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                                    Appellate Court                            Date: 2017.08.17
                                                                               13:19:21 -05'00'




                       People v. Gocmen, 2017 IL App (3d) 160025



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



District & No.         Third District
                       Docket No. 3-16-0025


Filed                  March 29, 2017
Modified upon denial
of rehearing           May 15, 2017



Decision Under         Appeal from the Circuit Court of Will County, Nos. 15-DT-1284,
Review                 15-TR-72055, 15-TR-72056; the Hon. Carmen Goodman, Judge,
                       presiding.



Judgment               Affirmed.



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

                       No brief filed for appellee.



Panel                  JUSTICE McDADE delivered the judgment of the court, with
                       opinion.
                       Presiding Justice Holdridge concurred in the judgment and opinion.
                       Justice Schmidt dissented, with opinion.
                                             OPINION

¶1       The trial court granted the petition to rescind statutory summary suspension filed by
     defendant, Ahmet Gocmen. The State appealed, arguing that the trial court erred in granting
     the petition. We affirm.

¶2                                             FACTS
¶3       Defendant was charged with driving under the influence of drugs or combination of drugs
     (625 ILCS 5/11-501(a)(4) (West 2014)) and improper lane usage (625 ILCS 5/11-709 (West
     2014)). His driver’s license was summarily suspended. Defendant filed a petition to rescind
     statutory summary suspension, which alleged that the officer did not have reasonable grounds
     to believe defendant had been in control of the vehicle while under the influence of alcohol or
     drugs.
¶4       A hearing was held on defendant’s petition. The sole witness was Officer Adam Beaty,
     who testified that he had been a police officer for the Village of Shorewood for two years. He
     had never received any driving under the influence (DUI) drug training, though he had
     received DUI alcohol training. On September 14, 2015, at 11:10 a.m., he responded to a call
     for an unconscious person in a vehicle who was possibly having a seizure. When he arrived on
     the scene, Beaty noticed a Ford Explorer with its passenger side tires on the grass and part of
     the vehicle still on the road. Paramedics were already present, attending to defendant.
¶5       While on the scene, Beaty observed a Red Bull can on the passenger’s side of defendant’s
     vehicle. The can “had been either cut or tore in half, with burn marks on the *** interior [of]
     the can.” On the inside, bottom of the can, Beaty noticed “a brown, tanish residue.” Beaty
     performed a “NARK Cocaine ID Swipe” to test for drugs in the can. He was trained to perform
     the NARK test, but had never performed a NARK test on any evidence prior to this time. He
     took the test out of the package and touched it to the bottom of the can. The test then turned
     blue. He had been taught during his training that the blue color indicated the presence of
     opiates. Beaty also found a used one-millimeter syringe in the vehicle. A brown, granular
     substance was also found in a small baggy in defendant’s wallet, for which test results were not
     available at the time of the hearing. Beaty was asked whether he made “any observations of
     [defendant] before he left the scene.” Beaty stated, “Other than what paramedics told me, no.”
     Defendant never performed any field sobriety tests.
¶6       Beaty talked to the paramedics about defendant. He asked if there was any indication of
     intoxication or alcohol. The paramedics indicated that there was not. The paramedics did tell
     Beaty that there was a fresh track mark on defendant’s arm where a needle would have been
     used. The paramedics also told Beaty that defendant was sweating, had pinpoint pupils, and
     had a heart rate of 144 beats per minute. Defendant was also in and out of consciousness.
¶7       Beaty met defendant at the hospital. He did not make any observations of defendant at the
     hospital other than that he was tired and lethargic. Defendant indicated to Beaty that he was
     diabetic. Beaty arrested defendant for DUI of drugs. He based the arrest on the NARK swipe,
     the syringe, and the baggy with the granular substance in defendant’s wallet.
¶8       At the end of Beaty’s testimony, the defense rested. The State then moved for a directed
     finding. The court denied the motion and stated, “The burden now shifts to the State.” The
     State did not provide any evidence.


