People v. Allen

873 N.E.2d 30, 375 Ill. App. 3d 810, 313 Ill. Dec. 735, 2007 Ill. App. LEXIS 856
Appellate Court of Illinois·Decided August 7, 2007·No. 3-06-0783·Published·Cited by 15 cases

Opinion

JUSTICE SCHMIDT

delivered the opinion of the court:

Defendant, David Allen, was convicted in the circuit court of Will County of driving under the influence (DUI) in violation of section 11 — 501(a)(6) of the Illinois Vehicle Code (the Code) (625 ILCS 5/11— 501(a)(6) (West 2006)). This section of the Code makes it illegal to drive with “any amount” of cannabis in a “person’s breath, blood, or urine” regardless of whether there is any visible impairment. 625 ILCS 5/11 — 501(a)(6) (West 2006).

Defendant was sentenced to 12 months’ court supervision, fined $750, and ordered to complete Level II moderate counseling. Defendant appeals his conviction, claiming that the trial court erred by allowing a police officer to testify that he smelled cannabis on defendant’s breath and further claiming that the evidence admitted at trial was insufficient to prove defendant guilty beyond a reasonable doubt of the offense charged.

FACTS

Officer Brian Wojowski testified at defendant’s trial and during a hearing on defendant’s motion in limine and motion to suppress evidence. The officer’s testimony during the hearing on defendant’s motions was incorporated into the evidence adduced at trial by stipulation of the parties. Wojowski stated he was a member of the New Lenox police department and that on June 29, 2006, at approximately 3:05 p.m., he was assigned to assist the Illinois State Police with a roadside safety check in New Lenox. During the safety check, Wojowski came into contact with the defendant. Office Wojowski was called to the defendant’s vehicle by Officer Furlong, who “explained” to Wojowski that he smelled burnt cannabis emitting from the car. When the officer first saw the defendant, defendant was standing behind his vehicle. Wojowski approached the defendant’s vehicle and also noticed a smell of burnt cannabis coming from the vehicle. Wojowski noticed a smell and odor of burnt cannabis on defendant’s breath and noticed that defendant’s pupils seemed dilated. Pursuant to the trial court’s ruling on defendant’s motion in limine, Wojowski was allowed to testify to his observations and the “physical state” of the defendant, but he was precluded from testifying “that dilated pupils meant to him that defendant had consumed marijuana.” After making observations concerning defendant’s physical condition, Wojowski then asked defendant if he had recently smoked cannabis and defendant stated, pursuant to Wojowski’s testimony at trial, that he had smoked cannabis the night before.

Wojowksi stated that he worked for four years in the Chicago Housing Authority as an officer and would “frequently” arrest people in the act of smoking marijuana. He stated that “time after time after time,” he had correlated “the smell of burnt cannabis to the actual lab result.” Throughout his tenure in law enforcement and “hundreds” of marijuana arrests, he developed the skill to “recognize easily” the “distinctive smell” of burnt cannabis.

The officer testified that based upon defendant’s admission that he had smoked cannabis within the past 24 hours, he placed defendant under arrest for DUI — drugs. Wojowski did not ask the defendant to perform any type of field sobriety tests as those tests, in the officer’s opinion, are not valid to determine marijuana impairment. Wojowski admitted that there was nothing unusual about the way defendant walked, defendant’s speech was clear and fine, and no illegal drug paraphernalia or drug residue was located inside defendant’s vehicle. Officer Wojowski noted that he could not tell from the smell of defendant’s breath whether defendant had any cannabis in his blood at the time of arrest.

Specifically, the following testimony was offered at trial:

“Q. [Defense Counsel:] And on the night in question, you did, in fact, physically test my client’s breath for elements of cannabis?
A. [Wojowski:] I don’t believe you can.
Q. Okay. And you didn’t pierce his blood to determine whether or not there was cannabis, in fact, in his system?
A. No, he refused the test.
Q. Okay. And from a person’s breath, there’s no way of indicating what amount of cannabis is in a person’s blood?
A. Correct.
Q. Okay. So you can’t tell me if it’s zero or if it’s 100 milligrams?
A. No.
Q. Okay. And you can’t tell with any scientific certainty if there’s any cannabis in his breath outside of smell?
A. You can tell if there’s cannabis on a person’s breath. In a person’s breath—
Q. In a person’s breath?
A. —I don’t know if you can tell if there is anything in anybody’s breath.”

Defendant testified on his own behalf. He stated that he is a maintenance supervisor at Bally Total Fitness in New Lenox. On the day of his arrest, he worked from 6 a.m. to approximately 2:15 p.m. The defendant noted that the night before his arrest, he lent his car to his girlfriend’s 16-year-old daughter and when he got into it on the morning of his arrest, it smelled “funky.” Defendant stated that he did not recognize the smell emanating from the car when he entered it that morning. To him, it smelled like a “cross between cigarette and burnt paper.” The defendant denied smoking cannabis and denied telling the officer that he smoked cannabis the prior evening. Defendant explained that he works with pool chemicals at the health club which can be irritating to the eyes, and he is not allowed to smoke at the health club. Defendant concluded by noting that when he got into his car to drive home, he smoked several cigarettes.

After closing arguments, the trial court made “a few preliminary observations.” The court noted that it believed the defendant’s statement to Officer Wojowski regarding using cannabis the night before the stop was “corroborated in advance by the officer’s detection of what he believed to be marijuana in both the car and on the defendant’s breath.” The trial court noted that the defendant chose to testify in the trial and put his credibility at issue. The court specifically noted that the defendant’s credibility gave the court “some pause.” The court then noted a few instances in defendant’s testimony that it believed to be less than genuine. The court then took the matter under advisement and later found defendant guilty of the offense charged. This appeal followed.

ANALYSIS

Defendant’s initial argument centers around the admission of Officer Wojowski’s testimony. Defendant argues that the trial court improperly denied his motion in limine that sought to bar Wojowski’s testimony concerning some of Wojowski’s observations and conclusions. Defendant’s motion was based on the argument that no proper scientific foundation existed that would allow Wojowski to conclude what he smelled on defendant’s breath was, in fact, cannabis.

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People v. Allen, 873 N.E.2d 30, 375 Ill. App. 3d 810, 313 Ill. Dec. 735, 2007 Ill. App. LEXIS 856 (Ill. Ct. App. 2007).

873 N.E.2d 30 (People v. Allen) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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