                         NO. 4-08-0838               Filed 12/8/09

                     IN THE APPELLATE COURT

                           OF ILLINOIS

                         FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellee,          )    Circuit Court of
          v.                           )    Clark County
BILLY L. HIRES,                        )    No. 07CF106
          Defendant-Appellant.         )
                                       )    Honorable
                                       )    Tracy W. Resch,
                                       )    Judge Presiding.
_________________________________________________________________

          JUSTICE STEIGMANN delivered the opinion of the court:

          In October 2007, the State charged defendant, Billy L.

Hires, with one count of aggravated driving under the influence

of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2006), as amended

by Pub. Act 95-149, §5, eff. August 14, 2007 (2007 Ill. Legis.

Serv. 1529, 1529-60 (West))) and one count of driving while

license is revoked (DWR) (625 ILCS 5/6-303(a) (West 2006)).    A

jury found him guilty, and the trial court later sentenced

defendant to 24 years in prison.

          Defendant appeals, arguing that the State failed to

prove him guilty of DUI beyond a reasonable doubt.    We disagree

and affirm.

                          I. BACKGROUND

          In October 2007, Westfield police chief Michael Duvall

observed a maroon Ford minivan--which he later determined was

driven by defendant--swerving from the southbound lane of Route

49 into the northbound lane.   Duvall followed the van.   While
doing so, Duvall checked the van's license plate, which came back

expired.    Duvall then executed a traffic stop.   After Duvall

asked defendant for his driver's license, defendant stated his

license was revoked.

            Duvall was the sole witness at defendant's June 2008

trial.    Duvall testified that defendant produced an identifica-

tion card in lieu of a driver's license.    As defendant retrieved

the card from his wallet, Duvall noticed that (1) defendant (a)

"fumbled" for his paperwork and (b) had slurred speech and (2)

"the odor of an alcoholic beverage" emanated from the van.

Duvall asked defendant if he had been drinking, and defendant

admitted consuming "four or five beers."    Duvall asked defendant

to exit the van to perform field-sobriety tests.     As he rose from

the driver's seat, defendant stumbled and nearly fell to the

ground.

            Once defendant moved to the back of his van, Duvall

administered two field-sobriety tests.    First, Duvall instructed

defendant to perform the one-legged stand.    After reading in-

structions to defendant, Duvall asked defendant if any disabili-

ties would impair defendant's performance of the test.     Defendant

informed Duvall he had a "bad hip" but that his condition would

not prevent him from performing either test.    Bad hip notwith-

standing, defendant attempted the test.    However, defendant was

unable to perform the one-legged stand, losing his balance as

soon as he lifted his foot.    Duvall terminated the test, read

defendant instructions on how to perform the next test--the "walk


                                - 2 -
and turn"--and then demonstrated the test.    Although Duvall

allowed defendant two opportunities to complete the walk and

turn, defendant was unable to complete it.    Duvall terminated the

test and arrested defendant for DUI and DWR.    After Duvall

handcuffed defendant and placed him in the back of the squad car,

defendant became "belligerent," refused to cooperate, and swore

repeatedly. (We note that defendant refused to submit to a

Breathalyzer at the police station.)

          Based on the above evidence, the jury found defendant

guilty of one count of DUI (625 ILCS 5/11-501(a)(2) (West 2006),

as amended by Pub. Act 95-149, §5, eff. August 14, 2007 (2007

Ill. Legis. Serv. 1529, 1529-60 (West))) and one count of DWR

(625 ILCS 5/6-303(a) (West 2006)).    Due to defendant's eight

prior DUI convictions and seven prior DWR convictions, the trial

court determined defendant was eligible for Class X sentencing on

the DUI count (see 625 ILCS 5/11-501(d)(2)(E) (West 2008), as

amended by Pub. Act 95-149, §5, eff. August 14, 2007 (2007 Ill.

