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People v. Castino

Court of Appeals of Illinois, Second District

June 14, 2019

MATTHEW R. CASTINO, Defendant-Appellant.

          Appeal from the Circuit Court of Du Page County. No. 15-DT-2239 Honorable Paul A. Marchese, Judge, Presiding.

          JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Presiding Justice Birkett and Justice Hutchinson concurred in the judgment and opinion.



         ¶ 1 Defendant, Matthew R. Castino, appeals his conviction of driving under the influence (DUI) for driving with heroin in his breath, blood, or urine (625 ILCS 5/11-501(a)(6) (West 2014)). He contends that the evidence was insufficient to prove him guilty beyond a reasonable doubt when the arresting officer was not certified as a drug recognition expert (DRE), the court previously dismissed a count alleging impairment, and a video contradicted the officer's testimony. We affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 Defendant was arrested on August 21, 2015, and charged with multiple counts, including the DUI charge at issue on appeal. In January 2017, a bench trial was held.

         ¶ 4 Evidence at trial showed that, on August 21, 2015, Hanover Park police officer Tim Allen and Detective Dan Cortese were patrolling in an unmarked car when Allen observed a woman exit a car at a gas station and throw out a metal object. The woman returned to the car, and it pulled out of the gas station. The car had expired plates, was driving approximately 10 miles per hour in a 40-mile-per-hour zone, and drifted between lanes. Based on those observations, the officers stopped the car.

         ¶ 5 Allen approached the car and spoke to defendant, who was sitting in the driver's seat. According to Allen, defendant's eyes were very red and his pupils very constricted. Defendant had fresh and old track marks on his arms and noticeable swelling in his arms and hands. Defendant's nose was bleeding, there was a white powdery substance in his right nostril, and his shirt appeared to have a dry blood-like stain on the front.

         ¶ 6 Allen testified about his experience and specialized training that focused on gangs and drugs in the community. He had taken several drug classes, including one that covered heroin. Allen also took a drugged-driver certification class that covered heroin and the cues that a person exhibits when under the influence of a narcotic. However, Allen was not qualified as a DRE. Throughout his personal and professional life, Allen had observed individuals under the influence of narcotics over 100 times and had been involved with stops involving heroin approximately 15 times. He had also investigated individuals who had recently used drugs that left fresh track marks on their arms. Based on his training and experience, Allen opined that defendant's track marks were both fresh and old and that defendant's swollen hands and arms and constricted pupils indicated narcotics use. Allen testified that, based on his training and experience, heroin can be white and can be snorted, causing the nose to bleed.

         ¶ 7 During the stop, Allen noticed a hypodermic needle in the pocket of the driver's-side door of the car. Defendant admitted that the needle was his. Allen testified that, based on his training and experience, such needles are commonly used to ingest narcotics and could create track marks. According to Allen, defendant also said that he was a heroin addict and had last used heroin a week ago. When Allen asked defendant about the appearance of defendant's eyes and nose, defendant responded that he thought that it was from the day before or a few hours ago. When Allen asked about the appearance of defendant's arms, defendant admitted that he had used a few hours ago, in the morning. Allen then shined his flashlight into defendant's eyes and noticed that defendant's pupils did not constrict. There was no video of Allen's interactions with defendant while defendant was sitting in the car.

         ¶ 8 Allen next searched defendant outside of the car and found in defendant's pockets a blue rubber band, a paper towel with a blood-like substance on it, a folded piece of paper, and a cotton swab. Allen testified that, based on his training and experience, the recovered items were consistent with a drug kit. A search of the car revealed numerous hypodermic needles scattered throughout. A search of the woman in the passenger's seat revealed small plastic bags of a white powdery substance that field-tested positive for heroin. Allen could not recall the specific color that the test would show, but he testified that it changed color to show that the substance was heroin.

         ¶ 9 Allen next administered field sobriety tests to defendant, which were video recorded. The video shows that, before administering the tests, Allen checked that the device was recording and then asked defendant to tell him again when he last used heroin, stating that defendant had just said that it was a week ago and now did not know when it was. Allen told defendant that, looking at his eyes and arms, he knew that defendant had shot up within the last couple of hours. Defendant denied using heroin, stating that he was not on any drugs, had not had any heroin, and had not admitted to doing any drugs.

         ¶ 10 Allen administered the horizontal gaze nystagmus test, the lack-of-convergence test, the vertical gaze nystagmus test, the walk-and-turn test, the one-leg-stand test, and the Romberg test. During the tests, defendant's eyes were still red, his pupils still very small, and they did not track back and forth smoothly. Defendant displayed a lack of convergence in one of his eyes and was not able to look directly upward to Allen's finger. During the walk-and-turn test, defendant stepped off the line, raised his arms, and did not touch heel to toe. During the one-leg-stand test, defendant swayed, raised his arms, and miscounted. During the Romberg test, Allen observed eyelid trembling, defendant swayed back and forth, and he overestimated a 30-second interval by 3 seconds.

         ¶ 11 Allen opined that defendant was under the influence of heroin. Defense counsel objected on the basis that Allen was not qualified as a DRE. The trial court initially overruled the objection, stating that, while Allen's training was not as extensive as that of a DRE, he could testify to his opinion. ...

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