Court of Appeals of Illinois, First District, Sixth Division
from the Circuit Court of Cook County. No. 16 CR 6375
Honorable James Karahalios, Judge, presiding.
Attorneys for Appellant: James E. Chadd, Patricia Mysza, and
Elizabeth A. Botti, of State Appellate Defender's Office,
of Chicago, for appellant.
Attorneys for Appellee: Kimberly M. Foxx, State's
Attorney, of Chicago (Alan J. Spellberg, Noah Montague and
Justin R. Erb, Assistant State's Attorneys, of counsel),
for the People.
JUSTICE HARRIS delivered the judgment of the court, with
opinion. Justice Cunningham and Justice Connors concurred in
the judgment and opinion.
1 Following a jury trial, defendant Jose Cruz was convicted
of aggravated driving under the influence of alcohol (DUI)
and driving while his license was revoked or suspended (DWR).
He was sentenced to concurrent prison terms of 16 years for
aggravated DUI and 6 years for DWR. Defendant now appeals,
arguing that (1) he was denied a fair trial because the
State's closing argument mentioned facts not in evidence,
(2) his aggravated DUI sentence was excessive, (3) the trial
court erred by imposing an extended term sentence for DWR,
and (4) the case should be remanded to the circuit court so
that he may challenge the imposition of certain fines and
fees and the calculation of his per diem credit. We
affirm defendant's conviction and sentence for aggravated
DUI, reduce his sentence for DWR, and remand the matter so
that defendant may file a motion raising his fines and fees
3 Defendant filed a motion to reconsider his sentence, which
the trial court granted. Defendant was resentenced on April
3, 2017. He filed his notice of appeal that same day.
Accordingly, this court has jurisdiction pursuant to article
VI, section 6, of the Illinois Constitution (Ill. Const.
1970, art. VI, § 6) and Illinois Supreme Court Rule 603
(eff. Feb. 6, 2013) and Rule 606 (eff. Dec. 11, 2014),
governing appeals from a final judgment of conviction in a
criminal case entered below.
5 After a traffic stop in April 2016, defendant was charged
by indictment with aggravated DUI (625 ILCS 5/11-501 (a)(2)
(West 2016)) and DWR (id. § 6-303(a)). Based on
previous convictions for similar offenses, the State sought
to sentence defendant as a Class X offender for aggravated
DUI and as a Class 4 offender for DWR.
6 Prior to trial, defendant agreed to participate in a plea
discussion conference pursuant to Illinois Supreme Court Rule
402 (eff. July 1, 2012). The court admonished defendant on
the nature and potential consequences of a Rule 402
conference, which, through a Spanish interpreter, defendant
stated he understood. After the conference, which was
conducted off the record, defense counsel informed the court
that defendant claimed he had not understood the court's
preconference admonishments because he did not receive his
medication in jail that morning. Personally addressing the
court, defendant then explained that he normally took
sleeping pills at night and the antidepressant Zoloft in the
morning but did not receive his Zoloft that morning because
he left for court before the jail nurse arrived.
7 The court issued an order requesting defendant's
medication records, which showed that defendant was
prescribed to take acetaminophen twice a day and the
antidepressant Mirtasapiner at night. The records also
indicated that defendant had received all of his prescribed
doses on the day of and the day preceding the Rule 402
conference. When confronted with the records, defendant
apologized to the court and claimed that the jail staff
sometimes dispensed his medications incorrectly. The court
stated for the record that defendant addressed the court in
"perfect" English and that the Spanish interpreter
was "absolutely not needed." However, defendant
continued to use an interpreter throughout the proceedings.
8 The State next filed a motion in limine requesting
the court to take judicial notice of and instruct the jury on
section 1286.40 of Title 20 of the Illinois Administrative
Code (20 Ill. Adm. Code 1286.40 (2015)), which explains that
the concentration of alcohol in a person's blood serum
should be divided by 1.18 to calculate that person's
whole blood alcohol concentration (BAC). Defense counsel
objected, arguing that the State should be required to have
an expert witness testify to the calculation because it was
"not something that the average individual knows and
could calculate properly." The court granted the State's
motion over the objection.
