NO. 4-07-0018 Filed 8/13/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Livingston County CHAD A. HOSTETTER, ) No. 06DT77 Defendant-Appellant. ) ) Honorable ) Robert M. Travers, ) Judge Presiding. _________________________________________________________________
JUSTICE MYERSCOUGH delivered the opinion of the court:
In November 2006, a jury found defendant, Chad A.
Hostetter, guilty of driving under the influence (DUI) (625 ILCS
5/11-501(a)(2) (West 2006)). In January 2007, the trial court
sentenced defendant to 24 months' probation with the condition
that he serve 30 days' imprisonment with credit for 15 days
served.
Defendant appeals, arguing the State (1) committed
plain error when, during direct examination and the State's case
in chief, the State elicited testimony that defendant invoked his
right to silence by asking for an attorney and (2) failed to
prove him guilty beyond a reasonable doubt.
Because the State did not commit error when it elicited
testimony that defendant requested counsel and the State
presented sufficient evidence of defendant's guilt, we affirm.
I. BACKGROUND The jury trial commenced on November 9, 2006. For
clarity, this court will first discuss the general facts elicited
at trial and then more specifically discuss the testimony
relating to defendant’s request for counsel.
A. Testimony Elicited at Trial
On April 2, 2006, at approximately 1:30 a.m., defendant
was observed trying to repeatedly drive his vehicle over a gravel
embankment in the parking lot behind Rathbun's Tap, a local
tavern. The gravel embankment operated like a dike to prevent
cars from driving to the back of the neighboring store. While
pictures of the parking lot and gravel embankment were admitted
into evidence at trial, the pictures are not contained in the
record on appeal.
Robert McCormick, a sergeant with the Fairbury police
department, observed defendant attempting to free his vehicle
from the gravel embankment. When defendant got his vehicle free
from the embankment, he again attempted to drive over the
embankment. Sergeant McCormick activated his lights and exited
his vehicle.
Sergeant McCormick testified that when defendant exited
his vehicle, he seemed unsteady, staggered, and walked in a
serpentine manner toward Sergeant McCormick. Defendant told
Sergeant McCormick that he had not been drinking "since earlier."
Defendant also told Sergeant McCormick that he was parking the
- 2 - truck so that someone could give him a ride home.
Sergeant McCormick testified he had received training
to determine when someone was under the influence of alcohol.
Sergeant McCormick believed defendant was under the influence of
something based on (1) defendant's speech, which included pausing
frequently, repeating himself, slurring, and stringing his words
together; (2) defendant's dilated pupils; (3) his swaying; and
(4) the way defendant drove the truck. Sergeant McCormick
thought dilated pupils were a sign of alcohol intoxication.
Sergeant McCormick did not have defendant perform
field-sobriety tests because of the gravel and the fact that they
were attracting a lot of attention. Sergeant McCormick did ask
defendant to perform on the portable breath test (PBT) machine.
Despite two attempts, defendant only gave a partial breath
sample. The reading based on the partial breath sample was
0.042. Sergeant McCormick testified that a full sample is more
accurate than a partial sample. Sergeant McCormick also based
his conclusion that defendant was under the influence based on
the partial sample reading of 0.042 on the PBT.
Sergeant McCormick placed defendant under arrest for
DUI and put defendant in his squad car. The DUI citation states
the arrest took place on the public highways, specifically, on
the north alley of the 200 block of East Locust in Fairbury.
Sergeant McCormick drove to the hospital, a 20-minute drive.
- 3 - Sergeant McCormick intended to request blood and urine tests
because he thought defendant was under the influence of something
more than alcohol. Defendant fell asleep on the way to the
hospital. Once they arrived at the hospital, Sergeant McCormick
had to hold defendant up and prevent defendant from walking into
a closed door.
Sergeant McCormick testified that defendant's pupils
remained dilated when they entered the well-lit hospital.
According to Sergeant McCormick, that was a sign of being under
the influence of alcohol. At the hospital, defendant refused to
submit to the blood and urine tests. Defendant also told
Sergeant McCormick he had recently "beat another DUI."
Defendant never told Sergeant McCormick that he was
tired or that he had worked a 12-hour shift the previous evening.
