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                                  Appellate Court                            Date: 2017.07.18
                                                                             13:22:45 -05'00'




                      People v. Motzko, 2017 IL App (3d) 160154



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



District & No.        Third District
                      Docket No. 3-16-0154



Rule 23 order filed   March 2, 2017
Motion to publish
allowed               April 19, 2017
Opinion filed         April 19, 2017



Decision Under        Appeal from the Circuit Court of Peoria County, No. 15-DT-403; the
Review                Hon. Lisa Y. Wilson, Judge, presiding.



Judgment              Affirmed.


Counsel on            Jerry Brady, State’s Attorney, of Peoria (Mark A. Austill, of State’s
Appeal                Attorneys, Appellate Prosecutor’s Office, of counsel), for the People.

                      James P. LeFante and Michael R. Doubet, of LeFante Law Offices,
                      P.C., of Peoria, for appellee.



Panel                 JUSTICE LYTTON delivered the judgment of the court, with opinion.
                      Justices Carter and McDade concurred in the judgment and opinion.
                                              OPINION

¶1       Defendant, Garrett Motzko was charged with driving under the influence of alcohol (DUI)
     (625 ILCS 5/11-501(a)(2) (West 2014)). Defendant filed a motion to quash arrest and suppress
     evidence, as well as a petition to rescind his statutory summary suspension. The trial court
     granted defendant’s motion to suppress. The State filed motions to reconsider, which the trial
     court denied. The State then appealed the trial court’s order, granting defendant’s motion to
     suppress. Thereafter, the court granted defendant’s petition to rescind. On appeal, the State
     argues that the trial court (1) erred in granting defendant’s motion to suppress, (2) erred in
     denying its motions to reconsider, and (3) lacked subject matter jurisdiction to grant
     defendant’s petition to rescind. We affirm.

¶2                                              FACTS
¶3       On August 11, 2015, defendant was involved in single-vehicle motorcycle accident at the
     intersection of Main Street and Crescent Avenue in Peoria. Officer Michael Bishoff of the
     Peoria police department responded to the scene and issued defendant citations for improper
     lane usage (625 ILCS 5/11-709(a) (West 2014)), failure to reduce speed to avoid an accident
     (625 ILCS 5/11-601(a) (West 2014)), and DUI (625 ILCS 5/11-501(a)(2) (West 2014)). On
     October 30, 2015, defendant filed a motion to suppress evidence and quash arrest and a petition
     to rescind the statutory summary suspension of his driving privileges.
¶4       A hearing was held on defendant’s motion to suppress evidence and quash arrest. Officer
     Bishoff was the only witness to testify at the hearing. Bishoff testified that, at approximately
     11:45 p.m. on August 11, 2011, he was dispatched to an accident on Main Street and Crescent
     Avenue in Peoria, near Methodist Hospital. When he arrived, he saw a motorcycle lying on its
     side and defendant sitting on the ground being treated by medical personnel. Bishoff spoke to a
     security guard employed by Methodist Hospital, who told him that he observed defendant
     drive his motorcycle up Main Street at a “high rate of speed,” fail to negotiate the curve, and
     crash. The security guard also told Bishoff that he could smell alcohol on defendant’s breath.
     Bishoff did not question the security guard further.
¶5       Bishoff spoke to defendant while he was being treated at the scene. Bishoff asked
     defendant where he was coming from, and he responded, “downtown.” Bishoff then asked
     defendant if he was coming from his home in Morton, and defendant said he was. Bishoff
     asked defendant if he had consumed any alcohol. Defendant initially stated that he had a
     12-ounce beer and then corrected himself and said he had a 20-ounce beer. Bishoff did not ask
     defendant any other questions before he was transported to the hospital.
¶6       At the hospital, Bishoff performed a horizontal gaze nystagmus (HGN) test on defendant.
     Bishoff did not perform any other field sobriety tests on defendant because of his injuries from
     the accident. Before the administration of the HGN test, defendant told Bishoff that he was
     blind in his right eye. Bishoff did not remember asking defendant if he struck his head during
     the accident but admitted that defendant may have sustained a head injury. Bishoff did not take
     that into account when administering the HGN test to defendant.
¶7       Bishoff testified that he observed five clues during defendant’s HGN test and explained
     that the presence of four or more clues is a strong indication that the individual being tested is
     “over .08 or intoxicated.” Bishoff testified that he received training in the HGN test and was


