2022 IL App (2d) 220074-U No. 2-22-0074 Order filed December 5, 2022
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 18-CF-923 ) MANUEL LOPEZ, ) Honorable ) Alice C. Tracy, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court. Justice Brennan 1 and Justice Hudson concurred in the judgment.
ORDER
¶1 Held: We affirm defendant’s conviction of aggravated driving under the influence because (1) although defendant was not completely incapacitated, he was unable to exercise ordinary care as shown by his erratic driving; and (2) defendant’s innocent explanations for his indicia of intoxication did not create reasonable doubt.
1 Justice Brennan participated in this appeal but has since been elected to the Third District
Appellate Court. Our supreme court has held that the departure of a judge prior to the filing date
will not affect the validity of a decision so long as the remaining two judges concur. Proctor v.
Upjohn Co., 175 Ill. 2d 394, 396 (1997). 2022 IL App (2d) 220074-U
¶2 Following a bench trial, defendant, Manuel Lopez, was convicted of aggravated driving
while under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2018)) and driving
while his driving privileges were revoked (DWLR) (id. § 6-303(a)). He was sentenced to 14
months’ imprisonment for aggravated DUI and 56 days in jail for DWLR. In this timely-filed
appeal, defendant argues that he was not proved guilty of aggravated DUI beyond a reasonable
doubt. We disagree. Thus, we affirm.
¶3 I. BACKGROUND
¶4 The evidence at trial consisted of Elgin police officer Michael McCarthy’s testimony and
video from McCarthy’s squad car and body camera. McCarthy testified that he had 18 years of
experience as a police officer and underwent training in 2003 and 2017 for DUI detection. This
training included administering and interpreting the results of the horizontal gaze nystagmus
(HGN) test, which McCarthy used in the “vast majority” of stops he made where he suspected a
driver might be under the influence. McCarthy passed proficiency tests following these training
sessions.
¶5 As a seasoned police officer, McCarthy had participated in 50 to 60 DUI investigations—
not all of which led to DUI arrests. In addition to DUI investigations, McCarthy had observed
“[h]undreds” of people under the influence of alcohol in his personal and professional lives.
¶6 On May 6, 2018, at 5:49 p.m., McCarthy was on patrol with the Elgin gang unit. He was
driving northwest on Villa Street, approaching the “V” intersection at Villa Street and Sherman
Avenue. Villa Street runs northwest and southeast. Sherman Avenue starts at Villa Street and
runs west. A few yards northwest of where Sherman Avenue starts, George Street starts at Villa
Street and runs south, intersecting with Sherman Avenue. East of the intersection of George
Street and Sherman Avenue is a small triangular traffic island bordered by Villa Street, George
-2- 2022 IL App (2d) 220074-U
Street, and Sherman Avenue. Drivers on Villa Street can turn south onto George Street or west
onto Sherman Avenue. The triangular island separates traffic turning south onto George Street
from traffic turning west onto Sherman. At the intersection of Sherman Avenue and George
Street, there are stop signs on Sherman Avenue but not on George Street.
¶7 As McCarthy was driving, he saw ahead of him a Ford Expedition, also proceeding
northwest on Villa Street. A silver minivan was between McCarthy’s squad car and the
Expedition. There was a fair amount of traffic in both directions on Villa Street.
¶8 The Expedition turned west onto Sherman Avenue from Villa Street. The Expedition
approached the intersection of Sherman Avenue and George Street, which is only a few yards from
Villa Street. McCarthy watched as the Expedition “rolled” through the stop sign on Sherman
Avenue. McCarthy elaborated that the Expedition “slowed down” but did not pause or stop. No
cars were traveling on George Street when the Expedition rolled through the stop sign, but several
cars were parked on both sides of George Street. Fifty yards after rolling through the stop sign,
defendant turned north into the parking lot of Villa Liquors. Villa Liquors has limited, though
“[s]tandard-sized,” parking spaces and a “quite wide” space between the row of parking spaces at
the front of the store and another row of parking spaces right off the intersection of Villa Street
and George Street. People were entering and exiting the store. Two cars were backing out of
parking spaces as the Expedition rolled through the stop sign and drove into the liquor store’s
parking lot.
¶9 The Expedition waited for one of these vehicles to exit their parking space near the store
entrance. The Expedition then pulled into that space at a 45-degree angle, almost hitting the
adjacent car on the Expedition’s driver’s side. Once in the parking space, the Expedition stopped
only six to eight inches from the adjacent car. McCarthy explained that the Expedition stopped
-3- 2022 IL App (2d) 220074-U
abruptly and “lifted upwards.” Based on what McCarthy observed, he believed that the
Expedition’s driver might have been impaired.
