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                                Appellate Court                           Date: 2019.08.07
                                                                          14:24:10 -05'00'



                  People v. Williams, 2018 IL App (2d) 160683



Appellate Court     THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption             DAVID R. WILLIAMS, Defendant-Appellant.



District & No.      Second District
                    Docket No. 2-16-0683



Filed               October 23, 2018



Decision Under      Appeal from the Circuit Court of Kane County, Nos. 13-DT-892, 13-
Review              CM-3596, 13-TR-48988; the Hon. Robert J. Morrow, Judge,
                    presiding.



Judgment            Affirmed.


Counsel on          James E. Chadd, Thomas A. Lilien, and Timothy J. Storm, of State
Appeal              Appellate Defender’s Office, of Elgin, for appellant.

                    Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick Delfino,
                    David J. Robinson, and Sally A. Swiss, of State’s Attorneys Appellate
                    Prosecutor’s Office, of counsel), for the People.
     Panel                    JUSTICE BIRKETT delivered the judgment of the court, with
                              opinion.
                              Presiding Justice Hudson and Justice Burke concurred in the judgment
                              and opinion.


                                              OPINION

¶1        Following a jury trial in the circuit court of Kane County, defendant, David R. Williams,
      was found guilty of driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2)
      (West 2012)), possession of drug paraphernalia (720 ILCS 600/3.5(a) (West 2012)), and
      disobeying a traffic control device (625 ILCS 5/11-305(a) (West 2012)). Defendant argues on
      appeal that the trial court erred in denying his pretrial motion to quash his arrest and suppress
      evidence discovered during a search incident to his arrest. Defendant further argues that the
      State failed to prove beyond a reasonable doubt that he was guilty of DUI. We affirm.

¶2                                         I. BACKGROUND
¶3        At the hearing on defendant’s motion to quash and suppress, Elgin police officer Thomas
      Michael testified that, on August 30, 2013, at 12:57 a.m., he was driving west on Lillian Street,
      approaching McLean Boulevard. Michael was stopped at a red light behind a green Cavalier.
      The left-turn arrow activated, at which point the Cavalier proceeded straight through the
      intersection. Michael testified that the Cavalier lunged into the intersection, paused, and then
      continued through into the parking lot for the Elgin Mall. Michael conducted a traffic stop.
      Michael identified defendant as the Cavalier’s driver. Defendant’s speech was “kind of
      mumbled, slow and slurred,” and Michael smelled an alcoholic beverage “coming from
      [defendant’s] person.” Defendant advised Michael that he had come from a bar—JB’s—
      located on the northeast corner of Lillian and McLean. Defendant told Michael that he had
      consumed four beers. Suspecting that defendant might be impaired, Michael contacted Elgin
      police officer Bernhard Bajak and requested that Bajak conduct an investigation. Bajak arrived
      a few minutes later and ultimately arrested defendant. Michael searched the Cavalier and
      discovered what appeared to be cannabis pipes.
¶4        Bajak testified that he spoke with defendant and asked him to step out of the vehicle.
      Defendant emerged from the vehicle without stumbling or falling, but he swayed as he stood
      outside the vehicle. Bajak smelled the odor of alcohol on defendant. When asked whether
      defendant’s eyes were “red, bloodshot, glassy, watery,” Bajak answered “yes.” Bajak testified
      that he asked defendant to perform field sobriety tests, but that defendant refused. Defendant
      claimed that a football injury prevented him from performing the tests. He also claimed that
      he could not walk a straight line sober. Michael’s and Bajak’s squad cars were equipped with
      video cameras. Recordings of their encounters with defendant were entered into evidence and
      played at the suppression hearing.
¶5        Defendant testified that he was employed “do[ing] HVAC for new construction housing.”
      The day before his arrest, he did not fall asleep until 1:30 to 2 a.m., and he woke up at around
      4 a.m. to go to work. Defendant worked from 7 a.m. to 5 p.m., and he was “ridiculously” tired.
      Defendant testified that he owned a green 2002 Cavalier. When he bought the Cavalier, it had
      a faulty water pump. While he was replacing the water pump, the engine fell off of a jack stand.

