364 Ill. App. 3d 107; 845 N.E.2d 741; 300 Ill. Dec. 852

(As appearing in the Illinois State Bar Association
Traffic Laws and Courts Newsletter, March 2007, Vol. 16, No. 3)

On August 18, 2002 the Defendant, Catherine Sturgess, was arrested and charged with driving under the influence of alcohol (DUI) and failure to reduce speed to avoid an accident. Prior to trial, she filed a motion to quash arrest and suppress evidence, alleging that the arresting officer lacked probable cause to suspect her of illegal activity. The Court conducted a hearing on the motion simultaneous to a bench trial.
At trial, a witness testified that on August 18, 2002 she was driving her vehicle southbound on Interstate 57 when the vehicle in front and to the right of hers swerved into her lane. The witness steered to avoid a collision and her vehicle came to rest in a construction zone in the northbound lanes.

An Illinois State Police Trooper testified that he was called to the scene of the accident and observed the witness’ vehicle in the northbound lanes and a tan Dodge Intrepid obstructing traffic in the southbound lanes. After speaking with the witness, the Trooper requested medical assistance. He observed extensive damage to the right front bumper of the Intrepid, and observed defendant at-tempting to move the vehicle off the highway. Defendant declined medical attention. After defendant moved and exited her vehicle, the Trooper detected a strong odor of alcohol on her breath and noted that her eyes were bloodshot and her speech slurred. The trooper requested that another officer transport defendant to the nearest police station and proceeded to clear the scene of the accident.

The trooper testified that when he arranged for defendant's transport, defendant was not placed under arrest and had not been provided any Miranda warnings. At the police station, the Trooper interviewed defendant. Defendant denied she had been drinking, and submitted to sobriety tests. During the tests, the Trooper observed that defendant had an odor of alcohol on her breath, swayed when she stood up, at one point became very emotional, and lost her balance several times. It was the Trooper’s opinion that defendant failed all three of the sobriety tests he administered.

The trooper then asked defendant whether or not she would submit to a preliminary breath test, and advised her that she was under arrest for DUI. The Trooper advised Defendant of her Miranda rights, and issued citations for DUI and for failure to reduce speed to avoid an accident. Defendant refused to be interviewed any further, and refused to submit to a breathalyzer test. It was the Officer’s opinion, that at the time of arrest, Defendant was under the influence of alcohol based upon her demeanor and behavior, as well as his 10 years of experience in law enforcement and his observation during that span of hundreds of individuals under the influence of alcohol.

On cross-examination, the Trooper stated that defendant moved her vehicle off the highway without incident. He never observed her operate her vehicle prior to his arrival at the scene of the accident. During the first time he spoke with Defendant, he did not detect the odor of alcohol on defendant’s breath. When defendant asked whether she could call her son to pick her up from the scene of the accident, the Trooper instructed her to ride to the police station in another officer’s squad car. During the interview, defendant was distraught over having had her car stolen, and she was worried about her husband's illness.

On redirect, the Trooper testified that when he advised defendant to ride to the police station with another officer rather than her son, he wished to keep the area clear of additional personnel because the area was highly congested with traffic.

An Illinois State Police Sergeant testified that he assisted the responding Trooper in securing the accident scene. The responding Trooper suspected that defendant was under the influence of alcohol, and asked him to place defendant in his squad car. The Sergeant transported defendant to the Oak Forest police station. He neither handcuffed defendant nor advised her of her Miranda rights. He never indicated to her that she was under arrest.

The Court denied defendant's motion to quash.

Defendant testified that earlier that evening, she had attended a church service and was on her way home when another driver drove very close to her, and forced her vehicle off the road and into a guardrail. Other motorists stopped to help, and informed her that the police had been called. The Trooper arrived and asked to see her license and registration, then left for about 15 minutes. Defendant called her son on her cellular phone and asked that he take her to a doctor. The Trooper re-turned and told her that she would be transported to the police station and that her son could meet her at the police station.

