Appeal from the Circuit Court of Christian County. No. 96-DT-62 Honorable Ronald D. Spears, Judge, presiding.
The opinion of the court was delivered by: Justice Hopkins
Defendant appeals from the judgment of conviction entered upon a jury verdict of guilty for driving under the influence (DUI) of drugs (625 ILCS 5/11-501(a)(3) (West 1996)). On appeal, defendant argues that the State failed to prove him guilty beyond a reasonable doubt and that numerous trial errors denied him a fair trial. We reverse and remand.
At defendant's trial, William Nelson, a police officer for six years, testified that on June 11, 1996, at approximately 7 p.m., he observed a car travelling "at a high rate of speed" through Taylorville, Illinois. After the car passed two vehicles in the left-turn lane, Nelson activated his overhead lights and pursued the car. Nelson observed the car come to a complete stop at a stop sign and then pull over into a parking lot. Defendant exited the car.
After defendant exited his car, defendant told Nelson that his accelerator stuck, and then defendant told Nelson that he should go for a ride with defendant. Nelson did not smell any odor of alcohol on defendant but described his behavior as "off balance" and "very agitated." When Nelson asked defendant for his driver's license, defendant told Nelson that he did not have a license because it was revoked. Nelson testified that defendant then stated, "I'm getting ready to run," but immediately told Nelson that he was kidding. Defendant then gave Nelson his driver's license.
According to Nelson, defendant became more agitated when another officer, Sheila Nation, arrived. When Nelson requested that defendant perform field sobriety tests, defendant initially refused, but after Nelson told defendant that he would be placed under arrest for driving under the influence, defendant agreed to take the tests.
Nation testified that she noticed that defendant talked constantly. Nation described defendant as "very high strung [and] unable to stand still. She stated, "[H]e was moving around constantly, he was agitated at one time, and then he would kind of calm down and *** be cooperative." Both Nelson and Nation testified that defendant told them several times, angrily, that he was not drunk and that he had not had anything to drink for several years. Nation testified that defendant stated, both at the scene and later at the police station, that he was "on Tylenol 3 with codeine".
Nelson testified that defendant failed all of the field sobriety tests given. On the heel-to-toe test, defendant failed to touch his heel to his toe on several steps, and he did not pivot or count his steps correctly. Both officers testified, however, that defendant was able to walk a straight line as part of that test. Nation testified that defendant "kept losing his balance" as he waited for Nelson to finish the instructions for that test. Nelson next asked defendant to stand on one leg to a count of 30. According to both officers, defendant lost his balance right away the first time he tried the one-legged stand, and he started too soon. On his second attempt, defendant stood on one leg without stumbling to the count of 14. The final test given to defendant was the finger-to-nose test. According to both officers, defendant failed this test because he opened his eyes for part of the test and he touched the bridge of his nose and then slid his finger down to the tip on at least one attempt.
After defendant failed the field sobriety tests, Nelson arrested him for driving under the influence of drugs. Nelson did not suspect that defendant had been drinking alcohol. Defendant was not charged with speeding or any other offense. Nelson testified that on the way to the police station, defendant asked the officer to give him a breath test, but Nelson told defendant that the officers could ask for blood or urine tests instead. According to Nelson, defendant responded by threatening Nelson and his family. Nelson testified that he did not want to give defendant the breath test, since the breath test measures only the amount of alcohol in a person's body.
At the police station, Nelson asked defendant to submit to blood and urine testing. According to Nelson, defendant responded that he wanted to speak to an attorney. Nelson allowed defendant to make "several" phone calls, but he did not know whether defendant spoke to an attorney. Nelson testified that he overheard defendant tell the booking officer, John Seibenthal, that "Doctor Manson had pumped him full of codeine and morphine." Seibenthal verified that defendant made that statement.
After defendant finished his phone calls, Nelson again asked defendant to submit to blood and urine testing. According to Nelson, defendant responded that he wanted to speak to an attorney before he made his decision. Nelson testified that he considered defendant's response a refusal to take the tests, since Nelson already gave defendant an opportunity to call an attorney. Nelson admitted that defendant never actually refused to take any tests. After defendant asked for an attorney the second time, defendant then told Nelson that he wanted to take the tests. Nelson told defendant that it was too late, because he was already done processing him and "everything was already completed." Nelson did not tell defendant that his initial request to speak to an attorney was the reason that Nelson denied defendant's request to take the blood and urine tests.
There is no evidence in the record concerning the amount of time that expired between Nelson's first request for defendant to take blood and urine tests and defendant's subsequent consent to take those tests. There is no evidence that Nelson informed defendant that his initial request to speak to an attorney would be considered a refusal to take the test. There is no evidence that defendant was informed that his request to speak to an attorney would be used against him in court as a refusal to submit to chemical testing. There is no evidence that Nelson informed defendant that his request to speak to an attorney could subject him to a six-month statutory summary suspension of his driver's license. See 625 ILCS 5/11-501.1(c) (West 1996) (which provides that a person asked to submit to breath, blood, or urine testing "shall be warned by the law enforcement officer requesting the test that a refusal to submit to the test will result in the statutory summary suspension" of his driver's license).
There is no evidence in the record that defendant was informed that he could not submit to testing if he chose to speak to an attorney first. There is no evidence that Nelson or any other officer attempted to take defendant to the hospital where the testing would be done or that defendant indicated that he would not go to the hospital for testing.
Nelson testified that in his prior experience as a police officer, he observed people under the influence of drugs. Nelson testified that he had "limited training in the academy" concerning narcotics, which consisted of a "small block" of his "DUI training," and that he previously arrested one other person for driving under the influence of drugs, but that charge was dismissed. According to Nelson, a person under the influence of drugs will "be a little more confused" than those who are under the influence of alcohol. Nelson testified that defendant appeared to be "very off balance, very moody and agitated, and very talkative" and that these characteristics are indicative of drug usage. Based upon his observation, Nelson testified that he believed that defendant was under the influence of drugs and that defendant was not capable of driving a vehicle safely.
At the close of the State's evidence, defendant moved for a directed verdict, arguing that the State failed to prove that defendant was under the influence of drugs. As part of the argument on the motion for directed verdict, the trial court asked the prosecutor if the effect of the drugs that defendant ostensibly admitted to taking was a matter "within the common knowledge of the jury." The court noted, "[T]here's been no evidence presented to it[--]what the effects would be on someone under the influence of [those drugs]." The State replied and the following colloquy ensued:
"MR. MARTIN [prosecuting attorney]: Yes. And the reason I believe that, Judge, is because I asked that question and most *** of the jurors said yes, they had taken codeine, and some of the jurors had also responded yes, they had taken Darvon.
COURT: So *** the jurors have to rely upon each other's statements as to what the effects are? In the ...