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                               Appellate Court                           Date: 2017.01.23
                                                                         15:44:18 -06'00'




                    People v. Day, 2016 IL App (3d) 150852



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant,
Caption           v. ANTHONY W. DAY, Defendant-Appellee.



District & No.    Third District
                  Docket No. 3-15-0852



Filed             November 28, 2016



Decision Under    Appeal from the Circuit Court of Will County, No. 14-DT-1703; the
Review            Hon. Carmen Goodman, Judge, presiding.



Judgment          Affirmed.



Counsel on        James Glasgow, State’s Attorney, of Joliet (Justin A. Nicolosi, of
Appeal            State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
                  People.

                  No brief filed for appellee.



Panel             JUSTICE HOLDRIDGE delivered the judgment of the court, with
                  opinion.
                  Presiding Justice O’Brien and Justice Carter concurred in the
                  judgment and opinion.
                                            OPINION

¶1      The State appeals from the trial court’s order quashing the arrest of the defendant,
     Anthony W. Day. The State argues that the evidence presented at the statutory summary
     suspension hearing established that the defendant’s arrest was supported by probable cause.

¶2                                              FACTS
¶3       The State charged the defendant with driving while under the influence of alcohol (DUI)
     (625 ILCS 5/11-501(a)(2) (West 2014)). The Secretary of State subsequently imposed a
     six-month statutory summary suspension of the defendant’s driver’s license. The defendant
     filed a petition to rescind the summary suspension, and a hearing on the defendant’s petition
     was held on February 6, 2015.
¶4       At the hearing, the defendant called Daniel Lopez, the arresting officer, as his first
     witness. Lopez testified that he observed the defendant driving a motor vehicle at
     approximately 3 a.m. on December 27, 2014. Lopez testified that in the time he observed the
     defendant driving, the defendant made proper stops and proper signals and drove safely.
     Nothing about the defendant’s driving gave Lopez any indication that the defendant was
     under the influence of alcohol. Lopez pulled the defendant over because excessive noises
     were emanating from his exhaust system. Lopez recalled that the night in question was cold,
     but he could not recall whether it was raining. He could not recall whether the roadway was
     wet. After refreshing his memory by referencing his citations, Lopez agreed that it was
     raining when he administered the field sobriety tests.
¶5       The defendant gave Lopez his driver’s license and proof of insurance. Nothing about the
     defendant’s actions indicated to Lopez that the defendant might be under the influence of
     alcohol. In speaking to the defendant, Lopez found the defendant’s answers to be consistent
     with the questions being asked of him. The defendant was not mumbling or slurring his
     words. Lopez did, however, detect a strong odor of alcohol emanating from the defendant’s
     mouth.
¶6       Lopez instructed the defendant to exit the vehicle. The defendant did so, and as he
     walked back to Lopez’s squad car, he briefly lost his balance, putting his hand on his own
     vehicle to regain his balance. Lopez instructed the defendant to recite the alphabet from the
     letter C to the letter R, but the defendant refused, telling Lopez he could not recite the
     alphabet backward. Lopez then instructed the defendant to count backward from 69 to 44.
     The defendant complied and accurately performed the task, though he did pause twice for
     approximately four seconds. Lopez testified that while the defendant was counting, he
     noticed that the defendant was slurring the numbers. He also noticed that the defendant’s
     eyes were “glassy [and] watery.” The defendant did not sway or stumble during the counting
     and had no trouble maintaining his balance.
¶7       Lopez then asked the defendant if he had consumed any alcohol. The defendant told
     Lopez that he began drinking at approximately 12:30 a.m. and stopped at approximately 3
     a.m., a half hour earlier. The defendant told Lopez he had been drinking beer.
¶8       Lopez administered a number of field sobriety tests on the defendant. Lopez testified that
     the one-leg stand test must be administered on a flat, dry, level surface and agreed that the
     test is “invalid” if not administered in those conditions. Lopez admitted that the test should


