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People v. Nicolosi

Court of Appeals of Illinois, Third District

September 27, 2019

DAVID J. NICOLOSI, Defendant-Appellee.

          Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Circuit No. 17-DT-969 Honorable Carmen J. Goodman, Judge, Presiding.

          JUSTICE O'BRIEN delivered the judgment of the court, with opinion. Presiding Justice Schmidt and Justice Carter concurred in the judgment and opinion.


          O’BRIEN JUSTICE.

         ¶ 1 The State appeals an order granting defendant, David J. Nicolosi's, motion to quash arrest and suppress evidence. We reverse and remand.

         ¶ 2 I. BACKGROUND

         ¶ 3 The State charged defendant with driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2016)). Defendant filed a motion to quash arrest and suppress evidence.

         ¶ 4 At the hearing on defendant's motion, Lockport police officer Kevin Brauch testified. On October 23, 2016, Brauch observed a vehicle driven by defendant in the Mine Grove School parking lot attempting a three point turn. Brauch explained, "it was more turns than that but kept hitting the curb and having difficulty navigating itself back out the-to exit out the entrance." Although Brauch did not believe any traffic violations occurred, he drove his squad car into the parking lot to check on the welfare of defendant.

         ¶ 5 When Brauch parked his squad car next to defendant's vehicle, defendant had completed the turnaround. The two vehicles were positioned alongside one another and defendant rolled down his window. Brauch asked defendant if everything was "okay." Defendant stated that he was trying to get to his friend's house but was having problems with his global positioning system (GPS) navigation. Brauch then noticed that defendant's eyes were glassy and red, his speech was slurred, and defendant was slow or hesitant to answer Brauch's questions. Brauch could also smell the odor of an alcoholic beverage coming from defendant's vehicle. Brauch asked defendant if he had been drinking alcohol, and defendant responded that he had consumed two beers.

         ¶ 6 Brauch then reversed his squad car and blocked defendant's vehicle from leaving the area. Brauch activated his dash cam video recorder and recorded his interaction with defendant. Brauch then performed field sobriety tests. First, Brauch performed an alphabet test and a finger dexterity test while defendant was still seated in his vehicle. After these tests, Brauch performed a horizontal gaze nystagmus (HGN) test by asking defendant to follow Brauch's pen without moving his head. While performing this test, Brauch noticed that defendant's eyes lacked smooth pursuit. Defendant also could not look at the pen for a short time then look straight ahead.

         ¶ 7 Next, Brauch asked defendant to exit his vehicle and again asked if defendant had consumed alcoholic beverages. Defendant said that he had consumed a couple of beers. Brauch then conducted another HGN test and noticed defendant moved his head during the test rather than only following the pen with his eyes. Brauch also stated that defendant swayed from side to side. Brauch asked defendant to perform a walk-and-turn test. Brauch demonstrated how to perform the test. During the test, defendant failed to follow some of Brauch's instructions. Defendant had difficulty keeping his heel and toes together as he walked. When defendant was asked to turn, he did an "about-face rather than the pivot steps" that Brauch had demonstrated. Defendant also had to take an extra step to rebalance himself. On the return walk, defendant missed several heel to toe steps by more than six inches, and appeared to walk normally at the end rather than attempting heel to toe steps.

         ¶ 8 Brauch next asked defendant to perform the one-legged stand test. During the test, defendant had to put his foot down to balance himself, and defendant also had to restart the counting test when he counted out of order despite being instructed to continue counting where defendant had left off. Defendant also stopped the test before Brauch instructed him to do so.

         ¶ 9 Following the field sobriety tests, Brauch asked defendant to perform a preliminary breath test (PBT), which defendant declined. At that point, Brauch arrested defendant. The video recording of the time Brauch blocked defendant's vehicle and began performing field sobriety tests was played for the court during Brauch's testimony.

         ¶ 10 Following the evidence, the court found that Brauch was justified in initially approaching defendant to check his welfare after observing defendant struggling to perform a turnaround. The court found defendant's explanation that he was lost and having trouble with his GPS navigation to be reasonable. The court then commented on the video recording of defendant performing the field sobriety tests. The court found defendant's speech "very clear" and defendant's balance to be "excellent." The court also commented that the surface of the area defendant performed the field sobriety tests was "cracked and looked a little uneven." The court also noted that "[Brauch] indicated that the defendant stumbled or was swaying. I don't see that. He did put his leg down. I saw he had perfect balance." The court continued,

"So I look now because the Fourth Amendment does trigger in this case with unreasonable searches and seizures at the point he blocked his vehicle after the defendant made a turn and he saw everything was okay. *** And we saw no tape of any kind of this curb, this erratic driving, we see none of that, what alludes to erratic driving. Had it been some type of erratic driving, it would seem to me that the officer would have at least, not to mention this is a parking lot, officer had ...

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