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                              Appellate Court                            Date: 2018.02.20
                                                                         15:21:24 -06'00'




                  People v. Horine, 2017 IL App (4th) 170128



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption           ALEX HORINE, Defendant-Appellee.



District & No.    Fourth District
                  Docket No. 4-17-0128



Filed             December 8, 2017



Decision Under    Appeal from the Circuit Court of McLean County, No. 16-DT-727;
Review            the Hon. Scott Drazewski and the Hon. Lee Ann S. Hill, Judges,
                  presiding.



Judgment          Affirmed.


Counsel on        Jason Chambers, State’s Attorney, of Bloomington (Patrick Delfino,
Appeal            David J. Robinson, and Rosario David Escalera, Jr., of State’s
                  Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

                  Michael J. Zopf, of Champaign, for appellee.



Panel             JUSTICE KNECHT delivered the judgment of the court, with
                  opinion.
                  Justices Harris and Appleton concurred in the judgment and opinion.
                                             OPINION

¶1       In October 2016, defendant, Alex Horine, was arrested for driving under the influence
     (625 ILCS 5/11-501(a)(2) (West 2016)). The arresting officer reported defendant refused to
     submit to or failed to complete testing and, as a result, his driving privileges would be
     suspended for a minimum of 12 months pursuant to the statutory summary suspension statute
     (625 ILCS 5/11-501.1 (West 2016)). In November 2016, defendant filed a petition to rescind
     the statutory summary suspension. In December 2016, the trial court granted his petition.
     Following the hearing, the State filed a petition to reconsider, arguing the court improperly
     sustained defendant’s hearsay objection during the hearing on the petition. In January 2017,
     the court denied the State’s motion. On appeal, the State continues to argue the trial court
     abused its discretion when it sustained defendant’s hearsay objection because the statement
     was offered to prove the officer’s investigatory steps and, therefore, not hearsay. We affirm.

¶2                                        I. BACKGROUND
¶3        On October 23, 2016, defendant received a traffic citation from the City of Bloomington
     for driving under the influence (625 ILCS 5/11-501(a)(2) (West 2016)). A law enforcement
     sworn report (report) completed by Officer Brandon Finke the same day indicated at 9:48
     p.m. defendant refused to submit to or failed to complete testing at OSF St. Joseph Medical
     Center and his driving privileges would be suspended for a minimum of 12 months (625
     ILCS 5/11-501.1 (West 2016)). The report also stated Officer Finke had reasonable grounds
     to believe defendant was driving under the influence and stated: “[Defendant] was involved
     in a single car collision. [Defendant] had an extreme odor of an alcoholic beverage on his
     breath. [Defendant’s] eyes were bloodshot and his clothes were disorderly. [Defendant’s]
     pupils were dilated, face was flushed, and displayed poor coordination when walking.”
¶4        On November 4, 2016, the Illinois Secretary of State filed a confirmation of statutory
     suspension with the circuit clerk. The confirmation stated that, because defendant was not a
     first-time offender, his license would be suspended for three years as of December 8, 2016,
     and he would be eligible for provisional reinstatement on December 8, 2019.
¶5        On November 29, 2016, defendant filed a petition to rescind his statutory summary
     suspension, arguing five different grounds. Defendant argued (1) he was not properly placed
     under arrest for an offense as defined in the Illinois Vehicle Code or a similar provision of a
     local ordinance, as evidenced by the issuance of a uniform traffic ticket to another form of
     charge, (2) the arresting officer did not have reasonable grounds to believe he was driving or
     in actual physical control of a motor vehicle while under the influence of alcohol and/or other
     drugs, or a combination thereof, (3) he was not properly warned by the arresting officer of
     the statutory summary suspension pursuant to section 11-501.1(c) of the Illinois Vehicle
     Code (625 ILCS 5/11-501.1(c) (West 2016)), (4) he did not refuse to submit to and/or
     complete the required chemical test or tests upon the request of the arresting officer pursuant
     to section 11-501.1(d) of the Illinois Vehicle Code (625 ILCS 5/11-501.1(d) (West 2016)),
     and (5) he submitted to the requested test or tests but the test sample of his blood alcohol
     concentration did not indicate a blood alcohol concentration of 0.08 or more.
¶6        On December 22, 2016, the trial court held a hearing on defendant’s petition. Defendant
     called Officer Jeremy Cunningham to testify, who testified to the following. On October 23,
     2016, Officer Cunningham worked for the City of Bloomington police department and was

