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                                   Appellate Court                            Date: 2019.07.10
                                                                              10:59:16 -05'00'



                      People v. Mueller, 2018 IL App (2d) 170863



Appellate Court        THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                AMY LYNN MUELLER, Defendant-Appellee.



District & No.         Second District
                       Docket No. 2-17-0863



Filed                  December 13, 2018
Modified upon
denial of rehearing    January 8, 2019



Decision Under         Appeal from the Circuit Court of McHenry County, Nos. 17-DT-109,
Review                 17-TR-4537; the Hon. Joel D. Berg, Judge, presiding.



Judgment               Affirmed.


Counsel on             Patrick D. Kenneally, State’s Attorney, of Woodstock (Patrick
Appeal                 Delfino, David J. Robinson, and Stephanie Hoit Lee, of State’s
                       Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

                       Matthew J. Haiduk, of Geneva, for appellee.
     Panel                      JUSTICE McLAREN delivered the judgment of the court, with
                                opinion.
                                Presiding Justice Birkett and Justice Spence concurred in the
                                judgment and opinion.


                                                  OPINION

¶1         Defendant, Amy Lynn Mueller, was charged with driving under the influence of alcohol
       (625 ILCS 5/11-501(a)(1), (a)(2) (West 2016)) and improper lane usage (ILU) (id.
       § 11-709(a)). She moved to quash her arrest and suppress evidence, contesting the initial stop
       of her vehicle for ILU. The trial court granted the motion and denied the State’s motion to
       reconsider. The State appeals. We affirm.

¶2                                          I. BACKGROUND
¶3         At the hearing on defendant’s motion, the sole witness was Trent Raupp, a McHenry
       County sheriff’s deputy. He testified as follows. On February 11, 2017, at 1:40 a.m., he was
       on patrol in the area of U.S. Route 12 and Illinois Route 31. Defendant’s Jeep was stopped in
       the left-turn lane at a light at the intersection. When the light turned green, she turned left
       onto Route 31. There was nothing unusual in the turn. Raupp followed defendant. She was
       not speeding.
¶4         Raupp testified that, as defendant drove south, he observed her commit three lane
       violations. The first time, the Jeep’s driver’s-side tires rolled onto the yellow center line and
       touched it for a few seconds. The vehicle did not cross the line but returned to its lane. Raupp
       could not recall whether the move back was abrupt or smooth.
¶5         Raupp testified that the second time was when, after traveling some distance, the Jeep’s
       passenger’s-side tires touched the white fog line but never crossed over it. Raupp was asked,
       “But it never left its lane; correct?” He responded, “Correct, sir.” The touching was only
       “temporary.”1 The Jeep moved back toward the center of the lane without doing anything
       unusual; Raupp could not say that the move was abrupt. The third violation was when the
       Jeep’s passenger’s-side tires again rode on the white fog line. This was “momentary.” The
       tires never crossed over the line.
¶6         Other than the three incidents of what he regarded as ILU, Raupp did not see defendant
       violate any traffic laws. He acknowledged that the stretch of road on which he followed
       defendant was not straight and had “some twists and turns.” Also, he acknowledged that the
       video system in his squad car had been inoperable since October 2016 and that he had not
       requested any repair. Based on the three incidents alone, he stopped the Jeep nearly a mile
       from where he first saw it. The trial court denied the State’s motion for a directed finding,
       and the State rested without presenting additional evidence.



           In agreeing with defendant’s characterization of the touching as “temporary,” Raupp flippantly
             1

       added, “It’s not still doing it to this day.” The trial court admonished him, “You do yourself no favors
       when you testify like that.”

