People v. Colclasure

JUSTICE GREEN delivered the opinion of the court: On August 5, 1992, following a jury trial in the circuit court of Moultrie County, defendant Melvin G. Colclasure was convicted of driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1991, ch. 95½, par. 11 — 501(a)(2)). He was subsequently sentenced to a term of 12 months’ probation with conditions, including that: (1) he could not consume or possess any alcoholic beverages or illegal drugs during the term of his probation; (2) he could not enter any establishment whose primary purpose is the sale or distribution of alcohol; and (3) he was “not to remain resident in any residence where there is located alcoholic beverages.” Defendant appeals only the imposition of the condition that he may not remain resident in any residence where there are alcoholic beverages. We affirm. The evidence presented at trial indicated defendant was arrested for DUI based upon a deputy sheriff’s observation of defendant’s driving, the odor of alcohol on his breath, his inability to complete field sobriety tests, and a blood-alcohol level of .11. A sentencing hearing was held on October 5, 1992. The only evidence presented was a drug evaluation report suggesting defendant had a “Level 2, Problematic Use (Significant Risk).” (See 92 Ill. Adm. Code §1001.410 (1992).) No evidence was presented in aggravation or mitigation. On appeal, defendant challenges the special condition that he could not reside in a residence where any alcoholic beverages are located as improper, as having no relationship to the offense or to his rehabilitation. Defendant recognizes that it is not uncommon for a court to order, as a condition of probation, that a defendant refrain from using alcoholic beverages or frequenting taverns. (People v. Brown (1971), 133 Ill. App. 2d 861, 864, 272 N.E.2d 252, 254.) In People v. Whittington (1980), 87 Ill. App. 3d 504, 409 N.E.2d 150, the court imposed, as a condition of probation, the requirement that the defendant “neither smoke, ingest nor otherwise use alcoholic beverages, forbidden drugs or marijuana.” (Whittington, 87 Ill. App. 3d at 505, 409 N.E.2d at 151.) That defendant was convicted of the offense of unlawful possession of a controlled substance. The appellate court said the condition was reasonably related to the underlying offense and to the defendant’s rehabilitation. Defendant agrees such a condition of probation was relevant in Whittington. He claims here, however, the possession of alcoholic beverages or possible drinking by third persons should not determine whether he has complied with the conditions of probation. Defendant claims he is indigent. He further claims that although he was living on his own at the time of sentencing, he obtained money for food by doing work for his mother and brother, and prior to his arrest, he had been living with his brother for about three weeks. Defendant argues that it would not be unlikely that at some point during the course of the year he is on probation that he would have to live with someone else because he could no longer afford to live by himself. Defendant maintains that if he again is living -with his brother, and his sister-in-law brought home a bottle of champagne with which to celebrate the Fourth of July, he would be placed in the position of violating his probation or becoming homeless. Section 5 — 6—3.1(c)(15) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 6—3. l(c)(15)) provides that a court may require, as a condition of probation, that a defendant refrain from having any contact with certain specified persons or particular types of persons. In addition, as in Whittington, similar conditions have been upheld. This case is unlike Brown, cited by defendant, where the defendant, who was employed as a bartender and tavern operator, was ordered as a condition of probation for aggravated battery to refrain from owning, operating, or working in a tavern. The appellate court found the condition to be an abuse of discretion, because there was no direct connection between the defendant’s employment and the crime charged. This case is also unlike People v. Johnson (1988), 174 Ill. App. 3d 812, 815, 528 N.E.2d 1360, 1362, where the trial court was found to have abused its discretion in imposing a condition of supervision which required the DUI defendant to place an advertisement in a newspaper with her picture and an apology for her conduct. The court determined the condition had no relationship to the defendant’s rehabilitation and was designed to publicly humiliate the defendant. Here, the condition imposed is directly related to the offense and defendant’s rehabilitation. The condition was not meant to embarrass or punish the defendant. The record indicated that defendant had a prior arrest for DUI, and his alcohol and drug evaluation indicated he has a serious problem concerning the use of alcohol. In addition, defendant denied that he had anything to drink on the night of the offense. The court’s order that he refrain from residing in a residence where alcohol is located relates to defendant’s alcohol abuse and is designed to help defendant abstain from the use of alcohol. Accordingly, for the reasons stated, the order of the trial court is affirmed. Affirmed. KNECHT, J., concurs.