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       taught that it can be used to determine if someone is intoxicated. He testified that the HGN test
       is “one of the most *** accurate tests in determining somebody to be over a .08 [blood alcohol
       level].”
¶8          In his report, Bishoff listed “glassy bloodshot eyes, slight odor of an alcoholic beverage,
       single vehicle crash involving motorcycle, [and] admission to drinking” as his reasons for
       believing defendant was driving under the influence of alcohol. At the hearing, Bishoff
       testified that he arrested defendant for DUI based on the clues he observed on the HGN test, the
       odor of an alcoholic beverage on defendant, defendant’s glassy, bloodshot eyes, and his
       admission to drinking. Bishoff also considered that defendant was likely coming from a bar
       when the accident happened based on defendant’s statement that he had been “downtown.”
       Bishoff testified that he also considered the accident and the statements by the security guard
       when he arrested defendant for DUI.
¶9          Bishoff admitted that a person could smell of an alcoholic beverage if he only had one
       drink and that he had no way of knowing how much someone drank based solely on smell. He
       also admitted that he did not ask defendant if he could explain his bloodshot eyes or if dirt or
       debris got into his eyes during the accident. Bishoff testified that defendant initially seemed
       honest with him, but Bishoff questioned whether defendant was telling the truth about having
       only one drink because defendant said he was “coming from downtown” which “is a bar area.”
       Based on the time of defendant’s accident and that defendant was coming from downtown,
       Bishoff assumed defendant was coming from a bar. Bishoff admitted it is not illegal to
       consume alcohol and drive. He also admitted that accidents have many causes and said he did
       not arrest defendant for DUI because he had an accident. Bishoff admitted that he had no
       training in accident reconstruction that would help him determine the cause of defendant’s
       accident. Bishoff also admitted that he had no record or recollection of defendant having
       slurred speech.
¶ 10        Bishoff testified that defendant refused to perform a portable breath test (PBT) before his
       arrest. The State then asked Bishoff if he asked defendant to provide a blood, breath, or urine
       sample after his arrest, and defense counsel objected. The trial court sustained the objection.
       The parties stipulated to Bishoff’s training and experience. Defendant stipulated that Bishoff
       properly explained the HGN test but did not stipulate that he performed the test correctly on
       defendant.
¶ 11        On December 22, 2015, the trial court granted defendant’s motion to suppress evidence
       and quash arrest. The court explained that Bishoff’s testimony that HGN testing can determine
       the level of intoxication was wrong under People v. McKown, 236 Ill. 2d 278 (2010), and
       caused the court to call into question his “credibility on the issue of impairment in this case” as
       well as the HGN test itself “in terms of the officer’s experience, knowledge of the standards,
       and how it was conducted.” The court also took issue with Bishoff’s failure to investigate
       whether defendant had a head injury that may have affected his performance on the HGN test
       and the State’s failure to call the security guard to testify about his observations of defendant’s
       driving.
¶ 12        Thereafter, the State filed a motion to reconsider and an amended motion to reconsider,
       arguing that the trial court should have allowed evidence of defendant’s postarrest refusal to
       submit to chemical testing to be admitted at the suppression hearing. The State also filed a
       motion to reopen proofs, seeking to introduce defendant’s medical records as evidence. The
       trial court denied the State’s motions to reconsider and motion to reopen proofs. On March 16,

