                             2014 IL App (2d) 130461
                                  No. 2-13-0461
                         Opinion filed November 17, 2014
______________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Boone County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) Nos. 09-DT-78
                                       )       09-TR-3264
                                       )
DAVID M. KING,                         ) Honorable
                                       ) John H. Young,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
       Justices Jorgensen and Birkett concurred in the judgment and opinion.

                                          OPINION

¶1     Following a jury trial in the circuit court of Boone County, defendant, David M. King,

was found guilty of driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2)

(West 2008)) and causing the tires of his vehicle to squeal (625 ILCS 5/11-505 (West 2008)).

For DUI, the trial court sentenced defendant to 12 months’ conditional discharge and ordered

him to serve five days in the Boone County jail and pay, inter alia, a fine of $1,300. The trial

court placed defendant on court supervision for causing his vehicle’s tires to squeal. Defendant

argues on appeal that the trial court erred in admitting testimony concerning the arresting

officer’s attempt to administer the horizontal gaze nystagmus (HGN) test to defendant.
2014 IL App (2d) 130461


Defendant also argues that he is entitled to monetary credit toward his fines for time spent in

custody prior to sentencing. We affirm as modified.

¶2     At trial, Chris Washburn, an officer with the Belvidere police department, testified that,

in the early morning hours of March 21, 2009, he observed a silver Chevy van stopped on

northbound Appleton Road at its intersection with Lincoln Avenue. There was a traffic signal at

that intersection. Washburn was traveling south on Appleton Road, approaching the intersection.

The traffic signal was green for southbound traffic and Washburn believed that it would have

been green for northbound traffic as well. Washburn slowed down in an effort to determine why

the van was not moving. Washburn then saw the van lurch forward, and he heard its tires squeal.

The van turned right onto Lincoln Avenue. Washburn followed the van as it proceeded a short

distance on Lincoln Avenue, turned left onto Whitman Street, and pulled into a residential

driveway. Washburn parked his vehicle, activated the emergency lights, and walked up to the

van. The parties stipulated that defendant was driving the van at the time.

¶3     According to Washburn, defendant exited the vehicle and “took a couple of steps that

were unsteady.”    Washburn also noticed that defendant’s eyes were red, his eyelids were

drooped, and his speech was very slurred. Washburn asked defendant to produce his driver’s

license and proof of insurance. Defendant complied. Washburn did not detect the odor of

alcohol emanating from defendant. He noted, however, that he was suffering from allergy

symptoms that prevented him from smelling anything. Washburn asked defendant why he had

caused the tires on his vehicle to squeal. Defendant responded that the vehicle was peppier than

the truck that he usually drove. Defendant stated that he had just proposed to his girlfriend. He

also indicated that he had consumed a couple of beers but was not drunk.




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2014 IL App (2d) 130461


¶4     Washburn testified that he had been trained to administer field sobriety tests and that he

was also certified to train other officers to administer the tests. Washburn asked defendant to

perform field sobriety tests and defendant agreed. Washburn initially conducted the HGN test.

He instructed defendant to look at his (Washburn’s) finger and follow it with his eyes without

moving his head.      According to Washburn, defendant moved his head while following

Washburn’s finger. The prosecutor asked Washburn what he noticed while holding his finger

out to the side of defendant’s head.      As Washburn began to answer, defendant’s attorney

objected that there was “no foundation laid for the administration of this test.” The trial court

overruled the objection, but directed the prosecutor to rephrase the question. The prosecutor then

asked whether defendant was following Washburn’s instructions when Washburn held his finger

to the side of defendant’s head. Washburn responded that defendant initially followed his finger

without moving his head, but then looked straight at Washburn. The next time Washburn moved

his finger, defendant moved his head.

¶5     Washburn administered two other field sobriety tests: the walk-and-turn test and the one-

leg-stand test. Washburn instructed defendant that, for the walk-and-turn test, he was to place

his left foot behind his right, take nine heel-to-toe steps with his arms at his sides, turn around,

and take nine heel-to-toe steps back. Washburn demonstrated to defendant how he should walk

and turn. Washburn instructed defendant to stand heel-to-toe with his left foot behind his right

and his arms at his sides during the demonstration. Washburn testified that defendant raised his

arms slightly and did not maintain the heel-to-toe stance. When defendant actually performed

the test, he lost his balance twice while walking. Each time, he raised one of his arms more than

six inches away from his body.