                                                -2-
       not be administered in the rain. Lopez then testified that it was only drizzling at the time.
       When asked how he now remembered that it was drizzling at the time and date in question,
       Lopez replied that the reference to his report had triggered an independent recollection. In
       any event, Lopez admitted that the one-leg stand test should not be administered during a
       drizzle. Lopez instructed the defendant to hold one foot off the ground while counting to 30.
       The defendant dropped his foot once in that span, at the nine-second mark. Lopez testified
       that the defendant swayed during the test but did not move his arms.
¶9         Lopez then asked the defendant to perform the walk-and-turn test on a straight crack in
       the roadway. He stated that this test should also be administered on a dry surface. Lopez
       testified that the defendant walked nine steps out and nine steps back, remaining on the crack
       for each step and never using his arms for balance. Lopez testified, however, that the
       defendant executed an “improper turn” at the midpoint of the test. Lopez explained that the
       defendant was supposed to take small steps in turning but the defendant instead “made a
       large turn.” The defendant also failed to count his steps out loud, as Lopez had instructed.
       The defendant did not stumble or lose his balance.
¶ 10       Lopez testified that he administered the horizontal gaze nystagmus (HGN) test.
       According to Lopez, that test showed that the defendant had consumed alcohol. That result,
       combined with the results of the other field sobriety tests, indicated to Lopez that the
       defendant was impaired. Lopez arrested the defendant and charged him with DUI.
¶ 11       On cross-examination by the State, Lopez testified that two passengers were in the
       vehicle with the defendant but that the odor of alcohol was emanating from the defendant’s
       breath. The defendant indicated that he was coming from a party. Lopez also testified that the
       defendant failed to touch his heel to his toe on the walk-and-turn test, contrary to Lopez’s
       instructions. Lopez testified that the defendant failed both tests, with two clues on the one-leg
       stand test and four clues on the walk-and-turn test.
¶ 12       The defendant testified that he was driving his 1997 Jeep at approximately 3:30 a.m. on
       December 27, 2014, when he was pulled over by Lopez. He had two passengers in the
       vehicle. Lopez informed the defendant that he had been pulled over because a light above his
       license plate was out. After walking away from the vehicle, then returning, Lopez informed
       the defendant that his muffler was too loud. The defendant testified that his muffler was not
       loud. After telling the defendant that he smelled the odor of alcohol on his breath, Lopez
       asked the defendant to exit the vehicle.
¶ 13       The defendant testified that the roadway on the night in question was cold, wet, and slick.
       The defendant denied using his vehicle for balance when exiting the vehicle. He testified that
       Lopez instructed him to recite the alphabet backward. The defendant declined, and Lopez
       instructed him to count backward from 69 to 44. The defendant testified that he completed
       that test accurately and enunciated the numbers clearly. He testified that he also completed
       the one-leg stand test without losing his balance or using his arms and completed the
       walk-and-turn test without stumbling or stepping off the line. Each of those tests was
       performed in the rain. The defendant testified that he was sick on the day in question.
¶ 14       On cross-examination, the defendant testified that he and his passengers were driving
       from a gathering at his home when he was pulled over. He had consumed four 12-ounce
       bottles of beer earlier in the night. He had consumed the last of those beers approximately 30
       minutes before Lopez pulled him over. The defendant testified that he was five feet, three
       inches tall, and weighed between 115 and 120 pounds.

                                                   -3-
¶ 15       Following the conclusion of the defense’s case-in-chief, the State moved for a directed
       finding. On the issue of whether the stop was supported by reasonable suspicion, the court
       found that the defense had not made a prima facie case and granted the State’s motion for
       directed finding. However, on the issue of probable cause for the arrest, the court denied the
       motion for directed finding, shifting the burden to the State to prove the arrest was supported
       by probable cause. In so ruling, the court noted that factors such as the odor of alcohol and
       the results of the HGN test only tended to show consumption of alcohol, rather than
       impairment. The court also pointed out that the field sobriety tests had been administered
       incorrectly.
¶ 16       The State recalled Lopez in its case-in-chief. Lopez testified that he detected the odor of
       alcohol emanating from the defendant’s breath when the defendant was outside of the
       vehicle. When asked how strong the odor was, Lopez replied that it was strong enough to be
       detectable. He testified that he provided the defendant with instructions for the one-leg stand,
       walk-and-turn, and HGN tests verbatim from an instruction book provided by the police
       training institute. The two clues Lopez noticed on the one-leg stand test were the defendant’s
       swaying during the test and putting his foot down on the count of nine. On the walk-and-turn
       test, the defendant failed to place his heel to his toe while walking and failed to count his
       steps out loud. Lopez demonstrated those tests before administering them to the defendant,
       and the weather conditions did not affect his demonstrations.
¶ 17       On cross-examination, Lopez again admitted that it was improper to administer the
       one-leg stand and walk-and-turn tests on wet pavement. Lopez testified that he did not feel it
       was “too wet or too rainy” to administer the tests on the defendant. Defense counsel
       addressed that point on recross-examination:
                    “Q. Okay. So you mean to tell me then that your instructions say you can do the
                one leg stand test on wet pavement as long as it’s not too wet; is that what you’re
                saying?
                    A. Correct. I did the test.
                    Q. No, sir. You’re—
                    A. Correct. I answered your question. Yes.
                    Q. *** [W]hen you were at the academy it said that it’s okay to do the walk and
                turn test when the pavement is wet?
                    A. I—I did the test.
                    Q. *** I know you did the test. What I’m saying is are you saying that the
                instructions that you gave—were given with respect to doing these tests say it’s okay
                to do the test when the pavement is wet?
                    A. Again my testimony I think I didn’t think it was that wet for him not to do the
                test.
                    Q. That’s not what I’m asking you. I’m not asking you what you think. I’m
                talking about what you were trained on with respect to the proper way to do the test.”
       The trial court then sustained the State’s objection to defense counsel’s continued questions.
¶ 18       Following arguments, the trial court granted the defendant’s motion to rescind the
       statutory summary suspension, finding that Lopez did not have probable cause to arrest the
       defendant for DUI. The court emphasized that there had been no driving violation, that the


