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People v. Gocmen

Court of Appeals of Illinois, Third District

March 29, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant,
v.
AHMET GOCMEN, Defendant-Appellee.

         Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. Circuit Nos. 15-DT-1284, 15-TR-72055, and 15-TR-72056 Honorable Carmen Goodman, Judge, Presiding.

          JUSTICE McDADE delivered the judgment of the court, with opinion. Presiding Justice Holdridge concurred in the judgment and opinion.

          OPINION

          McDADE, JUSTICE

         ¶ 1 The trial court granted the petition to rescind statutory summary suspension filed by defendant, Ahmet Gocmen. The State appealed, arguing that the trial court erred in granting the petition. We affirm.

         ¶ 2 FACTS

         ¶ 3 Defendant was charged with driving under the influence of drugs or combination of drugs (625 ILCS 5/11-501(a)(4) (West 2014)) and improper lane usage (625 ILCS 5/11-709 (West 2014)). His driver's license was summarily suspended. Defendant filed a petition to rescind statutory summary suspension, which alleged the officer did not have reasonable grounds to believe defendant had been in control of the vehicle while under the influence of alcohol or drugs.

         ¶ 4 A hearing was held on defendant's petition. The sole witness was Officer Adam Beaty who testified that he had been a police officer for the Village of Shorewood for two years. He had never received any driving under the influence (DUI) drug training, though he had received DUI alcohol training. On September 14, 2015, at 11:10 a.m., he responded to a call for an unconscious person in a vehicle who was possibly having a seizure. When he arrived on the scene, Beaty noticed a Ford Explorer with its passenger side tires on the grass and part of the vehicle still on the road. Paramedics were already present, attending to defendant.

         ¶ 5 While on the scene, Beaty observed a Red Bull can on the passenger's side of defendant's vehicle. The can "had been either cut or tore in half, with burn marks on the *** interior [of] the can." On the inside, bottom of the can, Beaty noticed "a brown, tanish residue." Beaty performed a "NARK Cocaine ID Swipe" to test for drugs in the can. He was trained to perform the NARK test, but had never performed a NARK test on any evidence prior to this time. He took the test out of the package and touched it to the bottom of the can. The test then turned blue. He had been taught during his training that the blue color indicated the presence of opiates. Beaty also found a used one millimeter syringe in the vehicle. A brown, granular substance was also found in a small baggy in defendant's wallet, for which test results were not available at the time of the hearing. Beaty was asked whether he made "any observations of [defendant] before he left the scene." Beaty stated, "Other than what paramedics told me, no." Defendant never performed any field sobriety tests.

         ¶ 6 Beaty talked to the paramedics about defendant. He asked if there was any indication of intoxication or alcohol. The paramedics indicated that there was not. The paramedics did tell Beaty that there was a fresh track mark on defendant's arm where a needle would have been used. The paramedics also told Beaty that defendant was sweating, had pinpoint pupils, and had a heart rate of 144 beats per minute. Defendant was also in and out of consciousness.

         ¶ 7 Beaty met defendant at the hospital. He did not make any observations of defendant at the hospital other than that he was tired and lethargic. Defendant indicated to Beaty that he was diabetic. Beaty arrested defendant for DUI of drugs. He based the arrest on the NARK swipe, the syringe, and the baggy with the granular substance in defendant's wallet.

         ¶ 8 In granting defendant's petition to rescind, the court stated:

"One of the things, unlike alcohol-and the case law's [sic] very clear on this-to show intoxicating or drugs, it can't be based purely on lay testimony.
Here, the witness must be qualified still as an expert and, and must establish the effects of the drugs, which I, I just did not hear. I heard about how he could test for the presence of, of drugs. And here we have that it turned blue in color.
In addition, we still have the other factors that we must look at. And we must look at what ...

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