Defendant arrived at the police station and waited at a desk for about 15 minutes. The Trooper arrived and informed her that he could not return her license and that her vehicle had been totaled. The trooper gave Defendant permission to call her son to pick her up at the station. The Trooper began writing tickets and informed defendant that he planned to administer some sobriety tests. Defendant refused to submit to any tests and stated that she was not under the influence of alcohol. Defendant never performed any sobriety tests and accepted the citations.

On cross-examination, defendant denied participating in any sobriety tests.

The Court found defendant guilty of driving under the influence and failure to reduce speed to avoid an accident. Defendant’s alcohol and drug evaluation summary (ADES) revealed that defendant had been arrested for DUI in 1997 and 1999, and that she had a total household income of $ 11,000 per year. The Court sentenced defendant to two years of conditional discharge and 30 days in the Sheriff's Work Alternative Program (SWAP) on the DUI charge. Recognizing defendant's in-ability to pay the accompanying $ 2,500 fine, the State recommended that the fine be satisfied by defendant's participation in SWAP. The Court accepted the recommendation but imposed a fine of $ 1,046.50 to cover fees and court costs incurred by the State in prosecuting the offenses and mandatory fees pursuant to victims' assistance and subsequent offenses statutes.

Defendant appealed her conviction and sentence, arguing that the trial court erred in denying her motion to quash arrest, that the State failed to prove her guilty of DUI beyond a reasonable doubt, that the State failed to prove her guilty of failing to reduce speed to avoid an accident beyond a reasonable doubt, and that the trial court erred in imposing the maximum fine and court costs.

The appellate court addressed first defendant's argument as to the propriety of the trial court's denial of her motion to quash arrest. Relying on Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979), for the propositions that the seizure and transport of a defendant without a warrant or probable cause to arrest violates the fourth amendment and that detention of a defendant by police officers solely for the purpose of custodial interrogation amounts to an illegal arrest, Defendant argued that the circuit court erred in denying her motion to quash. Defendant argued that her transportation in a squad car from the scene to the police station amounted to an unlawful arrest in that the Trooper lacked probable cause to place her in custody, and that any evidence gathered during their subsequent conversation and as a result of the field sobriety tests, was illegally obtained and therefore inadmissible. She argued that the officers’ conduct was indicative of a seizure in that she was not allowed to call her son to pick her up at the scene, she was taken to the police station in a marked squad car, and she was forced to wait at the police station nearly one hour until the Trooper arrived to conduct the sobriety tests. Defendant argued that a reasonable person in her position would have believed that she was not free to leave the officers' presence. Defendant concluded that the circumstances constituted an unlawful seizure in violation of her fourth amendment rights, and mandated that any evidence gathered as a result should have been excluded.

The State argued that defendant was neither unlawfully seized nor placed under arrest at the scene, claiming that the arresting officers transported defendant from the side of the highway to the police station to ensure that she was safely removed from the scene of the accident and a very congested interstate. The State also argued that the arresting officer had probable cause to suspect that defendant had been driving under the influence of alcohol due to the odor of alcohol on her breath, her slurred speech and swaying. The state pointed out that the arresting officer did not place her in handcuffs, and did not read her any Miranda warnings. The State also pointed out that while at the station, the arresting officers did not restrain defendant, she was not placed in an interview room, and was allowed to make a phone call. The state maintained there were no indicia of arrest before defendant submitted to sobriety tests.

The appellate court described three distinct tiers of encounters between citizens and police officers. People v. Smith, 214 Ill. 2d 338, 351, 827 N.E.2d 444, 292 Ill. Dec. 915 (2005). The first involves the arrest of a citizen, which must be justified by probable cause; the second involves the "Terry stop," where an officer temporarily detains and questions a citizen and which must be supported by reasonable suspicion of criminal activity (see Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)); and the third is generally classified as the community caretaking function, which does not require either probable cause or reasonable suspicion. Smith, 214 Ill. 2d at 352. The latter two scenarios usually entail consensual encounters between police and citizens involving the safety of the public, do not involve coercion or forcible detention, and therefore do not implicate a citizen's fourth amendment rights. People v. Gonzalez, 204 Ill. 2d 220, 224, 789 N.E.2d 260, 273 Ill. Dec. 360 (2003); People v. Murray, 137 Ill. 2d 382, 387, 560 N.E.2d 309, 148 Ill. Dec. 7 (1990).