                                                -2-
¶9        In granting defendant’s petition to rescind, the court stated:
                  “One of the things, unlike alcohol—and the case law’s [sic] very clear on this—to
              show intoxicating or drugs, it can’t be based purely on lay testimony.
                  Here, the witness must be qualified still as an expert and, and must establish the
              effects of the drugs, which I, I just did not hear. I heard about how he could test for the
              presence of, of drugs. And here we have that it turned blue in color.
                  In addition, we still have the other factors that we must look at. And we must look
              at what the officer observed.
                  Officer said that he talked to the paramedics, but, however, by the time he arrived
              on scene, the paramedics were still there, the petitioner was still in the vehicle and
              seemed to be nonresponsive.
                  But the one thing, there was some conversation between the [defendant] and the
              officer because the officer was able to gauge that the [defendant] indicated that he was
              diabetic.
                  Syringes and such are so connected to a diabetic, depending on the nature of your
              diabetes. Track marks probably would be found if you have to take insulin shots every
              single day.
                  So, the officer did not base his arrest on what he observed outside of he found a
              syringe and the can. ***
                  ***
                  The dispatch even was a possible seizure. Even the paramedics, according to the
              officer’s testimony, indicated they didn’t even smell any alcohol.
                  Even if we found that the officer had some experience, where he testified he had no
              experience and training other than how to test for possible presence of a drug, did this
              particular individual take that particular drug, was that in their system, and not related
              to him being a diabetic, and did that have, having an accident? Clearly there was some
              issues with driving.
                  But an officer must also show the [effects] of, of the drugs on this individual that he
              found, and none of that was done.”

¶ 10                                           ANALYSIS
¶ 11       On appeal, the State argues that the trial court erred in granting defendant’s petition to
       rescind his statutory summary suspension. Specifically, the State calls our attention to the
       following facts: (1) the physical symptoms defendant was presenting, (2) the substance in
       defendant’s wallet, (3) the syringe, (4) the track mark, and (5) the Red Bull can which tested
       positive for opiates. While we acknowledge these facts, they are insufficient to establish
       probable cause to arrest for DUI of drugs as the record confirms that Beaty had no training or
       experience that would enable him to distinguish between a diabetic reaction and a drug
       reaction.
¶ 12       At the outset, we note that defendant has not filed an appellee’s brief. In spite of the lack of
       an appellee’s brief, we will decide the present case on its merits because the record is simple
       and the issues are such that this court can easily decide them without an appellee’s brief. See
       First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).


                                                    -3-
¶ 13       The issue at this statutory summary suspension hearing was whether the officer had
       reasonable grounds to believe that the person was driving while under the influence of drugs.
       We use the probable cause analysis derived from the fourth amendment to answer this
       question. People v. Wear, 229 Ill. 2d 545, 560 (2008). “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.” Id. at 563. Such a determination
       must be based on the totality of the circumstances. Id. at 564. When reviewing a trial court’s
       decision on a petition to rescind, we apply a two-tier standard of review: the trial court’s factual
       findings are reviewed under a manifest weight of the evidence standard, while the ultimate
       ruling whether rescission is warranted is reviewed de novo. Id. at 561-62.
¶ 14       Initially, we note that the State points to defendant’s physical symptoms: that defendant
       was sweating, had pinpoint pupils, and had a heart rate of 144 beats per minute. However,
       Beaty admitted that he never observed defendant and only knew these symptoms by speaking
       to the paramedics. As Beaty never observed these symptoms and did not have any training or
       experience in DUI of drugs, his opinion as to the cause of said symptoms is tenuous at best.
       Moreover, Beaty further based his arrest on the residue found at the bottom of the Red Bull
       can. Though Beaty conducted a “NARK Cocaine ID Swipe” of the residue, which he said
       tested positive for opiates, we find it curious that a “Cocaine ID” test would be used to test for
       opiates when cocaine is not an opiate. See People v. Vernor, 66 Ill. App. 3d 152, 154-55 (1978)
       (finding that opiates are narcotic drugs while cocaine is not). Therefore, it is unclear whether
       Beaty even administered the correct type of test, and if so, whether he administered it correctly.
¶ 15       Even accepting defendant’s physical symptoms and the fact that the Red Bull can tested
       positive for opiates, we agree with the trial court that Beaty lacked probable cause to believe
       that defendant was under the influence of such drugs. We emphasize that defendant told Beaty
       that he was a diabetic. We also emphasize that Beaty admitted that he had no training in DUI of
       drugs. Viewing these two facts in conjunction with one another, we agree with the trial court’s
       conclusion that Beaty would not have known the difference between a diabetic reaction and a
       reaction to drugs. The dissent states that “the trial court was in no position to judge defendant’s
       credibility.” Infra ¶ 25. However, the court did not make any credibility finding. Instead, the
       court reviewed the evidence in totality and determined (1) that defendant may have been a
       diabetic and (2) since the officer did not have any drug training or experience, he had no basis
       to conclude that defendant’s state was based on drugs and not diabetes.
¶ 16       Though a layperson can testify regarding intoxication from alcohol, “the effects of drugs
       are not commonly known, and training and experience are necessary to understand their effects
       on people.” People v. Shelton, 303 Ill. App. 3d 915, 925 (1999). The dissent takes issue with
       our use of Shelton, as it “dealt with a police officer’s ability to give his opinion at a criminal
       jury trial that defendant was under the influence of drugs” and did not concern the issue of
       whether or not the officer had probable cause at a statutory summary suspension hearing. Infra
       ¶ 24. Though the dissent is correct, we believe the principle is equally applicable in the
       probable cause context. In determining the reliability of an officer’s probable cause
       determination, our supreme court has held that the “officer’s experience and training in the
       detection of controlled substances” must be taken into account. People v. Stout, 106 Ill. 2d 77,
       87 (1985). Though the supreme court has declined “to define the exact number of training
       hours or employment years necessary to render an officer’s belief reliable,” (id.) we agree with
       the dissent that “[o]ne need not be a 20-year police veteran or drug expert.” Infra ¶ 28.


