                                No. 2-08-0572  Filed: 4-16-10
______________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Lee County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) Nos. 05--CM--165
                                       )       05--DT--31
                                       )
SAMUEL W. McPEAK,                      ) Honorable
                                       ) Charles T. Beckman,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE JORGENSEN delivered the opinion of the court:

       Samuel W. McPeak appeals his conviction of driving under the influence of cannabis (DUI)

under section 11--501(a)(6) of the Illinois Vehicle Code (625 ILCS 5/11--501(a)(6) (West 2004)),

contending that there was insufficient evidence to convict him, because there was no evidence of the

presence of cannabis "in [his] breath, blood, or urine" as required by that section. We agree that

there was a lack of evidence that there was cannabis in McPeak's breath, blood, or urine when he was

driving. Accordingly, we reverse.

                                       I. BACKGROUND

       In 2005, McPeak was charged with DUI and possession of drug paraphernalia (720 ILCS

600/3.5(a) (West 2004)) in connection with a traffic stop. McPeak moved to quash the arrest and

to suppress evidence.
No. 2--08--0572


       At the hearing on the motion, Officer Steve Howell testified that, on March 6, 2005, he

stopped McPeak because McPeak was not wearing a seat belt. Howell took McPeak's driver's

license and proof of insurance back to his squad car and learned that there was an active arrest

warrant for McPeak in another county. However, "geo limits" prevented Howell from arresting

McPeak on the warrant.

       Howell returned to McPeak's vehicle and told him to get out to receive a citation for the seat

belt violation. When McPeak exited the vehicle, Howell noticed the odor of cannabis. Howell gave

McPeak the citation to sign and, as McPeak was doing so, Howell walked around the truck. After

doing so, Howell determined that the odor of cannabis came from "[McPeak's] person."

       Howell asked McPeak if he had been smoking cannabis, and McPeak stated that he had done

so within the last hour or two. McPeak said that he had taken two hits out of a "hit pipe," which is

a common name for a pipe used to smoke cannabis. Based on McPeak's response, Howell arrested

him for DUI.

       The trial court denied the motion, and McPeak was convicted after a stipulated bench trial.

During the proceedings, McPeak's counsel stated that the evidence would be sufficient to convict

McPeak. McPeak appealed, contending in part that the stipulated facts were insufficient to convict

him and that he had not been properly admonished under Supreme Court Rule 402 (177 Ill. 2d R.

402) when the stipulated trial was akin to a guilty plea. We did not address the sufficiency of the

evidence. Instead, we reversed and remanded because McPeak was not admonished under Rule 402.

People v. McPeak, No. 2--05--0944 (2007) (unpublished order under Supreme Court Rule 23).

       On remand, McPeak asked the trial court to reconsider its order denying the motion to quash

and suppress, in order to preserve the issue for appeal. The court denied the motion, and a new



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bench trial was held on stipulated facts. Those facts included that Howell smelled burnt cannabis

"about Mr. McPeak's person" and that McPeak admitted that "about an hour ago" he had "taken two

hits out of a hitter box." McPeak also stipulated that, after he was arrested, Howell located in the

vehicle a smoking pipe that contained a burnt substance that smelled like cannabis and that later

field-tested positive for cannabis. McPeak did not stipulate that the evidence was sufficient to

convict him. The court found McPeak guilty and sentenced him to 18 months of court supervision

and assessed various fines, fees, and costs. He timely appeals.

                                           II. ANALYSIS

       McPeak contends that the evidence was insufficient to convict him of DUI, because there was

no evidence of the presence of cannabis in his breath, blood, or urine as required by section 11--

501(a)(6). Applying cases involving driving under the influence of alcohol, the State contends that

there was sufficient circumstantial evidence to support the conviction.

       When we review a challenge to the sufficiency of the evidence, " 'the relevant question is

whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (Emphasis

in original.) People v. Collins, 106 Ill. 2d 237, 261 (1985), quoting Jackson v. Virginia, 443 U.S.

307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979). A criminal conviction may be based

on circumstantial evidence, as long as it satisfies proof beyond a reasonable doubt of the charged

offense. People v. Hall, 194 Ill. 2d 305, 330 (2000). Circumstantial evidence is "proof of facts and

circumstances from which the trier of fact may infer other connected facts which reasonably and

usually follow according to common experience." People v. Stokes, 95 Ill. App. 3d 62, 68 (1981).

Here, to prove all of the elements of the offense charged, the State needed to prove beyond a



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reasonable doubt that McPeak had cannabis in his breath, blood, or urine when he was driving. 625

ILCS 5/11--501(a)(6) (West 2004); People v. Allen, 375 Ill. App. 3d 810, 816 (2007).