                                                  -2-
       Thereafter, the Cavalier did not idle properly. When the vehicle was idling, defendant would
       have to shift into neutral and rev the engine. Otherwise, the engine would die. Defendant
       testified that, when he drove through the intersection of Lillian and McLean, he initially
       mistook the green arrow for a green light. He proceeded through the intersection because he
       was concerned that his engine would die while he was in the middle of it.
¶6          Michael, Bajak, and defendant were the only witnesses at trial. Michael’s and Bajak’s trial
       testimony about the events leading to defendant’s arrest was similar to their testimony at the
       suppression hearing. However, Michael also testified that defendant’s vehicle did not weave
       as it proceeded through the intersection, that defendant used his turn signal when he turned
       into the parking lot, and that defendant parked with his vehicle properly positioned in a parking
       space.
¶7          Bajak and Michael testified about events that occurred after defendant was arrested. Bajak
       testified that Michael conducted an inventory search of the Cavalier. Michael found two
       objects that appeared to be pipes for smoking cannabis. Bajak testified that it was his opinion
       that a substance found inside the pipes was cannabis. Michael confirmed that he searched the
       vehicle and discovered what appeared to be cannabis pipes. Bajak gave defendant the
       opportunity to take a breath test. Defendant refused.
¶8          Defendant testified that he worked in the HVAC field, installing ductwork and heating and
       air conditioning units in homes under construction. On August 29, 2013, defendant woke up
       at 3:30 or 4 a.m. He started work at 7 a.m. at a job site in St. Charles. Defendant had nothing
       to eat prior to beginning work. He took a lunch break at 11 a.m. While working, he drank
       Gatorade or coffee. He did not drink any alcohol. Defendant worked until 3 to 3:30 p.m., and
       it was nearly 5 p.m. when he got home. Defendant took a shower, ate a French bread pizza,
       and drove to the Elgin Lanes bowling alley for his bowling league. The drive took about 45
       minutes, and he arrived at about 6:30 p.m. Defendant had two beers while bowling. He had the
       first beer with food at about 6:45 p.m. He had the second beer at about 8:30 p.m. Defendant
       bowled until about 10:30 p.m. and was “pretty tired” when he was done. He and a coworker
       then went to JB’s. He had a beer at about 11 p.m. and another one about an hour to an hour
       and a half later. Defendant left JB’s at about 1 a.m. He was exhausted, but was not under the
       influence of alcohol.
¶9          Defendant testified about the problem idling his vehicle’s engine. When he left JB’s, he
       made a right turn onto Lillian Street and stopped at a red light. He was planning to drive into
       the Elgin Mall to buy a burrito before going home. He revved the engine to keep it from dying.
       When the left-turn arrow came on, defendant shifted into drive. According to defendant, “that
       was when the car lurched a little bit into the intersection and started to spit, sputter and die.”
       He put his foot on the gas pedal so that he would not get stuck in the middle of the intersection.
       Defendant had no trouble retrieving his wallet and “the necessary documentation” when
       Michael stopped him. He did not stumble or fall when getting out of his car. Defendant testified
       that while a sophomore in high school he suffered a football injury. His doctor told him that
       he would likely have trouble standing still and walking normally.
¶ 10        The jury found defendant guilty of the three charged offenses. Defendant filed a motion
       for a new trial. The trial court denied the motion and sentenced defendant to an 18-month term
       of conditional discharge and 240 hours of community service. This appeal followed.



