People v. FAINT

920 N.E.2d 1247, 396 Ill. App. 3d 614, 336 Ill. Dec. 657, 2009 Ill. App. LEXIS 1261
Appellate Court of Illinois·Decided December 18, 2009·No. 3-08-0618·Published·Cited by 4 cases

Opinions

JUSTICE WRIGHT

delivered the opinion of the court:

After the State concluded its portion of the evidence during a bench trial, the defense moved for a directed verdict. After hearing arguments on the motion, the judge did not make a ruling on the motion but instead pronounced defendant guilty of driving under the influence and then immediately sentenced defendant to a term of supervision. Defense counsel did not object to the trial court’s finding of guilt but later raised the trial court’s failure to allow defendant an opportunity to present evidence in a posttrial motion. The trial court denied defendant’s motion for a new trial. Defendant filed a timely notice of appeal. We reverse and remand for trial.

FACTS

On July 1, 2007, Brian Wojowski, an officer with the New Lenox police department, issued a uniform Illinois citation and complaint against defendant for the offense of driving under the influence (DUI) in violation of section 11 — 501(a)(6) of the Illinois Vehicle Code (625 ILCS 5/11 — 501(a)(6) (West 2006)). According to the citation, the offense occurred in the French Fort parking lot located in New Lenox township at 3:05 a.m.

On July 10, 2008, the parties appeared before Judge Petka for a bench trial. Assistant Public Defender Matthew Burtz represented defendant at the trial.

The State called Brian Wojowski to testify. Wojowski testified he served as a police officer with the New Lenox police department in the traffic division. He had been employed as a police officer since June 1995 and had worked at the New Lenox department since 1999. He explained that he received training in DUI arrests for approximately 19 weeks in 1995, attended yearly vehicle code updates, and attended several seminars and classes in the area of field sobriety testing. Further, he received specific training in the determination of persons under the influence of narcotics and worked as “a plain clothes unit in the Chicago Housing Authority” for approximately eight months relating to narcotics interdiction. Wojowski testified that through his training and work experience, he was familiar with the odor of cannabis. Based upon his classes and training, he understood that individuals under the influence of cannabis will exhibit bloodshot or glassy eyes, slowed or drawn speech, droopy eyelids, dilated pupils, and a carefree attitude.

According to Wojowski, on July 1, 2007, he worked the traffic division with the New Lenox police department. At approximately 3 a.m., he drove into the French Fort parking lot in the forest preserve and noticed a vehicle parked in the lot with its headlights off. Wojowski exited his vehicle and approached the driver’s side door of the parked vehicle. He observed defendant in the driver’s seat of the vehicle with the keys in the ignition and the radio playing. The engine was turned off.

Wojowski noticed “an odor of burnt cannabis or the smell of burnt cannabis emitting from the interior compartment of the vehicle.” He asked defendant if he had smoked any cannabis that night. Defendant stated “he last smoked about 8 o’clock in the evening.” Wojowski also noticed defendant’s “eyes were bloodshot and glassy.” Wojowski asked defendant to step out of the vehicle “to perform an eye test on him.” Defendant’s speech “was somewhat mumbled and slow.” Wojowski testified that he asked defendant again if he smoked cannabis, and defendant told him “that he smoked a blunt early in the evening.” Wojowski also asked defendant “on a scale of 1 to 10 with 10 being the highest how he felt at the time.” Defendant responded, “[ajbout a three or four.”

Wojowski said that as he stood outside the vehicle and spoke with defendant, he “smelled the odor of burnt cannabis coming from his breath.” The prosecutor asked, “And how much did you smell coming from his breath?” Wojowski answered, “I smelled the odor so it would have to be more than zero.” Wojowski said “shortly thereafter,” he “placed him [defendant] under arrest for driving under the influence of cannabis.”

Wojowski transported defendant to the police station and asked defendant to submit a blood or urine sample. Defendant refused. The prosecutor asked Wojowski if he formed an opinion as to whether defendant was under the influence of cannabis prior to arresting defendant. Wojowski said “[t]hat he was.” Wojowski stated that the incident was videotaped but that you “couldn’t see the things that I saw in his eyes. It couldn’t smell.” The State played the videotape for the trial court, and by agreement, the court admitted the videotape into evidence.

The trial court asked the officer if he had an opinion as to “whether or not there was any cannabis that was within either the blood or urine of this individual?” Wojowski responded, “Blood or urine, no. I’m not a medical technician. He didn’t perform the test, so all I could note was the breath.” The State then rested. Defense counsel moved for a directed finding.

The prosecutor argued that the statute prohibits a person from being in physical control of a motor vehicle with any amount of an illegal substance in “their breath, blood or urine.” The prosecutor went on to say that the officer stated in regard to cannabis on defendant’s breath, there “must have been more than zero because he smelled something.” The trial court then questioned the prosecutor about the testimony because the court did not recall the testimony. The trial court asked the prosecutor if she could “recall the witness because the Court did not get that.” The prosecutor responded that, “With regard to the breath, Your Honor, I did ask him a question. Do you want me to recall him?” The court said, “I’d like to hear it.”

Then, without objection from the defense, the trial court allowed the prosecutor to recall Wojowski as a witness. Wojowski testified that he smelled an odor of cannabis emitting from defendant’s breath. The prosecutor asked, “[H]ow much did you smell on his breath?’ Wojowski responded that “[i]t was a moderate odor.” Shortly thereafter, the trial court asked the officer if he had an “opinion based upon your observation of this individual as to the amount of cannabis that was on the breath of this individual?” and then directed Wojowski to answer “yes or no.” Wojowski responded “[y]es.” Wojowski stated, “It had to be more than zero zero zero in any measuring format.”

When defense counsel began to question Wojowski, the trial court interrupted defense counsel and said, “What’s the basis of his opinion, right?” Defense counsel then repeated the question as formulated by the judge. Wojowski responded that the basis of his opinion was “through my career I’ve smelled the odor of cannabis several [sic] several hundred times. I know what the odor smells like, and I smelled that odor coming from Mr. Faint’s breath, therefore, it had to be there because I smelled it.” Wojowski said “more than zero zero zero in any measuring format, whichever format you want to use, there was an odor coming from his breath that I smelled, so it had to be there.” Defense counsel asked Wojowski if he was highly confident in his accuracy. Wojowski responded, “As far as the odor of cannabis, yes.”

After defense counsel indicated that he did not have any further questions, the judge asked:

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People v. FAINT, 920 N.E.2d 1247, 396 Ill. App. 3d 614, 336 Ill. Dec. 657, 2009 Ill. App. LEXIS 1261 (Ill. Ct. App. 2009).

920 N.E.2d 1247 (People v. FAINT) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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