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People v. Lenz

Court of Appeals of Illinois, Second District

July 24, 2019

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
LAWRENCE J. LENZ, Defendant-Appellant. THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
LAWRENCE J. LENZ, Defendant-Appellant.

          Appeal from the Circuit Court of Du Page County. Nos. 15-DT-2963, 15-TR-99963 Honorable Anthony V. Coco, Judge, Presiding.

          BIRKETT PRESIDING JUSTICE delivered the judgment of the court, with opinion. Justices Hutchinson and Schostok concurred in the judgment and opinion.

          OPINION

          BIRKETT PRESIDING JUSTICE.

         ¶ 1 Following a two-day bench trial on September 27 and October 27, 2017, the trial court convicted defendant, Lawrence J. Lenz, on all counts in two separate cases, Nos. 15-DT-2963 and 15-TR-99963. The cases arose from two separate traffic incidents that occurred on the same day. On appeal, defendant argues for the vacatur of his convictions in No. 15-TR-99963, because that case was set for status, not trial, on September 27 and October 27, and therefore his due process rights were violated when the trial court adjudicated the counts. As for No. 15-DT-2963, defendant argues that (1) the court erred when it allowed, and relied on, testimony concerning No. 15-TR-99963; (2) the court erred in admitting the results of chemical testing of defendant's urine; and (3) the evidence was insufficient to support defendant's convictions. For the following reasons, we vacate defendant's convictions in No. 15-TR-99963 but affirm his convictions in No. 15-DT-2963 and remand the cause.

         ¶ 2 I. BACKGROUND

         ¶ 3 A. Pretrial Proceedings

         ¶ 4 Defendant was charged with two sets of traffic offenses arising from separate incidents on November 3, 2015. In No. 15-TR-99963, defendant was charged with three counts alleging offenses that occurred at 1:59 p.m. in Naperville. Count I charged defendant with leaving the scene of an accident involving damage to a vehicle (625 ILCS 5/11-402(a) (West 2014)), a Class A misdemeanor. Count II alleged failure to reduce speed to avoid an accident (id. § 11-601(a)), a petty offense. Count III alleged failure to provide information after damaging an unattended vehicle (id. § 11-404(a)), a Class A misdemeanor.

         ¶ 5 In No. 15-DT-2963, defendant was charged with four counts alleging offenses that occurred at 2:15 p.m. in Warrenville. Counts I and IV charged defendant with driving under the influence (DUI), a Class A misdemeanor (id. § 11-501(c)(1)). Specifically, count I alleged that defendant drove while "under the influence of any *** drug or combination of drugs to a degree that render[ed] [him] incapable of safely driving" (id. § 11-501(a)(4)), while count IV alleged that defendant drove with an amount of cannabis in his system resulting from unlawful use (id. § 11-501(a)(6)). Counts II and III charged, respectively, disobeying a traffic-control device (id. § 11-305(a)) and failing to reduce speed to avoid an accident (id. § 11-601(a)), both petty offenses.

         ¶ 6 In November 2016, defendant filed a motion in limine in No. 15-DT-2963 to exclude the results of testing of a urine sample that he provided following his arrest on November 3, 2015. Defendant contended that the testing did not comply with the standards for urine collection set forth in section 1286.330 of Title 20 of the Illinois Administrative Code (Administrative Code) (20 Ill. Adm. Code 1286.330 (2007)), which was promulgated under section 11-501.2 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501.2 (West 2014)).

         ¶ 7 The trial court continued the motion in limine to September 27, 2017, and also set the case for a bench trial on that date.

         ¶ 8 As for No. 15-TR-99963, the case was twice set for a bench trial, but both dates were stricken. On July 20, 2017, the trial court set the case for status on September 27, 2017.

         ¶ 9 B. Trial

         ¶ 10 On September 27, 2017, the trial court called both cases. Defense counsel noted that defendant had signed a jury waiver. After querying defendant, the court accepted the jury waiver. The record contains a written waiver for No. 15-DT-2963. There is no waiver in the record for No. 15 DT 99963.

