People v. Flores

• Court: Appellate Court of Illinois
• Decided: April 13, 2026
• Docket: 3-25-0132
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2026 IL App (3d) 250132-U

Order filed April 13, 2026 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of the 12th Judicial Circuit, Plaintiff-Appellee, ) Will County, Illinois, ) v. ) Appeal No. 3-25-0132 ) Circuit No. 24-DT-531 ) MIGUEL A. BAUTISTA FLORES, ) Honorable ) Judge Colette Safford, Defendant-Appellant. ) Presiding. ____________________________________________________________________________

JUSTICE BRENNAN delivered the judgment of the court. Justices Holdridge and Bertani concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: Defendant forfeited his claim on appeal that the results of his HGN test lacked a proper foundation, and plain-error review was not warranted. Affirmed.

¶2 Following a bench trial, defendant, Miguel Bautista Flores, was convicted of driving under

the influence (DUI). On appeal, defendant challenges for the first time the admission of his

horizontal gaze nystagmus (HGN) test as lacking adequate foundation. Contrary to defendant’s

argument, plain-error review is not warranted because the evidence apart from the HGN test results

was not closely balanced. We affirm. ¶3 I. BACKGROUND

¶4 On June 21, 2024, defendant was charged by citation with one count of DUI (625 ILCS

5/11-501(a)(2) (West 2024)) and one count of driving with expired license plates (625 ILCS 5/3-

413(f) (West 2024)).

¶5 At the bench trial, the State called Will County Sheriff’s Deputy, Jacob Close, as its first

witness. Close testified that, on June 21, 2024, he was dispatched to a residence following the

homeowner’s report of an unknown vehicle parked in his driveway. The homeowner indicated that

an individual “appeared to be passed out behind the wheel.” Upon arrival, Close observed a Jeep

parked in the driveway behind the residence, but no one was inside the vehicle. Defendant was

subsequently found “face down in the bushes” approximately 20 feet from the vehicle. Close woke

him, at which point he “slowly started waking up and sitting up.” A Jeep key, later used to access

the vehicle in the driveway for an inventory, was located in defendant’s pocket. Close testified that

he noticed a strong odor of alcohol coming from defendant’s person and observed a “large wet

mark” on the front of defendant’s pants.

¶6 On cross-examination, Close confirmed that defendant had a “thick” accent but that they

did not have any trouble communicating with one another.

¶7 Footage from Close’s body-worn camera was admitted into evidence and was time stamped

June 21, 2024, at 9:44 p.m. Defendant could be seen exiting the bushes on his knees, lying back

down on the ground, and closing his eyes. The deputies asked if he needed medical attention and

did not receive a response. Another deputy attempted to shake defendant awake, at which point

defendant awoke and returned to a kneeling position. Defendant eventually stood up and, with

assistance, walked over to a picnic table. Defendant stated more than once that he did not know

2 what he did. When asked why he parked on someone’s property, defendant responded that he was

just tired.

¶8 The State next called Will County Sheriff’s Deputy, Derek Nagel. Nagel testified that,

along with all required testing and training, he completed and passed the testing for DUI refresher

courses and an advanced DUI detection class. On June 21, 2024, he self-dispatched to the residence

at issue. He observed a Jeep in the driveway and noticed that it had expired license plates. The

certified registration for the Jeep was admitted into evidence.

¶9 Nagel further testified that he asked defendant whether he was alone inside the vehicle

when the homeowner made his report, and defendant answered in the affirmative. Defendant

confirmed that he was wearing his seatbelt while driving and that he pulled into the driveway to

find a place to sleep. Nagel asked defendant where he was coming from, and defendant responded

that he was coming from work at that he had gotten off at “5:00, 5:30, 6:00, 7:00.” Nagel denied

having difficulty communicating with defendant but observed that he had “bloodshot, glassy eyes

and a strong odor of alcoholic beverage emitting from his breath.” He was an arm’s length away

from defendant when he made these observations. Defendant denied drinking any alcohol.

¶ 10 Nagel testified that he then asked defendant whether he had anything wrong with his eyes,

and defendant responded that his left eye was “weird” but that it was okay. Nagel then held one

finger approximately 12 inches from defendant’s face to confirm defendant could see it, which he

could. Pursuant to Nagel’s questioning, defendant denied having any medical issues with his head

or body or having any medical issues for which he sees a doctor. Defendant denied taking any

prescription medication.

¶ 11 Nagel proceeded with the administration of the HGN test, which looks for involuntary

jerking of the eye. Nagel explained the instructions to defendant, who appeared to understand.