Sergeant McCormick testified that sleep-deprived people do walk
unsteadily, have slurred speech with pauses, drive erratically,
and fall asleep. Sergeant McCormick did not believe that a
sleep-deprived person would have dilated pupils.
David Fritts, the police officer who inventoried
defendant's vehicle, testified he found (1) two bottles of
Hornsby's Hard Cider in a toolbox in the back of the truck; (2)
one cooler containing two unopened bottles of Hornsby's Hard
Cider on ice; and (3) a second cooler containing six unopened
bottles of Hornsby's Hard Cider on ice. Whether the two bottles
- 4 - found in the toolbox were empty or unopened is unclear. The
State rested.
Defendant called Derrick Renken, a road deputy for the
Livingston County sheriff's department, to testify. Deputy
Renken testified that he had stopped defendant's vehicle earlier
in the evening, at approximately 9:39 pm, after receiving a
dispatch call. When Deputy Renken made contact with the vehicle,
the vehicle was traveling down the center of the roadway with the
left turn signal activated for about one mile. The vehicle also
had a hanging exhaust.
Deputy Renken effectuated a stop, approached the
vehicle, and asked the driver if he had had anything to drink
that night. The driver, whom Deputy Renken identified as
defendant, said he had had one alcoholic beverage at his
residence. When defendant reached in to the glove box to
retrieve his registration and insurance, Deputy Renken saw an
empty, clear bottle of Hornsby Hard Cider. Deputy Renken also
noticed two lunch coolers containing unopened bottles of
Hornsby's Hard Cider located in the front of defendant’s truck
bed.
Deputy Renken searched defendant's vehicle for open
alcohol and found a second empty bottle of Hornsby's Hard Cider.
Deputy Renken agreed the police report might have said two
unopened alcoholic-beverage bottles were seen in the glove box.
- 5 - He explained that he was trying to testify by memory, and he
believed all the bottles he found in the truck were empty. He
stated if his testimony was contradictory to his report, then the
information in his report was more accurate. Deputy Renken did
not refresh his recollection with his report, and the report was
never admitted into evidence.
Deputy Renken asked defendant to perform field-sobriety
tests. Defendant successfully completed the horizontal-gaze-
nystagmus and the one-legged-stand tests. Defendant failed the
walk-and-turn test because he did not follow the instructions.
However, Deputy Renken did not believe he had enough evidence to
charge defendant with DUI. Therefore, Deputy Renken cited
defendant for improper lane usage and illegal transportation of
alcohol and issued a written warning for the hanging exhaust.
When Deputy Renken returned to defendant's vehicle to give him
the citations, he discovered that defendant had fallen asleep.
Once Deputy Renken was able to get defendant's attention,
defendant looked extremely confused. Defendant told him that he
had recently been working 12-hour shifts at R.R. Donnelley in
Dwight. Deputy Renken told defendant he might want to drive home
and stay home for the evening.
Deputy Renken testified that dilated pupils did not
indicate anything about being under the influence of alcohol.
Dilation of the eyes generally occurs with the use of a
- 6 - depressant or cannabis. On cross-examination, Deputy Renken
agreed that walking in a serpentine motion, slurred speech, and
repeating oneself can all be signs of being under the influence
of alcohol.
Defendant testified on his own behalf. Defendant left
work at 7 a.m. on Saturday, April 1, 2002, after working a 12-
hour shift. Defendant’s time card from work was admitted into
evidence but is not included in the record on appeal. Defendant
testified he had just recently changed from first shift, which
runs from 7 a.m. until 3 p.m, to third shift, which runs from 11
p.m. until 7 a.m. He had worked 49 hours that week. Defendant
had only three to four hours of sleep that Friday and was not
used to sleeping during the day.
Defendant testified that after leaving work, he went
home to Chenoa, changed clothes, and then went to Fairbury to the
Saturday auction. Around 2 or 3 p.m., defendant returned to
Chenoa, ate dinner, showered, changed clothes, and left again at
about 9:30 p.m. Defendant drank one Hornsby's Hard Cider between
8 and 9 p.m. Hornsby's Hard Cider is the only alcoholic beverage
defendant drinks. Defendant did not take any drugs or
medications to help him stay awake.
Defendant drove to Fairbury to find a friend who lived
outside town. Defendant agreed that Deputy Renken accurately
described the stop. However, defendant testified that Deputy
- 7 - Renken found two unopened bottles in the glove compartment and an
empty bottle under the passenger seat. Defendant was not sure
how the empty bottle got there.
