People v. Foltz

934 N.E.2d 719, 403 Ill. App. 3d 419, 343 Ill. Dec. 395, 2010 Ill. App. LEXIS 889
CourtAppellate Court of Illinois
DecidedAugust 23, 2010
Docket5-08-0613
StatusPublished
Cited by3 cases

This text of 934 N.E.2d 719 (People v. Foltz) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Foltz, 934 N.E.2d 719, 403 Ill. App. 3d 419, 343 Ill. Dec. 395, 2010 Ill. App. LEXIS 889 (Ill. Ct. App. 2010).

Opinion

JUSTICE STEWART

delivered the opinion of the court:

The defendant, Jeffery D. Foltz, appeals from a final judgment of conviction entered by the Marion County circuit court upon a jury verdict of guilty of the offense of aggravated driving under the combined influence of alcohol and drugs (DUI) (625 ILCS 5/11— 501(a)(5) (West 2008)). The defendant argues that he was not proven guilty beyond a reasonable doubt because the only evidence of drug use presented at the trial was that a police officer smelled the odor of burnt cannabis in the defendant’s vehicle. We reverse.

BACKGROUND

On May 9, 2008, the State charged the defendant by information with one count of aggravated driving under the combined influence of alcohol and drugs. The parties stipulated that, at the time of the violation, the defendant’s driver’s license was suspended. As a result of the stipulation, the jury did not have to consider the elements that made his offense “aggravated.” The jury would only consider elements of driving under the combined influence of alcohol and drugs. However, if the defendant was found guilty, the stipulation would raise the offense to a Class 4 felony.

Before the trial began, the court considered two motions in limine. In the first motion, the defendant sought to exclude all of his prior convictions from being introduced during any stage of the trial. The court granted the motion. In the second motion, the defendant sought to exclude any evidence or testimony concerning alleged cannabis. The court granted the motion regarding a plastic bag containing alleged cannabis and an alleged cannabis cigarette found during the search of the defendant’s vehicle, but it denied the motion regarding the testimony of the arresting police officer, Shawn Wilkey. The trial court ruled that the existence of the plastic bag and the cigarette could not be introduced during the trial because those items had been “lost” after the defendant’s arrest and had not been subjected to chemical testing. However, the court ruled that Officer Wilkey would be allowed to testify as an ordinary person, not as an expert, regarding the odor of cannabis.

During the trial, only two witnesses testified. The first witness, for the State, was Officer Wilkey. Officer Wilkey testified that he had completed his law enforcement training in early 2008 and had been employed by the Wamac police department for approximately two years at the time of the trial. As a part of his training, Officer Wilkey had to complete 24 hours of standardized field sobriety school to learn how to determine intoxication and make proper DUI arrests. His training included how to look for signs and indicators of intoxication but not how to identify drugs or alcohol by smell. Despite the fact that Officer Wilkey was not trained to identify drugs or alcohol by smell, he testified that he was familiar with the smell of both alcohol and drugs from his life experience as well as the prior DUI and possession arrests he had performed.

Officer Wilkey testified that, on May 9, 2008, at 4:20 a.m., he was stationed at the intersection of East 17th and Wabash in Wamac, Illinois, when he saw a car run a four-way stop sign. The car belonged to the defendant. Upon initial contact with the defendant, Officer Wilkey asked him for his driver’s license, which he was unable to produce. Officer Wilkey stated that he smelled cannabis coming from the car when the defendant rolled down his window. Officer Wilkey testified that while trying to obtain the defendant’s driver’s license, the defendant began to beg the officer to follow him home, and he noticed the smell of alcohol on the defendant’s breath. Based upon his observations, Officer Wilkey decided to perform the standardized field sobriety tests. He stated that his training included the proper performance of the field sobriety tests and that he had performed them on numerous occasions.

Officer Wilkey asked the defendant to perform the walk-and-turn test and the one-leg-stand test. He explained that, at the time he asked the defendant to perform the field sobriety tests, the weather was clear and warm, the ground was level, and the road was smoothly paved. He first demonstrated and explained the walk-and-turn test. Officer Wilkey testified that the defendant appeared to understand his instructions and did not demonstrate any physical conditions that would impair him from performing the tests. The defendant failed the walk-and-turn test by beginning before he was instructed to begin, not touching heel to toe, and counting past nine steps. Officer Wilkey then explained and demonstrated the one-leg-stand test. He stated the defendant also failed this test by putting his foot down more than once and using his arms to keep his balance. At this time, Officer Wilkey placed the defendant under arrest for DUI.

Officer Wilkey stated that the defendant refused to place his hands behind his back and told him that he was going to the side of the road to urinate. Officer Wilkey told the defendant he could not urinate in public, and he tried to place handcuffs on him, but he “jerked his arm away.” He then sprayed the defendant with pepper spray. Officer Wilkey stated that, despite the pepper spray, the defendant continued to “wrestle” with him and that he called for backup. He then gave the defendant another burst of pepper spray and secured the handcuffs on him. Officer Wilkey testified that the backup officers assisted in placing the defendant in the squad car and that he drove the defendant to the hospital, where he read the defendant the warning to motorists. The warning notifies motorists of their rights if they refuse or submit to chemical testing. Officer Wilkey testified that the defendant entered the hospital and refused to submit to blood or urine tests.

During cross-examination, Officer Wilkey admitted that this was his first arrest for driving under the combined influence of alcohol and drugs. He also admitted that he had never before made an arrest for driving under the influence of drugs. He stated that, upon his initiating the traffic stop, the defendant made a successful left-hand turn and the defendant did not have slurred speech or glassy eyes. He also indicated that the defendant’s ability to stand and walk was not impaired.

Officer Wilkey testified that the only way to distinguish if a person is under the influence of drugs rather than alcohol is chemical testing. He stated that the field sobriety tests and many other signs of intoxication may indicate drug intoxication but that they may also indicate alcohol intoxication. Officer Wilkey’s belief that he detected the odor of burnt cannabis is what led him to charge the defendant with driving under the combined influence of alcohol and drugs.

At the conclusion of Officer Wilkey’s testimony, the defendant made a motion for a directed verdict on the ground that the State had not proved all of the elements required for a charge of driving under the combined influence of alcohol and drugs. The trial court denied the motion, finding that there was enough evidence from which the jury could determine whether the defendant was under the combined influence of alcohol and drugs. The next witness, for the defense, was Kevin McClain. McClain testified as an expert witness on field sobriety tests.

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Cite This Page — Counsel Stack

Bluebook (online)
934 N.E.2d 719, 403 Ill. App. 3d 419, 343 Ill. Dec. 395, 2010 Ill. App. LEXIS 889, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-foltz-illappct-2010.