9 At trial, Elk Grove police officer Christopher Palmese
testified that he was on patrol in a marked squad car on the
morning of April 3, 2016. At around 2:30 a.m., Palmese
stopped at a red traffic light at the intersection of
Elmhurst and Higgins Roads. He was in the innermost of two
left turn lanes and was directly behind another driver, later
identified as defendant. When defendant made the left turn,
Palmese observed "[t]he majority, if not [all]" of
his vehicle drift into the outermost turn lane before veering
back into its original lane. Palmese followed defendant, who
was "swerving within in [his] lane," for another
200 feet before activating his emergency lights. Defendant
activated his right turn signal and, although there was space
on the right shoulder, pulled left into the
"median" separating directions of traffic. Palmese
approached defendant's vehicle and noticed that his eyes
were "glassy." Defendant informed Palmese that he
was coming from an alcohol-serving establishment and that he
had been drinking there. Palmese requested defendant's
driver's license, but he was unable to produce one.
Instead, defendant provided Palmese with his name and date of
birth. Palmese returned to his squad car, called for
assistance, and entered defendant's information into a
10 When another officer arrived, Palmese requested that
defendant submit to field sobriety testing. As defendant
exited his vehicle for the tests, Palmese noticed that he
smelled of alcohol and was "unsure" and "very
hesitant" in his gait. Palmese first administered the
horizontal gaze nystagmus test, which required defendant to
track a pen with his eyes without moving his head. During the
first phase of the test, defendant was unable to smoothly
follow the pen and exhibited a "distinct and
sustained" nystagmus in his left eye. During the second
phase of the test, defendant simply "stare[d] straight
ahead" each time despite Palmese's repeated
instructions to follow the pen with his eyes. Palmese
concluded the test after several unsuccessful attempts. Based
on defendant's performance, Palmese concluded that he had
11 Palmese next administered the "walk-and-turn
test," which required defendant to take nine quick,
heel-to-toe steps in a straight line while counting them
aloud. After the nine steps, defendant was to turn around and
repeat the process in the opposite direction. Palmese
explained and demonstrated how to perform the test properly.
When defendant attempted the test, he instead took 14 slow
"baby steps" without counting aloud or turning
12 Finally, Palmese administered the "one-legged stand
test," which required defendant to stand on one leg with
the other raised in front of him while counting aloud for 30
seconds. Palmese explained and demonstrated how to perform
the test. After several attempts, defendant was only able to
hold his leg in the air for three to four seconds.
13 After the testing, Palmese handcuffed defendant, who
"kind of resisted at first" and
"plead[ed]" with the officers not to arrest him.
The officers then had to assist defendant into the back of
Palmese's squad car. Once inside, defendant stated that
he "only had three beers" and that the officers
were "killing [him]." Palmese informed defendant of
the Miranda rights (see Miranda v. Arizona,
384 U.S. 436 (1966)), and defendant "quieted down."
On the 10-minute drive to the police station, Palmese noticed
that defendant "wobbl[ed] around" in the backseat,
"kept putting his head down," and "almost ***
fell asleep." Palmese testified that defendant spoke
English throughout the encounter and was understandable
despite having "slurred and delayed" speech.
14 The State published footage of the traffic stop captured
by cameras within Palmese's squad car. The video begins
after defendant's lane violation and does not clearly
show the results of the nystagmus test, but it corroborates
Palmese's testimony in all other material aspects.
15 At the police station, Palmese read defendant a warning
form explaining that the refusal to submit to a breath test
would result in a longer suspension of his driver's
license than if the test determined him to be intoxicated.
Even so, defendant refused the breath test.
16 On cross-examination, Palmese acknowledged that it was
cold, dark, and windy outside at the time of the stop.
Defendant was not wearing a coat and repeatedly put his hands
in his pockets to stay warm. Palmese did not ask defendant
whether he had any physical impairments or whether he was on
medication before the sobriety testing. Defendant was not
instructed on how to perform the tests in Spanish.
17 Dr. Ellen Magas-Papadimitriou testified that she treated
defendant at Alexian Brothers Medical Center at around 6:51
a.m. on the day of his arrest. She identified defendant's
medical records from that day, which included the results of
a routine blood test performed by the hospital's in-house
laboratory. The blood draw was not requested by law
enforcement. According ...