from the Circuit Court of Will County, Nos. 15-DT-715,
15-TR-38164; the Hon. Bennett J. Braun, Judge, presiding.
Glasgow, State's Attorney, of Joliet (Justin A. Nicolosi,
of State's Attorneys Appellate Prosecutor's Office,
of counsel), for the People.
brief filed for appellee.
PRESIDING JUSTICE O'BRIEN delivered the judgment of the
court, with opinion. Justice Carter concurred in the judgment
and opinion. Justice Holdridge specially concurred, with
O'BRIEN PRESIDING JUSTICE .
1 The State appeals the trial court's order granting the
petition to rescind statutory summary suspension filed by
defendant, Adalie M. Kavanaugh. The State argues that the
evidence presented at the hearing on the petition was
sufficient to establish that the arresting officer had
reasonable grounds to believe defendant was operating a
vehicle while under the influence of cannabis. We reverse and
remand for further proceedings.
3 Defendant was charged with driving under the influence of
drugs (625 ILCS 5/11-501(a)(4) (West 2014)) for an incident
that occurred on May 13, 2015. On August 26, 2015, defendant
was also charged with driving with any amount of cannabis in
her breath, blood, or urine, resulting from the unlawful use
of cannabis in violation of section 11-501(a)(6) of the
Illinois Vehicle Code (Code) (625 ILCS 5/11-501(a)(6) (West
2014)) in connection with the incident on May 13, 2015.
4 A confirmation of statutory summary suspension from the
Office of the Secretary of State was filed on September 8,
2015. Defendant filed a petition to rescind statutory summary
suspension, arguing that: (1) she was not properly placed
under arrest for an offense as defined in section 11-501 of
the Code (625 ILCS 5/11-501 (West 2014)); (2) the arresting
officer did not have reasonable grounds to believe she was
driving while under the influence of alcohol (DUI), drugs, or
a combination thereof; (3) she was not properly warned by the
arresting officer pursuant to section 11-501.1 of the Code
(625 ILCS 5/11-501.1 (West 2014)); and (4) she did not refuse
to submit to or complete required chemical testing upon the
request of the arresting officer.
5 A hearing was held on defendant's petition. Defendant
called Trooper Matt Windisch as her only witness. Windisch
testified that he had been employed with the Illinois State
Police for approximately 2½ years. Windisch had
received training in DUI detection, including training on
detecting whether a driver was under the influence of drugs.
Windisch completed a 40-hour course, of which approximately
half was dedicated to cannabis or drug detection.
6 On the evening of the incident, Windisch was at a traffic
stop on Interstate 80 when he observed a dark sedan drive off
the road and crash into the ditch. Windisch drove to the
scene of that accident and observed the sedan in the ditch
and a blue Ford parked on the shoulder of the highway across
from the ditch. Windisch approached the blue Ford and spoke
with defendant, who had been the driver. Defendant told
Windisch that she "failed to check her blind spot and
cut off the other vehicle, causing it to go into the
ditch." Defendant's vehicle never made contact with
the other vehicle.
7 When Windisch approached the Ford, he detected the odor of
burnt cannabis. Windisch asked defendant if she had anything
illegal in the car, and she eventually admitted that she had
cannabis. Defendant also had a pipe and a grinder in her car.
Windisch testified that the cannabis was located under the
seat. Defendant told Windisch she smoked cannabis
approximately one week prior to the incident.
8 Windisch did not observe that defendant had any difficulty
walking when she exited her vehicle, and he did not smell
cannabis on defendant's breath. Windisch had defendant
perform several field sobriety tests, including the
walk-and-turn and one-leg stand tests. Windisch stated that
defendant failed the walk-and-turn test because: (1) she
"missed heel to toe" on steps four through nine, as
well as all of her return steps; (2) she made an improper
turn; and (3) she held her arms out more than six inches from
her side. Defendant also failed the one-leg stand test
because she swayed and used her arms. Windisch stated that
defendant put her hands out to her side when she first raised
her foot but kept them at her side after that.
9 Windisch testified that he had also been trained to check a
person's eyes for drug impairment. Windisch testified
that in detecting impairment for cannabis, he was trained to
look for lack of convergence. Windisch observed