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People v. Kiertowicz

Court of Appeals of Illinois, First District, Sixth Division

August 23, 2013

MATTHEW KIERTOWICZ, Defendant-Appellant.

Held: [*]

Defendant’s DUI conviction was upheld over his contention that the State did not prove beyond a reasonable doubt that he had physical control of his car, since the arresting officer testified that defendant was alone in the car and was sleeping, the rear windows were down, the engine was running, the taillights were on, and smoke was coming from the exhaust pipe, and despite the absence of any reference to the ignition key, the testimony was sufficient to establish that defendant had actual physical control of his car.

Appeal from the Circuit Court of Cook County, Nos. YT-688486, YT-Review 688487, YT-688488; the Hon. Thomas P. Fecarotta, Jr., Judge, presiding.

Amanda N. Graham and Katie J. Kizer, both of Law Office of Kizer & Graham, and Terrence P. LeFevour, both of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and Anne L. Magats, Assistant State’s Attorneys, of counsel), for the People.

Justices Hall and Reyes concurred in the judgment and opinion.



¶ 1 Following a bench trial, defendant Matthew Kiertowicz was convicted of driving under the influence of alcohol (DUI). In reaching a guilty verdict, the trial court found that defendant, who failed three field sobriety tests, was in actual physical control of his parked vehicle when police officers found him alone and asleep in the driver's seat while the engine was running. After hearing factors in aggravation and mitigation, the trial court sentenced defendant to 18 months' conditional discharge, to undergo significant risk treatment, to attend a victim impact panel, and to pay a $1, 250 fine. On this direct appeal, defendant does not challenge the trial court's finding that he was driving under the influence, but instead claims that the State failed to prove beyond a reasonable doubt that he had actual physical control of his vehicle because there was no evidence that he possessed the ignition key or that he was locked alone in the vehicle. For the following reasons, we affirm.


¶ 3 The evidence at trial established that, on April 1, 2010, Harwood Heights police officer Edward Smith (Smith) observed defendant asleep in the driver's seat of his vehicle, which was idling at a stop sign with the taillights illuminated and smoke emitting from the exhaust pipe. Smith woke defendant and requested he perform three field sobriety tests, which he failed. Defendant was then arrested and charged with driving under the influence of alcohol (625 ILCS 5/11-501(a)(2) (West 2006)), transportation of alcoholic liquor in a motor vehicle (625 ILCS 5/11-502 (West 2006)), failure to have insurance (625 ILCS 5/7-601 (West 2006)), failure to wear a seatbelt (625 ILCS 5/12-603.1 (West 2006)), and parking where prohibited (625 ILCS 5/11-1303 (West 2006)). As a result, defendant's driver's license was suspended for a minimum of 12 months pursuant to section 11-501.1 of the Illinois Vehicle Code. 625 ILCS 5/11-501.1 (West 2006).

¶ 4 Prior to trial, defendant filed a petition to rescind the statutory suspension of his license, and the trial court held a summary suspension hearing. At the hearing, Smith, a 12-year police veteran who has conducted between 50 to 75 DUI investigations, testified that, on the morning of April 1, 2012, he was on patrol in Harwood Heights in a marked police vehicle and in uniform. At approximately 6:30 a.m., Smith observed a black BMW convertible stopped in the roadway about eight feet behind a stop sign at the intersection of Natchez and Sunnyside Avenues. Smith was 100 yards away when he first observed the vehicle, and it was dawn and the lighting was "very good." As Smith drove toward the vehicle, he observed that "the rear taillights [were] illuminated and smoke [was] coming from the exhaust pipe, " but the vehicle did not move for over 30 seconds. Smith, along with his partner, [1] exited the police vehicle and approached the BMW on foot. Smith observed that both rear windows were down and that water had puddled in the back seats, presumably due to a recent rainstorm. Defendant was asleep in the driver's seat, and the gear was shifted in park. Smith identified defendant in court.

¶ 5 Smith testified that, after he knocked on the window, defendant woke up and opened the driver's side door. Smith inquired as to what defendant was doing there and he replied that he was waiting for a friend. Smith observed that defendant's speech was slurred, his eyes were bloodshot and glassy, and his breath smelled of alcohol. Smith inquired of defendant if he had been drinking that evening and defendant responded that he had consumed two beers. Smith observed a glass container next to defendant that appeared to contain beer. Smith asked defendant if the beer was his, and defendant responded that it belonged to a friend. Based on these observations, Smith requested defendant to exit his vehicle and perform three field sobriety tests. Smith determined that defendant failed all three tests and placed him under arrest. Defendant refused a Breathalyzer test.

¶ 6 After Smith's testimony, the trial court denied the State's motion for a directed finding. The State then introduced into evidence a videotape from the police vehicle's dashboard camera, which recorded defendant's field sobriety tests. For the purposes of the hearing, the parties stipulated that the videotape was a true and accurate depiction of the traffic stop. The trial court then admitted the videotape into evidence without objection and it was played before the court. The 11-minute videotape did not record the entire encounter and began sometime after defendant exited his vehicle to perform the field sobriety tests. The videotape starts with a depiction of defendant's vehicle on the side of Natchez Avenue, stopped several feet behind the stop sign at the intersection with Sunnyside Avenue. The vehicle's lights are off and there is no visible exhaust emitting from the tail pipe. The dashboard camera is then shifted slightly to the right, revealing two other vehicles parked behind defendant's vehicle. The remainder of the video depicts defendant performing the three field sobriety tests.

ΒΆ 7 The State rested and the trial court denied defendant's petition, finding that reasonable grounds existed for the initial inquiry that subsequently led to the discovery ...

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