                                        2019 IL App (3d) 180184

                                Opinion filed August 15, 2019
     ____________________________________________________________________________

                                                 IN THE

                                   APPELLATE COURT OF ILLINOIS

                                           THIRD DISTRICT

                                                  2019

     THE PEOPLE OF THE STATE OF                      )      Appeal from the Circuit Court
     ILLINOIS,                                       )      of the 10th Judicial Circuit,
                                                     )      Peoria County, Illinois,
            Plaintiff-Appellant,                     )
                                                     )      Appeal No. 3-18-0184
            v.                                       )      Circuit No. 15-DT-403
                                                     )
     GARRETT MOTZKO,                                 )      Honorable
                                                     )      Lisa Y. Wilson,
            Defendant-Appellee.                      )      Judge, Presiding.
     ____________________________________________________________________________

           JUSTICE WRIGHT delivered the judgment of the court, with opinion.
           Justices Carter and O’Brien concurred in the judgment and opinion.
     ____________________________________________________________________________

                                               OPINION

¶1          The State appeals following the Peoria County circuit court’s dismissal of a charge of

     driving while under the influence of alcohol (DUI) against defendant, Garrett Motzko. The State

     argues that the court, which dismissed that charge after granting a motion to suppress, was

     without authority to take such action. We reverse and remand for further proceedings.

¶2                                         I. BACKGROUND

¶3          The State charged defendant with DUI (625 ILCS 5/11-501(a)(2) (West 2014)), as well

     as other traffic offenses. Defendant subsequently filed a “Motion to Suppress Evidence and

     Quash Arrest Made Without Warrant.”
¶4          The evidence at the hearing on defendant’s motion established that defendant was

     involved in a single-motorcycle accident. Defendant was injured and attended to by paramedics

     at the scene. Officer Michael Bishoff of the Peoria Police Department was dispatched to the

     scene, where he interviewed a witness to the accident. The witness told Bishoff that defendant

     crashed when trying to negotiate a curve at a high rate of speed. Bishoff spoke briefly to

     defendant at the scene before defendant was transported to a hospital. Bishoff observed

     defendant further at the hospital and conducted a horizontal gaze nystagmus (HGN) test. Bishoff

     placed defendant under arrest for DUI. 1

¶5          On December 22, 2015, the circuit court found that Bishoff lacked probable cause to

     arrest and granted defendant’s motion. The State sought clarification on the scope of the court’s

     ruling, resulting in the following exchange:

                            “THE COURT: *** I am going to grant the motion to quash.

                            [THE STATE]: Your Honor, that would be a motion to suppress the

                    evidence collected after the arrest, is that correct?

                            THE COURT: That’s correct.

                            [THE STATE]: The evidence collected by the officer?

                            THE COURT: Correct.”

¶6          After its motion to reconsider was denied, the State filed a certificate of substantial

     impairment and notice of appeal. In the certificate of impairment, the State averred twice that, as

     a result of the circuit court’s suppression order, it was “unable to proceed to trial in this matter.”

     The State also averred that the ruling “substantially impair[ed]” its ability to proceed. This court

     subsequently affirmed the circuit court’s ruling. People v. Motzko, 2017 IL App (3d) 160154.

            1
             A thorough accounting of the evidence adduced at the hearing on defendant’s motion to suppress
     evidence may be found in People v. Motzko, 2017 IL App (3d) 160154, ¶¶ 4-10.
                                                     -2-
¶7            On remand, the State filed a motion in limine to admit the records of defendant’s medical

       treatment at the hospital following his accident. In support, the State pointed out that the court’s

       suppression ruling suppressed only postarrest evidence and that the treatment and observations

       records it sought to introduce were recorded before the arrest. Defendant filed a motion to strike,

       arguing that the State was barred from relitigating the circuit court’s suppression ruling. The

       circuit court agreed with defendant and struck the State’s motion.

