Court of Appeals of Illinois, First District, First Division
from the Circuit Court of Cook County, No. 13-CR-14429; the
Hon. Thomas V. Gainer, Jr., Judge, presiding.
Affirmed in part and vacated in part.
Michael J. Pelletier, Patricia Mysza, and Katie Anderson, all
of State Appellate Defender's Office, of Chicago, for
M. Alvarez, State's Attorney, of Chicago (Alan J.
Spellberg, Miles J. Keleher, and Czarina Powell, Assistant
State's Attorneys, of counsel), for the People.
JUSTICE MIKVA delivered the judgment of the court, with
opinion. Justices Connors and Harris concurred in the
judgment and opinion.
1 Following a jury trial, defendant, Weston Romanowski, was
convicted of aggravated driving while under the influence of
alcohol and sentenced to 18 months in prison and 1 year of
mandatory supervised release. In this direct appeal, Mr.
Romanowski contends that his conviction should be reversed
because the circuit court erroneously permitted the arresting
officer to testify that Mr. Romanowski was told of the civil
penalties that he would be subject to if he refused to submit
to a blood-alcohol test. Mr. Romanowski also contends that
the circuit court's order requiring him to pay a public
defender fee in the amount of $450 should be vacated, because
no hearing was held concerning his ability to pay such a fee.
For the reasons that follow, we affirm Mr. Romanowski's
conviction and sentence for aggravated driving while under
the influence of alcohol and we vacate the $450 public
3 A jury trial was held in this matter on June 10, 2014. The
only witness who testified was the arresting officer, Officer
John McGuire of the Chicago police department. Officer
McGuire testified that, at approximately 8:30 p.m. on the
evening of May 16, 2013, he encountered Mr. Romanowski's
vehicle parked, with the engine running, at a tollbooth
serving the northbound lanes of the Chicago Skyway. The
vehicle was in a lane displaying a red "X, "
indicating that it was out of service. As he approached and
began to question Mr. Romanowski, Officer McGuire smelled a
strong odor of alcohol coming from the vehicle, observed Mr.
Romanowski fumbling through the glove box, and could see
three empty beer cans in the rear seat of the vehicle.
Officer McGuire testified that Mr. Romanowski's speech
was slurred and incoherent; he had bloodshot, glassy eyes;
and he kept turning his face away from the officer when he
was spoken to. Mr. Romanowski had to be told to step out of
the vehicle four times and required assistance to do so.
4 Officer McGuire described three field sobriety tests that
he was trained to administer and did administer to Mr.
Romanowski, in a lighted area with level pavement just
outside the toll booth: the horizontal gaze nystagmus (HGN)
test, the walk and turn test, and the one-legged stand test.
The HGN test, which focuses on the movement of the eyes in
response to an external stimulus, is designed to detect signs
that a subject has consumed alcohol. Officer McGuire
explained how, when asked to track the movement of a light
pen horizontally and at a 45 degree angle to his line of
vision, Mr. Romanowski exhibited a "lack of smooth
pursuit" or uncontrolled jerking of the eyes, a positive
indicator for the consumption of alcohol. The walk and turn
test, which requires a subject to count out and take nine
heel-to-toe steps along a straight line, turn around, and
take nine more heel-to-toe steps in the opposite direction,
assesses a subject's ability to perform multiple tasks
simultaneously. According to Officer McGuire, Mr. Romanowski
took four steps that were not heel-to-toe steps and lost his
balance on the fifth step, raising his arms for balance and
stepping off the line before ending the test. The one-legged
stand test, another test that gauges a subject's ability
to perform tasks when his or her attention is divided,
requires the subject to raise one foot 12 inches off of the
ground and, while looking at the toe of the raised foot,
count by saying "one 1, 000, two 1, 000, three 1, 000,
etc." Officer McGuire stated that, during the test, Mr.
Romanowski's left ankle "was turning and wiggling,
" and he was able to raise his right leg for only four
seconds before losing his balance and putting his foot down.
Mr. Romanowski was given a single chance to perform each
test, and according to Officer McGuire, the results indicated
that Mr. Romanowski had consumed alcohol and was impaired.
5 On cross-examination, Officer McGuire acknowledged that he
had never met Mr. Romanowski before and was not familiar with
what his normal speaking voice sounded like or whether his
eyes were regularly bloodshot due to allergies or some other
reason. He admitted that he could not tell, from the mere
presence of an alcoholic odor, what Mr. Romanowski had had to
drink, how much he drank, or when he drank it. He further
agreed that the HGN test he administered could not tell him
what Mr. Romanowski's blood-alcohol level was. It was
nevertheless the officer's opinion, "[b]ased on the
totality of the clues that [he] observed from the tests that
were performed ***, the smell of an alcoholic beverage, the
visual appearance of [Mr. Romanowski] with his eyes and his
breath[, a]nd his inability to answer questions, " that
Mr. Romanowski was intoxicated.
6 After he had finished the field sobriety tests, Officer
McGuire arrested Mr. Romanowski and placed him in the back of
the officer's squad car. There, Mr. Romanowski made
belligerent and at times incoherent remarks-including threats
to the officer and the officer's family and claims that
Mr. Romanowski was a government agent-before attempting to
unzip his pants and urinate. Officer McGuire called for
backup, which soon arrived to take Mr. Romanowski to the
fourth district police station in Chicago. When Officer
McGuire next encountered Mr. Romanowski, Mr. Romanowski was
urinating on the floor of a processing room at the police
7 Officer McGuire moved Mr. Romanowski to a holding cell to
complete the paperwork related to his arrest. This paperwork
included reading Mr. Romanowski a document that Officer
McGuire referred to as the "warnings of motorists."
Over defense counsel's objection and after denying
defense counsel's request for a sidebar, the circuit
court permitted the officer to describe the contents of that
warning to the jury:
"Q. [The State:] Please explain what the warning to
A. [Officer McGuire:] That in Illinois, drivers when
requested by a law officer to submit to three types of
testing, either blood, breath or urine. And if you refuse to
take one of those tests, the repercussions of that refusal
will be a suspension of your driver's license.
Q. Did the defendant then agree to take any of those tests?
A. No, he did not.
Q. He refused to take the blood, breath ...