In a prosecution for driving under the influence of alcohol, where the arresting officer testified that his sole reason for stopping defendant was that the light on her rear license plate was not working, the trial court’s decision to grant defendant’s petition to rescind the statutory summary suspension of her driving privileges and her motion to quash her arrest and suppress evidence due to the conflicting evidence as to whether the light was working was reversed, since the record disclosed that defendant also failed to signal a turn she made just before she stopped her vehicle, and that violation was a proper basis for the stop, regardless of the fact that the officer did not cite that violation as the reason for the stop.
Appeal from the Circuit Court of Lake County, No. 12-DT-337; the Hon. Joseph R. Waldeck, Judge, presiding.
Lawrence R. LaLuzerne, of Smith & LaLuzerne, Ltd., of Waukegan, for appellant.
Gregory C. Nikitas, of Mahaffee & Nikitas, P.C., of Waukegan, for appellee.
Panel JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Hudson concurred in the judgment and opinion.
¶ 1 Defendant, Jaclyn Kane, was stopped after Officer Bryan Merkel, who worked for the City of Highland Park, saw that the rear license plate light on the car she was driving was not working (see 625 ILCS 5/12-201(c) (West 2010)), that she was "bouncing around a little bit in [her] lane" (see 625 ILCS 5/11-709(a) (West 2010)), and that she failed to signal a turn (625 ILCS 5/11-804(a) (West 2010)). After defendant was stopped, Officer Merkel approached her car and detected the smell of alcohol. Further tests conducted at the scene revealed that defendant was driving while under the influence of alcohol (DUI) (see 625 ILCS 5/11-501(a)(1), (a)(2) (West 2010)). Defendant was arrested and thereafter her driving privileges were suspended. She petitioned to rescind that suspension and moved to quash her arrest and suppress the evidence of intoxication. The trial court granted both requests. Although the City appealed both orders, it moved in this court to dismiss the appeal of the order granting defendant's motion to quash and suppress. We granted that motion to dismiss. City of Highland Park v. Kane, No. 2-12-0789 (Dec. 12, 2012) (minute order). Thus at issue in this appeal is whether for purposes of defendant's petition to rescind, Officer Merkel had a proper basis to stop defendant. For the reasons that follow, we believe that he did. Thus, we reverse.
¶ 2 The facts relevant to resolving this appeal are as follows. At the hearing on defendant's petition to rescind, Officer Merkel testified that he was in his squad car on February 10, 2012, and was positioned on the Deerfield Road overpass observing southbound traffic on Route 41, which was 30 to 40 feet away. While at this location, the officer saw defendant driving on Route 41. The car defendant was driving did not have a light illuminating the rear license plate. Thus, Officer Merkel left his position on the overpass and followed defendant's car.
¶ 3 Once Officer Merkel positioned his squad car behind defendant's car, he saw that "[the] vehicle was having difficulty operating on the roadway." Officer Merkel clarified that "th[is] difficulty" was related to defendant "weaving within the lane." However, defendant's car "never went out of its lane, " and the few cars on the roadway at that time "never had to take any evasive action relative to the vehicle operated by [defendant]."
¶ 4 Eventually, Officer Merkel effectuated a stop of defendant's car. At the hearing, Officer Merkel was asked, "And the basis for the traffic stop was that you felt that there was not illumination of the license plate[, ] correct?" Officer Merkel responded, "Correct." Officer Merkel then stated that he was able to observe that "the license plate light was not illuminated" when he was following defendant and when he approached her car after the stop. Officer Merkel asserted that "[he] did not issue any tickets for illegal lane usage or speeding or anything like that, " but, according to the common-law record, Officer Merkel did not issue a ticket related to the rear license plate light either. The only tickets issued by the officer to defendant were for DUI.
¶ 5 A video of the traffic stop, which Officer Merkel recorded from his squad car beginning at 2:30 a.m., revealed that, when Officer Merkel was following defendant's car, defendant did not activate her turn signal as she exited Route 41 and proceeded onto the exit ramp toward Skokie Valley Road. While driving up the ramp, defendant's car swerved to the right side of the road, touching or crossing the fog line. Officer Merkel activated his Mars lights, defendant stopped her car, and the officer approached defendant's car, asking for her driver's license and registration. At that point, defendant asked Officer Merkel if she was stopped because she was speeding. In response, Officer Merkel said, "No. The reason I'm stopping you is your license plate light is out and you're bouncing around a little bit in your lane." Given the light coming from the headlights of Officer Merkel's squad car, the video does not make clear whether the rear license plate light on defendant's car was operational.
¶ 6 Defendant testified that she had no knowledge of her rear license plate light being off on the night she was stopped, but that she did not confront the officer about it because "[she did not] have an opportunity to dispute that as [it was] happening." Defendant also asserted that, while she was outside of the car after the stop, she "never turned back [to] look[ ] at the license plate light, " because she was "concentrating on what the officer said." According to the video, defendant did turn to look at the light while she was standing at the back of the car, and, when she did so, she asked the officer "You gonna give me a 'got a light out'?"
¶ 7 Defendant testified that, a week after the stop, she took photographs of her rear license plate with the light above it on. These photographs, which were taken at night, at a close distance, and were admitted into evidence, show a dim light above the license plate of defendant's car. Defendant testified that she "never made any changes ...