¶ 10 McCarthy activated his emergency lights and parked his squad car in the parking lot. He
approached the Expedition’s front driver’s side while his partner approached the front passenger
side. McCarthy recognized the driver as defendant, with whom McCarthy had prior interactions.
Defendant’s cousin was in the front passenger’s seat. Both front windows were completely down
as McCarthy and his partner interacted with defendant and his cousin.
¶ 11 McCarthy asked defendant for his driver’s license and insurance. Defendant, who was
cooperative and respectful, told McCarthy that his license was suspended and he did not have
insurance. While talking with defendant, who had a heavy Spanish accent, McCarthy noticed a
“strong odor” of alcohol on defendant’s breath. McCarthy also noticed that defendant mumbled,
his speech was slightly slurred, and his eyes were red and watery. When McCarthy asked if
defendant had been drinking, defendant denied that he had. However, defendant told McCarthy
that he had been drinking at a party the day before. McCarthy asked defendant if he would submit
to field sobriety testing. Defendant said no.
¶ 12 After the adjacent car on the Expedition’s driver’s side left her parking space—requiring
quite a bit of maneuvering—defendant exited the Expedition at McCarthy’s request. Defendant
did not need to use the driver’s door for assistance in exiting, nor did he stumble or sway.
McCarthy asked defendant to walk to the sidewalk in front of Villa Liquors. Defendant did so
without any issues. McCarthy observed that defendant’s appearance was orderly except that his
pants were halfway unzipped.
¶ 13 Once on the sidewalk, McCarthy again noticed that defendant’s eyes were watery and red
and that his breath still had a “strong odor” of alcohol. McCarthy told defendant that he wanted
-4- 2022 IL App (2d) 220074-U
to check defendant’s eyes. McCarthy then administered the HGN test. Defendant, who told
McCarthy that he needed an operation on his right eye, did not successfully complete this test.
Specifically, defendant was unable to keep his hands out of his pockets after being told at least
four times that his hands had to remain at his sides; he moved his head at least four times (once to
the right and at least three times to the left) after being told to keep his head stationary; and he was
unable to track McCarthy’s finger, as instructed, throughout the test. After defendant failed to
complete the HGN test, McCarthy asked if he would submit to other field sobriety tests.
Defendant said no. McCarthy then arrested defendant for DUI, as he believed defendant was not
fit to operate a motor vehicle.
¶ 14 Defendant was transported to the police station while McCarthy remained at the scene to
inventory defendant’s vehicle. On the floorboard behind the front passenger seat, McCarthy
found “several” open containers of alcohol among other items such as slabs of marble.
¶ 15 Later, McCarthy returned to the police station. McCarthy read defendant the “Warning to
Motorists” and observed defendant for 20 minutes. Even with a partition between them,
McCarthy still detected a “strong” odor of alcohol on defendant’s breath. After 20 minutes
passed, approximately 1 to 1½ hours after defendant was stopped, McCarthy asked defendant to
submit to a breath test. Defendant refused. McCarthy noticed that defendant’s eyes were still
red and glassy, he mumbled and slightly slurred his speech, and his breath still smelled strongly
of alcohol.
¶ 16 McCarthy advised defendant of his rights under Miranda v. Arizona, 384 U.S. 436 (1966).
Defendant waived his Miranda rights and spoke with McCarthy. After the interview, defendant
made a phone call, “crying *** with the person he was speaking to.”
-5- 2022 IL App (2d) 220074-U
¶ 17 McCarthy determined that defendant was under the influence and unfit to operate a motor
vehicle. He based this conclusion on his training and the “totality of the circumstances” he
observed. These observations included defendant’s “erratic” driving by rolling through a stop
sign and almost hitting a parked car; the strong odor of alcohol on defendant’s breath; his
mumbling and slightly slurred speech; his red and watery eyes; his inability to complete the HGN
test; and his refusal to take other field sobriety tests. McCarthy agreed that any one of the
foregoing observations could be caused by something other than alcohol consumption. He also
recognized that “one individual [observation] in itself isn’t necessarily an indicator” of
intoxication.
¶ 18 The trial court found defendant guilty of aggravated DUI and DWLR. In doing so, the
court relied on People v. Williams, 2018 IL App (2d) 160683, ¶ 15, wherein this court held that
the State in a DUI prosecution need only prove beyond a reasonable doubt that the defendant was
impaired by alcohol, not that the defendant was completely incapacitated. The trial court also
noted that, as stated in Williams, the testimony of a single officer, if credible, can sustain a DUI
conviction. The court then determined that the evidence presented—McCarthy’s credible
testimony and the videos—established defendant’s guilt beyond a reasonable doubt. Specifically,
the court found that defendant’s ability to drive was poor given that he rolled through a stop sign
and almost struck a parked car. Also, defendant’s eyes were red and watery, he mumbled and
slightly slurred his speech, and he could not successfully complete the HGN test. Moreover,
defendant had a strong odor of alcohol on his breath throughout his interaction with McCarthy, yet
he denied drinking. The court found that this denial showed defendant was not truthful.