                                                  -4-
       defendant had performed reasonably well in the field sobriety tests, and that Lopez had “tap
       danced a little bit about the rain issue from the rain to drizzling.”
¶ 19       The defendant subsequently filed a motion to quash arrest and suppress evidence in
       which he argued that the arresting officer had no probable cause to believe he had committed
       the offense of DUI. The trial court granted the motion on the grounds previously provided in
       its ruling on the motion to rescind the statutory summary suspension. The State filed a
       motion to reconsider, which the trial court denied.1

¶ 20                                            ANALYSIS
¶ 21       In this interlocutory appeal, the State argues that Lopez had probable cause to arrest the
       defendant for DUI and that the trial court therefore erred in quashing the arrest and
       suppressing evidence. The State does not, however, appeal the trial court’s granting of the
       defendant’s petition to rescind his statutory summary suspension. The defendant has not filed
       a brief on appeal.
¶ 22       In reviewing the trial court’s granting of the defendant’s motion to quash arrest, we defer
       to all factual findings and credibility determinations unless they are contrary to the manifest
       weight of the evidence. People v. Jones, 215 Ill. 2d 261, 267-68 (2005). The ultimate
       question of whether the arrest was supported by probable cause, however, is reviewed de
       novo. Id. at 268. “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 upon the totality of the circumstances. Id. at 564. Probable
       cause must rise to a level higher than mere suspicion. E.g., People v. Boomer, 325 Ill. App.
       3d 206, 209 (2001). It must also rise to a level higher than “reasonable, articulable
       suspicion,” the lesser standard required to justify an investigatory stop, rather than a full
       arrest. E.g., Illinois v. Wardlow, 528 U.S. 119, 123 (2000).
¶ 23       The State lists a number of factors that, it argues, would reasonably have led Lopez to
       believe that the defendant was driving while under the influence of alcohol. Specifically, the
       State relies heavily on the fact that the defendant “failed to perform both field sobriety tests
       as instructed.” The State also points out that the defendant admitted to drinking, “had the
       strong odor of alcohol on his breath,” had bloodshot eyes, and slurred his speech. Upon
       closer examination, however, the State’s purported laundry list of factors breaks down.

¶ 24                                       I. Field Sobriety Tests
¶ 25       In People v. Briseno, 343 Ill. App. 3d 953 (2003), the defendant argued for the first time
       on appeal that the results of his field sobriety tests should not have been considered because
       he was too overweight to adequately complete the tests even without the presence of alcohol
       in his system. The parties agreed that the National Highway Traffic Safety Administration
       (NHTSA) “has recognized that people who are more than 50 pounds overweight may have
       difficulty balancing even when sober, and thus have problems physically completing the

           1
            The hearing on the motion to reconsider was held months after the trial court’s original ruling, and
       there was some confusion on the part of the parties and the court as to what evidence had been
       suppressed. To clarify, the trial court quashed the arrest and suppressed all evidence obtained
       thereafter. Thus, this appeal concerns the question of whether probable cause existed to make the arrest.