Defendant had purchased the hard cider, sold in six-
packs, at the Apollomart in Chenoa. Defendant placed two
unopened bottles in his glove compartment because all the bottles
would not fit in the coolers.
Defendant did not take Deputy Renken's advice and
return home. Instead, he continued his attempt to find his
friend's house. When he could not find the house, defendant went
to Fairbury and stopped at another friend’s house. Defendant
then went to Rathbun's Tap to find another friend. He arrived
between 11:30 p.m and 12 a.m. and stayed until the bar closed at
1 or 1:30 a.m. Defendant did not consume any alcohol because
Rathbun's Tap does not carry the hard cider he likes. Except for
the bottle he drank at his home, defendant did not consume any
other alcohol that night.
Defendant testified that when his truck got "hung up"
on the gravel embankment, he was trying to move his vehicle to
another parking spot so that it would not be towed overnight.
Defendant tried to drive over the embankment because, due to cars
leaving through the alley, that was the only way to move the
truck to the back of Rathbun’s Tap to prevent it from being
towed. Defendant testified he had difficulty getting over the
- 8 - gravel embankment because of "lack of vision," lack of lighting,
and an inability to maneuver around the gravel embankment because
of other cars leaving the bar.
When Sergeant McCormick showed up, defendant told him
he was trying to park the vehicle so he could get a ride home.
Defendant was going to look for a ride to Chenoa because none of
his friends would give him a ride back to Chenoa.
Defendant testified he had trouble walking because of
the gravel and the uneven surface and because he was very tired.
Defendant testified he fell asleep on the way to the hospital
because he was very tired. Sergeant McCormick never asked
defendant to perform field-sobriety tests.
Defendant admitted, on cross-examination, telling
Sergeant McCormick he had a previous DUI dismissed but denied
saying he "beat the DUI." The previous DUI occurred that year in
La Salle County the Thursday before the Super Bowl. In that
instance, defendant took the Breathalyzer and blew a 0.04, and
the charge was dismissed.
In rebuttal, the State submitted certified copies of
defendant's prior convictions for theft and unlawful possession
of a controlled substance. Neither exhibit was included in the
B. Testimony Regarding Defendant's Request for Counsel
Sergeant McCormick testified that at the hospital,
- 9 - defendant refused to submit to the blood and urine tests. The
following exchange occurred between Sergeant McCormick and the
prosecution:
"Q. Why--Do you know why he refused
those tests?
A. He stated that he wouldn’t take the
test unless he had a lawyer present.
Q. Okay. Now, to perform this sort of
test, is an attorney required?
A. No.
Q. Does the defendant have a right to
an attorney for these tests?
MR. BERTRAM [(defense counsel)]:
Objection.
THE COURT: Basis?
MR. BERTRAM: Foundation.
THE COURT: Overruled. You may answer.
A. No, he doesn’t.
Q. But the defendant refused to take
these tests?
A. That’s correct."
On cross-examination, defense counsel also elicited testimony
from Sergeant McCormick that defendant asked to have his lawyer
present before submitting to blood and urine tests and demanded
- 10 - to call his lawyer.
Defendant testified, on direct examination, that when
Sergeant McCormick asked him to submit to blood and urine tests,
defendant said he would only do so if he could speak to his
attorney. Defendant testified that Sergeant McCormick told him
he did not have the right to speak to his lawyer and asked him
again if he was willing to take the test. Defendant refused.
Defense counsel asked defendant why he wanted to speak to his
attorney. Defendant responded, "Because that is my right." On
cross-examination, when asked whether he had some things to say
to his attorney, defendant testified that he asked for his
attorney. Defendant also testified he refused to submit to blood
or urine testing because he had the right to speak to his
attorney.
The State did not mention defendant's request for
counsel during opening or closing arguments. Defense counsel,
however, stated during closing arguments that defendant’s refusal
to take the blood and urine tests without an attorney present
illustrated that defendant was not under the influence. Defense
counsel stated defendant was "coherent enough to know" he should
talk to a lawyer. Defense counsel also stated defendant’s
request for his attorney was proof that defendant was able to
make a "conscious decision."
