the judgment of the circuit court of Tazewell County.

Affirmed.

SCOTT and BARRY, JJ., concur.


author: JUSTICE STOUDER PRESIDING JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. JERRY L. JONES, Petitioner-Appellant.
    Third District
    Nos. 3—89—0549, 3—89—0550 cons.
    Opinion filed May 31, 1990.

      HEIPLE, P.J., dissenting.
    Greg McHugh, of Aledo, for appellant.
    Michael J. Herr, State’s Attorney, of Aledo (Judith Z. Kelly and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The petitioner, Jerry L. Jones, was arrested for driving under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501(a)(2)). The State summarily suspended his driver’s license after he refused to submit to a breathalyzer test (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501.1(d)). The petitioner subsequently filed a petition to rescind the statutory suspension, alleging that the arresting officer had not had reasonable grounds to believe that he was driving or in actual physical control of a motor vehicle while under the influence of alcohol. The petitioner further alleged that he was not placed under arrest prior to being asked to submit to a chemical test. The trial court denied his petition. He appeals.

Mercer County sheriff’s deputy John Stewart’s arrest report shows that on April 30, 1989, Jeff Clawson called the sheriff’s department reporting that he had observed a vehicle in a ditch. Clawson further noted that there was only one person in the vehicle. Deputy Stewart responded to the call and observed the petitioner about 200 yards from his truck. The petitioner staggered as he walked, slurred his speech, and smelled strongly of alcohol. He told the deputy that he had been drinking but not driving and stated that another man had been driving, though he did not know the man’s name. After taking the petitioner’s keys, driving permit, and registration, Stewart took him to the sheriff’s department. At the department, the petitioner refused to perform a field sobriety test and refused to take a breathalyzer test. According to the arrest report, after the petitioner refused to take the tests, Stewart arrested him for driving under the influence of alcohol.

At the hearing on the petition to rescind, the petitioner acknowledged that he had been drinking on the night in question. He testified, however, that he was not driving and claimed that an old friend named John was driving.

On appeal, the petitioner contends that the trial court erred in finding that the arresting officer had reasonable grounds to believe that he was driving under the influence of alcohol. He emphasizes his testimony that he was not driving and relies on People v. Wireman (1989), 181 Ill. App. 3d 385, 536 N.E.2d 1346, for the proposition that a summary suspension should be rescinded if it is later determined at a hearing to rescind that the licensee was in fact not driving.

A trial court may properly grant a petition to rescind where the petitioner shows by a preponderance of the evidence that he was in fact not driving or operating a motor vehicle. (People v. Wireman (1989), 181 Ill. App. 3d 385, 536 N.E.2d 1346.) At the hearing on the petition, the burden of proof is on the petitioner. (People v. Orth (1988), 124 Ill. 2d 326, 530 N.E.2d 210.) A reviewing court will not disturb the trial court’s finding unless it was manifestly erroneous. People v. Repp (1988), 165 Ill. App. 3d 90, 518 N.E.2d 750.

Initially, we note that after reviewing the instant trial court’s written order denying the petitioner’s petition, we find the court’s reasoning convoluted and unclear. There is, however, a presumption that the trial court acted correctly, and we will begin our review at that point. People v. Henderson (1985), 136 Ill. App. 3d 1041, 483 N.E.2d 1068.

In its order, the trial court specifically noted the petitioner’s testimony that he was not driving. Moreover, the court noted that it was aware of the Wireman case. Nonetheless, the court refused to rescind the summary suspension of the petitioner’s license. Under the circumstances, we do not find that the trial court’s decision was manifestly erroneous. The court was not obligated to believe the petitioner’s story and could in its role as trier of fact properly conclude that his testimony was not credible.

The petitioner next argues that the arresting officer was required to arrest him prior to asking him to submit to a chemical test. He further contends that the trial court erred in finding that he was arrested before he refused to submit to the breathalyzer test. He points out that the traffic citation shows that he was arrested at 12:35 a.m. on April 30, while the summary suspension form shows that he refused to submit to the breathalyzer test at 12:30 a.m. on April 30.

Initially, we note that we agree with the petitioner’s position that in order for the chemical test refusal to have been admissible in the summary suspension hearing it must have been preceded by an arrest. Section 11—501.1 states that the statutory summary suspension provisions are triggered by an arrest for driving under the influence of alcohol. Ill. Rev. Stat. 1987, ch. 95½, pars. 11—501.1(a), (c).

Regarding the issue of when the petitioner was placed under arrest, we note that the issuance of a traffic ticket or the time of an alleged arrest mentioned in a police report is not conclusive evidence of an arrest. Rather, the standard for determining if and when an arrest has occurred is whether a reasonable man, innocent of any crime, would have concluded that he was not free to leave considering the surrounding circumstances. (People v. Wright (1985), 111 Ill. 2d 128, 490 N.E.2d 640.) Such circumstances include the continuing possession of the individual’s driver’s license by a police officer, the placing of an individual in a squad car, and the duration of the individual’s detention. (People v. Goodman (1988), 173 Ill. App. 3d 559, 527 N.E.2d 1055.) The trial court’s determination regarding whether an arrest occurred will not be disturbed on review unless it was manifestly erroneons. See People v. White (1977), 51 Ill. App. 3d 155, 366 N.E.2d 491.