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¶7         Defendant argued that Raupp had had no basis to stop her for touching a center or fog
       line. The State maintained that Raupp had had a reasonable suspicion to stop defendant for
       ILU. The State did not raise any other basis for the stop, such as erratic driving or weaving
       within a lane. It contended, however, that under Heien v. North Carolina, 574 U.S. ___, 135
       S. Ct. 530 (2014), even had Raupp gotten the law wrong, his mistake was reasonable and
       therefore did not invalidate the stop.
¶8         The trial court held for defendant, explaining as follows. Heien is limited to extraordinary
       situations where the law gives police no guidance. Here, People v. Hackett, 2012 IL 111781,
       provided guidance by holding that a stop for ILU is valid if an officer sees a driver deviate
       from his or her established lane of travel. Raupp, however, saw no such deviation, because,
       the judge reasoned, “[t]o touch the center line or the fog line is not to leave your lane. It is to
       remain within your lane, all be it [sic] up against the outer-most [sic] boundaries thereof.”
¶9         The State moved to reconsider. It argued in part that Hackett held that crossing the yellow
       line or the fog line violates the ILU statute but did not address whether touching either line
       without crossing it also violates the law. The State argued alternatively that, under People v.
       Greco, 336 Ill. App. 3d 253, 257 (2003), defendant’s erratic driving within her lane provided
       a reasonable suspicion to stop her. The State also reiterated that at worst Raupp had made a
       reasonable mistake of law, validating the stop.
¶ 10       The trial court denied the State’s motion to reconsider. In a lengthy order, the court stated
       as follows. Raupp’s testimony had been “problematic. He either didn’t remember important
       details or was flippant with [defendant’s] attorney.” “In any event,” however, “Deputy Raupp
       never saw the Jeep’s tires cross over either the yellow center line or the white fog line, nor
       did he observe any jerky or erratic driving corrections. The three lane-line touches occurred
       over a mile-long ‘twist[ing] and turn[ing] stretch of road.’ ”
¶ 11       The court’s order continued as follows. Under Hackett, to stop defendant for ILU, Raupp
       had needed a reasonable suspicion that she had deviated from her lane. Whether she had been
       driving as nearly as practicable within her lane was not pertinent to reasonable suspicion. See
       Hackett, 2012 IL 111781, ¶ 28; People v. Flint, 2012 IL App (3d) 110165, ¶ 15. No Illinois
       case had held that merely driving on the center line or the fog line creates a reasonable
       suspicion of ILU. In People v. Smith, 172 Ill. 2d 289, 297 (1996), the court stated, “[W]hen a
       motorist crosses over a lane line and is not driving as nearly as practicable within one lane,
       the motorist has violated the statute.” In Flint, 2012 IL App (3d) 110165, ¶¶ 8, 17, the court
       held that the officer had a reasonable suspicion to stop the defendant for ILU after observing
       his vehicle’s tire cross completely over the center line. In People v. Leyendecker, 337 Ill.
       App. 3d 678, 682 (2003), this court stated that Smith required the trial court to consider
       “whether [the officer] had a reasonable suspicion that *** [the] defendant had crossed over a
       lane line.” Thus, the trial court concluded, “current law require[d] evidence that [defendant’s]
       tires crossed over the lane lines” to create a reasonable suspicion of ILU. That had not
       occurred.
¶ 12       Turning to the State’s argument based on Greco, the court first found that it was
       forfeited, as the State had not raised it until its motion to reconsider. Second, the court held
       that the argument lacked merit anyway. Raupp had never testified that he saw defendant
       weaving within her lane or driving erratically, and he could not say that her deviations were
       abrupt or how long they had lasted. Moreover, she had been driving on a curved road in the
       darkness of the early morning.

                                                    -3-
¶ 13       Finally, the court held, Heien and People v. Gaytan, 2015 IL 116223, which adopted
       Heien’s holding, did not apply. In those cases, the statutes involved were ambiguous; here,
       the ILU statute clearly required a lane deviation, which meant crossing over a line. Thus,
       Raupp’s mistake of law had not been reasonable. The court denied the motion to reconsider.
       The State appealed (see Ill. S. Ct. R. 604(a) (eff. July 1, 2017)).

¶ 14                                             II. ANALYSIS
¶ 15       On appeal, the State contends that (1) the trial court applied the wrong legal standard to
       the motion to quash and suppress, (2) the court erred in holding that there was no reasonable
       suspicion to stop defendant for ILU, (3) even if defendant had not actually violated the ILU
       statute, Raupp’s mistake of law in believing otherwise was reasonable, thus giving him a
       reasonable suspicion to stop her, and (4) alternatively, under Greco, Raupp had a reasonable
       suspicion to stop defendant for driving erratically.
¶ 16       The State’s first argument need not concern us. We review the trial court’s judgment, not
       its reasoning, and we may affirm on any basis called for by the record. See People v.
       Cleveland, 342 Ill. App. 3d 912, 915 (2003). The State’s fourth argument need not concern
       us either. The State concedes that it forfeited the Greco argument by failing to timely raise it.
       See Hanley v. City of Chicago, 343 Ill. App. 3d 49, 54 (2003). We decline to disregard the
       forfeiture, as the State’s tardiness in raising the Greco argument denied defendant the
       opportunity to introduce evidence against it. See In re Marriage of Rodriguez, 131 Ill. 2d 273,
       279 (1989). We note that the trial court found the argument both forfeited and meritless on
       the facts.
¶ 17       We turn to the State’s second and third arguments. The State contends that, under section
       11-709(a) of the Illinois Vehicle Code (625 ILCS 5/11-709(a) (West 2016)), a person
       commits ILU when his or her vehicle touches the yellow line or the fog line, even if it never
       crosses over the line. The State contends further that, even if section 11-709(a) does not
       make this conduct an offense, Raupp reasonably believed that it did and therefore, under
       Heien, had a proper basis to stop defendant. We disagree with both contentions.
¶ 18       Resolving the issues that the State’s arguments raise requires us to construe section
       11-709(a). The construction of a statute is an issue of law, which we review de novo.
       Sylvester v. Industrial Comm’n, 197 Ill. 2d 225, 232 (2001). Our aim is to ascertain and
       effectuate the legislature’s intent, the best indicator of which is the language of the statute.
       People v. Pack, 224 Ill. 2d 144, 147 (2007).
¶ 19       Section 11-709(a) states that, “[w]henever any roadway has been divided into 2 or more
       clearly marked lanes for traffic,” “[a] vehicle shall be driven as nearly as practicable entirely
       within a single lane and shall not be moved from such lane until the driver has first
       ascertained that such movement can be made with safety.” 625 ILCS 5/11-709(a) (West
       2016). Although the statute requires a driver to remain entirely within a single lane only as
       nearly as practicable, it is settled that an officer may stop a vehicle for driving outside its lane
       for no obvious reason, without further inquiry into practicability. Hackett, 2012 IL 111781,
       ¶¶ 27-28. Thus, the issue here is whether Raupp had a reasonable suspicion that defendant
       failed to drive “entirely within a single lane” (625 ILCS 5/11-709(a) (West 2016)), either
       when (1) her driver’s-side tires touched, but did not cross, the yellow center line or (2) her
       passenger’s-side tires touched, but did not cross, the white fog line.


