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People v. Kavanaugh

Court of Appeals of Illinois, Third District

December 8, 2016

ADALIE M. KAVANAUGH, Defendant-Appellee.

         Appeal from the Circuit Court of Will County, Nos. 15-DT-715, 15-TR-38164; the Hon. Bennett J. Braun, Judge, presiding.

          James Glasgow, State's Attorney, of Joliet (Justin A. Nicolosi, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

          No brief filed for appellee.

          Panel 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 opinion.



         ¶ 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.

         ¶ 2 FACTS

         ¶ 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 ...

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