                                        2018 IL App (3d) 170361

                              Opinion filed December 18, 2018
     _____________________________________________________________________________

                                                 IN THE

                                    APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                  2018

     THE PEOPLE OF THE STATE OF                      )      Appeal from the Circuit Court
     ILLINOIS,                                       )      of the 12th Judicial Circuit,
                                                     )      Will County, Illinois,
            Plaintiff- Appellant,                    )
                                                     )      Appeal No. 3-17-0361
            v. 	                                     )      Circuit No. 17-DT-404

                                                     )

     LOUIS A. RACILA,                                )      Honorable

                                                     )      Carmen J. Goodman,
            Defendant- Appellee.                     )      Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE LYTTON delivered the judgment of the court, with opinion.
           Justices McDade and Schmidt concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                OPINION

¶1          Defendant, Louis A. Racila, filed a petition to rescind the summary suspension of his

     driver’s license following his arrest for driving under the influence of alcohol (DUI) (625 ILCS

     5/11-501(a)(2) (West 2016)). The trial court granted the petition, and the State appeals. We

     reverse and remand with instructions.

¶2          On April 6, 2017, Officer Benjamin Gilbert stopped defendant for speeding and charged

     him with DUI. As a result, defendant received notice of summary suspension of his driver’s

     license. Gilbert’s sworn report stated that defendant was driving 16 mph over the posted speed

     limit, had open cans of alcohol in his vehicle, displayed slurred speech, and had glassy and
     watery eyes. The report also indicated that defendant had not completed the standardized field

     sobriety tests as instructed. Defendant filed a petition to rescind the summary suspension,

     alleging, among other things, that the officer did not have reasonable grounds to believe that he

     had been driving under the influence of alcohol.

¶3          At the hearing, Gilbert testified that he “clocked” defendant’s vehicle traveling 46 mph in

     a 30 mph zone. He made a U-turn and followed defendant’s vehicle for a few blocks before

     pulling him over. He approached defendant’s side of the vehicle and had a brief conversation

     with him.     Gilbert testified that defendant responded appropriately to his questions but

     characterized his speech as “slurred.” Defendant gave Gilbert his driver’s license but could not

     find proof of insurance in the vehicle. Gilbert then asked defendant to exit the vehicle, and

     defendant cooperated with his request. He told defendant he was going to perform some field

     sobriety tests.   He performed the horizontal gaze nystagmus (HGN) test.            He then asked

     defendant to complete the walk-and-turn test. Gilbert testified that defendant had difficulty

     keeping his right foot in front of his left during the instruction phase and lifted his arms to help

     keep his balance as he completed the test.

¶4          Next, Gilbert administered the one-leg-stand test. Gilbert told defendant to start counting

     when he lifted his leg. Defendant started to sway around the number 13; at 16, he started

     hopping to his left. Gilbert then asked defendant to complete a breath test, after which Gilbert

     placed defendant under arrest for DUI.

¶5          On cross-examination, Gilbert testified that he had received and passed DUI training at

     the police academy. He stated that when he initially spoke with defendant, he noticed that

     defendant had glassy, watery eyes and slurred speech. He also detected the odor of alcohol




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     emitting from defendant’s breath. In addition, he noticed a case of beer and three open beer cans

     lying in the back seat of the car.

¶6          Gilbert then explained the field sobriety tests in greater detail. He stated that during the

     HGN test, defendant exhibited a “lack of smooth pursuit” with distinct and sustained nystagmus

     at maximum deviation. He testified that the HGN test has six factors that indicate consumption

     and defendant exhibited all six. Regarding the walk-and-turn test, Gilbert testified that defendant

     began the test prior to the completion of his instructions. Defendant was told three times to keep

     his feet placed on an imaginary line before he was able to do so. While defendant was in the

     starting position, he was unable to maintain his balance, stepped off the line, and once again

     started the test without being told to do so. During the test, defendant made an improper turn,

     used his arm for balance and stepped off the line. Gilbert testified that two or three of the eight

     factors in the walk-and-turn test typically indicate impairment and defendant exhibited five.

     Finally, Gilbert testified that the one-leg-stand test requires a minimum of two factors to indicate

     impairment and defendant indicated four.

¶7          Gilbert asked defendant to take a breath test using a portable device (PBT). The PBT

     registered a blood concentration of 0.099. Gilbert asked defendant when defendant had his last

     drink, and defendant responded 2 p.m. Gilbert testified that at that point he was of the opinion

     that defendant had consumed alcoholic beverages and could not safely operate a motor vehicle.