The jury returned a verdict finding defendant guilty of
- 11 - DUI. The trial court sentenced defendant as previously stated.
This appeal followed.
II. ANALYSIS
Defendant argues the State committed plain error when,
during direct examination and in the State's case in chief, the
State elicited testimony that defendant invoked his right to
silence by asking for an attorney. Defendant also argues the
State failed to prove him guilty beyond a reasonable doubt
because of insufficient evidence that defendant was under the
influence of alcohol.
A. The State Did Not Violate Defendant's Right to Silence by Eliciting Testimony About Defendant's Request To Speak to an Attorney
Defendant first argues the State committed reversible
error when it elicited testimony during its case in chief that
defendant refused to give blood and urine samples without an
attorney present. Specifically, defendant asserts such request
for counsel was equivalent to invoking the right to remain silent
guaranteed by the fifth amendment. U.S. Const., amend. V.
Defendant recognizes he has forfeited this issue by
failing to object at trial and include the issue in a posttrial
motion. See People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d
1124, 1130 (1988) (failure to object at trial or in a posttrial
motion results in forfeiture of the issue on appeal). However,
defendant contends that this court should review the issue under
- 12 - the plain-error doctrine.
The plain-error doctrine allows a reviewing court to
consider an unpreserved issue. People v. Herron, 215 Ill. 2d
167, 186-87, 830 N.E.2d 467, 479 (2005). This court may review
an error under the plain-error doctrine if (1) the evidence is
closely balanced or (2) the error is "so substantial that it
affected the fundamental fairness of the proceeding, and
remedying the error is necessary to preserve the integrity of the
judicial process." People v. Hall, 194 Ill. 2d 305, 335, 743
N.E.2d 521, 539 (2000). However, to determine whether the
alleged mistake rose to the level of plain error, we must first
determine whether an error occurred. People v. Johnson, 218 Ill.
2d 125, 139, 842 N.E.2d 714, 722 (2005).
1. No Error Occurred Because Defendant's Request for Counsel Was Not Equivalent to Asserting His Right to Silence
The fifth amendment to the United States Constitution
provides, in pertinent part, that no person "shall be compelled
in any criminal case to be a witness against himself." U.S.
Const., amend. V. To protect the fifth-amendment privilege
against self-incrimination, the State must inform defendants of
their rights to silence and counsel before they are questioned
during a custodial interrogation. Miranda v. Arizona, 384 U.S.
436, 444, 16 L. Ed. 2d 694, 706-07, 86 S. Ct. 1602, 1612 (1966).
In Doyle v. Ohio, 426 U.S. 610, 617-18, 49 L. Ed. 2d
91, 97-98, 96 S. Ct. 2240, 2244-45 (1976), the Supreme Court
- 13 - elaborated on Miranda and held that it would violate a
defendant’s due-process right if the State were permitted to use
a defendant’s postarrest, post-Miranda silence to impeach the
defendant. The Court reasoned that the Miranda warnings carry an
implicit promise that silence will carry no penalty. Doyle, 426
U.S. at 618, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245. Consequently,
the Court held that it would be fundamentally unfair for the
State to promise defendants they have the right to silence
through the Miranda warnings and then use the resultant exercise
of that right against them. Doyle, 426 U.S. at 618, 49 L. Ed. 2d
at 98, 96 S. Ct. at 2245.
Since Doyle, the Supreme Court has held, with respect
to post-Miranda warnings, the right to remain silent also
includes the "desire to remain silent until an attorney has been
consulted." Wainwright v. Greenfield, 474 U.S. 284, 295 n.13, 88
L. Ed. 2d 623, 632 n.13, 106 S. Ct. 634, 640 n.13 (1986). In
Wainwright, the Court held that the defendant’s request to speak
to an attorney after being given his Miranda warnings was
equivalent to exercising his right to silence. Wainwright, 474
U.S. at 295, 88 L. Ed. 2d at 632, 106 S. Ct. at 640. As such,
the State violated defendant’s due-process rights when it used
defendant’s request for an attorney as substantive evidence of
defendant’s guilt. Wainwright, 474 U.S. at 295, 88 L. Ed. 2d at
632, 106 S. Ct. at 641.
