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People v. King

Court of Appeals of Illinois, Second District

November 17, 2014

DAVID M. KING, Defendant-Appellant

Appeal from the Circuit Court of Boone County. Nos. 09-DT-78, 09-TR-3264. Honorable John H. Young, Judge, Presiding.


In a prosecution of defendant for driving under the influence of alcohol and causing his tires to squeal, the trial court did not err in admitting the testimony of the arresting officer regarding his attempt to administer the HGN test, notwithstanding defendant's contention that the officer's testimony did not satisfy the foundational requirements set forth in McKown II, since that decision does not bar an officer from testifying about his incidental observations while administering the test to the extent that the observations are independently relevant and there is no reason to link the admissibility of such evidence to the foundational requirements applicable to the test.

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Jorgensen and Birkett concurred in the judgment and opinion.



Page 366

[¶1] Following a jury trial in the circuit court of Boone County, defendant, David M. King, was found guilty of driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2008)) and causing the tires of his vehicle to squeal (625 ILCS 5/11-505 (West 2008)). For DUI, the trial court sentenced defendant to 12 months' conditional discharge and ordered him to serve five days in the Boone County jail and pay, inter alia, a fine of $1,300. The trial court placed defendant on court supervision for causing his vehicle's tires to squeal. Defendant argues on appeal that the trial court erred in admitting testimony concerning the arresting officer's attempt to administer the horizontal gaze nystagmus (HGN) test to defendant. Defendant also argues that he is entitled to monetary credit toward his fines for time spent in custody prior to sentencing. We affirm as modified.

[¶2] At trial, Chris Washburn, an officer with the Belvidere police department, testified that, in the early morning hours of March 21, 2009, he observed a silver Chevy van stopped on northbound Appleton Road at its intersection with Lincoln Avenue. There was a traffic signal at that intersection. Washburn was traveling south on Appleton Road, approaching the intersection. The traffic signal was green for southbound traffic and Washburn believed that it would have been green for northbound traffic as well. Washburn slowed down in an effort to determine why the van was not moving. Washburn then saw the van lurch forward, and he heard its tires squeal. The van turned right onto Lincoln Avenue. Washburn followed the van as it proceeded a short distance on Lincoln Avenue, turned left onto Whitman Street, and pulled into a residential driveway. Washburn parked his vehicle, activated the emergency lights, and walked up to the van. The parties stipulated that defendant was driving the van at the time.

[¶3] According to Washburn, defendant exited the vehicle and " took a couple of steps that were unsteady." Washburn also noticed that defendant's eyes were red, his eyelids were drooped, and his speech was very slurred. Washburn asked defendant to produce his driver's

Page 367

license and proof of insurance. Defendant complied. Washburn did not detect the odor of alcohol emanating from defendant. He noted, however, that he was suffering from allergy symptoms that prevented him from smelling anything. Washburn asked defendant why he had caused the tires on his vehicle to squeal. Defendant responded that the vehicle was peppier than the truck that he usually drove. Defendant stated that he had just proposed to his girlfriend. He also indicated that he had consumed a couple of beers but was not drunk.

[¶4] 4 Washburn testified that he had been trained to administer field sobriety tests and that he was also certified to train other officers to administer the tests. Washburn asked defendant to perform field sobriety tests and defendant agreed. Washburn initially conducted the HGN test. He instructed defendant to look at his (Washburn's) finger and follow it with his eyes without moving his head. According to Washburn, defendant moved his head while following Washburn's finger. The prosecutor asked Washburn what he noticed while holding his finger out to the side of defendant's head. As Washburn began to answer, defendant's attorney objected that there was " no foundation laid for the administration of this test." The trial court overruled the objection, but directed the prosecutor to rephrase the question. The prosecutor then asked whether defendant was following Washburn's instructions when Washburn held his finger to the side of defendant's head. Washburn responded that defendant initially followed his finger without moving his head, but then looked straight at Washburn. The next time Washburn moved his finger, defendant moved his head.

[¶5] Washburn administered two other field sobriety tests: the walk-and-turn test and the one-leg-stand test. Washburn instructed defendant that, for the walk-and-turn test, he was to place his left foot behind his right, take nine heel-to-toe steps with his arms at his sides, turn around, and take nine heel-to-toe steps back. Washburn demonstrated to defendant how he should walk and turn. Washburn instructed defendant to stand heel-to-toe with his left foot behind his right and his arms at his sides during the demonstration. Washburn testified that defendant raised his arms slightly and did not maintain the heel-to-toe stance. When defendant actually performed the test, he lost his balance twice while walking. Each time, he raised one of his arms more than six inches away from his body.

[¶6] For the one-leg-stand test, Washburn instructed defendant initially to stand with his heels and toes touching and his hands by his sides, to raise one foot about six inches off of the ground, to keep his foot parallel to the ground, and to count out loud until told to stop. Defendant raised his foot, placed it back on the ground, and then raised it again, at which point he began swaying and started to hop. Defendant leaned over to one side and raised one arm more than six ...

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