¶8          The video from Gilbert’s squad car was also admitted into evidence. In the video, Gilbert

     asks defendant if he has consumed any alcohol or drugs. Defendant says, “No, absolutely not.”

     Gilbert then asks if defendant has any previous tickets or convictions. Defendant responds, “No,

     not in the last five years…I mean I had a DUI in 2012.” Gilbert says “ok, but nothing else,” and

     defendant says, “No.” He then asks defendant and the passenger, “What’s going on with the


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       open beer cans in the back?” Defendant says that he and the passenger had them at work. The

       passenger says, “I drank them. That’s why he’s driving and I’m not.” Gilbert goes to his squad

       car and then returns and asks defendant to exit the vehicle. Defendant does so voluntarily,

       without incident, and they both walk to the back of defendant’s car. Gilbert informs defendant

       that he is going to have him take a few tests.

¶9            During the walk-and-turn test, defendant has trouble standing in a straight line while he is

       waiting for instructions. He asks Gilbert if he can take his shoes off, and Gilbert says, “Sure.”

       Defendant starts the test before Gilbert is finished with the instructions. He then apologizes and

       goes back to the starting position. Gilbert moves to the side so defendant can walk forward.

       Defendant sways to the right, loses his balance, and moves his right foot off to the side to

       maintain his equilibrium. He then starts the test again before he is told to do so. Once he starts

       the test, he uses his arms to stay balanced and steps off the line twice to keep from losing his

       footing. On the one-leg-stand test, defendant loses his balance as he counts past 13 and then

       hops to the left several times as he counts to 17 and 18. As he starts to fall to the left, he puts his

       foot down and stops the test. Gilbert then tells defendant to stay put and walks back to his squad

       car. When he returns from the squad car, he has a portable device in his hand and asks defendant

       to blow into it. Defendant agrees to do so and blows into the tube. Gilbert again asks defendant

       how many drinks he has had. Defendant admits that he drank alcohol but says that he had his

       last drink at 2 p.m. Gilbert asks defendant to put his hands behind his back and informs him that

       he is under arrest for DUI. At the end of Gilbert’s testimony, the State moved for a directed

       finding, which the trial court denied.

¶ 10          During the State’s case-in-chief, Gilbert testified that he stopped defendant’s vehicle

       around 7 p.m. Defendant’s first response regarding how much alcohol he had consumed was


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       that he had nothing to drink, but he later responded that he had a beer at 2 p.m. When asked why

       he gave the officer conflicting responses, defendant replied, “I do not recall why I did that.” He

       admitted that he had two beers around 2 p.m.

¶ 11          The trial court found in favor of defendant and granted the petition to rescind. Regarding

       the FST, the court stated that “[t]he fields are just a factor. A lot of people can’t do the fields.”

       It acknowledged, however, that having open alcohol would be a factor along with the field

       sobriety tests. As for the field sobriety tests, the court stated that it “didn’t see any balance

       problems whatsoever.” The court found that Gilbert lacked probable cause to arrest defendant

       for DUI and granted the petition to rescind his summary suspension.

¶ 12                                               ANALYSIS

¶ 13          The State argues that the trial court erred in granting the petition to rescind defendant’s

       statutory summary suspension. Specifically, the State contends that the evidence at the hearing

       established that Gilbert had reasonable grounds to believe defendant committed a DUI violation.

¶ 14          At a hearing to rescind statutory summary suspension, a defendant carries the burden of

       making a prima facie case for rescission. People v. Kavanaugh, 362 Ill. App. 3d 690, 695

       (2005). Once the defendant has done so, the burden of presenting evidence to justify the

       suspension shifts to the State. Id. A reviewing court must be deferential to the trial court's

       factual findings and reverse those findings only if they are against the manifest weight of the

       evidence. People v. Wear, 229 Ill. 2d 545, 561 (2008). A reviewing court is free, however, to

       assess the facts and draw conclusions and, thus, review de novo the legal ruling on whether a

       petition to rescind should have been granted. Id. at 562.

¶ 15          The issue at the summary suspension hearing in this case was whether the arresting

       officer had reasonable grounds to believe that defendant was driving while under the influence of


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       alcohol. In this context, “reasonable grounds” is synonymous with “probable cause.” Id. at 560.