                                                    -4-
       However, the record in the instant case is simply devoid of any evidence of training or
       experience. While we acknowledge the track mark on defendant’s arm and the syringe found in
       his car, the trial court correctly held that both “are so connected to a diabetic.” Finally, the
       substance found in defendant’s wallet carries no evidentiary weight as test results were not
       available at the time of the hearing. Accordingly, we uphold the rescission of defendant’s
       statutory summary suspension.
¶ 17       In coming to this conclusion, we reject the State’s reliance on People v. Arrendondo, 2012
       IL App (3d) 110223, for the proposition that “an officer need not be an expert in order to have
       reasonable grounds to believe that a defendant was driving a vehicle while under the influence
       of a drug.” In Arrendondo, the defendant was arrested for DUI of cannabis. Id. ¶ 18. While we
       agree that an officer need not necessarily have “advanced training” or be certified as an expert,
       some training and experience in DUI of drugs is necessary. See Shelton, 303 Ill. App. 3d at
       925-26. Unlike the instant case, where Beaty stated he had no training or experience, the
       officer’s testimony in Arrendondo met this standard. Specifically, the officer testified that he
       had training in the identification of cannabis and had “learned that glossy, bloodshot eyes were
       a possible indicator that a person had been smoking cannabis.” Arrendondo, 2012 IL App (3d)
       110223 ¶ 4. He further had encountered cannabis many times in his career. Id. Also, unlike the
       instant case, the defendant in Arrendondo admitted to having smoked cannabis on the evening
       he was arrested. Id. ¶ 11. Simply put, the State misreads Arrendondo.
¶ 18       Further, we reject the State’s argument that we should depart from cases like Shelton,
       which require training and experience in order to testify regarding the effects of drugs.
       Specifically, the State argues “the unfortunate explosion in illicit drug use throughout all
       sectors of our society has made the effects of drugs on people common knowledge.” The State
       exaggerates the pervasiveness of drug use. It defies logic and borders on insulting to say that
       the average person in Illinois is so familiar with illicit drug use that he or she is able to
       recognize its effects.
¶ 19       In a petition for rehearing, the State argues, “The opinion in this case opens a Pandora’s
       Box whereby all a defendant has to do to avoid an arrest for DUI drugs is to claim that he or she
       is diabetic.” This is not the case. Here, defendant presented the testimony of Beaty, who stated
       that defendant told him he was diabetic and that he had no training or experience in DUI drugs.
       The court found that defendant had met his burden of establishing a prima facie case for
       rescission, as evidenced by its denial of the State’s motion for directed finding. See People v.
       Wear, 229 Ill. 2d 545, 559-60 (2008) (a hearing on a petition to rescind a statutory summary
       suspension is a civil proceeding in which the driver bears the burden of proof). The court then
       stated that the burden shifted to the State. The State did not provide any evidence to justify the
       suspension. See id. at 560 (once the driver establishes a prima facie case for rescission, the
       burden shifts to the State to present evidence justifying the suspension). The court found that
       the State did not meet its burden of proof. Our opinion applies only to the factual situation,
       here, where Beaty did not have any training or experience in DUI drugs and defendant
       provided an alternative explanation of diabetes via the testimony of Beaty. Without any
       training or experience, as stated above (supra ¶¶ 15-16), Beaty would not have been able to
       form a reliable opinion on the cause of defendant’s condition. This was enough to establish a
       prima facie case for rescission, which the State failed to rebut. Had Beaty had any experience
       or training or had the State provided some evidence to rebut the rescission, the outcome might



                                                   -5-
       have been different.

¶ 20                                       CONCLUSION
¶ 21      The judgment of the circuit court of Will County is affirmed.

¶ 22      Affirmed.