                                                   -3-
¶ 11                                            II. ANALYSIS
¶ 12        We first consider whether the trial court erred in denying defendant’s motion to quash his
       arrest and suppress evidence. Upon review of a ruling on a motion to quash and suppress, the
       trial court’s findings of fact are entitled to great deference, and we will reverse those findings
       only if they are against the manifest weight of the evidence. People v. Jarvis, 2016 IL App (2d)
       141231, ¶ 17. The trial court’s legal conclusion as to whether the evidence must be suppressed
       is subject to de novo review. Id.
¶ 13        Defendant contends that there was no probable cause to arrest him for DUI. “Probable
       cause to arrest exists when the totality of 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. Meo, 2018 IL App (2d) 170135, ¶ 25. Defendant was charged with DUI
       under section 11-501(a)(2) of the Illinois Vehicle Code (625 ILCS 5/11-501(a)(2) (West
       2012)), which provides that a person shall not drive or be in actual physical control of a vehicle
       while under the influence of alcohol. A person is under the influence of alcohol when he or she
       is “ ‘less able, either mentally or physically, or both, to exercise clear judgment, and with
       steady hands and nerves operate an automobile with safety to himself and to the public.’ ”
       People v. Bostelman, 325 Ill. App. 3d 22, 34 (2001) (quoting People v. Seefeldt, 112 Ill. App.
       3d 106, 108 (1983)).
¶ 14        In People v. Wingren, 167 Ill. App. 3d 313, 320 (1988), this court observed that
                “[p]robable cause to arrest a motorist for DUI has been commonly established by the
                testimony of the arresting officer, in spite of the defendant’s contradictory testimony,
                that the motorist had about him or her the odor or strong odor of alcohol, had slurred
                speech or had red and glassy eyes.”
       We added that,
                “[g]enerally, these observations are supplemented by other observations apparent to the
                officer or inferred from his observations such as speeding, weaving, erratic driving,
                driving on the wrong side of the road, being stuck in a ditch [citation] or, as in the case
                at bar, being in a vehicle which is stuck in the mud.” Id. at 321.
       In arguing that probable cause was absent here, defendant relies, in part, on People v. Motzko,
       2017 IL App (3d) 160154, ¶ 23, where the court upheld the trial court’s conclusion that there
       was no probable cause to arrest the defendant for DUI. The Motzko court cited People v. Day,
       2016 IL App (3d) 150852, ¶¶ 23, 37-38, for the proposition that, absent further corroboration,
       the odor of alcohol, bloodshot eyes, and slurred speech do not give rise to probable cause that
       the defendant has committed DUI. 1
¶ 15        Defendant’s reliance on Motzko is misplaced. Here, the trial court’s determination that
       there was probable cause to arrest defendant for DUI was not based solely on the odor of
       alcohol, defendant’s slurred speech, and his bloodshot eyes. In addition, defendant improperly
       proceeded straight through the intersection when the green left-turn arrow came on. Defendant
       notes that he had no apparent difficulty maneuvering his vehicle. However, even a conviction

           1
            Actually, the Day court did not mention slurred speech in connection with the other two factors
       (the odor of alcohol and bloodshot eyes). In Day, there was conflicting testimony about whether the
       defendant’s speech was slurred. The Day court inferred that the trial court resolved the conflict in the
       defendant’s favor. Thus, the Day court had no occasion to consider whether probable cause would have
       existed had the defendant’s speech been slurred.

                                                      -4-
       of DUI does not require proof that the defendant “was completely incapacitated by alcohol.”
       People v. Tatera, 2018 IL App (2d) 160207, ¶ 29. The prosecution need prove only that the
       defendant “was impaired by alcohol *** to the extent that it rendered him incapable of driving
       safely.” Id. Driving through a red light was evidence that defendant lacked the mental clarity
       to operate his vehicle safely.
¶ 16       Defendant also contends that his “one instance of ‘poor driving’ was fully explained by the
       condition of his vehicle.” However, other than defendant’s self-serving statements, Michael
       and Bajak had no reason to believe that defendant’s vehicle was not in good working order. As
       a court from another jurisdiction has observed, “[w]hile [a] defendant may offer innocent
       explanations for his behavior, that does not prevent the police from acting on their well-
       founded conclusions.” People v. Daye, 598 N.Y.S.2d 493, 494 (App. Div. 1993). After all, the
       assessment of probable cause is based on the totality of the facts, and a reasonably prudent
       person would be aware of a defendant’s incentive to fabricate an innocent explanation in order
       to avoid arrest and prosecution.
¶ 17       Michael and Bajak also observed defendant swaying. That observation is a factor
       supporting the trial court’s conclusion that there was probable cause to arrest defendant for
       DUI. People v. Anderson, 2013 IL App (2d) 121346, ¶ 25. Furthermore, defendant’s refusal to
       perform field sobriety tests was probative of impairment. See Tatera, 2018 IL App (2d)
       160207, ¶ 28 (listing defendant’s refusal to perform any field sobriety tests among factors
       contributing to conclusion that evidence was sufficient to sustain defendant’s DUI conviction).
       Although defendant offered an excuse—a football injury—for his refusal to perform tests, we
       are persuaded that, as in Daye, the excuse did not negate probable cause.
¶ 18       We therefore conclude that there was probable cause to arrest defendant for DUI. That
       conclusion disposes of defendant’s argument that the evidence seized during the search of his
       vehicle should have been suppressed. Under certain circumstances, police may conduct a
       vehicle search incident to the arrest of a recent occupant. Arizona v. Gant, 556 U.S. 332, 351
       (2009). Such a search is permissible “only if the arrestee is within reaching distance of the
       passenger compartment at the time of the search or it is reasonable to believe the vehicle
       contains evidence of the offense of arrest.” Id. Defendant does not argue that the passenger
       compartment of his vehicle was beyond his reach. Nor does he argue that it was unreasonable
       to believe that the vehicle contained evidence of the offense for which he was arrested.
       Accordingly, we express no opinion on those issues. Defendant’s challenge to the search is
       based entirely on the proposition that there was no probable cause to arrest him for DUI.
       Having concluded that defendant’s arrest was supported by probable cause, we reject his
       challenge to the search of his vehicle.
¶ 19       We next consider whether the State proved beyond a reasonable doubt that defendant was
       guilty of DUI. When a defendant challenges the sufficiency of the evidence to sustain a
       criminal conviction, “ ‘the relevant question is whether, after viewing the evidence in the light
       most favorable to the prosecution, any rational trier of fact could have found the essential
       elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) People v. Collins,
       106 Ill. 2d 237, 261 (1985) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The trier
       of fact is responsible for resolving conflicts in the testimony, weighing the evidence, and
       determining what inferences to draw, and a reviewing court ordinarily will not substitute its
       judgment on these matters for that of the trier of fact. People v. Cooper, 194 Ill. 2d 419, 431
       (2000). “A criminal conviction will not be set aside unless the evidence is so improbable or