The appellate court then outlined the elements of a seizure. A citizen is seized when, by means of physical force or show of authority, his or her freedom of movement is restrained. Smith, 214 Ill. 2d at 352; United States v. Mendenhall, 446 U.S. 544, 553, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877 (1980). In determining whether a seizure occurred, the court considers whether, in light of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was not free to leave. People v. Brownlee, 186 Ill. 2d 501, 517, 713 N.E.2d 556, 239 Ill. Dec. 25 (1999). Factors indicative of a seizure may include: (1) the threatening presence of several police officers; (2) the display of a weapon by an officer; (3) some physical touching of the individual involved in the encounter; and (4) the use of language or tone of voice indicating that compliance with the officer's request might be compelled. Mendenhall, 446 U.S. at 554-55, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877. Absent evidence of these factors, otherwise inoffensive contact between a police officer and a citizen cannot, as a matter of law, amount to a seizure. Mendenhall, 446 U.S. at 555, 64 L. Ed. 2d at 509-10, 100 S. Ct. at 1877.

Citing People v. Myrick, 274 Ill. App. 3d 983, 989-90, 651 N.E.2d 637, 209 Ill. Dec. 459 (1995), the appellate court acknowledged that Illinois courts have held that where a defendant voluntarily accompanies an officer to the police station, there is no formal declaration of arrest, and the defendant is not searched, handcuffed, fingerprinted, or photographed, the defendant is neither seized nor under arrest.

Relying on the Illinois Supreme Court decision in People v. Smith, the appellate court held that defendant was not unlawfully seized. The appellate court reviewed the evidence adduced at trial: only two officers encountered defendant, neither officer brandished a weapon in Defendant’s presence, neither officer physically touched Defendant, and neither officer used harsh or coercive language or tone of voice to indicate that her presence was compulsory. The arresting officers did not place defendant in handcuffs or read her Miranda rights until after the arresting officer administered sobriety tests.

The appellate court reasoned that allowing defendant to wait by the side of the interstate for a ride from her son would only have aggravated traffic conditions. The appellate court noted that there was no indication the arresting officer ever instructed Defendant not to leave his presence; the arresting officer never objected to having her son pick her up at the police station or indicated that she would not be allowed to leave once he arrived. The appellate court found that a reasonable person would not have believed that he or she was forcibly detained in this instance. Accordingly, the appellate court concluded that the circuit court did not err in denying defendant's motion to quash and suppress.

Defendant also argued that the State failed to prove her guilty beyond a reasonable doubt of DUI because the evidence against her was circumstantial and failed to prove actual impairment, since she was able to move her vehicle pursuant to the arresting officer’s instructions without incident. Defendant argued that the arresting officer’s testimony did not establish the actual presence of an intoxicating substance in her bloodstream in an amount sufficient to impair her ability to drive. Defendant further argued that the arresting officer’s opinion testimony regarding her level of impairment was not sufficient to support her conviction because his opinion lacked a proper foundation.

The appellate court analyzed the elements of the offense of driving under the influence, and the State’s burden of proof in prosecuting such an offense. He appellate court noted that in order to sustain a conviction for driving under the influence of alcohol, the State must demonstrate that the defendant (1) drove a vehicle, and (2) did so while he or she was under the influence of alcohol. 625 ILCS 5/11-501(a)(2) (West 2004); People v. Long, 316 Ill. App. 3d 919, 926, 738 N.E.2d 216, 250 Ill. Dec. 252 (2000). The credible testimony of an arresting officer alone is sufficient to sustain a conviction for DUI; no scientific proof of intoxication need be offered in order to prove the State's case. People v. Elliott, 337 Ill. App. 3d 275, 281, 785 N.E.2d 545, 271 Ill. Dec. 613 (2003); People v. Benoit, 6 Ill. App. 3d 1031, 1033, 287 N.E.2d 85 (1972). An officer's testimony as to the defendant's appearance, speech, or conduct, that the officer detected the odor of an alcoholic beverage on the defendant's person, and that the defendant failed a field sobriety test is all relevant evidence of the defendant's mental and physical impairment. Elliott, 337 Ill. App. 3d at 281.