                                                       -5-
       walk and turn test and the one-legged stand test.” Id. at 962. The First District accepted the
       defendant’s argument but found that other evidence presented was nevertheless sufficient to
       sustain a conviction “[w]ithout taking into consideration the results of the field sobriety
       tests.” Id.
¶ 26       In People v. Hires, 396 Ill. App. 3d 315 (2009), the defendant argued that the State had
       failed to present any evidence that his field sobriety tests had been conducted under the
       standardized conditions mandated by NHTSA. The defendant maintained that the State had
       presented no evidence that his performance on those tests was in any way probative of
       impairment. Id. at 319. The Fourth District rejected the notion that the State needed to
       present evidence that the tests were administered properly, finding that “the trier of fact
       needs no expert assistance to explain the significance of behavior like defendant’s when
       deciding whether a driver’s” faculties are impaired. Id. at 320.
¶ 27       Other jurisdictions have also addressed the same NHTSA-sanctioned field sobriety tests,
       and their proper administration. In State v. Meador, 674 So. 2d 826 (Fla. Dist. Ct. App.
       1996), a Florida appellate court held that where the State cannot show that the field sobriety
       tests were administered in compliance with the reliable methodology promulgated by
       NHTSA, “[r]eference to the exercises by using terms such as ‘test,’ ‘pass,’ ‘fail,’ or ‘points,’
       *** creates a potential for enhancing the significance of the observations in relationship to
       the ultimate determination of impairment, as such terms give these layperson observations an
       aura of scientific validity.” Id. at 833; see also United States v. Horn, 185 F. Supp. 2d 530,
       559 (D. Md. 2002) (“To interject into this essentially descriptive process technical
       terminology regarding the number of ‘standardized clues’ that should be looked for or
       opinions of the officer that the subject ‘failed’ the ‘test,’ especially when such testimony
       cannot be shown to have resulted from reliable methodology, unfairly cloaks it with unearned
       credibility.”). In City of West Bend v. Wilkens, 2005 WI App 36, ¶ 19, 278 Wis. 2d 643, 693
       N.W.2d 324, a Wisconsin appellate court held that the proper administration of field sobriety
       tests goes to the weight of that evidence, not its admissibility, and that “[s]tandardization may
       lead to reliability.”
¶ 28       Though the cases cited above address issues of trial evidence, they are nevertheless
       informative in the suppression context, where we consider the facts available to the officer at
       the time. Here Lopez testified—explicitly and repeatedly—that he did not administer those
       tests (one-leg stand and walk-and-turn) properly. He admitted that it was improper to
       administer those tests on wet pavement and improper to administer them while it was raining.
       He even agreed that the improper administration of those tests rendered them “invalid.”
       Notably, Lopez initially could not remember the weather on the night in question. After
       checking his report, however, Lopez agreed that it was raining. Still later, Lopez apparently
       had an independent recollection that it was only drizzling. He admitted that the field sobriety
       tests should not be administered in even a drizzle. The defendant testified that the roadway
       was wet and slick.
¶ 29       The improper administration of the field sobriety tests in this case rendered the “results”
       of those tests inherently less reliable, and the trial court rightly gave Lopez’s observations of
       those tests less evidentiary weight. Unlike in Hires, where the State merely failed to present
       any evidence concerning the proper administration of the field sobriety tests, the evidence
       here affirmatively showed that those tests were not administered correctly. Where the tests
       were not administered in accordance with NHTSA guidelines, the Briseno court completely

                                                   -6-
       disregarded the results. Briseno, 343 Ill. App. 3d at 962. Put in terms of a probable cause
       determination: a reasonably cautious person would give very little, if any, weight to the test
       results that the person knew to be invalid. See Wear, 229 Ill. 2d at 563.
¶ 30       What little probative value the “invalid” and improper testing might have is further
       eroded when we look to that actual substance underlying Lopez’s descriptions. While Lopez
       and the State broadly described the defendant as having “failed” the tests, the trial
       court—and this court, in applying de novo review—must look to the actual observations that
       led to his conclusions. See, e.g., Meador, 674 So. 2d at 832. Such an analysis shows that the
       defendant’s “failures” on the field sobriety tests2 in question were technical in nature and
       few in amount. Regarding the one-leg stand test, Lopez testified that the defendant dropped
       his foot once while counting to 30 and “swayed” but did not move his arms. On the
       walk-and-turn test, Lopez testified that the defendant did not place his heel directly to his toe,
       did not count his steps out loud, and made a “large turn” instead of a small turn.
¶ 31       As the trial court alluded to, the defendant’s performance on the field sobriety tests was
       largely satisfactory. Indeed, we find that none of the purported “clues” on those tests could
       indicate to a reasonable person that the defendant was impaired by alcohol. The defendant
       stood on one foot for 30 seconds in the cold and rain, without using his arms to keep his
       balance, and only put his foot down once. What Lopez described as a failure, others might
       describe as an impressive achievement. On the walk-and-turn test, the defendant exhibited no
       signs of physical impairment, such as the loss of balance or coordination. He remained on the
       line for each of the required 18 steps, and never used his arms for balance. Each of his
       apparent shortcomings dealt only with Lopez’s directions, and two of those—the placement
       of his feet and his “large turn”—could have related to the wet and slick conditions in which
       the defendant was performing the test, the very conditions that Lopez testified rendered the
       tests invalid.
¶ 32       In summary, Lopez administered the field sobriety tests in an improper fashion by
       requesting the defendant perform them on a wet surface while it was raining. This improper
       administration alone significantly impairs the probative weight that can be given to those
       tests. Even further, despite the weather conditions, the defendant’s performance on the tests
       was reasonable, standing on one foot for 30 seconds without using his arms for balance and
       walking a straight line for 18 steps without stepping off the line. Those results would not lead
       a reasonably cautious person to believe that the defendant was impaired by alcohol.

