                                                         NO. 5-08-0613
                      N O TIC E

 D ecision filed 08/23/10. T he text of
                                                            IN THE
 this decision m ay b e changed or

 corrected prior to the filing of a
                                                 APPELLATE COURT OF ILLINOIS
 P e titio n   fo r    R ehearin g   or   th e

 disposition of the sam e.
                              FIFTH DISTRICT
___________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, )        Appeal from the
                                        )     Circuit Court of
      Plaintiff-Appellee,               )     Marion County.
                                        )
v.                                      )     No. 08-CF-157
                                        )
JEFFREY D. FOLTZ,                       )     Honorable
                                        )     Patrick J. Hitpas,
      Defendant-Appellant.              )     Judge, presiding.
___________________________________________________________________________

               JUSTICE STEWART delivered the opinion of the court:

               The defendant, Jeffery D. Foltz, appeals from a final judgment of conviction entered

by the Marion County circuit court upon a jury verdict of guilty of the offense of aggravated

driving under the combined influence of alcohol and drugs (DUI) (625 ILCS 5/11-501(a)(5)

(West 2008)). The defendant argues that he was not proven guilty beyond a reasonable doubt

because the only evidence of drug use presented at the trial was that a police officer smelled

the odor of burnt cannabis in the defendant's vehicle. We reverse.

                                                        BACKGROUND

               On May 9, 2008, the State charged the defendant by information with one count of

aggravated driving under the combined influence of alcohol and drugs. The parties stipulated

that, at the time of the violation, the defendant's driver's license was suspended. As a result

of the stipulation, the jury did not have to consider the elements that made his offense

"aggravated." The jury would only consider elements of driving under the combined

influence of alcohol and drugs. However, if the defendant was found guilty, the stipulation

would raise the offense to a Class 4 felony.


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       Before the trial began, the court considered two motions in limine. In the first motion,

the defendant sought to exclude all of his prior convictions from being introduced during any

stage of the trial. The court granted the motion. In the second motion, the defendant sought

to exclude any evidence or testimony concerning alleged cannabis. The court granted the

motion regarding a plastic bag containing alleged cannabis and an alleged cannabis cigarette

found during the search of the defendant's vehicle, but it denied the motion regarding the

testimony of the arresting police officer, Shawn Wilkey. The trial court ruled that the

existence of the plastic bag and the cigarette could not be introduced during the trial because

those items had been "lost" after the defendant's arrest and had not been subjected to

chemical testing. However, the court ruled that Officer Wilkey would be allowed to testify

as an ordinary person, not as an expert, regarding the odor of cannabis.

       During the trial, only two witnesses testified. The first witness, for the State, was

Officer Wilkey. Officer Wilkey testified that he had completed his law enforcement training

in early 2008 and had been employed by the Wamac police department for approximately two

years at the time of the trial. As a part of his training, Officer Wilkey had to complete 24

hours of standardized field sobriety school to learn how to determine intoxication and make

proper DUI arrests. His training included how to look for signs and indicators of intoxication

but not how to identify drugs or alcohol by smell. Despite the fact that Officer Wilkey was

not trained to identify drugs or alcohol by smell, he testified that he was familiar with the

smell of both alcohol and drugs from his life experience as well as the prior DUI and

possession arrests he had performed.

       Officer Wilkey testified that, on May 9, 2008, at 4:20 a.m., he was stationed at the

intersection of East 17th and Wabash in Wamac, Illinois, when he saw a car run a four-way

stop sign. The car belonged to the defendant. Upon initial contact with the defendant,

Officer Wilkey asked him for his driver's license, which he was unable to produce. Officer


                                              2
Wilkey stated that he smelled cannabis coming from the car when the defendant rolled down

his window. Officer Wilkey testified that while trying to obtain the defendant's driver's

license, the defendant began to beg the officer to follow him home, and he noticed the smell

of alcohol on the defendant's breath. Based upon his observations, Officer Wilkey decided

to perform the standardized field sobriety tests. He stated that his training included the

proper performance of the field sobriety tests and that he had performed them on numerous

occasions.

