from the Circuit Court of Will County, No. 15-DT-105; the
Hon. Daniel L. Kennedy, Judge, presiding.
Moore, of Palos Hills, for appellant.
Glasgow, State's Attorney, of Joliet (Mark A. Austill, of
State's Attorneys Appellate Prosecutor's Office, of
counsel), for the People.
JUSTICE LYTTON delivered the judgment of the court, with
opinion. Presiding Justice O'Brien concurred in the
judgment and opinion. Justice Schmidt specially concurred,
1 Defendant, Mark P. Lubienski, appeals from his conviction
for driving under the influence of alcohol (DUI), arguing
that his counsel was ineffective for failing to file a motion
to quash arrest and suppress evidence. We affirm.
3 Defendant was charged with DUI (625 ILCS 5/11-501(a)(2)
(West 2012)). No motion to quash arrest or suppress evidence
was filed. A bench trial was held on defendant's DUI
charge. Officer Lawrence Drish testified that he had been a
police officer for seven years and was trained to detect when
someone was under the influence of alcohol, which included
the standard field sobriety tests. While on duty at
approximately 1:08 a.m. on November 16, 2013, he noticed a
white truck driven by defendant. He observed the truck's
passenger tires briefly cross the white fog line and touch
the gravel shoulder when turning right. Drish followed the
truck for a while to see if it made any other traffic
violations and to arrive at a safe area to effectuate a
traffic stop. Defendant committed no further traffic
violations. At that time, the video equipment in Drish's
squad car was on and working properly. The video recording
was played in court.
4 Drish pulled defendant over and noticed that defendant had
"bloodshot glassy eyes, " his speech was slurred,
and a strong odor of alcohol was coming from inside the
truck. Drish had defendant perform field sobriety tests and
subsequently arrested defendant for DUI.
5 Upon the conclusion of the evidence, the court found
defendant guilty of DUI. Defendant was sentenced to 12
months' court supervision.
7 On appeal, defendant argues that he was denied the
effective assistance of counsel when his attorney failed to
file a motion to quash arrest and suppress evidence.
Specifically, defendant argues that the motion would have
been granted because Drish's investigatory stop was not
supported by a reasonable, articulable suspicion that a
traffic violation occurred. Defendant's argument does not
implicate the validity of his arrest. Instead, it revolves
solely around the validity of the investigatory stop.
Ultimately, defendant's argument fails, as Drish's
decision to stop defendant's truck was reasonable in
light of the fact that defendant crossed the fog line in
violation of section 11-709(a) of the Illinois Vehicle Code
(Code) (625 ILCS 5/11-709(a) (West 2012)).
8 To prevail on a claim that trial counsel is ineffective for
failing to file a motion to quash arrest and suppress
evidence, defendant must show a reasonable probability that
the motion would have been granted and that the outcome of
the trial would have been different if the evidence had been
suppressed. People v. Colon, 225 Ill.2d 125, 135
(2007); People v. Patterson, 217 Ill.2d 407, 438
9 Defendant acknowledges that the seminal case applicable
here is People v. Hackett, which examined the
distinction between reasonable, articulable suspicion and
probable cause with regard to section 11-709(a) of the Code.
People v. Hackett, 2012 IL 111781; 625 ILCS
5/11-709(a) (West 2012). Under Hackett an officer
may conduct a brief investigative stop of a vehicle where he
has a reasonable, articulable suspicion to justify such a
stop. Hackett, 2012 IL 111781, ¶ 20. An
investigatory stop is proper where a police officer observes
a vehicle deviate from his lane, as "[a]n investigatory
stop in this situation allows the officer to inquire further
into the reason for the lane deviation, either by inquiry of
the driver or verification of the condition of the roadway
where the deviation occurred." Id. ¶ 28;
see also 625 ILCS 5/11-709(a) ...