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     dispatched to a local bar, the Windjammer Lounge (Windjammer). When he arrived at
     Windjammer, he saw defendant sitting outside on the sidewalk and the bouncer standing over
     him. Officer Cunningham placed defendant under arrest to detain him in his squad car until
     he could complete his investigation.
¶7       On cross-examination, the State asked Officer Cunningham if he talked to anyone else at
     the scene. Officer Cunningham stated he spoke with a witness, Kaylie Bakalar, who was in
     the vehicle at the time defendant was allegedly driving. The following questioning occurred:
                 “Q. And what did Kaylie tell you?
                 MR. DAVIS [(Defense attorney)]: I’m going to object, Your Honor. This is the
            clear definition of hearsay.
                 MS. LIN [(Prosecutor)]: Your Honor, it’s not for the truth of the matter asserted.
            The question is based on—the question here today is whether or not the officer had
            reasonable grounds. Whatever came from the interview goes to his knowledge at the
            time.
                 THE COURT: If he made in arrest based on allegedly what she has told him, how
            is that not hearsay? Because that would be—he’s saying that that’s the truth so that’s
            why I arrested someone. The objection is sustained.”
     The State proceeded to ask Officer Cunningham about a surveillance video from
     Windjammer, and defendant objected to its foundation. The trial court agreed with defendant
     and found the State did not lay a proper foundation and it did not present any evidence of
     chain of custody. Defendant requested the court to grant his petition because the State did not
     provide a witness that saw him drive. The State presented no argument. The court granted
     defendant’s petition.
¶8       On December 29, 2016, the State filed a motion to reconsider. The State argued the trial
     court erred when it sustained defendant’s hearsay objection because (1) the out-of-court
     statement was offered to explain the investigatory procedure followed in the case and was
     proper to show the police officer had probable cause and (2) the statements Kaylie made to
     Officer Cunningham were offered to show its effect on Officer Cunningham and to show
     why Officer Cunningham was reasonable in believing the defendant was the driver of the
     vehicle.
¶9       On January 30, 2017, the trial court held a hearing on the State’s motion to reconsider.
     The State presented its arguments contained in its motion and the following conversation
     occurred:
                 “THE COURT: Let me ask you this. If it is not for the truth of the matter asserted,
            why could you not have just asked the officer did you interview witnesses; yes. Based
            on your interview of the witnesses and your state of mind at the time, did you feel you
            had probable cause to arrest? Because if you don’t want me to believe that this is for
            the truth of the matter asserted, why does it matter what she said? If it’s only for the
            officer’s state of mind, then why can’t the fact that he interviewed witnesses and
            based on that interview he arrested [defendant] be enough? Because you want me to
            believe what she said to him.
                 MS. LIN: The question is whether or not, is it reasonable for the officer to believe
            what was said to him. So what she said and the circumstances surrounding what she
            said is relevant to whether or not it is reasonable for him to believe.

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                 THE COURT: Then why do you need her statement?
                 MS. LIN: To show the totality of the investigation and how reasonable it is.
                 THE COURT: No, you want me to believe what she said to the officer. You’re
             asking me to say that what she said to the officer was truthful and reasonable and that
             gave him probable cause to arrest. But otherwise why isn’t just saying you
             interviewed the witnesses. Based on those interviews of the witnesses you believe
             you had enough evidence to arrest [defendant] for driving under the influence.
                                                ***
                 MS. LIN: Whether or not he drove is not—I’m not using that statement to prove
             that he drove. I’m using that statement to show that the officer was reasonable in
             believing that he drove. So the statements itself [sic] is relevant to show that the
             officer was reasonable in believing those circumstances.
                 THE COURT: I’m sorry, Ms. Lin. I don’t buy that as a reasonable argument and
             your motion to reconsider is denied.”
¶ 10      This appeal followed.