       Officer Wilkey asked the defendant to perform the walk-and-turn test and the one-leg-

stand test. He explained that, at the time he asked the defendant to perform the field sobriety

tests, the weather was clear and warm, the ground was level, and the road was smoothly

paved. He first demonstrated and explained the walk-and-turn test. Officer Wilkey testified

that the defendant appeared to understand his instructions and did not demonstrate any

physical conditions that would impair him from performing the tests. The defendant failed

the walk-and-turn test by beginning before he was instructed to begin, not touching heel to

toe, and counting past nine steps. Officer Wilkey then explained and demonstrated the one-

leg-stand test. He stated the defendant also failed this test by putting his foot down more

than once and using his arms to keep his balance. At this time, Officer Wilkey placed the

defendant under arrest for DUI.

       Officer Wilkey stated that the defendant refused to place his hands behind his back

and told him that he was going to the side of the road to urinate. Officer Wilkey told the

defendant he could not urinate in public, and he tried to place handcuffs on him, but he

"jerked his arm away." He then sprayed the defendant with pepper spray. Officer Wilkey

stated that, despite the pepper spray, the defendant continued to "wrestle" with him and that

he called for backup. He then gave the defendant another burst of pepper spray and secured

the handcuffs on him. Officer Wilkey testified that the backup officers assisted in placing


                                              3
the defendant in the squad car and that he drove the defendant to the hospital, where he read

the defendant the warning to motorists. The warning notifies motorists of their rights if they

refuse or submit to chemical testing. Officer Wilkey testified that the defendant entered the

hospital and refused to submit to blood or urine tests.

       During cross-examination, Officer Wilkey admitted that this was his first arrest for

driving under the combined influence of alcohol and drugs. He also admitted that he had

never before made an arrest for driving under the influence of drugs. He stated that, upon

his initiating the traffic stop, the defendant made a successful left-hand turn and the

defendant did not have slurred speech or glassy eyes. He also indicated that the defendant's

ability to stand and walk was not impaired.

       Officer Wilkey testified that the only way to distinguish if a person is under the

influence of drugs rather than alcohol is chemical testing. He stated that the field sobriety

tests and many other signs of intoxication may indicate drug intoxication but that they may

also indicate alcohol intoxication. Officer Wilkey's belief that he detected the odor of burnt

cannabis is what led him to charge the defendant with driving under the combined influence

of alcohol and drugs.

       At the conclusion of Officer Wilkey's testimony, the defendant made a motion for a

directed verdict on the ground that the State had not proved all of the elements required for

a charge of driving under the combined influence of alcohol and drugs. The trial court

denied the motion, finding that there was enough evidence from which the jury could

determine whether the defendant was under the combined influence of alcohol and drugs.

The next witness, for the defense, was Kevin McClain. McClain testified as an expert

witness on field sobriety tests. McClain stated that the walk-and-turn test, when done

correctly, is 68% accurate in determining alcohol impairment and that the one-legged-stand

test is 65% accurate. McClain stated that, also, if used, the horizontal-gaze-nystagmus


                                              4
(HGN) test is 77% accurate. Officer Wilkey did not ask the defendant to perform the HGN

test. McClain also testified that the HGN test can help determine if a person is under the

influence of cannabis if the officer examines the suspect's eyes, specifically, the pupils.

However, nystagmus, or jerking of the eye, is primarily used to determine alcohol

impairment. He stated that one would not see nystagmus if a person was under the influence

of cannabis alone. McClain also stated that many signs of alcohol intoxication are also signs

of drug intoxication, such as the defendant's belligerent behavior and "loss of inhibitions."

The jury returned with a verdict against the defendant for driving under the combined

influence of alcohol and drugs, and the court sentenced the defendant to two years of

probation. The defendant filed a timely notice of appeal.

                                         ANALYSIS

       On appeal, the defendant contends that he was not proven guilty beyond a reasonable

doubt of driving under the combined influence of alcohol and drugs because the only

evidence of drug use was that the police officer allegedly smelled the odor of burnt cannabis

in his vehicle. We agree. When reviewing a criminal case challenging the sufficiency of the

evidence, the relevant question is whether, after viewing the evidence in the light most

favorable to the State, any rational trier of fact could have found the essential elements of the

crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed.

2d 560, 573, 99 S. Ct. 2781, 2789 (1979).