Legis. Serv. 1529, 1529-60 (West))) and Class 4 sentencing on the

DWR count (see 625 ILCS 5/6-303(d-3) (West 2006)).    Therefore,

the court sentenced defendant to concurrent terms of 24 years in

prison on the DUI count and 3 years in prison on the DWR count.

          This appeal followed.

                 II. SUFFICIENCY OF THE EVIDENCE

          On appeal, defendant argues that the State failed to

prove him guilty beyond a reasonable doubt of DUI.    Specifically,

defendant contends that (1) Officer Duvall's observations of


                              - 3 -
defendant's behavior the night of the arrest do not show defen-

dant was intoxicated and (2) the field-sobriety tests Duvall

administered are unreliable.    We address defendant's contentions

in turn.

                         A. Standard of Review

            The standard of review for a challenge to the suffi-

ciency of the evidence is "'"whether, after viewing the evidence

in the light most favorable to the prosecution, a rational trier

of fact could have found the essential elements of the crime

beyond a reasonable doubt."' (Emphasis omitted.)      [Citations.]"

People v. Collins, 214 Ill. 2d 206, 217, 824 N.E.2d 262, 267

(2005).    A reviewing court will not retry a defendant and "will

not reverse a conviction unless the evidence is so improbable,

unsatisfactory, or inconclusive that it creates a reasonable

doubt of [the] defendant's guilt."       Collins, 214 Ill. 2d at 217,

824 N.E.2d at 267-68.

                         B. The Crime of DUI

            Section 11-501(a)(2) of the Illinois Vehicle Code

prohibits individuals from "driv[ing] or be[ing] in actual

physical control of any vehicle *** while *** under the influence

of alcohol."    625 ILCS 5/11-501(a)(2) (West 2006), as amended by

Pub. Act 95-149, §5, eff. August 14, 2007 (2007 Ill. Legis. Serv.

1529, 1529-60 (West)).    A defendant is under the influence when,

as a result of consuming alcohol or any other intoxicating

substance, "'his mental or physical faculties are so impaired as

to reduce his ability to think and act with ordinary care.'"


                                 - 4 -
People v. Gordon, 378 Ill. App. 3d 626, 631, 881 N.E.2d 563, 567

(2007), quoting Illinois Pattern Jury Instructions, Criminal, No.

23.29 at 203 (4th ed. 2000).    Intoxication is a question of fact,

which is the trier of fact's responsibility to resolve, as well

as assessing the credibility of the witnesses and determining the

sufficiency of the evidence.    People v. Janik, 127 Ill. 2d 390,

401, 537 N.E.2d 756, 761 (1989).

            To prove that a defendant committed the crime of DUI,

the State may rely on circumstantial evidence.    People v. Diaz,

377 Ill. App. 3d 339, 345, 878 N.E.2d 1211, 1216 (2007).    The

testimony of the arresting officer by itself may be sufficient to

sustain a DUI conviction.    People v. Hostetter, 384 Ill. App. 3d

700, 712, 893 N.E.2d 313, 323 (2008).    Moreover, "a defendant's

refusal to submit to *** testing has 'some tendency to indicate a

consciousness of guilt' and is thus relevant and admissible in a

DUI prosecution."    People v. Jones, 214 Ill. 2d 187, 201-02, 824

N.E.2d 239, 247 (2005), quoting People v. Edwards, 241 Ill. App.

3d 839, 843, 609 N.E.2d 962, 966 (1993).

            C. Defendant's Challenge to the Sufficiency
                   of the Evidence in This Case

       1. Defendant's Claim That Duvall's Observations Do
             Not Show That Defendant Was Intoxicated

            In this case, defendant first contends that Duvall's

testimony does not support the conclusion that defendant was

intoxicated.    Instead, defendant asserts that Duvall's testimony

merely supports the conclusion that defendant consumed "some

alcohol."    The State responds that Duvall's testimony "overwhelm-


                                - 5 -
ingly supported the jury's verdict."   We agree with the State.

