Appeal from the Circuit Court of Du Page County. Honorable Daniel P. Guerin,
JUSTICE HUDSON delivered the opinion of the court: After being arrested for driving under the influence of alcohol (DUI) (625 ILCS 5/11--501(a)(2) (West 2008)), defendant, John P. Bruni, refused chemical testing to determine the content of alcohol in his blood. His refusal resulted in the statutory summary suspension of his driving privileges. See 625 ILCS 5/11--501.1(d) (West 2008). Defendant now appeals from an order denying his petition to rescind the suspension. We affirm.
Defendant was arrested after being stopped at a sobriety checkpoint. At the hearing on defendant's rescission petition, Officer Pogvara of the Lisle police department testified that he encountered defendant at the checkpoint at about 1 a.m. on May 2, 2009. He noticed nothing unusual about the manner in which defendant operated his vehicle. Pogvara greeted defendant and asked him for his driver's license and insurance card. Defendant provided both items. Pogvara testified that defendant's license was valid and that his insurance was up to date. Pogvara asked defendant where he was coming from. Defendant responded that he had been at a karaoke party at a friend's house. Defendant added that there had been a karaoke contest and that he had won it. While speaking with defendant, Pogvara noticed a "faint" odor of alcohol coming from the passenger compartment of defendant's vehicle. He also noticed that defendant's eyes were "glossy," meaning (in Pogvara's words) "[t]hat there was like a haze over them" and that "[t]hey appeared glossy in nature." Pogvara asked defendant if he had been drinking. Defendant responded that he had had one beer. Pogvara then asked defendant if he would step out of the car and perform field sobriety tests. Defendant complied. Based on defendant's performance of the tests, Pogvara concluded that defendant was under the influence of alcohol, and he placed defendant under arrest.
Defendant argues that the period during which he was detained at the checkpoint for initial screening before being asked to step out of his vehicle and to perform field sobriety tests was unreasonably long and that the detention was therefore unlawful. During direct examination of the arresting officer by defendant's attorney, the following exchange occurred:
"Q. So *** from the time you initially spoke with [defendant] until you had him walk over to where you were about to conduct the field sobriety tests, approximately how much time had lapsed?
A. I couldn't say accurately, maybe possibly a matter of a few minutes.
Q. Would you say over or under ten minutes?
A. Probably under ten minutes.
Q. Over or under five minutes?
A. Probably under five minutes."
In determining whether stopping motorists at a sobriety checkpoint in the absence of individualized suspicion of wrongdoing is constitutionally permissible, courts have balanced the public interest against the intrusiveness to motorists who are stopped under a particular sobriety checkpoint program. See Michigan Department of State Police v. Sitz, 496 U.S. 444, 110 L. Ed. 2d 412, 110 S. Ct. 2481 (1990). In Sitz, the Court assessed the intrusiveness of a sobriety checkpoint stop partly in terms of its duration and intensity. Sitz, 496 U.S. at 452, 110 L. Ed. 2d at 421, 110 S. Ct. at 2486. Citing Sitz and People v. Bartley, 109 Ill. 2d 273 (1985), defendant argues that "the length of detention at a roadblock that has been found reasonable is between fifteen to twenty seconds." Defendant insists that, to pass constitutional muster, the "stop must be very brief as a general procedure in that the stop can be measured in a matter of seconds rather than minutes." Defendant's reliance on these decisions is misplaced. In Sitz, the Court noted that the average delay for each vehicle was 25 seconds. Sitz, 496 U.S. at 448, 110 L. Ed. 2d at 419, 110 S. Ct. at 2484. In Bartley, our supreme court noted that motorists stopped at a driver's license checkpoint "were detained for only 15 to 20 seconds, as long as there was no need for additional questioning." (Emphasis added.) Bartley, 109 Ill. 2d at 287-88; see also Commonwealth v. Yastrop, 564 Pa. 338, 768 A.2d 318 (2001) (upholding constitutionality of roadblock where police stopped drivers for roughly 30 seconds each and detained for field testing only those drivers who smelled of alcohol); State v. Leighton, 551 A.2d 116 (Me. 1988) (upholding constitutionality of roadblock where each stop lasted for less than a minute unless the officer detected the odor of alcohol or saw an open container of alcohol in the vehicle). Neither Sitz nor Bartley places any arbitrary limit on how long a motorist may be detained when an officer's observations during the initial screening warrant a further investigation.
The Sitz Court was careful to note that the case involved "only the initial stop of each motorist passing through a checkpoint and the associated preliminary questioning and observation by checkpoint officers." Sitz, 496 U.S. at 450-51, 110 L. Ed. 2d at 420, 110 S. Ct. at 2485. The Court added that "[d]etention of particular motorists for more extensive field sobriety testing may require satisfaction of an individualized suspicion standard." Sitz, 496 U.S. at 451, 110 L. Ed. 2d at 420, 110 S. Ct. at 2485. The leading fourth amendment scholar has stated that " 'the officer [conducting the sobriety checkpoint stop] should have an articulable suspicion that the motorist is intoxicated before detaining the motorist for an extended [DUI] investigation.' " 5 W. LaFave, Search and Seizure §10.8(d), at 378 (4th ed. 2004), quoting Note, 71 Geo. L.J. 1457, 1486 (1983). When such a suspicion exists, the detention is tantamount to an investigatory detention under Terry
v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), which held that a police officer may effect a limited investigatory stop where there exists a reasonable suspicion, based upon specific and articulable facts, that the person detained has committed or is about to commit a crime. Accord Commonwealth v. Murphy, 454 Mass. 318, 325-26, 910 N.E.2d 281, 288 (2009) ("The only factor that distinguishes a secondary screening stop from the more traditional Terry stop *** is that the information that gave rise to reasonable suspicion was obtained from observations made during the brief initial suspicionless stop at the sobriety checkpoint"). "[P]olice conduct occurring during an otherwise lawful seizure does not render the seizure unlawful unless it either unreasonably prolongs the duration of the detention or independently triggers the fourth amendment." People v. Baldwin, 388 Ill. App. 3d 1028, 1033 (2009).
Here, defendant argues that Pogvara unreasonably prolonged the seizure. In particular, defendant takes issue with the length of the interval from the moment he entered the checkpoint until he was asked to exit his vehicle so that field sobriety tests could be administered. Pogvara testified that he could not accurately say how much time elapsed. When asked whether this period was over or under 10 minutes, he testified that it was "probably" under 10 minutes. When asked whether it was over or under five minutes, he testified that it was "probably" under five minutes. Thus, according to Pogvara's best recollection, defendant was most likely detained less than five minutes before being asked to submit to field sobriety testing. There is nothing in the record to suggest that Pogvara engaged in any conduct that was not reasonably related to the objective of confirming or dispelling the suspicion that defendant might be impaired as a result of alcohol consumption. Although defendant protests that Pogvara's "vague estimation of time cannot possibly render a roadblock stop 'brief,' " it was not the State's burden to establish the brevity of the stop. Rather, it was ...