¶ 33                                         II. Other Factors
¶ 34       As further factors supporting a reasonable belief that the defendant was under the
       influence of alcohol, the State cites his admission to drinking earlier in the night, the odor of
       alcohol emanating from his mouth, his bloodshot and glassy eyes, and his slurred speech.
¶ 35       Initially, we note that the State asserts that the defendant’s speech was slurred, with no
       reference to the defendant’s own testimony. Lopez testified that the defendant’s speech was
       normal while he sat in the vehicle but that Lopez only noticed the slur when the defendant
       counted down numbers from 69 to 44. The defendant, however, testified that he enunciated
       the numbers perfectly during that exercise. Determination of whether the defendant’s speech

           2
             The State on appeal agrees with the trial court that the defendant’s purported failure on the HGN
       test only indicates the consumption of alcohol and does not contend that it is probative of impairment.

                                                      -7-
       was slurred thus turns on the question of credibility, and we may infer from the trial court’s
       ultimate ruling that it resolved this question in the defendant’s favor. See, e.g., People v.
       Byrd, 408 Ill. App. 3d 71, 76 (2011) (holding that the trial court’s “legal conclusion
       sufficiently informs us of the supporting inferences the trial judge may have drawn to reach
       [its] decision”); see also People v. Howery, 178 Ill. 2d 1, 32 (1997) (“[T]he trial court is
       presumed to know the law and apply it properly.”). We must defer to this factual finding.
       Jones, 215 Ill. 2d at 268.
¶ 36        We next consider the effect of bloodshot and glassy eyes and admitted alcohol
       consumption upon the reasonably cautious person’s conclusions. See Wear, 229 Ill. 2d at
       563. The consumption of alcohol—here established both by the defendant’s own admission
       as well as the odor of an alcoholic beverage—is relevant to the question of impairment by
       alcohol. E.g., People v. McKown, 236 Ill. 2d 278, 302 (2010). The consumption of alcoholic
       beverages, however, even considered in conjunction with bloodshot or glassy eyes, may not
       alone give rise to probable cause. As the Second District has explained,
                    “Probable 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. [Citations.] Generally, 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.” (Emphasis added.) People v. Wingren,
                167 Ill. App. 3d 313, 320-21 (1988).
       Certainly, the number of alcoholic beverages a driver admits to having consumed may rouse
       suspicions of probable cause. Here, however, though the defendant testified at the hearing as
       to how much he had consumed, there was no evidence presented that he ever provided those
       details to Lopez.
¶ 37        In the present case, any suspicions of impairment that may have been raised by the
       defendant’s admitted consumption of alcohol and bloodshot and glassy eyes were not
       corroborated in any significant way by any other factors. By all accounts, the defendant’s
       driving on the night in question had been nothing short of perfect. He had not been involved
       in any sort of accident. He was able to communicate clearly and effectively with Lopez. The
       field sobriety tests, improperly administered on a wet, slick surface while it was raining, gave
       no indication that the defendant was suffering from any sort of physical impairment. While
       Lopez testified that the defendant briefly lost his balance in walking from his vehicle, the
       defendant denied this accusation. See supra ¶¶ 6, 13.
¶ 38        The fact that the defendant consumed alcohol and had glassy and bloodshot eyes is
       certainly probative of impairment. To a lesser extent, so too is the defendant’s failure to
       perfectly follow test instructions. We agree with the trial court, however, that those factors
       are not enough to lead a reasonably cautious person to believe that the defendant had
       committed the crime of DUI. That is, any suspicions aroused by bloodshot and glassy eyes,
       unless confirmed by some other factor—such as poor driving, stumbling, falling, or an
       inability to communicate clearly—do not rise to the level of probable cause. Accordingly, we
       affirm the trial court’s order quashing the defendant’s arrest and suppressing all evidence


                                                   -8-
       obtained past that point.

¶ 39                                       CONCLUSION
¶ 40      The judgment of the circuit court of Will County is affirmed.

¶ 41      Affirmed.




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