In holding that the State had proved defendant guilty of the offense of driving under the influence, the appellate court reasoned that the fact that a defendant suspected of DUI can operate a vehicle without incident is not dispositive of his or her innocence. The elements of the offense only require that a defendant operate a vehicle -- with or without incident -- while under the influence of an intoxicating substance. The appellate court found that the arresting officer’s testimony was more than sufficient to sustain defendant's conviction. The arresting officer testified that he observed extensive damage to defendant's vehicle while investigating the accident. He detected the odor of an alcoholic beverage on defendant's breath, and he observed that her eyes appeared bloodshot, her speech was slurred, she swayed when standing up, and Defendant failed several field sobriety tests. Based on his years of service as a state trooper, he opined that defendant was under the influence of alcohol.

The appellate court found that Defendant had waived the argument, that the arresting officer’s opinion testimony as to her level of intoxication lacked a sufficient foundation because the State offered no credentials that would qualify Tyler as an expert to testify as to defendant's level of impairment, because defendant failed to object to the admission of the arresting officer’s opinion testimony either at trial or in a post-trial motion. People v. Bush, 214 Ill. 2d 318, 332-33, 827 N.E.2d 455, 292 Ill. Dec. 926 (2005).

Defendant next argued that the State failed to prove her guilty beyond a reasonable doubt of failure to reduce speed to avoid an accident because there was no evidence regarding the actual speed at which defendant was operating her vehicle at the time of the accident. The appellate court outlined the elements of this offense. In order to prove a defendant guilty of failure to reduce speed to avoid an accident, the State must adduce evidence that the defendant drove carelessly and that he or she failed to reduce speed to avoid colliding with persons or property. 625 ILCS 5/11-601(a) (West 2004); People v. Luka, 184 Ill. App. 3d 84, 86, 540 N.E.2d 14, 132 Ill. Dec. 598 (1989). A conviction for failure to reduce speed to avoid an accident does not require proof that the defendant was exceeding the speed limit because the offense can be committed regardless of the speed of the defendant's vehicle or the relevant speed limit. Luka, 184 Ill. App. 3d at 86.

Relying on People v. Sampson, 130 Ill. App. 3d 438, 473 N.E.2d 1002, 85 Ill. Dec. 403 (1985), and People v. Brant, 82 Ill. App. 3d 847, 403 N.E.2d 282, 38 Ill. Dec. 194 (1980), Defendant argued that guilt of failure to reduce speed cannot be inferred from the mere fact that a defendant was involved in an accident.

The appellate court reviewed the evidence adduced at trial, which established that the area where the accident occurred was under construction and highly congested. A witness testified that defendant's vehicle swerved in front of hers and forced her vehicle off the road. Defendant testified that she increased her speed because of the driver behind her, and that her vehicle collided with a

guardrail after the driver who had been following her forced her vehicle off the road. The appellate court could not conclude that this testimony was sufficient to establish that defendant committed the offense of failing to reduce speed to avoid an accident. It was unclear whether defendant operated her vehicle at a speed which was unsafe under the relevant conditions. The appellate court reasoned that reducing her vehicle's speed could likely have caused an even worse collision than what occurred. The appellate court concluded that although defendant's conduct caused an accident, her conduct did not amount to an offense under Section 11-601(a). The appellate court reversed the circuit court's finding of guilty on that count.