                                                    -4-
¶ 20        The statute does not define “lane” and does not specify whether either a center line or a
       fog line is part of the “lane” in which the driver is traveling. The trial court relied on Hackett,
       Smith, Flint, and Leyendecker, which, it stated, all held that a person commits ILU only when
       his or her vehicle crosses the center line or the fog line. However, in none of those cases did
       the defendant merely touch the line without crossing it. Each motorist crossed the line. See
       Hackett, 2012 IL 111781, ¶ 9; Smith, 172 Ill. 2d at 293, 297; Flint, 2012 IL App (3d) 110165,
       ¶¶ 8, 17; Leyendecker, 337 Ill. App. 3d at 680. In each case, the court held that crossing the
       line is ILU, but in no case did it explicitly hold that only crossing the line is ILU.
¶ 21        Nonetheless, we conclude that the statute is not ambiguous and that Raupp did not have a
       reasonable basis to stop defendant. Although the Code does not specifically define “lane,” it
       defines “[l]aned roadway” as “[a] roadway which is divided into two or more clearly marked
       lanes for vehicular traffic.” 625 ILCS 5/1-136 (West 2016). As a matter of established usage,
       a “lane” is “a strip of roadway for a single line of vehicles.” Merriam-Webster’s Collegiate
       Dictionary 652 (10th ed. 2001). As these definitions suggest, in common practice, a traffic
       “lane” is one in which vehicles legally and customarily are driven toward their destinations.
       Dividing lines or boundary lines, by contrast, are legally and customarily used only to change
       lanes, turn, or make other maneuvers (see 625 ILCS 5/11-709(a) (West 2016) (vehicle “shall
       not be moved from such lane until the driver has first ascertained that such movement can be
       made with safety”)). If a line’s purpose is to divide two lanes, then a vehicle has not changed
       lanes until it has crossed the line.
¶ 22        We note that, in Hackett, the supreme court quoted Smith: “[W]hen a motorist crosses
       over a lane line and is not driving as nearly as practicable within one lane, the motorist has
       violated the [ILU] statute.” Hackett, 2012 IL 111781, ¶¶ 16, 25, 26 (quoting Smith, 172 Ill.
       2d at 297. We recognize that the court cited this language in the context of rejecting the
       argument that section 11-709(a) requires more than a mere lane change, such as either
       endangering others, as the defendant contended (id. ¶ 25), or driving “ ‘for some reasonably
       appreciable distance in more than one lane of traffic,’ ” as the appellate court held (id. ¶ 26
       (quoting People v. Hackett, 406 Ill. App. 3d 209, 214 (2010))). Nonetheless, the court was
       also addressing the language of the statute and chose at least to imply that crossing a line, and
       not merely touching it, is needed for ILU.
¶ 23        Moreover, this interpretation is consistent with the official rules of the road, in Illinois
       and elsewhere. The rules issued by our Secretary of State’s office, of which police officers as
       well as drivers are on notice, state in pertinent part as follows. “Yellow center lines separate
       lanes of traffic moving in opposite directions.” (Emphasis added.) Ill. Sec’y of State, 2018
       Illinois Rules of the Road 76 (Mar. 2018)), https://www.cyberdriveillinois.com/publications/
       pdf_publications/dsd_a112.pdf. [https://perma.cc/3GA7-MJGH]. “When there is a solid and
       a broken yellow line separating two lanes of traffic moving in opposite directions, a driver
       may pass only when the broken yellow line is nearest the driver’s lane.” (Emphasis added.)
       Id. at 77. The “U.S. Road Rules” at DMV.org (a privately owned website) contain similar
       language. “White lines are used to separate lanes of traffic moving in the same direction.”
       U.S. Road Rules, DMV.org, https://www.dmv.org/travel/us-road-rules.php (last visited Oct.
       31, 2018) [https://perma.cc/7U5Y-H423]. Finally, the Federal Highway Administration’s
       Manual on Uniform Traffic Control Devices states, “White lines separate lanes for which
       travel is in the same direction.” U.S. Dep’t of Transportation, Fed. Highway Admin., United