         ¶ 11 After disposing of some housekeeping matters, the court had this discussion with the parties as to which case was ready for trial:

"THE COURT: *** Are we trying the TR case [(No. 15-TR-99963)] and the DT case [(No. 15-DT-2963)] at the same time or are they two separate cases?
MS. MONDRY [(DEFENSE ATTORNEY)]: Judge, it arises out of the same course of conduct. I mean it doesn't matter to us what the State wants to do. If they are not prepared to go on the traffic case [(No. 15-TR-99963)] we can deal with that.
THE COURT: The DT alleges disobeying traffic control device, driving too fast for conditions. They both have failure to reduce speed to avoid accident tickets. One of them. They are different tickets though.
MS. MONDRY: Yes.
THE COURT: *** [T]he DT file *** alleges *** 2:15 p.m. and then the other one alleges *** 13:59 p.m. which I suppose by my calculation is 15 minutes earlier. So, are we just going to trial on the DT?
MS. CIESIELSKI [(ASSISTANT STATE'S ATTORNEY)]: Judge, I think just the DT. My impression was this one [(No. 15-TR-99963)] was tracking for status.
THE COURT: Okay.
MS. CIESIELSKI: So we are not ready on that one.
THE COURT: This is why I ask those questions before trial."

         ¶ 12 The court proceeded to remark that it would defer ruling on defendant's motion in limine to exclude the urine-test results. The court would wait until the results were offered at trial and then determine if the State had laid a proper foundation.

         ¶ 13 The bench trial ensued. The State called Warrenville police officer Brian Feiler. He testified that, around 2:15 p.m. on November 3, 2015, he was dispatched to the intersection of Winfield Road and Interstate 88. Asked the reason for the dispatch, Feiler answered that "[w]hat started as a simple motorist assist turned into a hit and run investigation," which "later turned into an investigation regarding DUI." Feiler proceeded to a parking lot on Torch Parkway near the intersection of Winfield Road and Interstate 88. Feiler met there with fellow officers and observed a pickup truck and a Jeep parked in the lot. Feiler spoke with defendant, who was in the driver's seat of the Jeep. Feiler observed that defendant had bloodshot, glassy eyes. Feiler also detected the slight odor of an alcoholic beverage on defendant's breath. Defendant seemed confused to Feiler, because of his "hesitation to answer one of [Feiler's] questions," but Feiler did not actually need to repeat those questions. Feiler did not notice any slurring in defendant's speech or anything unusual about his facial expressions. Defendant was wearing what appeared to be safety glasses.

         ¶ 14 Defendant told Feiler that he had come from Naperville and was on his way back to work. Feiler "asked [defendant] about the crash and how he ended up at Torch Parkway." Defendant replied that, after the accident, he and the other driver agreed to meet at another location to exchange information. Feiler queried defendant about his alcohol consumption, and defendant claimed to have drunk one beer. Feiler also asked defendant how the accident occurred. Defendant claimed that he "attempted to stop *** at this busy intersection." Feiler observed that the pickup truck had damage to the driver's side, which was consistent with defendant's admission that he had failed to stop. Feiler acknowledged at trial that the intersection where the accident occurred was indeed a very busy intersection.

         ¶ 15 Feiler testified that he also spoke with defendant "in regards to an accident that had occurred in Naperville that same date." Defendant claimed of this accident, too, that he had "attempted to stop."

         ¶ 16 Feiler asked defendant to undertake field sobriety tests, and he agreed. Defendant had no difficulty exiting the Jeep, and Feiler noticed nothing unusual about defendant's gait as he walked to the area where he would take the tests. Feiler admitted that, contrary to National Highway Traffic Safety Administration standards, he failed to ask defendant prior to the tests whether he had any injuries or used corrective lenses. The first test that Feiler administered was the horizontal gaze nystagmus (HGN) test. Defendant stood perfectly still during the test and did not sway. During the test, defendant exhibited four out of six indicators that he was under the influence of alcohol. Specifically, defendant exhibited, in both eyes, a "lack of smooth pursuit" and "distinct and sustained nystagmus at maximum deviation." According to Feiler, defendant failed the HGN test.

         ¶ 17 Next, Feiler instructed defendant how to perform the walk-and-turn test. In taking the test, defendant exhibited seven indicators that he was under the influence of alcohol. For instance, defendant was unable to remain in the start position, he began the test before the instructions were finished, he failed to touch heel to toe, and he stepped off the line. Feiler explained that a subject fails the test when he shows at least two indicators.

         ¶ 18 Feiler next had defendant perform the one-leg-stand test. As Feiler was explaining how to perform the test, defendant began moving like he was performing the walk-and-turn test again. Feiler corrected defendant, but he eventually terminated the test when it appeared that defendant would not perform the test.

         ¶ 19 Feiler testified that he also asked defendant to recite the alphabet from J to W without singing it. Defendant performed this test successfully.