¶8            At a hearing on March 1, 2018, the State asked that the matter be set for trial on the DUI

       charge, as well as the traffic offenses. The State indicated that it intended to introduce evidence

       in the form of doctors’ observations of defendant in the course of treatment at the hospital, as

       well as Bishoff’s prearrest observations of defendant. The circuit court set the traffic offenses for

       trial, but sua sponte dismissed the DUI charge. The State filed a certificate of substantial

       impairment and a notice of appeal.

¶9                                               II. ANALYSIS

¶ 10          On appeal, the State argues that the circuit court did not have authority under section 114-

       1 of the Code of Criminal Procedure of 1963 (Code of Criminal Procedure) to dismiss the DUI

       charge. See 725 ILCS 5/114-1 (West 2014). Defendant argues that the court not only had the

       statutory authority to dismiss the charge but was in fact constitutionally mandated to do so.

¶ 11          At the outset, we must discuss the recent decision in People v. Atchison, 2019 IL App

       (3d) 180183. Atchison’s case and defendant’s case proceeded contemporaneously in the same

       courtroom, with the same private defense attorney and same assistant state’s attorney. The record

       in this appeal is replete with references to Atchison’s case. The facts of the two cases are

       substantively identical. Atchison was charged with DUI and prevailed on a motion to suppress;

       this court then affirmed the circuit court’s suppression ruling. On remand, the circuit court


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       dismissed the DUI charge, despite the State’s insistence that it had prearrest evidence it intended

       to introduce at trial.

¶ 12           The State filed its notices of appeal in these two cases simultaneously, resulting in

       consecutive case numbers in the appellate court—No. 3-18-0183 in Atchison and No. 3-18-0184

       in this case. The State’s argument on this appeal and defendant’s counterargument are identical

       to those raised in Atchison. In short, the outcome in Atchison dictates the outcome in the present

       case. In Atchison, we reversed the circuit court’s dismissal order, reasoning that the court had no

       authority to take such an action. We reach the same conclusion here.

¶ 13           In Atchison, this court provided a deliberate and thorough analysis, setting forth in great

       detail the reasoning behind our decision. Id. ¶¶ 12-40. Ordinarily, given the similarity of the facts

       and arguments in the two cases, a brief order citing to Atchison would be sufficient to dispose of

       the present case. However, in the interest of creating a comprehensive and uniform body of law,

       we find that a summarization of the analysis in Atchison may be helpful.

¶ 14           It is well settled that “the trial court is authorized to dismiss criminal charges prior to trial

       only for the reasons set forth in section 114-1 of the [Code of Criminal Procedure] or where there

       has been a clear denial of due process which prejudiced defendant.” People v. Schroeder, 102 Ill.

       App. 3d 133, 135 (1981); see also People v. Lopez, 2015 IL App (4th) 150217, ¶ 10. The parties

       agree, as they did in Atchison, that this is the controlling principle of law.

¶ 15           Section 114-1(a) of the Code of Criminal Procedure states:

                       “(a) Upon the written motion of the defendant made prior to trial before or after a

               plea has been entered the court may dismiss the indictment, information or complaint

               upon any of the following grounds:




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                       (1) The defendant has not been placed on trial in compliance with Section

               103-5 of this Code.

                       (2) The prosecution of the offense is barred by Sections 3-3 through 3-8 of

               the Criminal Code of 2012.

                       (3) The defendant has received immunity from prosecution for the offense

               charged.

                       (4) The indictment was returned by a Grand Jury which was improperly

               selected and which results in substantial injustice to the defendant.

                       (5) The indictment was returned by a Grand Jury which acted contrary to

               Article 112 of this Code and which results in substantial injustice to the

               defendant.

                       (6) The court in which the charge has been filed does not have jurisdiction.

                       (7) The county is an improper place of trial.

                       (8) The charge does not state an offense.

                       (9) The indictment is based solely upon the testimony of an incompetent

               witness.

                       (10) The defendant is misnamed in the charge and the misnomer results in

               substantial injustice to the defendant.