                                                    -5-
       States Pavement Markings, preface (2002), https://mutcd.fhwa.dot.gov/services/publications/
       fhwaop02090/uspavementmarkings.pdf [https://perma.cc/ZEB7-J54T].
¶ 24       Persuasive foreign authority supports our holding. In State v. Neal, 362 P.3d 514 (Idaho
       2015), the Idaho Supreme Court interpreted a section of the Idaho Code essentially identical
       to the one here (id. at 519; see Idaho Code Ann. § 49-637 (West 2014)). The issue was
       whether the police had a reasonable suspicion to stop the defendant for ILU after he drove his
       vehicle onto but not across the fog line. As here, the statute did not clarify whether a “lane”
       included the fog line. Neal, 362 P.3d at 520. The court stated generally that the ILU statute
       was ambiguous. Id.
¶ 25       Nonetheless, the court held that “[i]t is not a reasonable interpretation of the statute to
       conclude that the legislature intended to prohibit drivers from merely touching the line
       painted at the edge of the roadway.” Id. at 521. The court noted the following considerations.
       First, a section of the Idaho Code required drivers to drive on the right half of the roadway
       but, although it excluded sidewalks, shoulders, berms, and rights-of-way, it made no mention
       of fog lines. Id. at 520 (citing Idaho Code Ann. § 49-630(1) (West 2014)). Second, not every
       road has a fog line; for those that do not, the roadway extends to the curb. Thus, a road that
       does have a fog line would provide a narrower lane of travel than one that does not, an
       unreasonable disparity. Id. at 521. Third, because the vehicle laws often encourage or require
       drivers to move to the right, “driving onto the right edge marker would not seem to be a
       safety concern.” Id. Even in cases involving center or dividing lines, which present greater
       safety concerns, courts have held that ILU requires actually crossing the line. See United
       States v. Colin, 314 F.3d 439, 444 (9th Cir. 2002).
¶ 26       Although the Neal court twice characterized the statute as “ambiguous” (Neal, 362 P.3d
       at 520, 522), it concluded that a contrary interpretation would “not [be] reasonable.”
       (Emphases added.) Id. at 521. Illinois courts define an “ambiguous” statute as one that is
       “capable of more than one reasonable interpretation.” (Emphasis added.) In re Jose A., 2018
       IL App (2d) 180170, ¶ 25. Therefore, Neal provides well-reasoned support for our conclusion
       that the ILU statute is unambiguous.
¶ 27       We conclude that the statute is unambiguous. Moreover, the meaning of the statute was
       or should have been within Raupp’s knowledge; he was on notice of the rules of the road.
       Therefore, Heien and Gaytan do not apply, and the stop cannot be validated as based on a
       reasonable mistake of law.
¶ 28       In any event, we note that a stop for ILU is valid when “a police officer observes multiple
       lane deviations, for no obvious reason.” (Emphasis added.) Hackett, 2012 IL 111781, ¶ 28.
       Here, even if defendant’s multiple touches could be considered “lane deviations,” the road’s
       “twists and turns” provided an innocent (and obvious) explanation for those brief touches.
       Thus, under any construction of section 11-709(a), the trial court correctly granted
       defendant’s motion to quash and suppress.
¶ 29       The defendant bears the ultimate burden of proof at a hearing on a motion to suppress. “If
       a defendant makes a prima facie case, the State has the burden of going forward with
       evidence to counter the defendant’s prima facie case.” People v. Gipson, 203 Ill. 2d 298, 307
       (2003). Here, defendant made a prima facie case that Raupp lacked a reasonable and
       articulable suspicion to stop her vehicle. Raupp’s testimony provided an innocent explanation
       for the three momentary line touches. We reject the State’s argument that three line touches


                                                  -6-
       at night on a curvy road over the course of a mile support a finding of “erratic driving.”

¶ 30                                      III. CONCLUSION
¶ 31      We affirm the order of the circuit court of McHenry County.

¶ 32      Affirmed.




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