           Here, Duvall's observations--which he related to the

jury--demonstrated that defendant was intoxicated.   Duvall

observed defendant repeatedly swerving his van over the center-

line of the highway.   Once he initiated a traffic stop, Duvall

said he smelled alcohol and noticed that defendant was slurring

his speech and had difficulty pulling his identification card out

of his wallet.   Duvall also watched as defendant stumbled out of

the driver's seat, nearly falling to the ground.   Duvall ex-

plained that once out of the vehicle, defendant was incapable of

performing two separate field-sobriety tests.   Though defendant

claimed to have a bad hip, he told Duvall that his condition

would not prevent him from performing either test.   Further,

defendant refused to submit to Breathalyzer testing.   Based on

this evidence, a rational jury could reasonably have inferred

that defendant's erratic driving, slurred speech, and poor

coordination stemmed from intoxication.

           2. Defendant's Claim That the Field-Sobriety
                       Tests Were Unreliable

          Defendant also contends the field-sobriety tests admin-

istered by Duvall "cannot be considered to have proved intoxica-

tion."   Defendant cites the National Highway and Traffic Safety

Administration DWI Detection and Standardized Field Sobriety

Testing Manual for the proposition that field-sobriety tests must

be performed under standardized conditions.   Because the State

presented no evidence as to the conditions under which Duvall

performed the one-legged-stand and walk-and-turn tests, defendant

                               - 6 -
contends his "performance is not probative evidence of impair-

ment."    Defendant additionally cites numerous scientific studies

in support of his claim that field-sobriety tests are unreliable.

Implicit in defendant's contentions are the following:    (1) when

--as in this case--field-sobriety tests are not performed under

standardized conditions (whatever they might be), the results of

such tests should be deemed inadmissible; and (2) even if such

tests are admissible, they are insufficient, standing alone, to

justify an intoxication finding.   What defendant is really saying

is that as laypersons, jurors are ill-equipped to evaluate this

type of evidence.   We reject all of defendant's contentions in

this regard.

           In People v. Sides, 199 Ill. App. 3d 203, 206-07, 556

N.E.2d 778, 779-80 (1990), this court held that "[n]o expert

testimony is needed nor is a showing of scientific principles

required before a jury can be permitted to conclude that a person

who performs badly on the field-sobriety tests may have his

mental or physical faculties 'so impaired as to reduce his abil-

ity to think and act with ordinary care.'"     Instead, when deter-

mining whether a defendant committed the crime of DUI, jurors may

use their "common observations and experiences in life[, which]

would include not only the driving of an automobile[] but [also]

a familiarity with the degree of physical and mental acuity

required to do so."    Sides, 199 Ill. App. 3d at 206, 556 N.E.2d

at 779.    We reaffirm our holding in Sides.

           Here, Duvall testified that defendant's poor balance


                                - 7 -
rendered him unable to complete either field-sobriety test.

Thus, the jury's inference is entirely justified that defendant's

difficulty in performing some of the tasks necessary for the

tests revealed a similarly impaired ability to think and act with

ordinary care when operating his vehicle.

            We also note that defendant appears to be suggesting

that expert testimony is required (1) to gauge the reliability of

field-sobriety tests and (2) to confirm that such tests were

administered properly.    We emphatically disagree.   Based upon our

analysis in Sides (which we now reaffirm), we reiterate that the

trier of fact needs no expert assistance to explain the signifi-

cance of behavior like defendant's when deciding whether a

driver's "'mental or physical faculties are so impaired as to

reduce his ability to think and act with ordinary care.'"

Gordon, 378 Ill. App. 3d at 631, 881 N.E.2d at 567, quoting

Illinois Pattern Jury Instructions, Criminal, No. 23.29 (4th ed.

2000).

                           III. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.    As part of our judgment, we grant the State its $50

statutory assessment against defendant as costs of this appeal.

            Affirmed.

            MYERSCOUGH, P.J., and APPLETON, J., concur.




                                - 8 -