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2014 IL App (2d) 130461


¶6      For the one-leg-stand test, Washburn instructed defendant initially to stand with his heels

and toes touching and his hands by his sides, to raise one foot about six inches off of the ground,

to keep his foot parallel to the ground, and to count out loud until told to stop. Defendant raised

his foot, placed it back on the ground, and then raised it again, at which point he began swaying

and started to hop. Defendant leaned over to one side and raised one arm more than six inches

from his side. Defendant then placed his foot on the ground and stated that he could not perform

the test.

¶7      After Washburn testified about defendant’s attempt to perform the one-leg-stand test,

defendant’s attorney asked the trial court “to disregard the testimony of the officer regarding

[defendant] supposedly moving his head during the eye test because that is only relevant in the

context of a [HGN] test.” Defense counsel argued that “[s]ince there was no proper foundation

laid for the administration of a [HGN] test because there was no other testimony regarding the

HGN test, the alleged movement of [defendant’s] head is irrelevant.” The trial court overruled

the objection, stating that the prosecutor “didn’t go into HGN.”

¶8      Washburn’s squad car was equipped with a video camera, which recorded Washburn’s

encounter with defendant. The recording was played for the jury and admitted into evidence.

Washburn testified that it was his opinion that defendant was under the influence of alcohol and

was not fit to drive a motor vehicle at the time in question. Washburn acknowledged that, other

than squealing his tires, defendant did not violate any traffic law and did not drive erratically.

¶9      Defendant contends that, because there was no foundation for testimony concerning the

administration of the HGN test, the trial court erred in allowing Washburn to testify on that

subject. Our supreme court has provided the following useful summary of the principles and

procedures involved in HGN testing:



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2014 IL App (2d) 130461


              “The HGN test purportedly measures nystagmus, which has been defined as an

      abnormal and involuntary rapid movement of the eyeballs up and down, or more

      commonly, side to side. [Citation.] Many people will exhibit some nystagmus, or

      jerking, as their eyes track to the extreme side. However, with an intoxicated person, the

      onset of the nystagmus, or jerking of the eyeball, occurs after fewer degrees of lateral

      deviation from center, and the jerking is more pronounced at extreme angles. While

      nystagmus is an indication of alcoholic consumption, it is also a symptom of many other

      ailments. [Citation.]

              Because alcohol consumption can cause nystagmus, police officers have been

      trained to check a person’s eye movements when attempting to determine if a driver has

      been driving while impaired by alcohol.              The National Highway Traffic Safety

      Association’s (NHTSA) DWI Detection and Standardized Field Sobriety Testing

      Instructor Manual sets forth the procedure for administering an HGN test in the field.

      First, the officer is required to ask the subject if he or she wears contact lenses or has any

      medical impairment that would affect the test results or prohibit the subject from taking

      the test. If the subject claims to wear hard contacts, or have natural nystagmus or any

      other condition that may affect the test results, the officer should note the condition but

      still administer the test if possible. [Citation.]

              After these preliminary questions, the officer asks the subject to focus on an

      object, such as a pen, held just above eye level, about 12 to 15 inches from the subject’s

      nose, and to follow the object as the officer gradually moves it from side to side.

              While conducting the test, the officer looks for six nystagmus ‘clues,’ three in

      each eye, that, according to the NHTSA Manual, indicate impairment. If four or more



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       clues are present, the subject is determined to have failed the test and be impaired. The

       clues are (1) lack of smooth pursuit; (2) distinct nystagmus at maximum deviation,

       meaning any nystagmus exhibited when the eyeball is looking as far to the side as

       possible; and (3) angle of onset of nystagmus prior to 45 degrees, meaning any

       nystagmus that occurs before the object reaches a point that the officer determines to be

       45 degrees from the center of the suspect’s face. No measuring apparatus is used in the

       45-degree test. The officer is then instructed to have the subject perform the walk-and-

       turn field-sobriety test and the one-leg-stand field-sobriety test, compile the results of the

       three tests, and then make the decision whether to arrest the subject.” People v. McKown,

       226 Ill. 2d 245, 248-50 (2007) (McKown I).

¶ 10   In McKown I, our supreme court held that testimony concerning the administration and

results of the HGN test was scientific evidence, the admissibility of which depended upon a

threshold showing, under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), that “HGN testing

had been generally accepted as a reliable indicator of alcohol impairment” (McKown I, 226 Ill.

2d at 247). The McKown I court remanded the case to the trial court for a hearing to determine

whether HGN testing satisfied that standard (id. at 276-77), but retained jurisdiction to review

the trial court’s finding and to determine whether the admission of HGN evidence at the

defendant’s trial had been proper. Id. After the completion of the proceedings on remand, our

supreme court held that “evidence of HGN field-sobriety testing, when performed according to

the NHTSA protocol by a properly trained officer, is admissible under the Frye test for the

purpose of showing whether the subject has likely consumed alcohol and may be impaired.”

