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People v. Romanowski

Court of Appeals of Illinois, First District, First Division

August 22, 2016

WESTON ROMANOWSKI, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County, No. 13-CR-14429; the Hon. Thomas V. Gainer, Jr., Judge, presiding.

         Judgment 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 appellant.

          Anita 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.

          Panel JUSTICE MIKVA delivered the judgment of the court, with opinion. Justices Connors and Harris concurred in the judgment and opinion.


          MIKVA JUSTICE.

         ¶ 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 defender fee.

         ¶ 2 BACKGROUND

         ¶ 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 station.

         ¶ 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 motorists is?
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 ...

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