       “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. A probable cause determination must be based upon the totality of the

       circumstances and must rise to a level higher than mere suspicion but less than proof beyond a

       reasonable doubt. People v. Lee, 214 Ill. 2d 476, 484 (2005). As this court has noted:

              “ ‘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 ***

              being in a vehicle which is stuck in the mud.’ ” People v. Day, 2016 IL App (3d)

              150852, ¶ 36 (quoting People v. Wingren, 167 Ill. App. 3d 313, 320-21 (1988)).

¶ 16          Here, Gilbert testified that he smelled the odor of alcoholic on defendant’s breath and that

       defendant had glassy, watery eyes. He further testified that defendant failed the HGN test and

       struggled with balance on both the walk-and-turn test and the one-leg-stand test. The video

       supports the officer’s assessment of defendant’s performance. On the video, defendant stumbles

       to the right and loses his balance during the walk-and-turn test and hops to the left and puts his

       foot down to maintain his balance on the one-leg-stand test. In addition, defendant had open

       cans of beer in his vehicle and admitted that he had consumed alcohol. Given defendant’s

       physical signs of alcohol consumption, open cans of alcohol in the vehicle, admission of alcohol


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       consumption, and failed field sobriety tests, Gilbert had reasonable grounds to believe defendant

       was driving under the influence of alcohol.

¶ 17          In People v. Rush, 319 Ill. App. 3d 34 (2001), the defendant was arrested for DUI and

       served with a written notice of statutory summary suspension. Defendant moved to suppress the

       State’s evidence and filed a petition to rescind his suspension, arguing that the arresting officer

       did not have reasonable grounds to believe that he was driving under the influence of alcohol.

       Rush, 319 Ill. App. 3d at 35. The trial court granted the defendant’s motion and petition to

       rescind, and the State appealed. The appellate court found that the officer had probable cause to

       arrest the defendant for DUI when the defendant had slurred but understandable speech, smelled

       strongly of alcohol, admitted to drinking several beers the night before, had open alcohol in his

       car, failed one of the field sobriety tests, had “jerking” eyes during the HGN test, and registered

       an alcohol concentration of 0.07 on the PBT. Id. at 40-41. In this case, defendant exhibited

       similar indicators of impairment, with the addition of a higher PBT reading and failing all the

       administered field sobriety tests. These facts demonstrate that Gilbert had probable cause to

       arrest defendant for DUI. Thus, the trial court erred in granting the petition to rescind the

       statutory summary suspension.

¶ 18          In support of his contention that Gilbert did not have probable cause to arrest him for

       DUI, defendant cites Day, 2016 IL App (3d) 150852.               However, this case is readily

       distinguishable. In Day, the defendant was pulled over for excessive noise emanating from his

       exhaust pipe; no other driving infractions were noted.         In addition, the field tests were

       administered in the rain and the arresting officer admitted that they should have been given on a

       flat, dry surface. This court determined that the field sobriety tests were administered in an

       improper fashion due to the officer requesting that they be performed on a wet surface in the


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       rain. We stated that the improper administration significantly impaired the probative weight that

       could be given to those tests. We concluded that the defendant’s performance of the field

       sobriety tests did not give the arresting officer probable cause to arrest him for DUI and that the

       defendant’s consumption of alcohol and his bloodshot eyes, without more, did not give the

       officer reason to believe the defendant had been driving under the influence of alcohol. Day,

       2016 IL App (3d) 150852, ¶ 38.

¶ 19          In this case, the facts are distinguishable. The field sobriety tests given to defendant were

       not administered in the rain or in an otherwise improper manner. As demonstrated in the video,

       the weather was clear and the pavement was dry and level. Moreover, there are additional facts

       that support defendant’s arrest for DUI. Specifically, defendant was stopped for speeding, which

       is an observation that supplements other observations made by an officer in support of probable

       cause to arrest a motorist for DUI. See Rush, 319 Ill. App. 3d at 35. Defendant’s breath also

       smelled of an alcoholic beverage, he had open cans of beer in the car, and he admitted that he

       had been drinking. These additional factors, which were not present in Day, support Gilbert’s

       probable cause to arrest defendant for a DUI violation.

¶ 20          Under the circumstances, we conclude that Gilbert had probable cause (or reasonable

       grounds) to believe that defendant had been operating a motor vehicle while under the influence

       of alcohol. We therefore reverse the trial court’s order granting defendant’s petition to rescind.

¶ 21                                             CONCLUSION

¶ 22          The judgment of the circuit court of Will County is reversed, and the cause is remanded

       to the trial court to enter an order denying defendant’s petition to rescind.

¶ 23          Reversed and remanded.




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