¶ 11                                          II. ANALYSIS
¶ 12       On appeal, the State argues the trial court abused its discretion when it sustained
       defendant’s hearsay objection because Kaylie’s out-of-court statement was admissible to
       show its effect on Officer Cunningham’s state of mind and to explain his investigatory
       actions. Defendant argues the trial court did not abuse its discretion when it sustained his
       hearsay objection because the out-of-court statement was offered for the truth of the matter
       asserted.
¶ 13       We note if defendant made his hearsay objection during his trial on the driving under the
       influence charge, he would be correct because the elicited testimony constituted inadmissible
       hearsay. A police officer may testify as to the steps taken in the investigation of a crime when
       the testimony is necessary and important to fully explain the State’s case to the trier of
       fact—such testimony cannot include the substance of a conversation with a nontestifying
       witness. People v. Boling, 2014 IL App (4th) 120634, ¶ 107, 8 N.E.3d 65; see also People v.
       Cameron, 189 Ill. App. 3d 998, 1004, 546 N.E.2d 259, 263 (1989). However, defendant’s
       hearsay objection was not made at defendant’s trial—but at the hearing on his petition to
       rescind his statutory summary suspension. The setting of Officer Cunningham’s testimony is
       important.
¶ 14       When a defendant asserts the arresting officer did not have reasonable grounds to believe
       he was driving under the influence as one of the bases for his petition to rescind (625 ILCS
       5/2-118.1(b)(2) (West 2016)), the hearing on the petition is analogous to a hearing on a
       motion to suppress evidence in a criminal case. See People v. Wear, 229 Ill. 2d 545, 560, 893
       N.E.2d 631, 640 (2008) (“In determining whether there has been ‘reasonable grounds’ under
       subsection (b)(2) of the statute, this court has utilized the probable cause analysis deriving
       from the fourth amendment.”). In the context of statutory summary suspension and probable
       cause, the Illinois Supreme Court noted, in relevant part, the following:
                   “Probable cause to arrest exists when the facts known to the officer at the time of
               the arrest are sufficient to lead a reasonably cautious person to believe that the
               arrestee has committed a crime. [Citation.] That is, the existence of probable cause

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                depends upon the totality of the circumstances at the time of the arrest. [Citations.]
                ‘ “In dealing with probable cause, *** we deal with probabilities. These are not
                technical; they are the factual and practical considerations of everyday life on which
                reasonable and prudent men, not legal technicians, act.” ’ [Citations.]” Wear, 229 Ill.
                2d at 563-64, 893 N.E.2d at 642-43.
¶ 15        Hearsay evidence is admissible during a hearing on a defendant’s petition to rescind
       statutory summary suspension (or motion to suppress), though hearsay is not admissible at
       trial. People v. Patterson, 192 Ill. 2d 93, 111-12, 735 N.E.2d 616, 628 (2000). This
       distinction is important. The hearing on a petition to rescind focuses on the issue of whether
       the arresting officer had reasonable grounds to believe the defendant was driving under the
       influence. In contrast, a defendant’s trial on a driving under the influence charge focuses on
       whether the defendant was, in fact, driving under the influence. Therefore, at the hearing on
       the defendant’s petition to rescind, the testimony sought from the arresting officer, even if it
       includes hearsay, is permissible as it explains the information the officer possessed at the
       time and what he reasonably believed based upon that information. This information is
       essential in determining whether the officer had reasonable grounds to arrest the defendant,
       and the trial court could not make a sufficient ruling without it.
¶ 16        The trial court erred when it sustained defendant’s hearsay objection. The testimony the
       State attempted to elicit from Officer Cunningham attempted to explain what he learned
       during his investigation and why he believed he had probable cause to arrest defendant for
       driving under the influence. When a defendant challenges whether the arresting officer had
       reasonable grounds in his petition to rescind statutory summary suspension, the officer’s
       testimony, even if it includes hearsay, is permissible as it provides the court with the
       necessary information to rule on the petition. Although such testimony may constitute
       impermissible hearsay at trial, such testimony is permissible in this setting. Patterson, 192
       Ill. 2d at 111-12, 735 N.E.2d at 628.
¶ 17        We find the trial court erred when it sustained defendant’s hearsay objection, but we
       affirm its ruling because the State forfeited this argument. It did not make this argument to
       the trial court or to this court on appeal.
¶ 18        We affirm in this case because of forfeiture and to clarify what evidence may be
       presented by the State when the defendant asserts the arresting officer did not have
       reasonable grounds or probable cause to believe he was driving under the influence in this
       context. In this setting and circumstances, the State can present testimony to the trial court
       demonstrating what information the officer possessed and what he reasonably believed based
       upon that information before he took action. The officer’s testimony is not subject to hearsay
       objections.

¶ 19                                      III. CONCLUSION
¶ 20      For the reasons stated, we affirm the trial court’s judgment.

¶ 21      Affirmed.




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