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       2016, the State filed a notice of appeal, appealing the trial court’s ruling on defendant’s motion
       to suppress.
¶ 13       On April 12, 2016, the trial court held a hearing on defendant’s petition to rescind. The
       State filed a notice of intent to use subpoenaed medical records containing statements and
       observations of defendant on the date of the accident. The trial court denied the State’s motion.
       The parties stipulated that, if called to testify, Bishoff would provide the same testimony as he
       provided at the suppression hearing.
¶ 14       Defendant testified at the rescission hearing that he vaguely remembered the night of the
       accident because he hit his head when he crashed his motorcycle. He testified that he travelled
       from his house in Morton to Pulse Gentlemen’s Club in downtown Peoria, where he drank one
       20-ounce beer. He did not believe his alcohol consumption had anything to do with his
       accident. Defendant said he refused to take a PBT because he had shattered his heel in the
       accident, was agitated, and wanted to leave the hospital.
¶ 15       The trial court granted defendant’s petition to rescind based on Bishoff’s testimony at the
       suppression hearing, its ruling on defendant’s motion to suppress, and “in consideration of
       Defendant Garrett Motzko’s testimony.”

¶ 16                                              ANALYSIS
¶ 17                                        I. Motion to Suppress
¶ 18       The State argues that the trial court erred in granting defendant’s motion to suppress
       evidence. In reviewing a trial court’s ruling on a motion to suppress, we accord great deference
       to the trial court’s factual and credibility determinations. People v. Simpson, 2015 IL App (1st)
       130303, ¶ 22. When a trial judge makes a credibility finding at a suppression hearing, we
       should be reluctant to substitute our judgment for that of the trial court. People v. Nolan, 59 Ill.
       App. 3d 177, 186 (1978). The trial court is in a far better position to judge the credibility of the
       witnesses. Id. When a trial court’s ruling on a motion to suppress involves factual and
       credibility assessments, the ultimate ruling will not be disturbed on appeal unless it is
       manifestly erroneous. People v. Boomer, 325 Ill. App. 3d 206, 209 (2001). However, the trial
       court’s ultimate determination with respect to probable cause is reviewed de novo. Id.
¶ 19       “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.” People v. Wear, 229 Ill. 2d 545, 563 (2008). Such a determination must be based on the
       totality of the circumstances at the time of the arrest. People v. Day, 2016 IL App (3d) 150852,
       ¶ 22. Probable cause must rise to a level higher than mere suspicion. Id.
¶ 20       The odor of alcohol on a defendant’s breath and his inadequate performance of a field
       sobriety test do not constitute reasonable grounds to believe that the defendant was driving
       under the influence. See Boomer, 325 Ill. App. 3d at 209 (citing People v. Tucker, 245 Ill. App.
       3d 161 (1993)). Speeding and being involved in an accident are insufficient bases upon which
       to support a DUI probable cause determination. See id. at 211 (officer lacked probable cause to
       arrest defendant for DUI where defendant was involved in accident, admitted drinking, and
       had the odor of alcoholic beverage on his breath); People v. O’Brien, 227 Ill. App. 3d 302, 307
       (1992) (no probable cause to arrest defendant for DUI where defendant was speeding, admitted
       to drinking, and unsuccessfully performed sobriety test). Finally, a defendant’s consumption
       of alcohol and glassy bloodshot eyes “are not enough to lead a reasonably cautious person to


