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People v. Day

Court of Appeals of Illinois, Third District

November 28, 2016

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant,
v.
ANTHONY W. DAY, Defendant-Appellee.

         Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Circuit No. 14-DT-1703 Honorable Raymond A. Nash, Judge, Presiding.

          JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion Presiding Justice O'Brien and Justice Carter concurred in the judgment and opinion.

          OPINION

          HOLDRIDGE JUSTICE

         ¶ 1 The State appeals from the trial court's order quashing the arrest of the defendant, Anthony W. Day. The State argues that the evidence presented at the statutory summary suspension hearing established that the defendant's arrest was supported by probable cause.

         ¶ 2 FACTS

         ¶ 3 The State charged the defendant with driving while under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2014)). The Secretary of State subsequently imposed a six-month statutory summary suspension of the defendant's driver's license. The defendant filed a petition to rescind the summary suspension, and a hearing on the defendant's petition was held on February 6, 2015.

         ¶ 4 At the hearing, the defendant called Daniel Lopez, the arresting officer, as his first witness. Lopez testified that he observed the defendant driving a motor vehicle at approximately 3 a.m. on December 27, 2014. Lopez testified that in the time he observed the defendant driving, the defendant made proper stops, proper signals, and drove safely. Nothing about the defendant's driving gave Lopez any indication that the defendant was under the influence of alcohol. Lopez pulled the defendant over because excessive noises were emanating from his exhaust system. Lopez recalled that the night in question was cold, but he could not recall whether it was raining. He could not recall whether the roadway was wet. After refreshing his memory by referencing his citations, Lopez agreed that it was raining when he administered the field sobriety tests.

         ¶ 5 The defendant gave Lopez his driver's license and proof of insurance. Nothing about the defendant's actions indicated to Lopez that the defendant might be under the influence of alcohol. In speaking to the defendant, Lopez found the defendant's answers to be consistent with the questions being asked of him. The defendant was not mumbling or slurring his words. Lopez did, however, detect a strong odor of alcohol emanating from the defendant's mouth.

         ¶ 6 Lopez instructed the defendant to exit the vehicle. The defendant did so, and as he walked back to Lopez's squad car, he briefly lost his balance, putting his hand on his own vehicle to regain his balance. Lopez instructed the defendant to recite the alphabet from the letter C to the letter R, but the defendant refused, telling Lopez he could not recite the alphabet backward. Lopez then instructed the defendant to count backward from 69 to 44. The defendant complied and accurately performed the task, though he did pause twice for approximately four seconds. Lopez testified that while the defendant was counting, he noticed that the defendant was slurring the numbers. He also noticed that the defendant's eyes were "glassy [and] watery." The defendant did not sway or stumble during the counting, and had no trouble maintaining his balance.

         ¶ 7 Lopez then asked the defendant if he had consumed any alcohol. The defendant told Lopez that he began drinking at approximately 12:30 a.m. and stopped at approximately 3 a.m., a half hour earlier. The defendant told Lopez he had been drinking beer.

         ¶ 8 Lopez administered a number of field sobriety tests on the defendant. Lopez testified that the one-leg stand test must be administered on a flat, dry, level surface, and agreed that the test is "invalid" if not administered in those conditions. Lopez admitted that the test should not be administered in the rain. Lopez then testified that it was only drizzling at the time. When asked how he now remembered that it was drizzling at the time and date in question, Lopez replied that the reference to his report had triggered an independent recollection. In any event, Lopez admitted that the one-leg stand test should not be administered during a drizzle. Lopez instructed the defendant to hold one foot off the ground while counting to 30. The defendant dropped his foot once in that span, at the nine-second mark. Lopez testified that the defendant swayed during the test, but did not move his arms.

         ¶ 9 Lopez then asked the defendant to perform the walk-and-turn test on a straight crack in the roadway. He stated that this test should also be administered on a dry surface. Lopez testified that the defendant walked nine steps out and nine steps back, remaining on the crack for each step, and never using his arms for balance. Lopez testified, however, that the defendant executed an "improper turn" at the midpoint of the test. Lopez explained that the defendant was supposed to take small steps in turning, but the defendant instead "made a large turn." The defendant also failed to count his steps out loud, as Lopez had instructed. The defendant did not stumble or lose his balance.

         ¶ 10 Lopez testified that he administered the horizontal gaze nystagmus (HGN) test. According to Lopez, that test showed that the defendant had consumed alcohol. That result, combined with the results of the other field sobriety tests, indicated to Lopez that the defendant was impaired. Lopez arrested the defendant and charged him with DUI.

         ¶ 11 On cross-examination by the State, Lopez testified that two passengers were in the vehicle with the defendant, but that the odor of alcohol was emanating from the defendant's breath. The defendant indicated that he was coming from a party. Lopez also testified that the defendant failed to touch his heel to his toe on the walk-and-turn test, contrary to Lopez's instructions. Lopez testified that the defendant failed both tests, with two clues on the one-leg stand test, and four clues on the walk-and-turn test.

         ¶ 12 The defendant testified that he was driving his 1997 Jeep at approximately 3:30 a.m. on December 27, 2014, when he was pulled over by Lopez. He had two passengers in the vehicle. Lopez informed the defendant that he had been pulled over because a light above his license plate was out. After walking away from the vehicle, then returning, Lopez informed the defendant that his muffler was too loud. The defendant testified that his muffler was not loud. After telling the defendant that he smelled the odor of alcohol on his breath, Lopez asked the defendant to exit the vehicle.

         ¶ 13 The defendant testified that the roadway on the night in question was cold, wet, and slick. The defendant denied using his vehicle for balance when exiting the vehicle. He testified that Lopez instructed him to recite the alphabet backward. The defendant declined, and Lopez instructed him to count backward from 69 to 44. The defendant testified that he completed that test accurately and enunciated the numbers clearly. He testified that he also completed the one-leg stand test without losing his balance or using his arms, and completed walk-and-turn test without stumbling or stepping off the line. Each of those tests was performed in the rain. The defendant testified that he was sick on the day in question.

         ¶ 14 On cross-examination, the defendant testified that he and his passengers were driving from a gathering at his home when he was pulled over. He had consumed four 12-ounce bottles of beer earlier in the night. He had consumed the last of those beers approximately 30 minutes before Lopez pulled him over. The defendant testified that he was five feet, three inches tall, and weighed between 115 and 120 pounds.

         ¶ 15 Following the conclusion of the defense's case-in-chief, the State moved for a directed finding. On the issue of whether the stop was supported by reasonable suspicion, the court found that the defense had not made a prima facie case, and granted the State's motion for directed finding. However, on the issue of probable cause for the arrest, the court denied the motion for directed finding, shifting the burden to the State to prove the arrest was supported by probable cause. In so ruling, the court noted that factors such as the odor of alcohol and the results of the HGN test ...


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