         ¶ 20 Based on defendant's overall performance on the field sobriety tests, Feiler arrested him for driving under the influence of alcohol. Feiler acknowledged that the tests he administered were "mostly tests for alcohol," not drugs. Feiler also recognized that there can be "innocent reasons" why one would fail such tests. In addition to arresting him for DUI, Feiler issued defendant a citation for driving too fast for conditions.

         ¶ 21 The State introduced into evidence the dashboard-camera footage of defendant's interaction with Feiler at the scene, including the field sobriety tests. The footage is consistent with Feiler's testimony. Defendant appears disoriented; he haltingly answers basic questions such as where he was coming from and where he works. He is unable to perform the walk-and-turn test, throwing his arms out wildly to keep from stumbling. When Feiler states the instructions for the one-leg-stand test, defendant begins repeating the instructions for the walk-and-turn test. Defendant persists in this despite Feiler's repeated attempts to correct him. Feiler then terminates the test.

         ¶ 22 Feiler testified that he transported defendant to the police station for booking. At 3:40 p.m., Feiler gave defendant the Miranda warnings (see Miranda v. Arizona, 384 U.S. 436 (1966)) and asked him about his prior activities that day. Defendant stated that he had been trying to get his phone fixed and had consumed two beers in his car. Feiler administered a breath test to confirm whether defendant was under the influence of alcohol. The test revealed a blood alcohol concentration (BAC) of 0.00. Suspecting that defendant was under the influence of some other substance, Feiler asked him to submit blood and urine samples. Defendant agreed to provide a urine sample. Before defendant provided the urine sample, Feiler asked for assistance from Carol Stream police officer Hillary Mabbitt. When Mabbitt arrived, she administered further sobriety tests. Feiler noted that, at some point during booking, defendant urinated in his pants while in his holding cell even though the cell had a toilet. Feiler described defendant as having been polite and cooperative throughout their interaction on November 3, 2015.

         ¶ 23 Feiler testified regarding his collection of the urine sample from defendant. Feiler obtained a plastic specimen container from the evidence room. The container was clean, dry, and sealed. Feiler broke the seal to open the container. Accompanied by Officer Joshua Perry, Feiler went to defendant's cell. Feiler put on latex gloves and opened an antibacterial swab. At Feiler's instruction, defendant wiped the tip of his penis with the swab, urinated into the toilet for several seconds, and then urinated into the container. Retrieving the container from defendant, Feiler screwed on the top, affixed evidence tape over the top, and placed identifying marks on the container. He then placed the container into an evidence locker and locked the door. He also prepared an evidence form.

         ¶ 24 Feiler was shown State's exhibit 5, which he identified by its markings as the container in which defendant's urine sample was collected on November 3, 2015. Feiler had not seen the container since placing it into the evidence locker on November 3.

         ¶ 25 Feiler testified that he received a phone call from Brian Bessey on November 10, 2015, seven days after defendant's arrest. Following their conversation, Bessey forwarded to Feiler a voice mail. Feiler listened to the voice mail and recognized defendant as the speaker.

         ¶ 26 Bessey testified that he owned a Batteries Plus franchise. On November 10, 2015, he received a voice mail from a prior customer. Based on the content of the voice mail, he called the Naperville Police Department and eventually came into contact with Feiler.

         ¶ 27 The State introduced into evidence the voice mail that Bessey had received and forwarded to Feiler. The speaker in the voice mail identifies himself as "Dr. Larry Lenz," who works in Naperville. The speaker narrates his two traffic accidents and subsequent arrest. He states that he was driving in Naperville when he "tapped" a car. He kept driving because he "had patients." Later, he entered an intersection near his office just as the light was turning red. He "slid and ran into a Ford F-150," "T-bon[ing] it." He and the other driver pulled into a parking lot. The police arrived and asked what he had been drinking. They claimed to smell alcohol on his breath and ordered him out of the car. He "did all the walks," but the police "didn't like the walks and they arrested [him]."

         ¶ 28 Perry testified that, on November 3, 2015, he was dispatched to the area of Winfield Road and Interstate 88 in relation to a hit-and-run. When he arrived, Perry saw defendant and his Jeep Wrangler as well as another individual and his F-150 pickup truck. There was damage to the front driver's-side bumper of the Jeep and to the driver's side of the F-150.

         ¶ 29 Perry testified that he searched defendant's Jeep following his arrest and recovered four beer bottles. Later, at the police station, Perry was conducting a routine check of persons in custody when he observed that the crotch area of defendant's pants was wet. Defendant's cell was equipped with a toilet.