                                                   -5-
       unsatisfactory that it creates a reasonable doubt of the defendant’s guilt.” Collins, 106 Ill. 2d
       at 261.
¶ 20       As defendant acknowledges, a DUI conviction can be sustained on the basis of the
       testimony of a single police officer, if that testimony is deemed credible. See, e.g., People v.
       Janik, 127 Ill. 2d 390, 402 (1989). Defendant contends, however, that even in such cases the
       testimony “is usually corroborated by additional evidence.” (Emphasis added.) That may be
       so, but it does not follow that such corroboration is always necessary. In any event, two officers
       testified at trial, and their testimony was partly corroborated by video recordings from their
       squad car cameras.
¶ 21       Defendant argues that the indicia of impairment can be explained by defendant’s testimony
       that he was exhausted after a long workday and his evening activities. However, whether to
       credit that testimony, and what weight to give it, was for the jury to decide. This case is
       distinguishable from the cases cited by defendant—People v. Thomas, 34 Ill. App. 3d 578
       (1975), People v. Schultz, 10 Ill. App. 3d 602 (1973), and People v. Clark, 123 Ill. App. 2d 41
       (1970)—in which innocent explanations for signs of intoxication created reasonable doubt. As
       noted in Janik, 127 Ill. 2d at 403, the defendants in Thomas, Schultz, and Clark suffered head
       injuries. Defendant’s claimed exhaustion here is not comparable to the documented head
       injuries in those cases.
¶ 22       In People v. Weathersby, 383 Ill. App. 3d 226 (2008), we affirmed a DUI conviction on
       the basis of evidence similar to the evidence in this case. In Weathersby, the defendant’s speech
       was “ ‘thick-tongued,’ ” his eyes were glassy, a three-quarters-empty bottle of malt liquor was
       found in his vehicle, 2 and his breath smelled of alcohol. Id. at 227. The defendant also refused
       to take a breath test. Defendant contends, however, that the evidence of his guilt was
       insufficient because he was able to drive his car through the intersection without weaving or
       jerking, he activated his turn signal, he properly pulled into a parking space, he exited his
       vehicle without hesitation and without stumbling or falling, and he was able to communicate
       with Michael and Bajak. Defendant’s argument is without merit. A motorist’s ability to
       perform a number of tasks without any indication of impairment does not necessarily create a
       reasonable doubt in a DUI prosecution. See Tatera, 2018 IL App (2d) 160207, ¶ 29 (upholding
       the defendant’s DUI conviction even though he did not hit barricades surrounding a hole in the
       road, he successfully completed a right turn into traffic, he did not weave out of his lane or
       cross the fog line, he pulled his car to the side of the road without the car falling into a ditch,
       he was able to exit his vehicle without assistance, and he did not stumble or otherwise lose his
       balance). Accordingly, we conclude that the evidence was sufficient to prove beyond a
       reasonable doubt that defendant was guilty of DUI.

¶ 23                                      III. CONCLUSION
¶ 24       For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.
       As part of our judgment, we grant the State’s request that defendant be assessed $50 as costs
       for this appeal. 55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls, 71 Ill. 2d 166,
       178 (1978).


           2
            The partially empty bottle was circumstantial evidence that the defendant had been drinking. Here
       there was direct evidence: defendant’s admission that he had consumed several beers.

                                                     -6-
¶ 25   Affirmed.




                   -7-