Similarly, defendant refused to submit to field sobriety tests (other than the HGN test) or a breath
test, which the court believed showed consciousness of guilt.
-6- 2022 IL App (2d) 220074-U
¶ 19 Defendant filed a posttrial motion, arguing, among other things, that the State failed to
prove beyond a reasonable doubt that alcohol impaired his ability to drive. Defendant withdrew
this motion, and the parties agreed on sentencing, including consecutive sentencing on an unrelated
case. This timely appeal followed.
¶ 20 II. ANALYSIS
¶ 21 On appeal, defendant argues that he was not proven guilty beyond a reasonable doubt of
aggravated DUI. When a defendant challenges on appeal the sufficiency of the evidence, we view
the evidence in the light most favorable to the State and consider whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt. People v.
Patterson, 314 Ill. App. 3d 962, 968-69 (2000). “In a bench trial, it is the job of the trial judge,
sitting as the factfinder, to make determinations about witness credibility.” People v. Williams,
2013 IL App (1st) 111116, ¶ 76. Those credibility determinations are entitled to great deference
and will rarely be disturbed on appeal. Id.
¶ 22 In assessing whether a defendant was proven guilty beyond a reasonable doubt, we need
not engage in a “point-by-point discussion of every piece of evidence as well as every possible
inference that could be drawn therefrom.” People v. Wheeler, 226 Ill. 2d 92, 117 (2007). “To
engage in such an activity would effectively amount to a retrial on appeal, an improper task
expressly inconsistent with past precedent.” Id. Moreover, we will neither disregard inferences
that normally flow from the evidence nor search out all possible explanations consistent with a
defendant’s innocence and raise them to the level of reasonable doubt. Id. Rather, we will
reverse a defendant’s conviction only if the evidence is so improbable or unsatisfactory as to raise
a reasonable doubt of the defendant’s guilt. People v. Collins, 106 Ill. 2d 237, 261 (1985).
-7- 2022 IL App (2d) 220074-U
¶ 23 As noted, defendant argues that he was not proven guilty beyond a reasonable doubt of
aggravated DUI. To prove defendant guilty of aggravated DUI, the State needed to establish
beyond a reasonable doubt that defendant (1) was in physical control of a motor vehicle,
(2) without a valid driver’s license or legal permit, and (3) while under the influence of alcohol.
See 625 ILCS 5/11-501(d)(1)(H) (West 2018). Defendant does not deny that he was driving and
did not have a valid driver’s license or permit. However, defendant does argue that the State
failed to prove beyond a reasonable doubt the third element, i.e., he was under the influence of
alcohol.
¶ 24 To prove that defendant was under the influence of alcohol, the State had to establish that,
as a result of consuming alcohol, the defendant could neither think nor act with ordinary care.
People v. Diaz, 377 Ill. App. 3d 339, 344 (2007). Whether a defendant was under the influence
presents a question of fact for the factfinder to resolve. People v. Janikas, 127 Ill. 2d 390, 401
(1989).
¶ 25 Here, we determine that defendant was driving while under the influence of alcohol. That
is, the evidence established beyond a reasonable doubt that, because of alcohol consumption,
defendant could neither think nor act with ordinary care. Although there was evidence perhaps
suggesting that defendant was not impaired—e.g., he was cooperative, McCarthy was able to
understand him, and he had no issues exiting his vehicle or walking and standing in front of the
liquor store—other evidence suggested otherwise. Specifically, (1) defendant’s driving was
erratic, (2) his breath smelled strongly of alcohol for 90 minutes after he was stopped, (3) his eyes
were red and watery, (4) he mumbled and slightly slurred his speech, and (5) he could not complete
-8- 2022 IL App (2d) 220074-U
the HGN test. 2 Given the credible evidence that defendant was impaired and our deferential
standard of review, we conclude that a rational trier of fact could have determined beyond a
reasonable doubt that defendant was under the influence and unfit to drive.
¶ 26 Williams supports our conclusion. At issue in Williams was, among other things, whether
the indicia of intoxication the defendant exhibited was sufficient to prove beyond a reasonable
doubt that the defendant’s driving was impaired by alcohol. Williams, 2018 IL App (2d) 160683,
¶ 22. That indicia included that the defendant drove poorly; he smelled of alcohol; his eyes were
bloodshot, glassy, red, and watery; he swayed while standing; he admitted consuming four beers
several hours before he was stopped; and he refused to submit to field sobriety tests. Id. ¶¶ 3-4.