3 Nagel testified that he “observed six of six clues, lack of smooth pursuit in both eyes, distinct and

sustained nystagmus at maximum deviation in both eyes[,] and onset of nystagmus prior to 45

degrees. That’s two clues in each eye to make up six.” He testified that the decision point for the

HGN test, which “shows that the subject has consumed alcohol,” is four clues.

¶ 12 Nagel next administered the walk-and-turn test, where the subject is instructed to take nine

heel-to-toe steps down a line, make a series of small steps to turn around, and then take nine heel-

to-toe steps back. The subject must keep their hands on their legs, look down at their toes, count

each step aloud, and complete the test without stopping. Defendant performed as follows:

“He failed to remain in the starting position during the instructional phase, he stepped off

line on several steps on the away and return portion. He missed heel[-]to[-]toe on several

steps on the away and return portion. He took a total of 23 steps on the away portion and

19 steps on the return portion. After completing the *** away and more, he stopped the

test and started asking what he’s supposed to do before completing the return portion. He

used his arms for balance throughout the test, and then I can’t remember the last clue that

he had.”

After having his recollection refreshed with his police report, Nagel testified that the last clue was

defendant’s failure to take a series of small steps to turn around. Nagel observed seven out of eight

clues in the walk-and-turn test and testified that the decision point to indicate impairment was two

clues. At that point, Nagel noticed a large wet spot “[r]unning down [defendant’s] pant leg from

his groin.”

¶ 13 Nagel then administered the one-leg-stand test, where the subject is instructed to raise one

foot six inches off the ground and parallel to the ground, count out loud until instructed to stop,

keep his hands on his legs, and look down at his toes. Defendant proceeded to use his arms for

4 balance during the test, put his foot down several times, and swayed side-to-side. Nagel observed

three out of four clues for this test and testified that the decision point to indicate impairment was

two clues.

¶ 14 Nagel testified that he formed the opinion that defendant should not have been operating a

motor vehicle at that point based on his observations of a “[s]trong odor of alcoholic beverage

coming from [defendant’s] breath, bloodshot, glassy eyes, signs of impairment on standardized

field sobriety tests,” the nature of the report from the homeowner, and the wet spot on his groin.

Defendant was subsequently arrested.

¶ 15 On cross-examination, Nagel acknowledged that a person’s eyes can be bloodshot for

reasons other than alcohol consumption (including being tired), and he did not know what time

defendant woke up that morning. He further confirmed that, while he smelled alcohol on

defendant’s breath, that could not tell him when he consumed alcohol, how much, or what type.

Nagel testified that the HGN test shows whether a person has consumed an amount of alcohol or

other drugs that is “[m]ore than a normal dose for that person.”

¶ 16 Footage from Nagel’s body-worn camera was admitted into evidence. Defendant indicated

that he left work at approximately 7:00 pm or 8:00 pm and denied drinking alcohol. The video also

included the administration of the various field sobriety tests administered by Nagel. The wet mark

on the front of defendant’s pants was visible; defendant denied that it was urine.

¶ 17 The State rested. Defendant moved for a directed finding as to both counts. The court

denied the motion as to count I (DUI) and granted it as to count II (expired license plates).

Defendant rested without presenting evidence.

¶ 18 The court found defendant guilty of count I. In doing so, the court found Close and Nagel

credible. The court considered the totality of the circumstances and noted that defendant admitted

5 driving the vehicle and turning onto private property, and he was subsequently located face-down

in the bushes where he had to be woken up. The court observed that he “appear[ed] slightly

confused” upon awaking. The court further reasoned that, while defendant performed field sobriety

tests and did not fall, he did have to be supported as he walked away from the bushes.

¶ 19 Defendant filed a motion to reconsider, arguing that the State failed to prove beyond a

reasonable doubt that defendant was in actual physical control of the vehicle while intoxicated.

The motion was denied.

¶ 20 Defendant was sentenced to 12 months of conditional discharge and ordered to complete

240 hours of community service, attend a victim impact panel, obtain a DUI evaluation, complete

counseling and aftercare, and pay $3,000 in fines. This appeal followed.

¶ 21 II. ANALYSIS

¶ 22 On appeal, defendant argues that the court abused its discretion in admitting and

considering the results of the HGN test because Nagel’s testimony failed to lay the necessary

foundation.

¶ 23 As conceded by defendant, he forfeited this evidentiary issue by failing to object to the

admission of the HGN test results at trial. See People v. Presley, 2023 IL App (5th) 230970, ¶ 28.

