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                                  Appellate Court                              Date: 2019.02.25
                                                                               11:56:18 -06'00'



                      People v. Racila, 2018 IL App (3d) 170361



Appellate Court       THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption               LOUIS A. RACILA, Defendant-Appellee.



District & No.        Third District
                      Docket No. 3-17-0361



Rule 23 order filed   November 19, 2018
Motion to publish
allowed               December 18, 2018
Opinion filed         December 18, 2018



Decision Under        Appeal from the Circuit Court of Will County, No. 17-DT-404; the
Review                Hon. Carmen J. Goodman, Judge, presiding.



Judgment              Reversed and remanded.


Counsel on            James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino, David
Appeal                J. Robinson, and Stephanie L. Raymond, of State’s Attorneys
                      Appellate Prosecutor’s Office, of counsel), for the People.

                      Ted P. Hammel and Kristen Messamore, of Hammel Law Offices,
                      P.C., of Joliet, and Terrence J. Wallace, of Lockport, for appellee.
     Panel                    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 cited him
       for 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 miles per hour 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 miles
       per hour in a 30-mile-per-hour 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
       emitting from defendant’s breath. In addition, he noticed a case of beer and three open beer
       cans lying in the backseat 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

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       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 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 on 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
       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 field sobriety tests, 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

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       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
       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.’ ” (Emphasis omitted.) 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 alcohol 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 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

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       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. Id. 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 preliminary breath test. Id. at 40-41. In this case,
       defendant exhibited similar indicators of impairment, with the addition of a higher preliminary
       breath test 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 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. Id. ¶ 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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