People v. McKown, 236 Ill. 2d 278, 306 (2010) (McKown II).




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2014 IL App (2d) 130461


¶ 11   Defendant contends that Washburn’s testimony was insufficient to establish that he was

properly trained to administer the HGN test or that he administered the test according to NHTSA

protocol. Thus, according to defendant, Washburn’s testimony did not satisfy the foundational

requirements set forth in McKown II. That might be true, but McKown II cannot reasonably be

understood to apply to the type of testimony at issue in this case. Washburn never testified that

he formed any opinions based the movement of defendant’s eyes. Thus, it is of no moment that

Washburn might not have been properly trained—and might not have followed the proper

procedures—to elicit eye movement indicative of the consumption of alcohol. Washburn merely

related an incidental observation while he administered the HGN test—that defendant moved his

head despite being instructed to keep it still. Nothing in the McKown decisions bars an officer

from relating such observations, to the extent that they are independently relevant, and there is

no sensible reason to link the admissibility of such evidence to the foundational requirements for

the HGN test itself.

¶ 12   We agree with the State that a motorist’s failure to follow an officer’s directions during a

traffic stop is relevant to the question of whether the motorist is impaired. More importantly, a

motorist’s failure to follow directions on a particular field sobriety test does not lose all

relevance simply because the test might not have been designed for the precise purpose of

gauging the ability to follow directions. Furthermore, we reject defendant’s suggestion that

Washburn’s incidental observation while administering the HGN test was somehow tantamount

to conducting an ad hoc field sobriety test.

¶ 13   We note that defendant appears to suggest that the jury might have assumed that his

failure to keep his head still during the HGN test was a formal “clue” to impairment, rather than

an incidental observation. In other words, the jury might not have understood that the HGN test



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2014 IL App (2d) 130461


did not yield any conclusive result. Be that as it may, when the evidence was offered, defendant

objected only to the lack of foundation. When a party objects to evidence at trial on specific

grounds, he or she forfeits other possible grounds for objecting. People v. Bryant, 391 Ill. App.

3d 1072, 1078 (2009). More importantly, because defendant has framed the issue in this appeal

as whether there was a foundation for the testimony in question, we have no occasion to consider

other possible grounds for objection. However, our ruling today does not imply that, where the

State is aware that the HGN test was not conducted properly and, thus, that the results are

inadmissible, the officer’s otherwise relevant and material observations can or should be

characterized as part of the administration of an HGN or other field sobriety test.

¶ 14   Defendant also contends that the prosecutor “more than arguably” violated an oral order

in limine. Just prior to jury selection, defendant’s attorney moved in limine for a ruling that

“when [Washburn] gives his opinion regarding the HGN, *** he cannot say that defendant was

impaired.” Defendant argued that, under the McKown decisions, the HGN test could be the basis

for an opinion only on whether a motorist had consumed alcohol. The State had no objection

and the trial court granted the motion. Defendant contends that, during closing argument, the

State circumvented the ruling by arguing that defendant’s failure to follow instructions on the

HGN test was evidence of impairment. We disagree. Defendant does not suggest that the State

violated the letter of the trial court’s ruling. Nor, in our view, can it be said that the State

violated the spirit of the ruling, which was to limit the scope of scientific evidence introduced by

the State. Evidence that defendant failed to follow instructions during the HGN test does not fall

into that category and the prosecutor’s argument was a fair comment on the evidence.




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2014 IL App (2d) 130461


¶ 15   Defendant next argues that he is entitled to monetary credit toward his fines based on the

time he spent in custody prior to sentencing.          Section 110-14(a) of the Code of Criminal

Procedure of 1963 provides:

       “Any person incarcerated on a bailable offense who does not supply bail and against

       whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for

       each day so incarcerated upon application of the defendant. However, in no case shall

       the amount so allowed or credited exceed the amount of the fine.” 725 ILCS 5/110-14(a)

       (West 2008).

A defendant may apply for the credit for the first time on appeal. People v. Caballero, 228 Ill.

2d 79, 88 (2008). It is undisputed that defendant spent one day in custody. He is therefore

entitled, as the State concedes, to a credit of $5 toward his fines.

¶ 16   For the foregoing reasons, we affirm defendant’s conviction and sentence, but modify the

mittimus to reflect a $5 credit against defendant’s fines.

¶ 17   Affirmed as modified.




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