       Two cases are helpful when considering McPeak's argument. In Allen, the defendant was

arrested under section 11--501(a)(6) after the arresting officer noticed an odor of burnt cannabis on

the defendant's breath and the defendant's pupils seemed dilated. However, the officer was precluded

from testifying that he believed the dilated pupils meant that the defendant had consumed cannabis.

The defendant told the officer that he had smoked cannabis the night before. There was nothing

unusual about how the defendant walked, his speech was clear, and there was no drug paraphernalia

or residue located inside the defendant's vehicle. The defendant was convicted of DUI, and the Third

District reversed based on insufficient evidence, stating:

       "The statute does not criminalize having breath that smells like burnt cannabis. Furthermore,

       even though the trial court found the officer's testimony credible regarding defendant's

       admission of smoking cannabis the night before his arrest, the State put on no evidence that

       there would have been 'any amount' of the illegal drug in defendant's breath, urine, or blood

       at the time of defendant's arrest as a result of smoking cannabis the night before." Allen, 375

       Ill. App. 3d at 816.

       In comparison, in People v. Briseno, 343 Ill. App. 3d 953, 956 (2003), also involving section

11--501(a)(6), the defendant told the arresting officer that he smoked cannabis "in his vehicle, just

before driving it." The officer smelled cannabis on the defendant's breath, the defendant's motor

skills were slower than average, and the defendant had trouble performing field sobriety tests. Under

those circumstances, the First District determined that there was sufficient evidence of DUI.

Briseno, 343 Ill. App. 3d at 962.



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       Unlike in Briseno, where the defendant's admission was that he smoked cannabis "in his

vehicle" and "just before driving," where an odor of cannabis was on the defendant's breath, and

where the defendant showed signs of impairment, here there was a lack of evidence that McPeak had

cannabis in his breath, blood, or urine when he was driving. Briseno, 343 Ill. App. 3d at 956.

McPeak admitted to smoking "two hits" of cannabis "about an hour ago" but there was no evidence

whether consuming that amount of cannabis would result in any cannabis being left in his breath,

blood, or urine an hour later. Also, there was no evidence that McPeak was impaired and no

evidence of any odor of cannabis on McPeak's breath, as opposed to his "person."

       We agree with Allen to the extent it holds that such circumstances are too tenuous to show

that there was cannabis in the defendant's breath, blood, or urine. We believe that evidence of the

odor of cannabis on the breath of a defendant could provide circumstantial evidence that the

defendant has cannabis in his breath. In any event, in McPeak's case there was no such evidence.

The evidence was that Howell smelled burnt cannabis about McPeak's person, something that does

not address whether McPeak had cannabis in his breath, blood, or urine at that time. Thus, based

on the lack of evidence that there was cannabis in McPeak's breath, blood, or urine when he was

driving, we reverse.

       Citing to cases involving open containers of alcohol found in vehicles, the State argues that

the presence of drug paraphernalia was an adequate distinction from the facts in Allen and was

sufficient circumstantial evidence that McPeak had drugs in his system while he was driving. But

each of those cases involved additional factual circumstances to support a strong inference that the

defendant was driving while under the influence of alcohol, including evidence of impairment and

the odor of alcohol on the defendant's breath. See People v. Weathersby, 383 Ill. App. 3d 226, 229-



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30 (2008) (defendant admitted that he " 'had a few' " drinks, emitted an odor of alcohol on his breath,

had glassy eyes and thick-tongued speech, refused to take a Breathalyzer test, and had an open bottle

of alcohol in the vehicle); People v. Cantlin, 348 Ill. App. 3d 998, 999 (2004) (defendant failed field

sobriety tests, had a strong odor of alcohol on his breath, bloodshot and glassy eyes, and slurred

speech, and had an open bottle of alcohol in the vehicle). As those cases illustrate, evidence of the

presence of open alcohol (or, here, drug paraphernalia) may be circumstantial evidence that the

defendant has recently consumed the substance at issue. See generally Cantlin, 348 Ill. App. 3d at

1000. But here, there is no dispute that McPeak consumed cannabis about an hour before the stop.

Instead, the issue is whether there was sufficient evidence that any of that cannabis remained in his

breath, blood, or urine when he drove. Unlike each case cited by the State, which provided

additional evidence of the presence of alcohol in the defendant's body while he was driving, notably

evidence of impairment and the odor of alcohol on the defendant's breath, here the State provided

no evidence that cannabis remained in McPeak's breath, blood, or urine while he was driving.

                                        III. CONCLUSION

       There was insufficient evidence that McPeak had cannabis in his breath, blood, or urine when

he was driving. Accordingly, the judgment of the circuit court of Lee County is reversed.

       Reversed.

       O'MALLEY and BURKE, JJ., concur.




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