However, forfeiture is not absolute, and “[t]he plain-error rule bypasses normal forfeiture

principles and allows a reviewing court to consider unpreserved error in specific circumstances”

when invoked by the appealing party. (Internal quotation marks omitted.) Id. ¶ 29 (quoting People

v. Thompson, 238 Ill. 2d 598, 613 (2010)). Defendant argues that the court’s admission of the HGN

test results should be reviewed under the plain-error doctrine. “Whether there is plain error is a

question of law, which we review de novo.” People v. Williams, 2022 IL 126918, ¶ 48.

6 ¶ 24 Illinois Supreme Court Rule 615(a) (eff. Jan. 1, 1967) provides that “[p]lain errors or

defects affecting substantial rights may be noticed although they were not brought to the attention

of the trial court.” Appellate review of a forfeited error is appropriate under two circumstances or

“prongs”:

“Under the first prong, plain-error review is applied when a clear or obvious error occurred

and the evidence is so closely balanced that the error alone threatened to tip the scales of

justice against the defendant, regardless of the seriousness of the error. [Citation.] Under

the second prong, plain-error review is applied when a clear or obvious error occurred and

that error is so serious that it affected the fairness of the defendant’s trial and challenged

the integrity of the judicial process, regardless of the closeness of the evidence.” (Internal

quotation marks omitted.) Presley, 2023 IL App (5th) 230970, ¶ 30.

The defendant carries the burden of persuasion. Id.

¶ 25 Defendant asserts first-prong plain error on appeal, and we first determine whether a clear

or obvious error occurred when the court admitted the HGN test results at trial.

¶ 26 The National Highway Traffic Safety Association (NHTSA) has published a training

manual that establishes the proper procedure for law enforcement to follow when administering

an HGN test in the field. NHTSA DWI Detection and Standardized Field Sobriety Testing

Instructor Guide (2023), https://www.nhtsa.gov/sites/nhtsa.gov/files/2023-03/15911-

SFST_Instructor_Guide_2023-tag.pdf (last visited March 26, 2026) (NHTSA Manual). Initially,

we note that the NHTSA Manual does not appear in the record on appeal; however, defendant

requests for the first time in his opening brief that we take judicial notice of it. A reviewing court

may take judicial notice of readily verifiable facts if it facilitates the efficient disposition of a case,

including where judicial notice was not requested in the trial court. Aurora Loan Services, LLC v.

7 Kmiecik, 2013 IL App (1st) 121700, ¶ 37. For example, we “may take judicial notice of information

on a public website even though the information was not in the record on appeal.” People v.

Crawford, 2013 IL App (1st) 100310, ¶ 118 n.9. In this case, we are able to obtain the manual

through NHTSA’s website and will therefore take judicial notice of the same.

¶ 27 The NHTSA Manual describes three clues law enforcement officers should note during the

administration of the HGN test, as they may indicate alcohol consumption: (1) lack of smooth

pursuit of the eyes, (2) distinct and sustained nystagmus and maximum deviation, and (3) onset of

nystagmus prior to 45 degrees. The NHTSA Manual sets forth a ten-step procedure for officers to

follow, including “pre-test checks.” During the first step, the officer should check for eyeglasses

and note whether the subject wears contacts. Eyeglasses should be removed. During step two, the

officer provides verbal instructions for the test, including for the subject to put his feet together,

keep his hands to his side, keep his head still, look at the stimulus, follow the stimulus with his

eyes only, and continue looking at the stimulus until he is told that the test is over. During step

three, the officer should position the stimulus 12-15 inches in front of the subject and slightly

above eye level. During step four, the officer should check for equal pupil size and resting

nystagmus. During step five, the officer should check for equal tracking of the subject’s eyes as

the stimulus is moved from center to far right and far left, then back to center. The speed of the

stimulus should be approximately the same speed subsequently used in step six. At this point, all

pre-test checks will have been completed. During step six, the officer watches for a lack of smooth

pursuit in the subject’s eyes as the officer smoothly moves the stimulus. Each eye should be

checked at least twice. During step seven, the officer watches for distinct and sustained nystagmus

at maximum deviation, checking each eye at least twice. “Distinct and sustained nystagmus is

evident when the eye is held at maximum deviation for a minimum of four seconds and continues

8 to jerk toward the side.” During step eight, the officer watches for the onset on nystagmus prior to

45 degrees. Each eye should be checked at least twice. During step nine, the officer should total

the clues, with each eye receiving separate points for each clue that is present. The total maximum

number of possible clues is six. During step ten, the officer checks for vertical nystagmus, where

the stimulus is held at an elevated level for a minimum of four seconds.

¶ 28 “[T]o be a reliable indicator of alcohol consumption, HGN field testing must be performed

in accordance with the NHTSA protocol.” People v. McKown, 236 Ill. 2d 278, 298 (2010)

(McKown II). “Evidence of HGN testing, when performed according to protocol by a properly

trained officer, is admissible for the purpose of showing that the subject has likely consumed

alcohol.” People v. Motzko, 2017 IL App (3d) 160154, ¶ 21. The results of an HGN test are

admissible where a proper foundation for the results has been laid, “including a showing that the

witness is properly trained and that he performed the test in accordance with proper procedures.”