In the instant case, Deputy Stewart noted in his arrest report that the petitioner smelled of alcohol and slurred his speech. The deputy then transported the petitioner back to his vehicle, seized his keys, license and registration, and took him to the sheriff’s department. Under these circumstances, we find that a reasonable person would have believed he was not free to leave once the deputy retained his license and transported him to the sheriff’s department. Accordingly, we further find that the trial court’s determination that the petitioner was already under arrest when he refused to submit to the breathalyzer test was not manifestly erroneous.

The judgment of the circuit court of Mercer County is affirmed.

Affirmed.

SCOTT, J., concurs.

PRESIDING JUSTICE HEIPLE,

dissenting:

The driver’s license of the defendant, Jerry L. Jones, was summarily suspended after he refused to submit to a breathalyzer test following his arrest for driving under the influence of alcohol. Thereafter, the defendant filed a petition to rescind his statutory suspension. Following a hearing, the trial court denied the defendant’s petition. The majority opinion affirms the denial of the petition. I dissent.

The agreed statement of facts reveals that in the early morning hours of April 30, 1989, someone called the Mercer County sheriff’s office to report that he had observed a truck in a ditch one mile west of Aledo with one person in the truck. Deputy Sheriff John Stewart responded to the call and observed the defendant between 200 and 300 yards east of the truck walking toward Aledo. The defendant smelled of alcohol and slurred his speech. The defendant was taken to the sheriff’s department, where he refused to perform a field sobriety test and refused to take a breathalyzer test.

At the trial court hearing on the defendant’s petition to rescind his statutory summary suspension, the defendant testified that he was not the driver and that a friend had done the driving. The State offered no evidence with regard to whether the defendant was driving or in actual physical control of the truck. Rather, the State’s entire case was premised on the officer encountering the defendant in a drunken condition some 200 to 300 yards from the defendant’s truck. The trial court denied the defendant’s-petition to rescind his summary suspension. I would reverse.

The majority, in affirming the trial court, cites to this court’s recent decision in People v. Wireman (1989), 181 Ill. App. 3d 385, for the rule that, at a hearing on a petition to rescind a statutory summary suspension, the burden of proof is initially on the motorist. The majority further cites to the Illinois Supreme Court ruling of People v. Orth (1988), 124 Ill. 2d 326, for the rule that a trial judge’s finding as to whether or not a motorist has established a prima facie case for rescission of a summary suspension of his driver’s license will not be overturned on appeal unless it is against the manifest weight of the evidence. While I agree with the majority’s recitation of the relevant case law, I disagree with the majority’s application of that law to the case at hand. Here, the trial court ruling was against the manifest weight of the evidence, the defendant established a prima facie case for rescission, and the burden of proof shifted to the State to come forward with evidence showing that the officer had reasonable grounds to believe that the defendant was driving or in actual physical control of the truck.

In order to establish a prima facie case for rescission, the defendant must produce evidence of “any circumstance which tends to cast doubt” as to whether the defendant was driving or in actual physical control of the motor vehicle. (People v. Orth (1988), 124 Ill. 2d 326, 341.) Such evidence was presented. First, the defendant was found some 200 to 300 yards from his truck when the officer arrived at the scene. No minimum link was established to show that the defendant had driven the truck or had any actual physical control of the truck. Second, the defendant testified at trial that he was not driving the truck but that his friend, John, was driving the truck. This testimony was uncontradicted.

The burden then shifted to the State to prove the reasonableness of the officer’s belief that the defendant had been driving or was in actual physical control of the truck while in an intoxicated condition. At the time the officer picked up the defendant and took him to the station for a sobriety test, the reasonableness of the officer’s belief was premised on three salient facts. First, the call to the station that a truck was in a ditch with a person behind the wheel. Second, the officer’s arrival at the scene where he found a truck in the ditch with the defendant some 200 to 300 yards away from the truck. And third, when the officer observed the defendant to smell of alcohol and to speak with slurred speech.

At the trial, however, no evidence was offered as to fact one above. The only evidence supporting the State’s case was facts two and three. That is to say, that there was a truck in the ditch with the owner standing some 200 to 300 yards away who smelled of alcohol and had slurred speech. The State offered no evidence to show how long the truck had been in the ditch, how it got there or who was driving it.

As noted in People v. Wireman (1989), 181 Ill. App. 3d 385, the legislature did not intend to impose a summary suspension upon a person who was not driving or operating a motor vehicle while under the influence of alcohol. The State’s wholly circumstantial case was extremely weak at best. It was a bubble. When the defendant established a prima facie case that he was not the driver, the bubble burst. At that point, in the absence of any other evidence, the motion to rescind should have been granted. The defendant’s evidentiary burden was met but the State’s was not.

This is not to say that circumstantial evidence can never be sufficient. Indeed it can and often is. The defendant, typically, may be found asleep behind the wheel or be observed driving or exiting the vehicle or some such state of circumstances. No such evidence was offered in this case.

Accordingly, I dissent.