       The elements required to prove driving under the combined influence of alcohol and

drugs are (1) that a person is driving or in actual physical control of a vehicle (2) while under

the combined influence of alcohol and drugs and (3) to a degree that renders that person

incapable of driving safely. 625 ILCS 5/11-501(a)(5) (West 2008). When a person is

charged with driving under the combined influence, it is not sufficient to only show that the

defendant had enough alcohol or enough drugs in his system to render him incapable of


                                               5
driving. Rather, the state must prove that the defendant had both some alcohol in his system

and some drugs in his system. People v. Vanzandt, 287 Ill. App. 3d 836, 844, 679 N.E.2d

130, 136 (1997). Even if the alcohol alone or the drugs alone would not independently

render him incapable of driving, if there is evidence that their combined effect rendered him

incapable of driving safely, then the charge may be sustained. Vanzandt, 287 Ill. App. 3d at

844, 679 N.E.2d at 136. The defendant in our case does not dispute that the State presented

sufficient evidence to show that he had some alcohol in his system. The defendant contends,

however, that the State failed to present sufficient evidence to prove beyond a reasonable

doubt that some drug was present in his system at the time of his arrest.

       It is well-established that the average adult is competent to testify regarding alcohol

intoxication because it is within the common experience of most adults. Vanzandt, 287 Ill.

App. 3d at 845, 679 N.E.2d at 136. However, with regard to drug intoxication, Illinois courts

have generally held "that the testimony of police officers that a defendant was under the

influence of drugs would be sufficient, provided that the officers had relevant skills,

experience, or training to render such an opinion." Vanzandt, 287 Ill. App. 3d at 845, 679

N.E.2d at 136.

       In Vanzandt, the defendant was charged with driving under the combined influence

of alcohol and drugs. Vanzandt, 287 Ill. App. 3d at 837, 679 N.E.2d at 131. After a traffic

stop, the defendant fell "partially out" of his vehicle. Vanzandt, 287 Ill. App. 3d at 838, 679

N.E.2d at 131. The arresting officer smelled alcohol coming from the defendant's vehicle

and breath, the defendant slurred his speech, and he refused to submit to field sobriety and

breath tests. Vanzandt, 287 Ill. App. 3d at 838, 679 N.E.2d at 132. The defendant also told

the arresting officer that he was a diabetic and took insulin. Vanzandt, 287 Ill. App. 3d at

838, 679 N.E.2d at 132. The officer testified that he knew that diabetics who drink alcohol

can suffer negative reactions, but he could not testify how much alcohol it would take to


                                              6
cause those reactions. Vanzandt, 287 Ill. App. 3d at 839, 679 N.E.2d at 132-33. Although

the police officer had 18 years of experience regarding DUI arrests for both alcohol and

drugs, his only experience with insulin came from his personal experience with a diabetic

relative. Vanzandt, 287 Ill. App. 3d at 839, 679 N.E.2d at 132. This court found that the

police officer did not have the requisite skills, experience, or training to testify about the

effects of alcohol on people with diabetes. Vanzandt, 287 Ill. App. 3d at 845, 679 N.E.2d

at 136. The conviction was consequently reversed because the State failed to produce any

other evidence that insulin itself or in combination with alcohol would render a person

incapable of driving safely. Vanzandt, 287 Ill. App. 3d at 845, 679 N.E.2d at 136.

       In People v. Jacquith, 129 Ill. App. 3d 107, 108, 472 N.E.2d 107, 108 (1984), the

defendant was charged with driving under the combined influence of alcohol and drugs.

After being stopped, the defendant stumbled out of his vehicle, his breath smelled of alcohol,

he failed field sobriety tests, he had slurred speech, and he demonstrated "hyperactivity."

Jacquith, 129 Ill. App. 3d at 109, 472 N.E.2d at 109. Two officers testified that the

defendant's behavior led them to believe he was under the influence of something else in

addition to alcohol. Jacquith, 129 Ill. App. 3d at 109-10, 472 N.E.2d at 109. The court

reversed the defendant's conviction and held that the testimony of the two police officers was

insufficient to find the defendant guilty beyond a reasonable doubt because neither officer

testified he had experience with narcotics users or had made any arrests for driving under the

influence of drugs. Jacquith, 129 Ill. App. 3d at 115, 472 N.E.2d at 112-13.

       In the case before us, Officer Wilkey did not have the necessary experience to provide

sufficient testimony that the defendant was under the influence of drugs. At the time of the

arrest, he had less than two years' experience as a police officer, and this was his first arrest

for driving under the influence involving drugs. Furthermore, Officer Wilkey did not have

any specific training in drug recognition.         Therefore, Officer Wilkey's testimony is


                                               7
insufficient to prove the defendant was under the influence of drugs or the combination of

alcohol and drugs.