Id. at 306. With the proper foundation, a testifying officer “may use the HGN test results as a part

of the basis for his opinion that the defendant was under the influence and impaired.” Id.

¶ 29 In McKown II, our supreme court held that there was inadequate foundation for the

admission of HGN test results where the administering officer, contrary to the procedures set forth

by NHTSA,

“did not testify that he checked [the defendant’s] eyes for equal tracking before conducting

the HGN test. He did not testify that he checked her eyes for equal pupil size. He did not

describe the speed at which he moved the stylus or that he held the stylus at the point of

maximum deviation for the requisite four seconds. He did not testify that he repeated the

procedure twice, as NHTSA protocol requires. Finally, he confused two of the clues when

he combined two steps in the protocol.” Id. at 307.

9 Because the trial court “relied heavily on the improperly admitted” test results, as there were no

other field sobriety tests administered and the defendant’s blood-alcohol content was not

chemically tested, the defendant’s conviction was reversed. Id. at 311.

¶ 30 Similarly here, Nagel did not testify that he checked defendant’s eyes for equal tracking,

equal pupil size, or resting nystagmus prior to administering the HGN test. He did not testify that

he repeated any of the steps as required. He also failed to detail the speed at which he moved the

stimulus during the test or confirm that he held the stimulus at the point of maximum deviation for

at least four seconds. While Nagel explained that he had passed all necessary training and testing

at the police academy and had additional training in the form of DUI refresher courses and an

advanced DUI detection class, he did not specifically testify that he had been properly trained

according to the NHTSA Manual. Because the State failed to lay a proper foundation to establish

that Nagel was properly trained and performed the test in accordance with the NHTSA Manual,

the HGN test results were improperly admitted, and a plain or obvious error occurred.

¶ 31 Accordingly, we proceed to the second step of the plain-error analysis—whether the

evidence was so closely balanced that the error threatened to tip the scales of justice against

defendant. “In determining whether the evidence adduced at trial was close, a reviewing court must

evaluate the totality of the evidence and conduct a qualitative, commonsense assessment of it

within the context of the case.” People v. Sebby, 2017 IL 119445, ¶ 53. To reverse a trial court

under this prong of the plain-error doctrine, the evidence must be “so closely balanced that the

guilty verdict may have resulted from the error.” Thompson, 238 Ill. 2d at 613.

¶ 32 Here, excluding Nagel’s testimony regarding defendant’s HGN test results, a

commonsense assessment of the remaining evidence demonstrates that it was not closely balanced.

As acknowledged by defendant, he drove his vehicle down the driveway of a property he had no

10 connection with in order to find a place to sleep. He then exited his vehicle, traveled approximately

20 feet, and fell asleep face-down in the bushes. When law enforcement located him, he crawled

out of the bushes, then laid back down and closed his eyes. After being non-responsive to law

enforcement’s questions, he had to be shaken awake, at which point he stood up and expressed

confusion about the situation. He claimed that he was coming from work and had not consumed

any alcoholic beverages, which is belied by Close and Nagel’s observations that defendant had

strong odor of alcohol emanating from his person and his breath. He also had a large wet stain on

his groin that was consistent with urine. We observe that the stain was visible in Nagel’s body-

worn camera footage, and there were no wet marks visible on other parts of defendant’s clothing.

Although defendant was otherwise coherent and was not falling or stumbling, he did have to be

physically supported by law enforcement while walking away from the bushes. Nagel also testified

that defendant had “bloodshot, glassy eyes.” Moreover, his performance on the walk-and-turn and

one-leg-stand tests were consistent with alcohol impairment.

¶ 33 Unlike the trial court in McKown II, the court here did not rely heavily on the improperly

admitted HGN test results. While the court noted the results of the field sobriety tests in its ruling,

there were three total field sobriety tests for the court to consider, whereas in McKown II, the only

test administered was the HGN test. The court was also presented with considerable non-field

sobriety test evidence to support its finding of guilt. Accordingly, because the remaining evidence

was more than sufficient to find defendant guilty of DUI beyond a reasonable doubt, defendant’s

first-prong plain-error argument fails.

¶ 34 In sum, because the evidence was not closely balanced, defendant’s claim does not warrant

plain-error review.

¶ 35 III. CONCLUSION

11 ¶ 36 For the reasons stated herein, we affirm the judgment of the circuit court of Will County.

¶ 37 Affirmed.