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People v. Motzko

Court of Appeals of Illinois, Third District

April 19, 2017

GARRETT MOTZKO, Defendant-Appellee.

         Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois. Appeal No. 3-16-0154 Circuit No. 15-DT-403 The Honorable Lisa Y. Wilson, Judge, Presiding.

          JUSTICE LYTTON delivered the judgment of the court, with opinion. Justices Carter and McDade concurred in the judgment and opinion.



         ¶ 1 Defendant, Garrett Motzko was charged with driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2014)). Defendant filed a motion to quash arrest and suppress evidence, as well as a petition to rescind his statutory summary suspension. The trial court granted defendant's motion to suppress. The State filed motions to reconsider, which the trial court denied. The State then appealed the trial court's order, granting defendant's motion to suppress. Thereafter, the court granted defendant's petition to rescind. On appeal, the State argues that the trial court (1) erred in granting defendant's motion to suppress, (2) erred in denying its motions to reconsider, and (3) lacked subject matter jurisdiction to grant defendant's petition to rescind. We affirm.

         ¶ 2 FACTS

         ¶ 3 On August 11, 2015, defendant was involved in single-vehicle motorcycle accident at the intersection of Main Street and Crescent Avenue in Peoria. Officer Michael Bishoff of the Peoria police department responded to the scene and issued defendant citations for improper lane usage (625 ILCS 5/11-709(a) (West 2014)), failure to reduce speed to avoid an accident (625 ILCS 5/11-601(a) (West 2014)), and DUI (625 ILCS 5/11-501(a)(2) (West 2014)). On October 30, 2015, defendant filed a motion to suppress evidence and quash arrest and a petition to rescind the statutory summary suspension of his driving privileges.

         ¶ 4 A hearing was held on defendant's motion to suppress evidence and quash arrest. Officer Bishoff was the only witness to testify at the hearing. Bishoff testified that, at approximately 11:45 p.m. on August 11, 2011, he was dispatched to an accident on Main Street and Crescent Avenue in Peoria, near Methodist Hospital. When he arrived, he saw a motorcycle lying on its side and defendant sitting on the ground being treated by medical personnel. Bishoff spoke to a security guard employed by Methodist Hospital, who told him that he observed defendant drive his motorcycle up Main Street at a "high rate of speed, " fail to negotiate the curve, and crash. The security guard also told Bishoff that he could smell alcohol on defendant's breath. Bishoff did not question the security guard further.

         ¶ 5 Bishoff spoke to defendant while he was being treated at the scene. Bishoff asked defendant where he was coming from, and he responded, "downtown." Bishoff then asked defendant if he was coming from his home in Morton, and defendant said he was. Bishoff asked defendant if he had consumed any alcohol. Defendant initially stated that he had a 12-ounce beer and then corrected himself and said he had a 20-ounce beer. Bishoff did not ask defendant any other questions before he was transported to the hospital.

         ¶ 6 At the hospital, Bishoff performed a Horizontal Gaze Nystagmus (HGN) test on defendant. Bishoff did not perform any other field sobriety tests on defendant because of his injuries from the accident. Before the administration of the HGN test, defendant told Bishoff that he was blind in his right eye. Bishoff did not remember asking defendant if he struck his head during the accident but admitted that defendant may have sustained a head injury. Bishoff did not take that into account when administering the HGN test to defendant.

         ¶ 7 Bishoff testified that he observed five clues during defendant's HGN test and explained that the presence of four or more clues is a strong indication that the individual being tested is "over .08 or intoxicated." Bishoff testified that he received training in the HGN test and was taught that it can be used to determine if someone is intoxicated. He testified that HGN is "one of the most *** accurate tests in determining somebody to be over a .08 [blood alcohol level]."

         ¶ 8 In his report, Bishoff listed "glassy bloodshot eyes, slight odor of an alcoholic beverage, single vehicle crash involving motorcycle, [and] admission to drinking" as his reasons for believing defendant was driving under the influence of alcohol. At the hearing, Bishoff testified that he arrested defendant for DUI based on the clues he observed on the HGN test, the odor of an alcoholic beverage on defendant, defendant's glassy, bloodshot eyes, and his admission to drinking. Bishoff also considered that defendant was likely coming from a bar when the accident happened based on defendant's statement that he had been "downtown." Bishoff testified that he also considered the accident and the statements by the security guard when he arrested defendant for DUI.

         ¶ 9 Bishoff admitted that a person could smell of an alcoholic beverage if he only had one drink and that he had no way of knowing how much someone drank based solely on smell. He also admitted that he did not ask defendant if he could explain his bloodshot eyes or if dirt or debris got into his eyes during the accident. Bishoff testified that defendant initially seemed honest with him, but Bishoff questioned whether defendant was telling the truth about having only one drink because defendant said he was "coming from downtown" which "is a bar area." Based on the time of defendant's accident and that defendant was coming from downtown, Bishoff assumed defendant was coming from a bar. Bishoff admitted it is not illegal to consume alcohol and drive. He also admitted that accidents have many causes and said he did not arrest defendant for DUI because he had an accident. Bishoff admitted that he had no training in accident reconstruction that would help him determine the cause of defendant's accident. Bishoff also admitted that he had no record or recollection of defendant having slurred speech.

         ¶ 10 Bishoff testified that defendant refused to perform a portable breath test (PBT) before his arrest. The State then asked Bishoff if he asked defendant to provide a blood, breath, or urine sample after his arrest, and defense counsel objected. The trial court sustained the objection. The parties stipulated to Bishoff's training and experience. Defendant stipulated that Bishoff properly explained the HGN test but did not stipulate that he performed the test correctly on defendant.

         ¶ 11 On December 22, 2015, the trial court granted defendant's motion to suppress evidence and quash arrest. The court explained that Bishoff's testimony that HGN testing can determine the level of intoxication was wrong under People v. McKown, 236 Ill.2d 278 (2010), and caused the court to call into question his "credibility on the issue of impairment in this case" as well as the HGN test itself "in terms of the officer's experience, knowledge of the standards, and how it was conducted." The court also took issue with Bishoff's failure to investigate whether defendant had a head injury that may have ...

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