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.
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.
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
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
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 ...