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05/09/89 the People of the State of v. Douglas Smith

May 9, 1989





538 N.E.2d 1268, 182 Ill. App. 3d 1062, 131 Ill. Dec. 712 1989.IL.697

Appeal from the Circuit Court of Du Page County; the Hon. Thomas E. Callum, Judge, presiding.


JUSTICE NASH delivered the opinion of the court. INGLIS and WOODWARD, JJ., concur.


After trial by jury defendant, Douglas Smith, was convicted of driving while under the influence of alcohol (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501(a)(2)) and was sentenced to a one-year term of probation conditioned on service of 30 days periodic imprisonment, alcohol evaluation, counseling, and payment of court costs. Defendant appeals, contending that his trial counsel was so inadequate and incompetent as to deprive defendant of his right to counsel and a fair trial.

Defendant was charged by complaint with the offenses of driving under the influence of alcohol (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501(a)(2)), transportation of alcoholic liquor in a motor vehicle (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-502(a)), and driving on the wrong side of a roadway (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-701(a)). The State's sole witness was Sergeant Carl Dillenkoffer, the arresting officer, who testified that on December 19, 1986, at approximately 2:15 a.m., while driving east on Roosevelt Road, he saw a car backing rapidly out of the driveway of the Egghead Software store building onto Roosevelt Road. As it was backing up, the car went over the curb, then drove off the grass abruptly. The car then crossed over the two westbound lanes of Roosevelt Road and the center of the roadway and drove west in the eastbound lane towards the officer's squad car. Dillenkoffer flashed his headlights, and the car returned to the westbound lanes, crossed them and hit the curb before it straightened out. Dillenkoffer stated that he turned his car around and activated his red lights for the car to pull over. When the car pulled over, it again hit the curb.

Sergeant Dillenkoffer further testified that defendant was the driver of the car and, when he got out, the officer noticed defendant had difficulty walking. When asked to produce his driver's license, defendant handed the officer an American Express credit card; it was returned to defendant, and he then fumbled through his wallet before producing the license. The officer noticed that defendant's eyes were very bloodshot and glassy; his speech was slurred and there was a strong odor of alcohol on defendant's breath. The officer also noticed that defendant was wet from the groin area down his right leg, as if he had voided himself, and the officer later confirmed at the station that defendant had done so.

When asked to perform a balancing and a walk and turn test, defendant told the officer he had a physical condition where one leg was shorter than the other, and several toes had been removed from one foot, so he could not properly perform the tests. Officer Dillenkoffer then had defendant perform a field sobriety test called the horizontal gaze nystagmus test .

When the officer testified that defendant failed the test and was placed under arrest, defendant's trial counsel, John A. Myers, Jr., objected to the lack of foundation for the Conclusion defendant failed the test, and it was sustained by the trial court. The State then asked the witness to describe the HGN test and he responded:

"Okay. In the horizontal gaze nystagmus, you are looking at an individual's eyes, and you are observing three different things. You are observing what's called smooth pursuit, in which placing an object in front of your nose, directly in contact with the front of your nose, about four or five inches away, you move that object -- in this particular case I used a pen light -- left and right. And during the course of that movement from left to right, you are watching the eyes to see how smoothly they pursue that object being moved in front of them. There are two points available for that particular test, because there are two eyes. You are basing it on the left and the right eye. The word smooth pursuit is used because a person who has had some degree of alcohol, within the system, introduced to his body -- the movement is not smooth. It's erratic and it's jerky and it moves like this, in this fashion. The more or the faster the jerk, the more alcohol influences that particular nerve. The second part of that test is while doing that same test, you are looking for what's called the angle of onset, the point at which, in looking at that eye from 45 degrees, it starts to become jerky, more movement, more action. Then you are looking for the maximum deviation. The maximum deviation is once it's brought out -- at what point here, towards the eye -- this here is zero, go all the way out is complete 90, at 45 is just to the side here. You are looking for the amount of erratic eye movement when an individual is moving the eye. Therefore, in the test, you are going to the left and to the right of the individual as you are performing that test. In each of those there are two points: smooth pursuit, two points; angle of onset, two points; and maximum deviation, two points. If all points are present, then an assumption at this point, solely an assumption, can be determined that the individual may perhaps be under the influence of alcohol."

Officer Dillenkoffer also described the training he had received in administration of the test, as follows:

"I received it at the Kane County Sheriff's Office, where I was instructed by two certified instructors in that. The classroom involved both written and verbal instructions, as well as practical exercises in which he had five different people come in. They had in fact been allowed to consume different quantities of alcohol, and prior to entering the room, they, in fact, submitted to breath analysis to determine the level of intoxication of each of these individuals. They came in to us as a classroom of students, whereupon we tested their eyes and looked for the particular points that I just mentioned, and then we would then score them as well as make an assumption at that point that they are either over the legal limit of .10 or under the legal limit. And then the instructors had in there one person who had just had one small sip of wine but still emitted the breath, to throw in as like a control-type situation, just to see if we were reading the eyes properly. It also involved viewing of several films in which just eyes alone were the projection on the screen, and again, the same situation. The camera was being used at that point as the focus point on the individual. We would base our assumption based on those eyes and make a determination as to how many points we would grade them, and that was graded against what those points exactly were and actually were."

The officer testified further that, at the scene of the arrest, defendant said he had been drinking and that the officer had examined a glass which was on the floor of defendant's car containing a liquid having the odor of alcohol, possibly bourbon or whiskey. The officer stated he had many occasions to observe persons who were under the influence of alcohol in his 18 years as a police officer and, in his opinion, defendant was in that condition at his arrest. The officer's opinion as to the intoxication of defendant was based upon the results of the horizontal gaze nystagmus test he had performed on defendant, who had failed all six points of it, and also upon the other indicia of intoxication the ...

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