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People v. Durden

Court of Appeals of Illinois, Third District

November 1, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
TURMOND D. DURDEN, Defendant-Appellant.

         Appeal from the Circuit Court of the 12th Judicial Circuit Nos. 16-TR-23303 16-DT-465, Will County, Illinois. The Honorable Arkadiusz Z. Smigielski, Judge, Presiding.

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

          OPINION

          LYTTON JUSTICE

         ¶ 1 Defendant, Turmond D. Durden, was pulled over by a Village of Shorewood police officer. After failing field sobriety tests, defendant was arrested for driving under the influence (DUI) and transported to the police station. At the station, an officer read defendant the "Warning to Motorist, " and defendant submitted to a breathalyzer test showing his blood alcohol content was within the legal limit. After that, an officer requested that defendant submit to blood or urine testing. Defendant refused, and his driver's license was summarily suspended. Defendant filed a petition to rescind his statutory summary suspension. The trial court denied defendant's petition. Defendant appeals, arguing that his petition to rescind should have been granted because the officers (1) lacked reasonable suspicion to request blood or urine testing and (2) failed to issue him a second warning before requesting blood or urine testing. We affirm.

         ¶ 2 FACTS

         ¶ 3 Defendant was arrested and charged with DUI (625 ILCS 5/11-501 (West 2016)) on April 4, 2016. After refusing to submit to blood or urine testing, defendant's driver's license was summarily suspended (625 ILCS 5/11-501.1 (West 2016)). Defendant filed a petition to rescind his statutory summary suspension. A hearing was held on the petition.

         ¶ 4 At the hearing, Officer Brett Middleton of the Shorewood police department testified that he was on patrol at approximately 1:12 a.m. on April 4, 2016, when he observed defendant commit "[m]ultiple lane violations." According to Middleton, defendant's vehicle veered toward his patrol car, crossed over the double yellow line three times, veered into the painted median twice, and "began to veer towards the opposite lane of traffic." After observing defendant commit "approximately five lane violations, " Middleton activated his overhead lights.

         ¶ 5 Defendant stopped his vehicle, and Middleton approached and asked for defendant's driver's license. In attempting to retrieve his license, defendant's "hands slipped off his wallet numerous times" and before handing the license to Middleton, defendant dropped it in his lap. Defendant also dropped his cell phone in his lap. Middleton asked defendant if he had consumed any alcoholic beverages or was on any medication. Defendant denied both.

         ¶ 6 Middleton returned to defendant's vehicle and asked him to step out of the car. At that time, Middleton smelled a "moderate" odor of an alcoholic beverage. Middleton also observed that defendant had "slurred speech, glossy, bloodshot eyes" and "unusual behavior."

         ¶ 7 Middleton requested that defendant perform three field sobriety tests: horizontal gaze nystagmus, walk and turn, and one leg stand. Defendant did not properly perform any of the tests and demonstrated "an inability to follow instructions." Middleton then asked defendant to submit to a portable breathalyzer test. Defendant refused, and Middleton arrested defendant for DUI. Middleton determined, based on defendant's "slurred speech, *** very dangerous driving, [and] performance on the field sobriety tests, " that defendant "was impaired and not safe to operate a motor vehicle." After placing defendant under arrest, Middleton transported defendant to the Shorewood police department.

         ¶ 8 At the police station, at 2:07 a.m., Middleton read to defendant the "Warning to Motorist, " which explained the consequences of taking or refusing to take a chemical test for intoxication. The written form, signed by Middleton, was admitted into evidence at the hearing. While waiting to take the breathalyzer test, defendant stated something like "that Dayquil will mess you up." Middleton testified that defendant made "other unusual statements" to him.

         ¶ 9 At 2:30 a.m., Officer Ryan Schloesser of the Shorewood police department administered a breath test to defendant. At 2:43 a.m., Schloesser received the test results, which showed that defendant had a blood alcohol level of 0.035, which is well below the legal limit of 0.08. Schloesser then asked defendant for a blood or urine sample, which defendant refused to give.

         ¶ 10 At the hearing, Schloesser testified that he asked defendant to submit to blood or urine testing because, based on his interactions with defendant, defendant's blood alcohol level of 0.035 "didn't appear to me to be the whole cause of how he had been acting." Schloesser admitted that he asked for a blood sample from defendant based on his statement that he used Dayquil. Schloesser testified that he was familiar with Dayquil and found nothing in Dayquil's warnings restricting one's ability to drive or operate machinery. Schloesser did not read the "Warning to Motorist" to defendant before requesting a blood or urine sample from him.

         ¶ 11 The trial court denied defendant's petition to rescind, finding that "the officer did have reasonable grounds to believe that the defendant was driving *** a motor vehicle while under the influence of alcohol or drugs" based on "[t]he defendant's driving" and "a moderate odor of alcohol." The court further found that providing one "Warning to Motorist" was ...


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