- 14 - Both Doyle and Wainwright involved postarrest, post-
Miranda assertions of the right to remain silent. In this case,
although defendant claims the issue involves a pre-arrest, pre-
Miranda assertion of the right to remain silent, the record
clearly demonstrates defendant was arrested. Therefore, this
case involves the use of defendant’s postarrest, pre-Miranda
silence as substantive evidence of guilt. Because defendant was
not given the implicit promise that silence will carry no penalty
that is embodied in the Miranda warnings, defendant’s due-process
rights were not violated when the State elicited testimony
regarding defendant’s request to speak to his attorney. Griffith
v. State, 55 S.W.3d 598, 606-07 (Tex. Crim. App. 2001) (en banc,
finding the State's elicitation of the defendant's request for
counsel did not violate his due-process rights because he had not
been given his Miranda warnings). However, the State’s
elicitation of a defendant’s postarrest, pre-Miranda silence can
still violate a defendant’s fifth-amendment right to silence.
In the context of a postarrest, pre-Miranda assertion
of the right to remain silent, courts have made a distinction
between impeachment use and substantive use. Where a defendant
takes the stand, the State can use the defendant's postarrest,
pre-Miranda silence for impeachment. Fletcher v. Weir, 455 U.S.
603, 607, 71 L. Ed. 2d 490, 494, 102 S. Ct. 1309, 1312 (1982).
The federal circuits are split on whether the State can use
- 15 - postarrest, pre-Miranda silence as substantive evidence of guilt.
The Seventh, Ninth, and D.C. Circuits have held that postarrest,
pre-Miranda silence is inadmissible as substantive evidence of
guilt because that use violates the fifth-amendment right to
silence. See United States v. Velarde-Gomez, 269 F.3d 1023,
1028-30 (9th Cir. 2001); United States v. Moore, 104 F.3d 377,
387-89 (D.C. Cir. 1997); United States v. Hernandez, 948 F.2d
316, 322-23 (7th Cir. 1991). The Fourth, Eighth, and Eleventh
Circuits disagree and hold that the State’s use of postarrest,
pre-Miranda silence as substantive evidence of guilt does not
violate the fifth-amendment right to silence. See United States
v. Frazier, 408 F.3d 1102, 1109-11 (8th Cir. 2005); United States
v. Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991); United States v.
Love, 767 F.2d 1052, 1063 (4th Cir. 1985).
This court need not, however, decide whether the State
can use postarrest, pre-Miranda silence as substantive evidence
of guilt because defendant’s request to speak to his attorney was
not an invocation of his right to silence. See Griffith, 55
S.W.3d at 603 (finding the defendant’s request to speak to his
attorney before deciding whether to submit to a breath-alcohol
test was not the same as expressing a desire to remain silent).
That is, when Sergeant McCormick asked defendant to submit to
blood and urine tests, defendant was not subject to custodial
interrogation. See Schmerber v. California, 384 U.S. 757, 760-
- 16 - 61, 16 L. Ed. 2d 908, 914, 86 S. Ct. 1826, 1830-31 (1966) (the
State can force a defendant to submit to blood-alcohol testing
without violating fifth-amendment privilege); People v. Bugbee,
201 Ill. App. 3d 952, 956, 559 N.E.2d 554, 556 (1990) (refusal to
submit to a Breathalyzer test is not an act protected by the
constitutional privilege against self-incrimination); People v.
Kern, 182 Ill. App. 3d 414, 416, 538 N.E.2d 184, 186 (1989) (a
defendant does not ordinarily have the right to consult with
counsel prior to taking a Breathalyzer test). Consequently,
defendant did not have the right to counsel under the fifth
amendment when he requested to speak to his attorney.
Therefore, this case is distinguishable from
Wainwright, which concluded that the defendant's request to speak
to an attorney was equivalent to invoking the right to remain
silent. In Wainwright, the defendant had the right to counsel
and was informed of this right through the Miranda warnings. In
contrast here, defendant did not have the right to counsel and
was not promised the right to counsel through the Miranda
warnings. Thus, defendant was not exercising a constitutional
right to counsel when he requested his attorney. Defendant made
the request because he erroneously believed he had the right to
speak with his attorney before submitting to the blood and
alcohol tests. As such, defendant’s request for an attorney
cannot be construed as an expression of his desire to remain
- 17 - silent.
