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.
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
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
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
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
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
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
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 ...