Defendant finally contended that the trial court erred in imposing the maximum fine of $2,500 after taking judicial notice she was financially unable to pay, and although the court allowed the fine to be satisfied by her participation in SWAP, the fine caused the court to impose $ 1,046.50 in fees. Defendant argued that because the circuit court acknowledged her financial situation and allowed that the maximum $2,500 fine imposed against her be satisfied by her participation in SWAP, the actual liability she incurred in sentencing in addition to conditional discharge was a fine of $0. Defendant maintained that the appellate court should remand for a determination of whether the maximum fine was appropriate considering her financial situation and future ability to pay the imposed fine.

Although the appellate court agreed with the State that defendant had failed to properly raise any issues regarding her sentence at the trial level, the court considered her argument as an attack on a void judgment. See People v. Mathis, 357 Ill. App. 3d 45, 51, 827 N.E.2d 932, 293 Ill. Dec. 51 (2005).

The appellate court reviewed several factors: the ADES revealed that defendant had been arrested for DUI on two prior occasions, her total household income was $11,000 per year, the circuit court indicated that the fine could be satisfied upon defendant's completion of the SWAP program and calculated additional fines mandated under the Violent Crime Victims Assistance Fund (725 ILCS 240/10(b) (West 2004) as well as the LEADS Maintenance Fund and the Traffic and Criminal Conviction Surcharge Fund (730 ILCS 5/5-9-1(c) (West 2004). The court also assessed a fee of $200 pursuant to the DUI statute mandating a fee for subsequent offenses (625 ILCS 5/11-501(j) (West 2004), a fee of $100 pursuant to the Trauma Center Fund (730 ILCS 5/5-9-1(c-5) (West 2004)), and several smaller fees to cover the State's costs of prosecuting her offenses. The court noted that penalties imposed pursuant to the Violent Crime Victims Assistance Fund and the Traffic and Criminal Conviction Surcharge Fund are mandatory, and are not within a circuit court's discretion. See People v. Rinaldi, 179 Ill. App. 3d 539, 545, 534 N.E.2d 515, 128 Ill. Dec. 333 (1989); People v. Wisotzke, 204 Ill. App. 3d 44, 51, 561 N.E.2d 1310, 149 Ill. Dec. 614 (1990).

The appellate court reviewed defendant’s driving history and the particular facts of this case. In this case, defendant committed her third DUI offense in 10 years. Defendant caused an accident that resulted in damage to her vehicle and another’s vehicle, as well as bodily harm to a witness. The appellate court recognized that the trial court was aware of defendant’s financial situation, and agreed with the State's recommendation that defendant could satisfy the fine by participating in SWAP. The appellate could not conclude that the court's imposition of $1,046.50 in statutory, mandatory fees constituted an abuse of discretion. Accordingly, the appellate court upheld the circuit court's sentencing order.

The appellate court affirmed the judgment of the circuit court as to defendant's conviction for DUI and the sentence imposed for that offense, reversed her conviction for failure to reduce speed, and directed the clerk of the circuit court to amend the mittimus to reflect that defendant was convicted only of DUI and sentenced pursuant to that count.

David B. Franks
Lake in the Hills

Experience counts.  Results matter.

FRANKS & RECHENBERG, P.C.
1301 Pyott Road, Suite 200
Lake in the Hills, IL 60156
Phone: 847-854-7700
Fax: 847-854-7848

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Franks & Rechenberg, P.C. handles McHenry County DUI (Driving Under the Influence) charges. Cities, towns and villages in McHenry County include: Algonquin, Barrington, Bull Valley, Cary, Crystal Lake, Fox Lake, Fox River Grove, Harvard, Hebron, Holiday Hills, Huntley, Island Lake, Johnsburg, Lake in the Hills, Lakemoor, Lakewood, Marengo, McCullom Lake, McHenry, Oakwood Hills, Port Barrington, Prairie Grove, Richmond, Spring Grove, Union, Wonder Lake and Woodstock. If you were arrested for Driving Under the Influence (DUI) in McHenry County, call Franks & Rechenberg, P.C.

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