                       (11) The requirements of Section 109-3.1 have not been complied with.”

               725 ILCS 5/114-1(a) (West 2014).

Defendant argues that section 3-4(a)(2) of the Criminal Code of 2012 (Criminal Code) provided

the authority for the circuit court to dismiss the DUI charge. See 720 ILCS 5/3-4(a)(2) (West

2014). The section, in turn, provides:

                                                -5-
                      “(a) A prosecution is barred if the defendant was formerly prosecuted for the

              same offense, based upon the same facts, if that former prosecution:

                              ***

                              (2) was terminated by a final order or judgment, even if entered before

                      trial, that required a determination inconsistent with any fact or legal proposition

                      necessary to a conviction in the subsequent prosecution[.]” Id.

¶ 16          In Atchison, we explained that in determining whether a prosecution is barred by double

       jeopardy under section 3-4(a)(2) of the Criminal Code, “[t]he operative concern when

       considering the effect of a pretrial dismissal of charges is whether the dismissal is ‘tantamount to

       an acquittal,’ as opposed to a dismissal for mere technical insufficiency.” Atchison, 2019 IL App

       (3d) 180183, ¶ 19 (quoting People v. Baze, 43 Ill. 2d 298, 300 (1969)). Thus, our task in

       determining whether the circuit court’s dismissal in this case was authorized is to resolve

       whether the court’s order suppressing evidence and quashing arrest can be considered

       “tantamount to an acquittal.” Id. ¶ 20.

¶ 17          To be sure, the suppression of certain evidence often renders the State effectively unable

       to proceed, as when a seized controlled substance is suppressed in a drug case. E.g., People v.

       Kipfer, 356 Ill. App. 3d 132, 143 (2005). However, the remedy of suppression of evidence is, by

       its very nature, a remedy that is to be applied at trial. See People v. LeFlore, 2015 IL 116799,

       ¶ 17. As such, our supreme court has made clear that an order suppressing evidence is an

       interlocutory order, rather than a final order. See Ill. S. Ct. R. 604(a)(1) (eff. July 1, 2017);

       People v. Drum, 194 Ill. 2d 485, 488 (2000).

¶ 18          In Atchison, we further considered the effect, if any, of the second portion of the circuit

       court’s order. Atchison, 2019 IL App (3d) 180183, ¶ 22. After all, the defendant there—as here—


                                                      -6-
       moved to suppress evidence and quash arrest, a motion that the circuit court granted. If an order

       suppressing evidence is not final or tantamount to an acquittal, what of an order quashing arrest?

¶ 19          We recognize that the Fourth District has held that the quashing of an arrest is not an

       actual process cognizable under Illinois law. People v. Hansen, 2012 IL App (4th) 110603,

       ¶¶ 62-63; People v. Ramirez, 2013 IL App (4th) 121153, ¶¶ 56-61; People v. Winchester, 2016

       IL App (4th) 140781, ¶ 30 (“ ‘Motion to quash arrest’ is an arcane phrase that has a ring of

       authenticity but is actually meaningless verbiage.”). In its decisions, the Fourth District has

       stressed that a “motion to quash arrest” does not appear anywhere in the Code of Criminal

       Procedure. Ramirez, 2013 IL App (4th) 121153, ¶ 56; see 725 ILCS 5/100-1 to 122-7 (West

       2014). The Fourth District presents a compelling case that the quashing of an arrest is of no

       particular import, a point this court tacitly agreed with in People v. McCottrell, 2017 IL App (3d)

       140477-U, ¶ 31.

¶ 20          Nevertheless, this case does not call on us to weigh in on the continued propriety of

       motions to quash arrest. Rather, we must consider whether the reasoning underlying the court’s

       decision—the finding that Bishoff lacked probable cause to arrest—impacts the State’s ability to

       move forward. Defendant argues that the circuit court’s finding that Bishoff lacked probable

       cause to arrest necessarily prevents the prosecution from proceeding because there must be a

       valid arrest for defendant to be made to stand trial.