                                                    -4-
       believe that the defendant had committed the crime of DUI.” Day, 2016 IL App (3d) 150852,
       ¶ 38. Where a defendant admitted to drinking, “ ‘had the strong odor of alcohol on his
       breath,’ ” had bloodshot eyes, and slurred his speech, the trial court properly ruled that the
       officer lacked probable cause to arrest the defendant for DUI because any suspicions of
       impairment were not corroborated by other factors, such as poor driving, stumbling, falling, or
       an inability to communicate. See id. ¶¶ 23, 37-38.
¶ 21        Evidence of HGN testing, when performed according to protocol by a properly trained
       officer, is admissible for the purpose of showing that the subject has likely consumed alcohol.
       McKown, 236 Ill. 2d at 306. While HGN testing is an indicator of alcohol consumption, it is
       not necessarily a sign of impairment. Id. at 302. There should be no attempt to correlate HGN
       test results with any particular blood-alcohol level or range or level of intoxication. Id. For the
       results of HGN testing to be admissible, a proper foundation must be laid, showing that the
       witness is properly trained and performed the test in accordance with proper procedures. Id. at
       306. “The admissibility of HGN evidence in an individual case will depend on the State’s
       ability to lay a proper foundation and to demonstrate the qualifications of its witness ***.” Id.
       at 314.
¶ 22        Here, Bishoff testified that he arrested defendant for DUI based on the odor of an alcoholic
       beverage on defendant’s breath, defendant’s glassy and bloodshot eyes, and his admission to
       drinking. However, Bishoff admitted that he could not tell how much defendant drank based
       on the “slight odor” of an alcoholic beverage on defendant’s breath. He also testified that
       defendant seemed honest to him before admitting that he had one drink. Additionally, Bishoff
       admitted that he never asked defendant about the condition of his eyes, including if they were
       irritated as a result of the accident.
¶ 23        As set forth in Day, the odor of an alcoholic beverage, admission to drinking, and glassy
       and bloodshot eyes are insufficient to create probable cause for a DUI without evidence of
       other factors to support impairment, such as poor driving, stumbling, falling, or an inability to
       communicate. Day, 2016 IL App (3d) 150852, ¶¶ 23, 37-38. There was no testimony or
       evidence that any of these factors were present to support Bishoff’s assumption that defendant
       was driving under the influence.
¶ 24        Bishoff testified that he also considered the accident and the testimony of the security
       guard in determining that defendant was impaired. However, Bishoff admitted that he did not
       question the security guard about exactly how fast he thought defendant was driving and
       further that he had no experience in accident reconstruction that would cause him to believe
       that the accident was caused by the defendant being impaired. Speeding and being involved in
       an accident are insufficient bases upon which to support a DUI probable cause determination.
       See Boomer, 325 Ill. App. 3d at 211; O’Brien, 227 Ill. App. 3d at 307.
¶ 25        Finally, Bishoff testified that defendant’s performance on the HGN test caused him to
       believe that defendant was impaired. Bishoff explained how he performed the HGN test on
       defendant and said that he used the test to determine that defendant was “over .08 or
       intoxicated.” He testified that he was taught that HGN proves impairment and is “one of the
       most *** accurate tests in determining somebody to be over a .08.” However, as explained by
       the supreme court in McKown, HGN testing is an indicator of alcohol consumption but is not
       an indicator of a specific level of impairment. See McKown, 236 Ill. 2d at 302; see also Pamela
       J. Jensen, Frye Versus Daubert: Practically the Same?, 87 Minn. L. Rev. 1579, 1595 n.90
       (2003) (“States have almost uniformly excluded HGN testing as evidence of a specific blood

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       alcohol level, as opposed to evidence of alcohol consumption ***.”); William Redfairn &
       Bruce Nelson, The ABCs of FSTS: A Brief Summary of Field Sobriety Tests in DUI Cases,
       Nev. Law., Sept. 2006, at 8, 12 (“[T]he general consensus is that the HGN *** is admissible to
       show impairment but not to show a specific alcohol level.”). By stating that HGN testing was
       the most reliable indicator of whether someone has a blood alcohol level of .08, Bishoff
       showed that he was not properly trained to understand and interpret the results of HGN testing.
       The trial court did not err in giving little to no weight to Bishoff’s determination that defendant
       failed the HGN test because the State failed to show that Bishoff possessed the expertise to
       properly understand the results of HGN testing. See McKown, 236 Ill. 2d at 306, 314.
¶ 26       At the suppression hearing, the trial court stated that it questioned Bishoff’s “credibility on
       the issue of impairment in this case.” Where the trial court finds the State’s primary or only
       witness at a suppression hearing to lack credibility, the trial court does not err in granting the
       defendant’s motion to suppress. See People v. Stehman, 203 Ill. 2d 26, 33 (2002); People v.
       Luna, 322 Ill. App. 3d 855, 860 (2001); People v. Boston, 73 Ill. App. 3d 107, 109-10 (1979).
       Because Bishoff was the only witness to testify at the suppression hearing and the trial court
       questioned his credibility, the trial court properly granted defendant’s motion to suppress. See
       Stehman, 203 Ill. 2d at 33; Luna, 322 Ill. App. 3d at 860; Boston, 73 Ill. App. 3d at 109-10.