We concluded that this evidence was sufficient to prove the defendant’s guilt beyond a reasonable
doubt. In doing so, we acknowledged that defendant was able to do several things proficiently,
e.g., “he was able to drive his car through the intersection without weaving or jerking, he activated
his turn signal, he properly pulled into a parking space, he exited his vehicle without hesitation
and without stumbling or falling, and he was able to communicate with [the officers].” Id. ¶ 22.
We further acknowledged that the indicia of intoxication might have had innocent explanations,
e.g., defendant’s exhaustion, consumption of little food over the previous few hours, and a
malfunctioning vehicle. Id. ¶¶ 5, 8-9, 21-22. We also noted that the defendant cited a football
injury as his reason for refusing to take field sobriety tests. Id. ¶ 17. Nevertheless, we affirmed
2 The parties address whether an inference of intoxication can be drawn from the facts that
open containers of alcohol were found in defendant’s vehicle and defendant was crying when
talking on the phone at the police station. In the totality of the circumstances here, we find neither
fact material in assessing whether defendant was under the influence.
-9- 2022 IL App (2d) 220074-U
the defendant’s conviction, observing: (1) proof of intoxication does not require proof of complete
incapacitation, (2) weighing the evidence of intoxication against the defendant’s plausible
explanations was for the trier of fact, and (3) the evidence of intoxication was not so implausible
or unsatisfactory that it raised a reasonable doubt of the defendant’s guilt. Id. ¶ 19, 21-22.
¶ 27 So too here. The trial court, as the trier of fact, weighed the evidence of intoxication
against defendant’s plausible explanations and found that defendant was under the influence of
alcohol. That evidence may not have shown complete incapacitation, but it was sufficient to
establish defendant’s guilt of aggravated DUI beyond a reasonable doubt.
¶ 28 Defendant claims that Williams is not persuasive because the defendant in Williams
admitted drinking four beers while defendant here denied drinking. We find that difference
immaterial. There were indicia of intoxication presented here that were absent or explained in
Williams. But, more importantly, any appellate challenge to the sufficiency of the evidence in a
DUI case must be considered in light of its own unique facts and circumstances. See People v.
Norris, 399 Ill. App. 3d 525, 530 (2010) (in every reasonable doubt case, the trier of fact considers
unique facts and circumstances presented).
¶ 29 Defendant also argues that the evidence here “showed simply that [defendant] may have at
some point consumed alcohol, rather than that he was mentally or physically impaired by it.”
Defendant’s argument is misguided. The fact that defendant was not, colloquially, “falling-down
drunk,” means nothing. There is a continuum of impairment. Both the defendant in Williams
and defendant here were not completely incapacitated, yet the evidence did not “show[ ] simply”
that they had consumed alcohol. Rather, in both cases, alcohol consumption created an inability
to exercise ordinary care.
- 10 - 2022 IL App (2d) 220074-U
¶ 30 Finally, we note that defendant’s general approach on appeal is to consider the evidence
piecemeal and include every reasonable hypothesis consistent with defendant’s innocence. Aside
from claiming that the videos do not support McCarthy’s testimony or the trial court’s findings,
defendant claims that his need for eye surgery, his heavy Spanish accent, and his admission to
drinking the day before he was stopped explain why his eyes were red and watery, his speech was
not as clear as it could be, and he smelled of alcohol. Defendant also contends that the fact that
he refused to take any field sobriety tests “does not by itself necessarily prove that he was impaired,
and certainly does not itself constitute proof of [impairment] beyond a reasonable doubt.”
Moreover, defendant notes that even sober drivers roll through stop signs and park poorly.
Defendant further observes that, “[w]hile failing to come to a complete stop at the sign was
improper, it was not necessarily unsafe given the absence of other cars.” “And, even though [he]
parked in a swift and crooked manner, [he] ultimately did not strike the adjacent vehicle or any
other vehicle.”
¶ 31 We find defendant’s arguments unpersuasive, if not preposterous. Only by God’s grace
was no one harmed when defendant rolled through the stop sign at Sherman Avenue and George
Street. People and cars were moving about in the area; traffic on Villa Street could have easily
turned onto George Street and, within seconds, legally entered the intersection of Sherman Avenue
and George Street without stopping—to hit or be hit by defendant’s vehicle. Similarly, although
defendant did not hit the car next to him while parking, he easily could have hit it, other cars, or
more importantly, people entering and exiting the store. All this aside, defendant is essentially
asking us to do what we cannot, i.e., engage in a “point-by-point discussion of every piece of
evidence”—searching out innocent explanations for McCarthy’s observations and raising them to
a level of reasonable doubt. Wheeler, 226 Ill. 2d at 117.
- 11 - 2022 IL App (2d) 220074-U
¶ 32 III. CONCLUSION
¶ 33 For these reasons, we affirm the judgment of the circuit court of Kane County.
¶ 34 Affirmed.
- 12 -