¶ 21          Our supreme court addressed this issue in People v. Bliss, 44 Ill. 2d 363 (1970). There the

       court held:

                      “The general rule is that if a defendant is physically present before the court on an

                      accusatory pleading, either because held in custody after arrest or because he has

                      appeared in person after giving bail, the invalidity of the original arrest is


                                                       -7-
                       immaterial, even though seasonably raised, as far as the jurisdiction of the court to

                       proceed with the case is concerned. [Citations.] Due process of law is satisfied

                       when one present in court is convicted of crime after having been fairly apprised

                       of the charges against him and after a fair trial in accordance with constitutional

                       procedural safeguards. Accordingly it is held that the power of a court to try a

                       person for crime is not impaired by the fact that he has been brought within the

                       court’s jurisdiction by reason of a forcible abduction.” Id. at 369.

       This court recently employed that reasoning when we found that “an illegal arrest does not

       necessitate dismissal of the case where evidence still exists to convict defendant.” People v.

       Jordan, 2016 IL App (3d) 150747-U, ¶ 23. While Jordan was an unpublished case, we officially

       adopted its analysis in Atchison, and reaffirm that decision here. See Atchison, 2019 IL App (3d)

       180183, ¶ 24.

¶ 22          Since a legal arrest is not a prerequisite to prosecution, it follows that the finding that

       Bishoff lacked probable cause to arrest does not act to bar further prosecution, or as an effective

       dismissal of the charges. Therefore, we must reject defendant’s argument that if Bishoff did not

       have probable cause to arrest, the State must not have had probable cause to prosecute. As

       implied in Jordan, even where an arrest is made without probable cause, the State may

       nevertheless have other evidence sufficient to convict. After all, whether Bishoff had probable

       cause to arrest is a question that is only concerned with “the facts known to the officer at the time

       of the arrest.” People v. Grant, 2013 IL 112734, ¶ 11. The State may still introduce evidence not

       known to the officer at the time of the arrest.

¶ 23          As in Atchison, the present case illustrates the above principles. The circuit court ruled

       that the facts known to Bishoff at the time he arrested defendant—including his observations of


                                                         -8-
       defendant, defendant’s performance on the HGN test, and whatever information Bishoff gleaned

       from his interview of the witness—did not amount to probable cause to arrest defendant. To be

       sure, it follows a fortiori that the same evidence would be insufficient at trial. However, the State

       indicated that it had additional evidence to present at trial such as the records of defendant’s

       treatment at the hospital and the observations made by doctors. Whether Bishoff’s prearrest

       evidence plus the State’s additional evidence is sufficient to convict is a distinct legal question,

       not precluded by a finding that Bishoff himself lacked probable cause.

¶ 24          The circuit court’s order granting defendant’s “Motion to Suppress Evidence and Quash

       Arrest” was thus not a final order and was not tantamount to acquittal. In turn, that order did not

       serve as a bar to further prosecution under section 3-4(a)(2) of the Criminal Code. Accordingly,

       that section did not provide the circuit court the authority to dismiss the DUI charge against

       defendant.

¶ 25          Having found that there was no statutory authorization for the circuit court’s dismissal of

       the DUI charge, we must also consider whether defendant suffered “a clear denial of due process

       which prejudiced defendant.” See Schroeder, 102 Ill. App. 3d at 135. Defendant, like the

       defendant in Atchison, raises two grounds on which he claims his right to due process was

       denied. First, he argues that “due process has been violated by the People who continued to

       pursue a charge that lacked any constitutional authority (probable cause).” Next, he argues that

       the State’s filing of a “false” certificate of substantial impairment amounts to prosecutorial

       misconduct that, in turn, “resulted in a clear denial of due process which prejudiced the

       Defendant.”