Moreover, defendant's sixth-amendment right to counsel
was not triggered by Sergeant McCormick’s request that he submit
to a blood and urine test. The sixth amendment provides a
defendant with the right to counsel only "at or after the
initiation of adversary judicial criminal proceedings--whether by
way of formal charge, preliminary hearing, indictment,
information, or arraignment." Kirby v. Illinois, 406 U.S. 682,
689, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877, 1882 (1972). In the
context of a driving-under-the-influence investigation, the
compulsory withdrawal of blood is not a critical stage of the
proceedings at which a defendant has the sixth-amendment right to
counsel. United States v. Wade, 388 U.S. 218, 227-28, 18 L. Ed.
2d 1149, 1157-58, 87 S. Ct. 1926, 1932-33 (1967); cf. People v.
Okun, 144 Ill. App. 3d 1066, 1070, 495 N.E.2d 115, 118 (1986)
(discussing breath test). Therefore, defendant did not exercise
his right to silence by refusing to submit to blood and urine
tests without an attorney present.
2. Even if Error Occurred, Error Does Not Rise to Level of Plain Error
The mere fact, however, that defendant did not have a
right to counsel or invoke his right to silence by requesting the
presence of his attorney does not end the inquiry. Only relevant
evidence should be admitted, and even relevant evidence may be
excluded if its prejudicial effect substantially outweighs its
- 18 - probative value. People v. Ransom, 319 Ill. App. 3d 915, 921-22,
746 N.E.2d 1262, 1268-69 (2001). Even though a defendant does
not have the right to counsel when an officer requests blood and
urine tests, the references to the defendant’s request for
counsel might be prejudicial and might have allowed the jury to
improperly infer the defendant’s guilt. See Lajoie v. State, 237
S.W.3d 345, 353 (Tex. App. 2007) (court held that allowing the
jury to hear videotaped recording of defendant’s request for
counsel, even though he did not have the right to counsel, was
prejudicial).
Even if error occurred in this case, however, that
error does not rise to the level of plain error. Defendant
argues the State’s elicitation of the testimony and the "repeated
references" to defendant’s request for counsel prejudiced him and
"could have tipped the balance in favor of a finding of guilt."
We disagree.
The defendant bears the burden of proof under the
plain-error doctrine. Herron, 215 Ill. 2d at 186-87, 830 N.E.2d
at 479-80. The defendant must establish that the trial court
committed error and that the error was prejudicial. Herron, 215
Ill. 2d at 186-87, 830 N.E.2d at 479-80. An error is prejudicial
if the evidence in the case was so closely balanced that "the
error alone severely threatened to tip the scales of justice
against [the defendant]." Herron, 215 Ill. 2d at 187, 830 N.E.2d
- 19 - at 479.
In this case, the evidence was not closely balanced.
As discussed further below regarding defendant's sufficiency-of-
the-evidence claim, the jury heard testimony about defendant’s
erratic driving, prior stop by the police, presence at a tavern,
admission to drinking one hard cider, repeated futile attempts to
drive over the parking lot embankment, partial PBT sample of
0.04, serpentine-like walk, slurred and disjointed speech, act of
falling asleep in the police car, refusal to take blood and urine
tests, and possession of at least one or two empty bottles in his
car. In light of this substantial evidence of guilt, we conclude
the isolated and inconspicuous comments likely had little, if
any, prejudicial effect on the jury’s finding of guilt.
Specifically, the record indicates that the evidence
elicited by the prosecution was brief and isolated. The State
did not overtly use defendant’s request for his attorney as a
means of proving defendant’s guilt. Rather, the State elicited
the testimony to explain why defendant refused to submit to the
blood and urine testing. See State v. Fencl, 109 Wis. 2d 224,
238, 325 N.W.2d 703, 711-12 (1982) (finding the State's six
isolated and brief comments regarding defendant’s pre-arrest,
pre-Miranda request for attorney were too subtle to be
prejudicial). Further, defense counsel's failure to object
suggests the alleged error was not serious. See Fencl, 108 Wis.
- 20 - 2d at 239, 325 N.W.2d at 712 (trial counsel’s failure to object
or raise the errors suggested counsel viewed the errors as not
serious).