         ¶ 30 Perry testified that he was with Feiler when defendant provided the urine sample. Perry testified to the precautions taken in collecting the urine sample: the specimen cup was clean and dry and had an unbroken seal, latex gloves were used in collecting the sample, Perry and Feiler observed defendant as he urinated into the cup, and afterward the lid of the cup was tightened and sealed. Perry identified his signature and badge number on State's exhibit 5.

         ¶ 31 The State's next witness was Christine Cava, a forensic scientist with the Illinois State Police crime lab. Cava identified State's exhibit 5 as a specimen container that the lab received on November 10, 2015. When Cava received the container, it was inside a bag. Both the container and the bag were sealed. Cava identified a "toxicology evidence worksheet" associated with the container. An evidence technician who previously handled the container had noted on the worksheet that (1) a "small" amount of urine had leaked from the container into the original evidence bag, which was then replaced and (2) the top red layer of the evidence tape across the lid of the container was loosely attached to the adhesive clear side of the tape, but "the clear adhesive tape was still in tact [sic]." Cava testified that the leak could not have affected her testing, because "[e]verything was sealed up and in tact [sic]" and there was no evidence of contamination.

         ¶ 32 Cava testified that she performed preliminary and confirmatory tests on the urine sample. She tested only for tetrahydrocannibinol (THC) metabolite and cocaine metabolite. The sample was positive for THC metabolite and negative for cocaine metabolite. Cava tested for merely the presence, not the quantity, of THC metabolite; thus, she could not testify to whether defendant was impaired from the presence of the drug in his system. She further conceded that she could not "pin point [sic] a time" when defendant consumed the cannabis. He might have consumed the cannabis weeks or months before the sample was collected. Cava agreed that a positive blood test "would be more indicative of recent use" of THC than a urine test.

         ¶ 33 Following Cava's testimony, the parties agreed with the court to continue the trial to October 27, 2017. The trial court entered contrasting orders in Nos. 15-TR-99963 and 15-DT-2963. The court continued No. 15-TR-99963 to October 27 for "tracking." The court continued No. 15-DT-2963 to October 27 for a bench trial.

         ¶ 34 When the trial resumed on October 27, the State called Mabbitt, its fourth and final witness. The parties stipulated that Mabbitt was a drug-recognition expert and was certified under the National Drug Evaluation and Classification Program (DRE program). Mabbitt testified that the DRE program was created by the National Highway Traffic Safety Administration and is "a post[-]arrest procedure to help officers who encounter people on the street who appear impaired and that impairment is not caused by alcohol." The DRE program is a "12-step process to determine if the person is under the influence of drugs, whether there is a medical condition, or the person is not impaired." According to Mabbitt, there are seven classes of drugs: central nervous system depressants, central nervous system stimulants, hallucinogens, dissociative anesthetics, narcotic analgesics, inhalants, and cannabis. The DRE program is designed to identify the class(es) of drugs, if any, of which the subject is under the influence.

         ¶ 35 Mabbitt testified that, on November 3, 2015, she was summoned to the Warrenville Police Department. She arrived at 6:20 p.m. and immediately began a DRE program evaluation of defendant. Mabbitt stated that the first step of such an evaluation is a breath test. In this case, Mabbitt determined, based on the breath test previously administered by Feiler, that defendant could not have been under the influence of alcohol.

         ¶ 36 The second step of the evaluation was to consult with Feiler, the arresting officer. Over defendant's objection, Mabbitt testified that she learned from Feiler that defendant was involved in a traffic accident in Warrenville and possibly was also involved in a prior hit-and-run incident in Naperville in which he struck a parked car. Feiler further advised Mabbitt that defendant failed field sobriety tests.

         ¶ 37 Mabbitt testified that, for the third step of the evaluation, she met defendant and observed his physical condition. Mabbitt smelled urine and noticed that the front of defendant's pants was wet. Defendant said that he had urinated on himself because he was cold. Mabbitt noted that defendant's cell was equipped with a toilet.

         ¶ 38 Mabbitt made further observations of defendant. His eyes were bloodshot and watery and his conjunctivas were reddened. The muscles in his face were relaxed and even "droopy." His speech was slow and raspy. His movements, too, were slow and his coordination was poor; he would hold onto the walls for balance. At one point, defendant had to be told to stop walking around. Mucus was dripping from defendant's nose. When Mabbitt asked defendant if he ...


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