¶ 27                                     II. Motions to Reconsider
¶ 28       The State argues that the trial court erred in denying its motions to reconsider, asserting
       that the court misapplied section 11-501.2(c) of the Illinois Vehicle Code (Code) (625 ILCS
       5/11-501.2(c) (West 2014)) by refusing to consider defendant’s postarrest refusal to submit to
       chemical testing. When a motion to reconsider raises the question of whether the trial court
       erred in its application or purported misapplication of existing law, our review is de novo.
       People v. $280,020 United States Currency, 372 Ill. App. 3d 785, 791 (2007).
¶ 29       Section 11-501.2(c) of the Code provides in pertinent part: “If a person under arrest refuses
       to submit to a chemical test under the provisions of Section 11-501.1, evidence of refusal shall
       be admissible in any civil or criminal action or proceeding arising out of acts alleged to have
       been committed while the person under the influence of alcohol *** was driving or in actual
       physical control of a motor vehicle.” 625 ILCS 5/11-501.2(c)(1) (West 2014). Section
       11-501.1 of the Code, referenced in section 11-501.2(c), states in pertinent part:
                   “(a) Any person who drives or is in actual physical control of a motor vehicle upon
               the public highways of this State shall be deemed to have given consent, subject to the
               provisions of Section 11-501.2, to a chemical test or tests of blood, breath, or urine for
               the purpose of determining the content of alcohol *** in the person’s blood if arrested
               *** for any offense as defined in Section 11-501 ***. If a law enforcement officer has
               probable cause to believe the person was under the influence of alcohol, *** the law
               enforcement officer shall request a chemical test or tests which shall be administered at
               the direction of the arresting officer.” 625 ILCS 5/11-501.1(a) (West 2014).
¶ 30       While section 11-501.2(c) provides that refusal to submit to chemical testing is admissible
       in any “action or proceeding,” that is only true when testing is requested in compliance with
       section 11-501.1, which requires that the officer have probable cause to believe the defendant
       is under the influence of alcohol. See 625 ILCS 5/11-501.1(a), 11-501.2(c) (West 2014).
       Because the trial court determined that Bishoff lacked probable cause to believe that defendant


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       was under the influence of alcohol, defendant’s refusal to submit to chemical testing was not
       admissible.
¶ 31       Assuming, arguendo, that defendant’s refusal to submit to chemical testing was admissible
       under section 11-501.2(c) of the Code, the trial court did not err in refusing to consider that
       evidence at the suppression hearing. Evidence must be relevant to be admissible. People v.
       Ross, 395 Ill. App. 3d 660, 678 (2009). The only issue at the suppression hearing was whether
       Bishoff had probable cause to arrest defendant for DUI. Any postarrest actions by defendant
       were not and could not have been relied on by Bishoff as probable cause for arresting
       defendant for DUI. Thus, the evidence was not relevant, and the trial court properly refused to
       consider it.