In fact, not only did defense counsel fail to object to
the testimony, defense counsel also elicited testimony about
defendant's request for counsel. Defense counsel questioned
Sergeant McCormick about the request on cross-examination, asked
defendant about his request on direct-examination, and relied on
the request during closing arguments to prove defendant was not
intoxicated. As such, defendant cannot argue he was prejudiced
by the testimony because he took part in its elicitation. See,
e.g., People v. Schmitt, 131 Ill. 2d 128, 137, 545 N.E.2d 665,
668 (1989) (holding that "where *** a party acquiesces in
proceeding in a given manner, he is not in a position to claim he
was prejudiced thereby"). Therefore, even if error occurred, it
was not plain error and does not warrant a new trial.
B. The State Proved Defendant Guilty of DUI Beyond a Reasonable Doubt
Defendant next argues the State failed to prove him
guilty of DUI beyond a reasonable doubt. Specifically, defendant
argues the State presented insufficient evidence that defendant
was under the influence of alcohol because the State did not
present evidence of field-sobriety or chemical tests, and the
symptoms the State presented to prove intoxication are
explainable by defendant’s extreme fatigue.
- 21 - 1. Standard of Review
When a defendant challenges the sufficiency of the
evidence, the test is whether, after "viewing the evidence in the
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond
a reasonable doubt." People v. Ward, 215 Ill. 2d 317, 322, 830
N.E.2d 556, 559 (2005). The trier of fact determines the
credibility of the witnesses, the weight to be given to their
testimony, and the inferences to be drawn therefrom. People v.
Curtis, 296 Ill. App. 3d 991, 999, 696 N.E.2d 372, 378 (1998).
The existence of discrepancies in a witness's testimony does not
warrant reversal, and minor discrepancies affect only the weight
of the witness's testimony. People v. Green, 298 Ill. App. 3d
1054, 1064, 700 N.E.2d 1097, 1103 (1998).
2. Elements of DUI Charge
Section 11-501(a)(2) of the Illinois Vehicle Code
provides that "[a] person shall not drive or be in actual
physical control of any vehicle within this State while *** under
the influence of alcohol." 625 ILCS 5/11-501(a)(2) (West 2006).
A defendant is under the influence when, as a result of consuming
alcohol or any other intoxicating substance, "'his mental or
physical faculties are so impaired as to reduce his ability to
think and act with ordinary care.’" People v. Gordon, 378 Ill.
App. 3d 626, 631, 881 N.E.2d 563, 567 (2007), quoting Illinois
- 22 - Pattern Jury Instructions, Criminal, No. 23.29 (4th ed. 2000).
The State can use circumstantial evidence to prove a
defendant guilty of DUI. People v. Diaz, 377 Ill. App. 3d 339,
345, 878 N.E.2d 1211, 1216 (2007). Further, the credible
testimony of the arresting officer by itself is sufficient to
sustain a conviction of driving under the influence. People v.
Janik, 127 Ill. 2d 390, 402-03, 537 N.E.2d 756, 761-62 (1989)
(holding that the arresting officer’s testimony about the odor of
alcohol, defendant’s watery eyes, and defendant’s poor
performance on the field sobriety tests was sufficient evidence
of intoxication).
3. The State Presented Sufficient Evidence That Defendant Was Under the Influence of Alcohol
Defendant argues the State did not prove him guilty
beyond a reasonable doubt because the State did not present
evidence of field sobriety tests or chemical tests. The
defendant’s argument is without merit, however, because the State
is not required to present scientific evidence to sustain a DUI
conviction. See People v. Casa, 113 Ill. App. 2d 1, 6, 251
N.E.2d 290, 293 (1969) (court held that scientific evidence is
not necessary to sustain a conviction of DUI).
Defendant also argues the State did not prove him
guilty beyond a reasonable doubt because the circumstantial
evidence--defendant's alleged "symptoms" of intoxication--could
also be explained by defendant’s extreme fatigue. Defendant
- 23 - argues the evidence of his "serpentine" walking, slurred speech,
disjointed and repetitive speech, and dilated eyes could have
been caused by his lack of sleep, rather than from a state of
intoxication. Consequently, defendant argues, the State did not
Defendant bases this contention on People v. Thomas, 34
Ill. App. 3d 578, 340 N.E.2d 174 (1975), which held that the
State failed to prove the defendant guilty beyond a reasonable
doubt because the symptoms the State presented to prove
defendant's intoxication might have been the result of
defendant's recent brain injury. Thomas, 34 Ill. App. 3d at 582,
340 N.E.2d at 177. In Thomas, the State relied on defendant’s
unsteady balance, slurred speech, disoriented mental state, red
eyes and face, and the odor of alcohol to prove defendant was
intoxicated. Thomas, 34 Ill. App. 3d at 580-81, 340 N.E.2d at
176. Because defendant’s brain injury could have produced all
the evidence the State presented to prove intoxication, except
the odor of alcohol, which alone is insufficient, a reasonable
doubt existed as to defendant’s guilt. Thomas, 34 Ill. App. 3d
at 580, 340 N.E.2d at 176.