¶ 23        JUSTICE SCHMIDT, dissenting.
¶ 24        I respectfully dissent. The arresting officer only had to be reasonable, not absolutely
       correct. Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (holding that the “ultimate
       touchstone of the Fourth Amendment is ‘reasonableness’ ”); Brinegar v. United States, 338
       U.S. 160, 175 (1949) (“Probable cause exists where ‘the facts and circumstances within their
       (the officers’) knowledge and of which they had reasonably trustworthy information (are)
       sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense
       has been or is being committed.” (quoting Carroll v. United States, 267 U.S. 132, 162 (1925))).
       Probable cause “means less than evidence which would justify condemnation ***. It imports a
       seizure made under circumstances which warrant suspicion.” (Internal quotation marks
       omitted.) Brinegar, 338 U.S. at 175 n.14. The notion of probable cause recognizes that the
       officer may be wrong. Heien v. North Carolina, 574 U.S. ___, ___, 135 S. Ct. 530, 536 (2014)
       (“To be reasonable is not to be perfect, and so the Fourth Amendment allows for some
       mistakes on the part of government officials, giving them ‘fair leeway for enforcing the law in
       the community’s protection.’ ” (quoting Brinegar, 338 U.S. at 176)); Brinegar, 338 U.S. at 175
       (“In dealing with probable cause, *** as the very name implies, we deal with probabilities.
       These are not technical; they are the factual and practical considerations of everyday life on
       which reasonable and prudent men, not legal technicians, act.”). The majority’s reliance upon
       Shelton is misplaced. That case dealt with a police officer’s ability to give his opinion at a
       criminal jury trial that defendant was under the influence of drugs. Shelton, 303 Ill. App. 3d at
       926. The issue was whether defendant was under the influence of drugs, not whether the officer
       had probable cause to arrest. Id. at 926-27.
¶ 25        The majority recognizes that a hearing on a petition to rescind the statutory summary
       suspension is a civil proceeding in which the driver bears the burden of proof. Supra ¶ 19. I fail
       to understand how the driver established a prima facie case for rescission in this case. The
       majority “emphasize[s] that defendant told Beaty that he was a diabetic.” Supra ¶ 15. The
       defendant did not testify at the suspension hearing. Therefore, the trial court was in no position
       to judge defendant’s credibility. If the trial court believed anything, it could only believe that
       the officer truthfully testified that defendant told him he was diabetic. The trial court’s
       comments indicate that it believed defendant was diabetic. On what evidence?
¶ 26        Defendant went from the scene to the hospital, where he was ultimately arrested. It would
       seem to me that if he wanted to make a prima facie case supporting rescission of his
       suspension, he would have brought forth some evidence that he was, in fact, diabetic and that
       perhaps he was suffering from some diabetic-related illness at the time. It appears that both the
       trial court and the majority accept the notion that defendant’s statement to the officer at the
       scene that he was diabetic established a prima facie case for rescission and proved that the
       fresh needle mark in defendant’s arm was most likely from an insulin injection.


                                                   -6-
¶ 27       Upon arrival at the scene, the officer observed defendant sitting in the driver’s seat of the
       vehicle with the passenger tires on the grass of the eastbound lanes of Route 52. A portion of
       the vehicle was in the roadway. Defendant was in the driver’s seat, the engine was running, the
       vehicle was in park, defendant’s foot was on the brake, and his left arm was on the steering
       wheel. The officer noted defendant was in and out of consciousness and did not cooperate with
       verbal commands by Troy paramedics to exit the vehicle. Defendant stated that he was okay to
       drive. He told the officer that he was northbound on Route 59 (he was, in fact, eastbound on
       Route 52).
¶ 28       In defendant’s car, the officer observed a Red Bull can that had been cut in half and had
       burn marks on the underside of the can. Most likely, the burn marks on the bottom of the can
       were not there because defendant preferred his Red Bull hot. Beaty also found a baggie of what
       field tested as positive for drugs, as well as an uncapped syringe lying on the passenger seat.
       Paramedics advised the officer that defendant had not only a hole in his arm from a recent
       injection, but also track marks on his arm. One need not be a 20-year police veteran or drug
       expert to connect these dots. Track marks are a common sign of a drug abuser who injects his
       or her drug of choice repeatedly, ultimately causing collapse of veins and distinct marks in the
       affected area. Defendant is not the first drug user to tell police he is a diabetic upon being found
       with a hypodermic syringe.
¶ 29       The only “evidence” of defendant being a diabetic was defendant’s self-serving statement
       to the officer at the scene. Also, diabetes and nonprescription drug abuse are not mutually
       exclusive. In light of the totality of the circumstances, the officer’s conduct was totally
       reasonable. Again, defendant failed to make a prima facie case for rescission. I would reverse
       the trial court.




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