People v. Allen

Opinion

No. 3--06--0783

Filed August 7, 2007. IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2007

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois Plaintiff-Appellee, ) ) v. ) No. 05--DT--1007 ) DAVID M. ALLEN, ) ) Honorable Edward Burmila, Jr. Defendant-Appellant. ) Judge, Presiding.

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,

2 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

3 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

4 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

5 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. A reviewing court will not reverse the trial

court's ruling on a motion in limine absent an abuse of

discretion. People v. Kratovil, 351 Ill. App. 3d 1023, 815

6 N.E.2d 78 (2004).

Defendant claims that People v. Park supports his argument

that additional scientific testing was necessary before the

officer should have been allowed to testify that defendant's

breath contained cannabis. In Park, the defendant was convicted

of possession of cannabis. People v. Park, 72 Ill. 2d 203, 380

N.E.2d 795 (1978). A police officer testified that given his

training, he could identify marijuana by "'feel, smell, texture

and looks.'" Park, 72 Ill. 2d at 207. No testimony regarding

chemical testing was allowed into evidence, but the officer was

allowed to testify that he believed the substance possessed by

defendant to be marijuana. Park, 72 Ill. 2d at 207. Defendant's

conviction for cannabis possession was reversed by the appellate

court (People v. Park, 49 Ill. App. 3d 40, 363 N.E.2d 884 (1977))

and the reversal affirmed by our supreme court. Park, 72 Ill. 2d

at 214.

After examining the propriety of expert testimony in

numerous areas, the Park court stated:

"Thus, while the value of pregnant sows

and stolen auto parts might be readily assimilated

with only limited experience, the ability to

draw fine distinctions between fingerprints and

ballistic markings requires more thorough and

7 systematic study. The positive identification

of cannabis without the aid of chemical and

microscopic analysis falls into the latter

category, because it simply is far too likely

that a nonexpert would err in his conclusions on

this matter, and taint the entire fact-finding

process. Cross-examination often is a clumsy,

counterproductive and therefore ineffective means

of purging that taint. Accordingly, we hold that

Carrico's statement that the substance was in fact

marijuana should not have been admitted and did

not help to establish this element of the State's

burden." Park, 72 Ill. 2d at 211.

The State does not attempt to differentiate Park, but

instead argues that People v. Glisson should guide our decision.

In Glisson, a traffic stop led to officers discovering anhydrous

ammonia in the defendant's vehicle. People v. Glisson, 359 Ill.

App. 3d 962, 835 N.E.2d 162 (2005). A police officer testified

that upon approaching the car, he could detect the faint odor of

anhydrous ammonia. Glisson, 359 Ill. App. 3d at 965. After the

trunk to the vehicle was opened, the smell of anhydrous ammonia

became much stronger. In Glisson, the only evidence that the

substance found in the trunk was anhydrous ammonia was the

8 testimony of three officers regarding the odor that they smelled.

Glisson, 359 Ill. App. 3d at 966.

After discussing a great number of cases, the Glisson court

stated:

"Although we have found no case precisely

on point, we think the officers' testimony

regarding the smell of the anhydrous ammonia

was sufficient due to its distinctive odor.

Our conclusion is bolstered by the impossibility

of performing forensic testing on anhydrous

ammonia. See Park, 72 Ill. 2d at 213-14, 380

N.E.2d at 800-01 (finding testimony that a

substance was marijuana insufficient to prove

that it was in fact marijuana due, in part,

to the availability of a simple test); People

v. Maiden, 210 Ill. App. 3d 390, 400, 569

N.E.2d 120, 126-27 (1991) (testing one of three

samples of a substance for the presence of PCP

was insufficient where it would be easy for the

State to test the remaining samples)." Glisson,

359 Ill. App. 3d at 969.

In the case at bar, just as in Glisson, no forensic test was

available to Officer Wojowski to determine the chemical

9 composition of what he smelled on defendant's breath. Wojowski

testified that, to his knowledge, no test existed to "physically

test *** breath for elements of cannabis." Defendant assured no

test was available to determine if cannabis was in his system by

refusing a blood and urine test. Moreover, given the officer's

testimony and general common knowledge, burnt cannabis, just like

anhydrous ammonia, has a distinctive smell. These factors

convince us that this case is more analogous to Glisson than

Park. Park did not involve burnt cannabis and the officers in

Park had ample time to chemically test the substance they

believed to be cannabis prior to defendant's trial for illegal

possession of cannabis. Given the holding and reasoning of

Glisson, we cannot say it was an abuse of discretion for the

trial court to allow Officer Wojowski to testify that he smelled

cannabis on defendant's breath.

Defendant's final contention on appeal is that the State

failed to introduce sufficient evidence to prove him guilty

beyond a reasonable doubt of the offense charged. The standard

of review in an appeal challenging a criminal conviction based on

the sufficiency of the evidence is whether, after the viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of

the offense beyond a reasonable doubt. People v. Collins, 106

10 Ill. 2d 237, 478 N.E.2d 267 (1985).

The trial court specifically found that defendant's

testimony was not credible and that the testimony of Wojowski

concerning defendant's admission that he smoked marijuana the

night before his arrest was corroborated by the officer's

detection of the smell of burnt cannabis both in the car and on

defendant's breath. Section 11--501(a)(6) of the Illinois

Vehicle Code (625 ILCS 5/11--501(a)(6) (West 2006)) states that a

person shall not drive or be in actual physical control of any

vehicle within the State while there is any amount of drug,

substance, or compound in the person's breath, blood, or urine

resulting from the unlawful use or consumption of cannabis.

We agree with defendant that the evidence adduced at trial

was insufficient to prove him guilty beyond a reasonable doubt.

To prove all of the elements of the offense charged, the State

needed to prove beyond a reasonable doubt that defendant had

cannabis "in" his breath, urine, or blood. 625 ILCS 5/11--

501(a)(6) (West 2006). The only witness called by the State was

Officer Wojowski, who clearly stated that it was "impossible" to

tell whether defendant had zero milligrams or 100 milligrams of

cannabis in his breath or blood. This testimony by Officer

Wojowski is fatal to the State's case. The statute does not

criminalize having breath that smells like burnt cannabis.

11 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. The State needed some testimony that, based on the

evidence, defendant had at least some cannabis or THC "in his

breath, urine, or blood." Therefore, we find that the State

failed to prove defendant guilty of the offense charged beyond a

reasonable doubt.

CONCLUSION

For the foregoing reasons, the judgment of the circuit court

of Will County is reversed.

Reversed.

McDADE and O'BRIEN, JJ., concur.