¶ 26          In Atchison, we pointed out the fatal flaw in defendant’s first argument, namely, that the

       Illinois Constitution requires probable cause—found via indictment or preliminary hearing—


                                                       -9-
       only in felony cases. Ill. Const. 1970, art. I, § 7 (“No person shall be held to answer for a crime

       punishable by death or by imprisonment in the penitentiary unless either the initial charge has

       been brought by indictment of a grand jury or the person has been given a prompt preliminary

       hearing to establish probable cause.”); see People v. Stavrakas, 335 Ill. 570, 582 (1929) (“A

       felony, under our statutes, is an offense punishable with death or by imprisonment in the

       penitentiary, while every other offense is a misdemeanor.”); 720 ILCS 5/2-11 (West 2014)

       (“ ‘Misdemeanor’ means any offense for which a sentence to a term of imprisonment in other

       than a penitentiary for less than one year may be imposed.”). We concluded that “neither the

       Illinois Constitution nor the Code [of Criminal Procedure] requires the State to demonstrate

       probable [cause]—either through an indictment or at a preliminary hearing—where it is

       prosecuting a misdemeanor charged via criminal complaint.” Atchison, 2019 IL App (3d)

       180183, ¶ 34 (citing People v. Mitchell, 68 Ill. App. 3d 370, 374-75 (1979)).

¶ 27          As charged in the complaint in the present case, the offense of DUI is a Class A

       misdemeanor. 625 ILCS 5/11-501(a)(2), (c)(1) (West 2014). Because the State was not obligated

       to establish probable cause to proceed on that charge, its failure to do so cannot be considered a

       prejudicial denial of defendant’s due process rights. Atchison, 2019 IL App (3d) 180183, ¶ 35.

¶ 28          Finally, we follow Atchison in concluding that the State’s filing of a “false” certificate of

       impairment did not amount to a prejudicial denial of defendant’s due process rights. Id. ¶ 40. To

       be sure, the State’s repeated assertion that it was “unable to proceed to trial” following the

       court’s suppression ruling was inaccurate. After this court affirmed that ruling, the State

       indicated that it actually could still proceed to trial. Nevertheless, we are unable to discern any

       impact this inaccuracy could have had on either party. Illinois Supreme Court Rule 604(a)(1)

       (eff. July 1, 2017) allows the State to appeal from orders suppressing evidence. While the court


                                                     - 10 -
       in People v. Young, 82 Ill. 2d 234, 247 (1980), added the additional requirement that the State

       file a certificate of substantial impairment, the State asserted such an impairment in its

       certificate. The State’s claim of inability to proceed was merely superfluous, and not necessary to

       secure the appeal. See id.

¶ 29          In summary, we fully adopt the analysis set forth in Atchison, 2019 IL App (3d) 180183.

       We find that the circuit court did not have the statutory authority under section 114-1 of the Code

       of Criminal Procedure to dismiss the DUI charge against defendant. Moreover, we conclude that

       defendant did not suffer a prejudicial denial of his due process rights that would otherwise

       authorize the court to dismiss that charge. Accordingly, we reverse the court’s order dismissing

       the DUI charge and remand for continued proceedings.

¶ 30                                          III. CONCLUSION

¶ 31          The judgment of the circuit court of Peoria County is reversed and remanded for further

       proceedings.

¶ 32          Reversed and remanded.




                                                     - 11 -
                                  No. 3-18-0184


Cite as:                 People v. Motzko, 2019 IL App (3d) 180184


Decision Under Review:   Appeal from the Circuit Court of Peoria County, No. 15-DT-
                         403; the Hon. Lisa Y. Wilson, Judge, presiding.


Attorneys                Jerry Brady, State’s Attorney, of Peoria (Patrick Delfino, David
for                      J. Robinson, and Thomas D. Arado, of State’s Attorneys
Appellant:               Appellate Prosecutor’s Office, of counsel), for the People


Attorneys                Michael Doubet, of Peoria, for appellee.
for
Appellee:




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