This case is distinguishable from Thomas. Even if
defendant's symptoms could be attributed to his lack of sleep,
the State presented other circumstantial evidence sufficient to
prove defendant was under the influence. The jury heard
- 24 - defendant’s admission of drinking at least one hard cider that
evening. In addition, at least one or two empty bottles were
found in defendant’s vehicle. The jury could rely on the
inference from the fact that defendant started with 12 bottles
and ended the night with 10, and discredit defendant’s testimony
that Deputy Renken took two of the bottles. Moreover, defendant
provided only partial PBT samples on two separate attempts. The
jury was free to infer from the partial PBT samples that
defendant was being evasive because he knew he was intoxicated.
Defendant also testified that he was moving his vehicle because
he was going to get a ride home to Chenoa. The jury was free to
view this as a recognition by defendant he was unable to drive
due to his intoxicated state.
Further, defendant refused to submit to blood and urine
tests, which is statutorily permitted evidence that defendant
knew he was intoxicated. See People v. Garriott, 253 Ill. App.
3d 1048, 1052, 625 N.E.2d 780, 784 (1993) (evidence of driver’s
refusal to submit to test is relevant because it allows the jury
to infer that the defendant was aware of his intoxicated state);
625 ILCS 5/11-501.2(c) (West 2006) ("If a person under arrest
refuses to submit to a chemical test ***, evidence of refusal
shall be admissible in any civil or criminal action ***").
However, the record does not clearly establish whether
the DUI occurred on private property or the public highway, and
- 25 - consequently, whether the blood and urine test would have been
obtained pursuant to the implied-consent statute. Neither party
raises this issue. The DUI citation does state that the incident
occurred on the public highways, specifically, on the north alley
of the 200 block of East Locust in Fairbury. The implied-consent
statute states that a defendant arrested for DUI is deemed to
have given consent to chemical tests if he was driving upon the
public highways. 625 ILCS 5/11-501.1(a) (West 2006) ("Any person
who drives or is in actual physical control of a motor vehicle
upon the public highways of this State shall be deemed to have
given consent *** to a chemical test or tests of blood, breath,
or urine for the purpose of determining the content of alcohol
*** in the person's blood" (emphasis added)).
Regardless, evidence of refusal is admissible whether
the DUI occurred on private property or the public highways under
section 11-501.2(c). 625 ILCS 5/11-501.2(c) (West 2006) ("If a
person under arrest refuses to submit to a chemical test ***,
evidence of refusal shall be admissible in any civil or criminal
action ***"); see also Garriott, 253 Ill. App. 3d at 1051, 625
N.E.2d at 784 ("a refusal to submit to a [B]reathalyzer test is
admissible regardless of whether that refusal occurs within the
provisions of section 11-501.1 of the Code, the implied-consent
statute" (emphasis in original)).
Here, the jury was free to reject defendant’s claim
- 26 - that the symptoms he exhibited were attributable to his extreme
fatigue, rather than evidence of his intoxication. See People v.
Bonzi, 65 Ill. App. 3d 927, 932, 382 N.E.2d 1300, 1303 (1978)
(the court held that the jury was free to reject the defendant’s
argument that the symptoms he displayed after an accident were
due to his injuries rather than being evidence that the defendant
was under the influence). After weighing the evidence in the
light most favorable to the prosecution, we find a rational trier
of fact could have found the elements of DUI proved beyond a
reasonable doubt. Therefore, we affirm the trial court.
III. CONCLUSION
For the reasons stated, we affirm defendant's
conviction. As part of our judgment, we award the State its $50
statutory assessment as costs of this appeal.
Affirmed.
COOK and STEIGMANN, JJ., concur.
- 27 -