¶ 32                                       III. Petition to Rescind
¶ 33       Finally, the State argues that the trial court lacked subject matter jurisdiction to grant
       defendant’s petition to rescind because it appealed the trial court’s order granting defendant’s
       motion to suppress before the court ruled on defendant’s petition to rescind.
¶ 34       Subject matter jurisdiction refers to the power of a court to hear and determine cases of the
       general class to which the case in question belongs. People v. Castleberry, 2015 IL 116916,
       ¶ 12. As long as an alleged claim falls within the general class of cases that the court has the
       inherent power to hear and decide, subject matter jurisdiction exists. In re Luis R., 239 Ill. 2d
       295, 301 (2010).
¶ 35       A petition to rescind the statutory summary suspension of driving privileges presents a
       justiciable matter over which the trial court has subject matter jurisdiction. People v.
       Guillermo, 2016 IL App (1st) 151799, ¶ 9; People v. Keegan, 334 Ill. App. 3d 1061, 1065
       (2002). Thus, the State’s claim that the trial court lacked subject matter jurisdiction to rule on
       defendant’s petition lacks merit. See Guillermo, 2016 IL App (1st) 151799, ¶ 9.
¶ 36       In arguing that the trial court lacked jurisdiction to rule on defendant’s petition, the State
       fails to acknowledge that a summary suspension hearing “is a civil proceeding, separate and
       apart from the criminal hearing regarding the charge of driving while under the influence of
       alcohol.” People v. Lagowski, 273 Ill. App. 3d 1012, 1013 (1995). Statutory summary
       suspension “operates without regard to the resolution of the companion DUI case.” People v.
       Schuld, 175 Ill. App. 3d 272, 284 (1988). Summary suspension “progresses independently of
       the related criminal prosecution for DUI.” People v. Meyer, 166 Ill. App. 3d 1030, 1033
       (1988). A circuit court may not rescind a statutory summary suspension based solely on the
       disposition of the underlying criminal proceedings. People v. Schaefer, 154 Ill. 2d 250, 257-58
       (1993); People v. Gerke, 123 Ill. 2d 85, 95 (1988).
¶ 37       Section 2-118.1 of the Code “sets forth a comprehensive procedure for the conduct of a
       prompt judicial hearing when a person seeks to rescind the statutory summary suspension of
       his driving privileges.” Keegan, 334 Ill. App. 3d at 1064. The scope of the hearing is limited to
       specific issues, including the following:
                    “1. Whether the person was placed under arrest for an offense as defined in Section
                11-501 ***; and
                    2. Whether the officer had reasonable grounds to believe that the person was
                driving *** upon a highway while under the influence of alcohol ***; and



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                   3. Whether the person, after being advised by the officer that the privilege to
               operate a motor vehicle would be suspended or revoked if the person refused to submit
               to and complete the test or tests, did refuse to submit to or complete the test or tests
               [authorized under Section 11-501.1.]” 625 ILCS 5/2-118.1(b) (West 2014).
¶ 38       The scope of a court’s inquiry in a statutory summary suspension hearing is limited by the
       terms of the statute. Gerke, 123 Ill. 2d at 95. Reasonable grounds for believing a person was
       driving under the influence within the meaning of the summary suspension statute is
       synonymous with probable cause for arrest for DUI. People v. Rush, 319 Ill. App. 3d 34, 38
       (2001). Therefore, a trial court may consider and rely on the same evidence for both a motion
       to suppress and a petition to rescind. See id.
¶ 39       Here, the trial court granted defendant’s petition to rescind after finding that Bishoff lacked
       probable cause to arrest defendant for DUI and after the State appealed that ruling. The State’s
       appeal did not require the court to stay the rescission hearing until after the criminal appeal was
       decided because defendant’s criminal DUI prosecution and summary suspension hearing are
       separate and distinct proceedings. See Lagowski, 273 Ill. App. 3d at 1013; Meyer, 166 Ill. App.
       3d at 1033. The results of one do not affect the results of the other. See Schaefer, 154 Ill. 2d at
       257-58; Gerke, 123 Ill. 2d at 95; Schuld, 175 Ill. App. 3d at 284.
¶ 40       The trial court also did not err in considering evidence from the suppression hearing in
       granting defendant’s petition to rescind. The issue at defendant’s suppression hearing was
       whether Bishoff had probable cause to arrest defendant for DUI. The issue at the rescission
       hearing was whether there were reasonable grounds for believing defendant was driving under
       the influence. Because those issues are identical, the trial court could rely on evidence from the
       suppression hearing to make its decision on defendant’s petition to rescind. See Rush, 319 Ill.
       App. 3d at 38.
¶ 41       Moreover, the State waived any objection to the admission of evidence from the
       suppression hearing. The failure to present a proper and timely objection constitutes a waiver
       of any error. People v. Holloman, 46 Ill. 2d 311, 318 (1970). Additionally, a party may not
       complain on appeal about the admission of evidence that the party stipulated to below. Id. at
       318-19. Here, not only did the State fail to object to the trial court’s consideration of evidence
       from the suppression hearing, but it stipulated to the admission of Bishoff’s testimony from the
       suppression hearing. Thus, the State waived any alleged error. See id.

¶ 42                                       CONCLUSION
¶ 43      The judgment of the circuit court of Peoria County is affirmed.

¶ 44      Affirmed.




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