       In addition, the evidence does not prove the defendant had cannabis in his system at

the time of his arrest. In a similar case, a defendant was arrested for driving under the

influence of cannabis. People v. Allen, 375 Ill. App. 3d 810, 811, 873 N.E.2d 30, 31 (2007).

In Allen, the arresting officer testified he smelled burnt cannabis coming from the defendant's

car and breath, his pupils were dilated, and his speech was clear. Allen, 375 Ill. App. 3d at

812, 873 N.E.2d at 31-32. The arresting officer found no drugs or paraphernalia in the

vehicle, and he did not ask the defendant to perform any field sobriety tests, but the

defendant admitted to smoking cannabis the night before. Allen, 375 Ill. App. 3d at 812, 873

N.E.2d at 31-32. In addition, the arresting officer was the only witness to testify at the trial,

and he testified that it was impossible to tell whether the defendant had zero milligrams or

100 milligrams of cannabis in his breath or blood. Allen, 375 Ill. App. 3d at 813, 873 N.E.2d

at 32. "This testimony by Officer Wojowski is fatal to the State's case." Allen, 375 Ill. App.

3d at 816, 873 N.E.2d at 34-35. Based on this evidence, the court found that there was

insufficient evidence to prove beyond a reasonable doubt that the defendant had any amount

of drugs in his breath, urine, or blood at the time of his arrest. Allen, 375 Ill. App. 3d at 816,

873 N.E.2d at 34-35.

       The facts in the case at bar are similar to the facts in Allen. The smell of burnt

cannabis coming from the defendant's car does not prove that he had smoked cannabis that

evening or that cannabis was in his breath, blood, or urine at the time of his arrest.

Furthermore, the remaining evidence of intoxication is far less than the evidence presented

in any of above-cited cases. The defendant did not have slurred speech, dilated pupils, glassy

eyes, bloodshot eyes, trouble walking, or trouble getting out of his vehicle, nor did he admit

to recently smoking cannabis. The only evidence of the defendant's impairment is his failure


                                                8
to pass the field sobriety tests that were administered. However, similar to the police officer's

testimony in Allen, Officer Wilkey testified that the defendant's signs of impairment could

be indicators that drugs, alcohol, or both were present. Therefore, we agree with the

defendant that there is insufficient evidence to prove him guilty beyond a reasonable doubt

for driving under the combined influence of alcohol and drugs.

                                       CONCLUSION

       For all of the reasons stated, we reverse the trial court's judgment of conviction.



       Reversed.



       WELCH and DONOVAN, JJ., concur.




                                               9
                                           NO. 5-08-0613

                                               IN THE

                                APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
___________________________________________________________________________________

      THE PEOPLE OF THE STATE OF ILLINOIS, )      Appeal from the
                                            )     Circuit Court of
           Plaintiff-Appellee,              )     Marion County.
                                            )
      v.                                    )     No. 08-CF-157
                                            )
      JEFFREY D. FOLTZ,                     )     Honorable
                                            )     Patrick J. Hitpas,
           Defendant-Appellant.             )     Judge, presiding.
___________________________________________________________________________________

Opinion Filed:        August 23, 2010
___________________________________________________________________________________

Justices:           Honorable Bruce D. Stewart, J.

                 Honorable Thomas M. Welch, J., and
                 Honorable James K. Donovan, J.,
                 Concur
___________________________________________________________________________________

Attorneys        Michael J. Pelletier, State Appellate Defender, Gary R. Peterson, Deputy Defender,
for              Arden J. Lang, Assistant Appellate Defender, Office of the State Appellate Defender,
Appellant        Fourth Judicial District, 400 West Monroe Street, Suite 303, P.O. Box 5240,
                 Springfield, IL 62705-5240
___________________________________________________________________________________

Attorneys        Hon. Matt Wilzbach, State's Attorney, Marion County Courthouse, P.O. Box 157,
for              Salem, IL 62881; Patrick Delfino, Director, Stephen E. Norris, Deputy Director,
Appellee         Sharon Shanahan, Staff Attorney, Office of the State's Attorneys Appellate
                 Prosecutor, Fifth District Office, 730 E. Illinois Highway 15, Suite 2, P.O. Box 2249,
                 Mt. Vernon, IL 62864
___________________________________________________________________________________
